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 comment.

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 comes 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 competent authority. Since Allah Himself has made everything in the heavens and on the earth subservient to man, then He is the only competent 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 comes 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, come 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 coming in the opposite direction, he is not only committing an offense, he is also committing a sin.

Our Dialogue ( Source : Arab News - Jeddah )