Scholarly discretion in legislation
[permissible or prohibited]
Q585 :While discussing the question on smoking some
time back you remarked that “everything is permissible unless there is
cause to prohibit it. This is a basic principle which applies to food
and drink in the same way as it applies to actions and practices.”
However, more recently you have said on a couple of occasions that
“everything is permissible unless pronounced otherwise.” Apparently,
these are contradicting views on the same subject. The first view by
definition has more force and workability. Discretion, or Ijtihad,
could work in case of a difficulty. Please netment.
A585 : When we consider the two statements described
as contradictory, and try to find the contradictions, we have a
difficult task ahead of us. They speak of two somewhat different areas.
Allah has not forbidden us anything just for the sake of prohibiting
it. There is undoubtedly good reason for prohibiting everything that is
forbidden. Allah describes His Messenger as one who “makes lawful to
them what is good and forbids them what is evil.” The fact that some
type of food or drink, or some action or practice which is evil,
provides sufficient grounds for having it forbidden. The first
statement makes two points with regard the acceptability of anything or
any action: we start initially from the point of its permissibility. We
then look at its different aspects and if we find that it is evil or
harmful or can produce results which are neither desirable nor
beneficial, we can then pronounce it as forbidden or discouraged or
permissible. We do not make our judgment without having conducted a
full and proper evaluation. It is logical that the first statement
netes within the discussion of smoking and whether it is forbidden or
permissible. You will recall that the answer I have given relies
heavily on the effects of smoking on the smoker and the members of his
family and his work-mates and those who are in constant contact with
him. As the evidence available to us nowadays is overwhelming with
regard to the health hazards caused by smoking, we can easily conclude
that smoking is forbidden. We categorize smoking first as evil. As
such, there is no hesitation in pronouncing it as forbidden. The fact
that we regard everything as permissible in the first instance is based
on what Allah states in the Qur’an that He has made everything on earth
subservient to man. He should not do this and at the same time make
certain things forbidden unless they are harmful or evil to man
himself. In the second statement, the permissibility of all things and
all actions in the first instance is again stressed. It adds that
prohibition must be backed by a pronouncement which is made by a
netpetent authority. Since Allah Himself has made everything in the
heavens and on the earth subservient to man, then He is the only
netpetent authority to forbid man anything or any action. That is the
reason why we find that what Islam forbids is highly detailed in the
Qur’an and the Sunnah. But we do not have a long list showing us what
is lawful and permissible. This is because the general statement that
everything is permissible in the first instance suffices. To restrict
that general statement in the case of any particular matter needs an
authority. When we say that prohibition netes only from Allah, we
actually, and advisedly, make a very serious statement. This statement
is not short of supporting evidence. In the Qur’an we have direct and
explicit statement outlining what is forbidden to us. In surah 6,
“Al-An’am” or “Cattle”, Allah instructs the Prophet to make this
statement: “Say, nete and I will make clear to you what Allah has
forbidden you.” This is followed by a detailed list of serious sins and
offenses which relate to faith and social practices as well as the
rights of others. In the same surah, Allah tells us about the types of
food He has forbidden us. In Surah 4, “An-Nisaa”, or “Women”, he tells
us in great detail what is forbidden to us in marriage. Similarly,
direct and explicit statements of prohibition are given elsewhere in
the Qur’an and in the Prophet’s traditions and Hadiths. We have to
remember here that in matters of religion, the Prophet never spoke out
on his own accord. Whatever he stated was revealed to him by Allah, and
expressed either in Allah’s own words, as it is the case with the
Qur’an, or in the Prophet’s words as in Hadith. We also note that when
the Prophet pointed out to us that something is forbidden, he made that
statement absolutely clear. You described my first statement as having
more force and workability. You point out that it opens room for
scholarly discretion in evaluation of new matters and actions. The fact
is that the second statement does not in any way restrict that
scholarly discretion. The scholars of Islam are called upon to
constantly evaluate whatever is introduced newly in human life in order
to give Islamic judgment on its permissibility or otherwise. Their
work, however, must be based on what they have of guidelines stated
clearly by the Prophet. In other words, their terms of reference are
the Qur’an and the Sunnah. These two provide the necessary yardstick
for such a scholarly evaluation. Take again the example of smoking.
Scholars have to look at tobacco and determine whether it is harmful or
not, because the Prophet has told us that: “Everything that is harmful
is forbidden.” They have also to consider the principle stated by the
Prophet: “You shall not harm, nor reciprocate harm.” This means that
everything that is harmful either to oneself or to others is forbidden.
There are similar statements by the Prophet which provide us with
principles and guidelines. When we measure something newly invented
like smoking against these principles, we have the authority of Allah
to back our judgment that smoking is forbidden. If the determination
of scholars is then put into effect by a Muslim ruler, promulgating a
law to enforce it, then it acquires all the necessary force for
implementation. Indeed, the observance of a law is required in the same
way as observance of laws stated in the Qur’an and the Sunnah. Let us
take an example of a different sort. Islam states that it is the duty
of Muslims to obey their leaders as long as they do not order them to
disobey Allah. In practical terms, this means that if a ruler or a city
governor makes a regulation which is within his jurisdiction and which
does not involve disobedience to Allah in any way, then all Muslims are
required to enforce that regulation. It may be a simple matter like use
of a road, made to be used by people, whether by pedestrians or
motorists. It is there to facilitate their movement. Therefore, they
can drive in either direction, ride a bicycle or walk. When the
municipal council or the traffic department restricts a particular
street to make it a one-way street, in order to serve the interests of
the population and make traffic movement easier, such a regulation
acquires, from the Islamic point of view, a stronger force. Thus,
implementation is obligatory to everyone because, to start with, the
ruler, or any person or department to whom he delegates power, is
acting within his jurisdiction. He is furthering the interests of the
people in the first place. Secondly, driving in one direction in a
particular street does not constitute any disobedience to Allah.
Muslims are not only bound by the regulation itself to obey it, but
they are bound by their religion to observe that regulation. If someone
deliberately drives in the wrong direction in that particular street,
perhaps because he feels that it will save him a long roundabout
journey or because he feels that at that particular moment, there is
nobody neting in the opposite direction, he is not only netmitting an
offense, he is also netmitting a sin.
Our Dialogue ( Source : Arab News – Jeddah )