Kitab at-Tahir: Formulation of the Principles of Political Insight
by Muhammad Bello ibn Shaykh ibn Fodio
[This is a translation which was done in 1984 and recently turned up. I no longer have the Arabic to check it against to see if there are any mistakes.]
In the Name of Allah, the All-Merciful, Most Merciful
May Allah bless our master Muhammad and bless his family and his Companions and all the people of his religion. Thus speaks the Amir al-Mu'minin, Muhammad Bello ibn 'Uthman ibn Fodio, may Allah forgive them all and cover them with His mercy by the rank of the interceding Prophet!
Praise be to Allah who has removed the darkness of ignorance from His awliya' by the lights of gnosis and has given them knowledge of the correct criteria in the arena of the true and the false. I testify that there is no god but Allah, the King, the Eternal, and I testify that our lord and master Muhammad is His slave and His Messenger, sent with the best of all religions. He, may Allah bless him and grant him peace, lifted the darkness of all ignorance and removed all doubts. He made the path clear for the travellers and gave the most eloquent indications and proofs. May Allah bless him and grant him peace and bless all his family and Companions.
I have entitled this book "Formulation of the Principles of Political Insight". These are important principles and provide extremely useful lessons, and anyone desiring insight should learn them, and strive to memorise them so that the way will not be unclear for him, something that has happened to most of the people of the various conflicting convictions. We ask Allah to make the way easy and give success. He is the One who brings the answer.
Any general matter is made up of various elements, and discussion of a matter can only come after formulating what it actually is. What a matter is in its essential nature is what is indicated by its totality, and knowledge of this comes by its being defined, described or explained.
What is ascribed to matters can vary either according to the difference of the matters themselves or according to the varying degrees of possibility contained within one particular matter. Thus something can be correct because of what is intended by it in one instance and incorrect because of what is intended by it in another. This matter is permitted in this first instance and forbidden in the second � permitted at one time and not at another � permitted in one place and not in another � permitted in one state and not in another. This must be understood.
Every matter, whose rulings refer to single fixed meaning, is either entirely praiseworthy or entirely blameworthy. These essential matters are matters like belief and disbelief. Judgements about them do not vary according to what is ascribed to them, making them praised in one instance and blamed in another.
There are also matters that are relative. The former category comprises few things and the later many. Thus it has been said that there are only a few essential matters which are entirely blameworthy or praiseworthy. Most things are relative and subjective and vary according to different individuals, goals, times, places and states. Understand this properly. (Refer to a discourse by al-Hasan al-Yusi.)
Although these relative matters incur differing judgements, most of them have a predominant element and most judgements about them are based on the fact that they are fundamentally either praiseworthy or blameworthy. The exceptions are rare and due to some temporary condition. A man's mentioning himself, lying, anger and slander are basically blameworthy qualities. They can, however, sometimes be praiseworthy due to some temporary condition. For this reason, in his book, Nuzul ar-Rahma fi't-tahaduuthi bi'n-ni'ma, as-Suyuti says, "Scholars, may Allah be pleased with them, find it proper for a man to praise himself by mentioning his own good qualities in certain situations. This is an exception to the general rule, which is that man should be harsh on himself and not praise himself. Among the things that show this is that speaking about Allah's blessing is obeying the words of Allah, 'As for the blessing of your Lord, speak out!' (96:11) They have said that a man speaking about his own good qualities falls into two categories: praiseworthy and blameworthy. The blameworthy sort is to do so boastfully, displaying ones rank and superiority over his peers and similar things. This is not permissible since Allah says, 'So do not claim purity for yourselves.' (53:32) It is praiseworthy if it contains benefit � for instance, when someone commands the correct and forbids the objectionable, gives good counsel, points out something of benefit, teaches, disciplines, warns, reminds, makes peace between two people, averts evil from himself, or similar matters. In that case, he can mention his good qualities for that might make his words more likely to be accepted and people might be more inclined to rely on what he says." Other people have also said this, so remember it. (cf. Bahjat an-Nufus)
They have stated that something forbidden (mamnu') can be permissible if that will prevent something worse happening � as is the case when a man tells lies in a gathering in order to break up the unity of the unbelievers to make peace between people for the common good or to protect the property, honour, lineage, or person of a Muslim or on his own behalf when he is questioned about an act of rebellion he has committed, some property which someone is trying to seize from him by force, or from someone else. This is because truthfulness would have a detrimental effect in this instance and would lead to worse results. This is also the case when he fears that his wife and child would be alienated by the truth. In other words, it is permissible to do this to avert corruption or in order to bring about a beneficial result.
It is the same with slander. It is permissible when cautioning, seeking help or other such things. The Imams have mentioned this. (See at-Tamhid and al-Qawa'id by Zarruq).
Again it is said that anger is blameworthy except when it is on behalf of Allah or His Messenger. For instance, the Prophet, may Allah bless him and grant him peace, became angry when the honour of Allah was insulted. Then nothing could stand against his anger until the truth was victorious. In other words, anger has its proper place just as forbearance has its proper place. (See the Fath al-Mubin by Ibn Hajar al-Haythami)
It is also said that modesty is one of the noblest qualities and most perfect states. However, the dictates of the Shari�a must be observed in it. There are times when modesty can be blameworthy � for instance, when it prevents someone from commanding what is right or forbidding what is wrong if the necessary preconditions for doing this exist. This is a case where there is no room for modesty. It is the same when there is modesty concerning knowledge that prevents someone from asking about basic questions of the deen when they are unclear to him. Thus 'A'isha, may Allah be pleased with her, said, "How excellent are the women of the Ansar! Modesty does not prevent them from asking about things concerning their deen." Another hadith says, "In this deen of ours, it is not correct to be modest (i.e. this is blameworthy modesty) nor to be proud." (See al-Fath al-Mubin)
They said, "If someone has true belief, he fears Allah in what he says with his tongue. He speaks as little as possible, especially at those times when it is forbidden to speak � like after 'Isha' � except when there is some benefit in it related to the deen, such as conveying what Allah or the Prophet said, or teaching knowledge, or commanding the right and forbidding the wrong, providing it is based on sound knowedge, or making peace between people, or saying that which is better, or speaking well to people. The best words are when you speak the truth in the presence of someone in authority whose power you fear, using words which are firm and to the point. Also included are speaking with one's wife or guest or speaking about worldly things when they are connected to a man's needs or his well-being.
Many matters that are considered relative are neither praiseworthy nor blameworthy in themselves. Therefore it is said that what is not blameworthy in itself can be praiseworthy, but not because of something intrinsic to it. This refers to things like possessing rank, leadership and similar things, which are neither blameworthy nor praiseworthy in themselves. Sometimes they are praiseworthy and sometimes blameworthy according to the circumstances. That is why the Prophet, may Allah bless him and grant him peace, stated that this world was blameworthy when he said, "This world is cursed and everything in it is cursed." But he made it praiseworthy when he said, "It is an excellent mount for the believers." Allah Almighty praises people who seek leadership in this world by their saying in the Quran, "Make us imams for those who are fearfully aware." (25:74) Ibn 'Umar used to say, "Oh Allah, make me an Imam for those who are fearfully aware."
Malik, may Allah have mercy on him, said, "The reward of those who are fearfully aware is immense, so what about the reward of their Imam?" The Prophet, may Allah bless him and grant him peace, said, "I ask You for mercy by which I will obtain the honour of Your favour in this world and the Next." A man said to the Messenger of Allah, may Allah bless him and grant him peace, "Show me something I can do which will make Allah love me and will make people love me." He said, "Make do with little of this world and Allah will love you. Make do with little of what other people possess and they will love you." (Hadith) The truthful one (Yusuf, peace be upon him, said, "Put me in charge of the storehouses of the earth. I am a knowing guardian." (12:55)
Therefore it is necessary to examine the circumstances in each case in order to ascertain whether something should be permitted or forbidden. (See at-Tamhid.)
Although two things might appear outwardly similar, it does not necessarily follow in many cases that the inward reality is the same. It is necessary to differentiate between things that appear similar. Each thing should be clearly defined or qualified according to its own specific requirements. For instance: is it is good counsel or castigation; is it is proof of disputation; or similar things. One person defends the truth, another destroys it; one is a friend of Allah, another a false pretender, and there are many other examples for this is a large subject.
As for good counsel, its aim is to benefit the person who is being counselled, and it springs from compassion and kindness whereas the point of castigation is to condemn, show disdain, censure and revile someone under the guise of good counsel.
As for proof, which is a convention based on certain definite premises, its aim is to prove a case by means of certain clear evidence whereas the aim of disputation, which is a convention based on commonly known premises, is to defeat an opponent or to convince someone who is not capable of grasping the principles of he proof, even when it is not true.
As for rhetoric, which is a convention based on accepted premises coming from a trusted person, or from premises supposed to be true, its aim is to stimulate people to do what will be of benefit to them in their livelihood or what will help them in the Next World as preachers do, while poetry is a convention based on premises by which the self is expanded or contracted through use of metre and recitation with a sweet voice, whose aim is to stimulate the self to terror or desire. Fallacious reasoning is a convention based on using false premises which resemble the truth or what is commonly known, or which is based on false hypothetical principles, whose aim is to cause doubt and preference for things which are doubtful or to make someone else fall into error by making an error correct even though it is not correct.
There are different types of this fallacious reasoning which vary according to the person who uses them or what they are used for. Anyone who makes the common people imagine that he is a wise man who draws from proper proofs when he is not actually doing so is called a sophist. Whoever sets himself up to argue and to deceive the people of verification and to confuse them by fallacious reasoning is called a disputatious troublemaker (or subverter). One variety of this is that which is used by ignorant people is when one of two opponents enrages his adversary by using words which will distract his thoughts and make him angry. For instance, he might abuse him, find fault with what he says, expose a fault he recognises in him, interrupt him, use an unusual expression against him, or divert him away from the subject of the debate. This is called extrinsic fallacious reasoning. Although it is the worst type of fallacious reasoning because the aim of the one who uses it is to injure his opponent or to deceive the common people into thinking that he has defeated and silenced him. It is the type most frequently used in our time since most of the people of this time lack any real knowledge of basic principles but love winning and cannot distinguish between truth and falsehood.
The sign of someone who defends the truth is that he is familiar with both logic and tradition. He is very precise in transmitting traditions and bases himself on clear evidence. True knowledge does not come from hearsay or bigotry or dissension or dispute. Only someone who has clear evidence and who is precise about what he says is worthy of being consulted. If he is not like that, what he says should be refuted. The sign of the former is that he only speaks about a thing when it actually exists, but not when it does not exist, and only when it is a real possibility and not when it is not. He only speaks with a clear purpose, and he intends by his refusal to talk about other things to make things clear to anyone desiring to follow him. He does not intend by it to rebuke or criticise. He is careful that his words should not be a means of disclosing people's secrets or lead to preoccupation with their faults, or become a means of injury or castigating them, causing doubts about the people of truth or attacking them, or making sport of the honour of Muslims in gatherings of foolish people. One should be kind and merciful to ignorant people even if they are slaves, unless it is specifically necessary to speak the truth because of a judgement against them in the Shari'a. In this case, there is no room for silence or showing respect.
The clearest sign of someone who destroys the truth is that even if he knows the truth, he pretends to be ignorant of the prejudice inherent in his own opinions although that is transparent to him, vying for position or wealth by using the previously mentioned types of fallacious reasoning. His aim is abuse. This is what Sayyiduna Shaykh 'Abdu'l-Qadir al-Jilani said, "The type of person who should be the most hated is the corrupt faqih. He sees nothing but his own point of view and is only satisfied with his own understanding and his own illusions. When he speaks, he wrongs people. When he is silent, he betrays them. He uses generalisations when he should be specific. He lets common people speak although they do not have a proper understanding of language and he does not warn them against using words outside of their proper contexts nor rebuke them for showing bias against people."
Another sign is that he does not comply with the conventions of good counsel and does not give advice in the correct situation. He offers advice to a particular person openly and publicly in order to disgrace him or does something similar to actually naming him � like mentioning qualities which could only refer to that person. There is no such thing as a generalisation when, in fact, knowledge of the circumstances or understanding of the situation indicates a particular individual.
As regards the difference between a friend of Allah and a false pretender, it would require a lengthy explanation because of the many varieties of false pretenders and the great divergence of their states. It would take a whole book to deal properly with this difference.
What we have mentioned about this principle should be adequate for anyone whose insight has been illuminated by Allah so that he recognises similar things which are ambiguous and which usually confuse people and misguide those whoa are ignorant. Since my object in writing this book is to give insight into affairs of the deen, I have presented you with these premises and given you the basis of this precept so that you will have insight into problems as they arise.
After this, we will deal with five areas showing by examples how the above principle can be applied to them. This principle is that there are different judgements about what is praiseworthy or blameworthy according to different considerations and circumstances. Allah is the One who grants success and we ask His help.
Chapter One: Principle:
Things are judged according to what is intended by them. Anyone who learns knowledge for its own sake acts on it. Anyone who learns it for sane other reason is only out to disparage others. Referring to this, Ahmad Zarruq said in the 'Umda al-Murid as-Sadiq, "One instance of using a thing in the wrong way is when people use their knowledge to examine others, but do not use it to judge themselves. What you find is that when one of these people hears about a harmful matter into which ordinary scholars, fuqara' and others have fallen, he says, 'This is the state of people today. This is the way they act.' But he does not look at the same thing in himself. He is blind to his own faults, but sees the faults of his brother. That comes from him having a good opinion of himself and considering himself blameless. The Messenger of Allah, may Allah bless him and grant him peace, indicated this state when he said, 'There are those among you who see the speck in their brother's eye and do not see the tree trunk in their own eye.' (Hadith)"
The only thing that stops a scholar from acting by his knowledge is the fact that he learns it for the sake of other people. The only thing that will give them true fame is learning it for their own betterment. Anyone who learns knowledge for his own betterment is guided and given insight. Anyone who learns knowledge for the sake of someone else rarely benefits by it. If someone seeks this world by actions pertaining to the Next World, the punishment of his knowledge is the death of his heart, as traditions have indicated. So learn knowledge in order to apply it. Do not learn it for the sake of gain thereby making it an argument against yourselves rather than an argument for yourselves and against other people.
There are various types of things which are basically permissible but which vary greatly according to the intention behind them. It has been said that any permitted thing can, according to the intention or intentions behind it, become one of the things that bring you closest to Allah. Clothes and food are two of those things.
As for clothes, if the intention behind them is pride or to show superiority over others, there is no doubt that this is forbidden because showing-off and boasting are great wrong actions. Allah ta'ala says, "Allah does not love anyone vain or boastful." (4:36) And it says in a sound hadith, "While a man was letting his waist-wrapper trail on the ground out of pride, he was swallowed up by the earth and he will be tossed about in it until the Day of Rising." We read in another hadith, "If someone eats something to the detriment of another Muslim, Allah Almighty will give him the same from the boiling water of Jahannam. If someone wears a garment to the detriment of another Muslim, Allah Almighty will give him to wear a garment made of the fire of Jahannam. If someone gains a good reputation at the expense of another Muslim, Allah will appropriate his reputation on the Day of Rising." If someone's aim in dress is luxury and delight in permitted things, that is allowed, even though this is one of the qualities of women and idlers. It is not permitted to blame anyone who does that since Allah says, "Say: 'Who has forbidden the fine clothing Allah has produced for His slaves?'" (7:32) Imam Fakhru'd-din ar-Razi said, "This general statement applies to all types of adornment, That includes all types of dress and jewellery. If it were not that a text had came forbidding men to use gold and silk, these would be included under this general statement as well. However, a text has come forbidding them to men, but not to women." One of the commentators said that in general, all that can be enjoyed is included in this and there is no exception for any sort of food either unless there is a text which specifically forbids it. (See the Tafsir al-Khazin.)
I say: The following ayat confirms this interpretation. Allah says, "My Lord has forbidden indecency..." (7:33) Ibn 'Abbas said that it means: "Eat what you like and drink what you like as long as you avoid two characteristics: extravagance and arrogance." (See al-Khazin on the words of Allah, "Eat and drink but do not be profligate." (7:33))
If, however, his intent is to display Allah's blessing to him in order to show gratitude for it � since the display of a blessing is a sign of gratitude for it � then this is a duty for every rich man. It is stated in a sound hadith: "The Messenger of Allah, may Allah bless him and grant him peace, said, 'When Allah blesses a slave, he should display the mark of Allah's blessings on him. '"
If his intent is to receive delegations and those he loves, wearing good clothes is recommended for leaders of the people who can afford them. The Prophet, may Allah bless him and grant him peace, commanded the great Companions to wear good garments when receiving delegations and he encouraged them to do that. (See al-Iktifa' by al-Kila'i.)
If the aim is adornment for the 'Id prayer, wearing good clothes for the 'Id is recommended for everyone who can afford it. It says in one tradition, "The Messenger of Allah, may Allah bless him and grant him peace, commanded us to wear the best clothes we could find for the day of the 'Id." (See the Gloss on at-Taqyid.) Then he said, "It is prescribed that you should exalt the deen and strike terror into the enemy."
If the intent is for studying or teaching, it is as Ibn Hajar al-Haythami said in his commentary on the Forty Hadith of an-Nawawi: "When a man with very white clothes and very black hair came to us�" It can be taken from this that students and teachers should wear good clothes, especially white ones � a student because he is asking questions and a teacher because he is teaching you your deen." And he said in the Commentary on the Waghlisiyya that both scholars and students should adorn themselves with good clothes, particularly white ones, but did not oppose wearing other colours. The Prophet, may Allah bless him and grant him peace, wore red, black, white and green, but not blue. However, it is not related that either disapproved or approved of blue as a colour.
If the aim is to avert harm from yourself and your property or something similar to that, and it is only possible to do this by wearing fine clothes, then this is an obligation for anyone who can afford it. If, however, the intent is to gain some benefit, there is disagreement about whether that is permitted or forbidden � like a horn when there is a need for it. (See Bahjat an-Nufus by Ibn Abi Jamra.)
If the aim is to be attractive to your family so your womenfolk will find you handsome and therefore be content and not be on the lookout for anyone else, this is recommended for everyone who can afford it. Observing the rights of the family is part of the Shari'a. We read in a sound hadith, "Your family has a right over you."
If the aim is to promote the best interests of the Shari'a, this is more strongly recommended � like establishing particular forms of dress for rulers, qadis and governors even though this is contrary to what happened in the time of the Messenger and Abu Bakr because outward embellishment only occurred in the time of 'Umar, may Allah be pleased with him, when the Companions conquered Syria. They had dealings with non-Arabs and the non-Arabs only showed respect for good garments and outward forms. Some of the Companions thought that they should unite these people and put awe for the people of Islam into them by using every permitted type of clothing. On the other hand, some of them thought that scrupulousness would have a better effect on the self, as they feared its deceitfulness. If there is a specific benefit to be gained, there is no disagreement about wearing a garment which will bring that about. Therefore it is said that when 'Umar came to Syria and found that Mu'awiya ibn Abi Sufyan had appointed a chamberlain, was using fine horses, wearing sumptuous clothes and acting like a king, he questioned him about it. Mu'awiya said to him, "We are in a land where this is necessary." Then 'Umar said, "I neither order you to do that nor forbid you from it." He meant, "You have the best knowledge of your state and know whether you really need to do this, thus making it a good thing, or whether it is unnecessary and so not a good thing. "This indicates that �Umar and others thought that the states of rulers and governors vary in different cities, times and circumstances. That is why it is necessary to institute new adornments and political systems that did not exist in the past. It could even be that they are necessary in certain cases. (cf. Sunan al-Muhtadin by al-Mawwaq)
Al-Qarafi said, "The innovations which are recommended are derived from the principles which govern recommendation and evidence for them in the Shari'a � like the Tarawih prayers and establishing forms of dress for rulers, qadis, and governors, even though this did not exist at the time of the Companions, may Allah be pleased with them. This is because the aims and benefits of the Shari'a can only be obtained if there is respect for the governors in the minds of the people. At the time of the Companions, people respected them largely because of their respect for the deen. This was the case until that social order became unsettled and that generation disappeared. The next generation only respected the outward forms. For this reason, it was necessary to embellish the outward forms so that the best interests of the people could be served."
Chapter Two: Principle:
Every age produces new situations and creates specific requirements. It is therefore necessary to re-examine matters so that they do not fall outside the dictates of the Shari'a. The Shari'a demands that corruption be rejected and benefits be encouraged. It is stated by the men of knowledge that at the beginning of man's history, in the time of Adam, peace be upon him, people were in a weak state, so sisters were permitted to marry brothers, and many other things were permitted by Allah at that time. When the situation was expanded and there were many people, those things were forbidden in the time of the Israelites. Saturday, fat, camels, and many other things were made unlawful. They were under obligation to do fifty prayers a day and one kind of repentance entailed killing oneself. Impurities could only be removed by excision and there were other harsh requirements.
Then another time came when people's bodies became weaker and their stamina decreased, so Allah showed kindness to His slaves and permitted things that had been forbidden, lightened the prayers and accepted repentance. This shows that judgements and the Shari'a differ according to the time, and this is an aspect of Allah's kindness to His slaves and His continuing custom in His creation. It is also clear that the existence of these laws does not violate the basic principles and that they are not innovations deviating from the noble Shari'a. That is why al-Qarafi said, "There is no doubt that if the qadis, witnesses, governors, and trustees of our time had been alive at the time of the first community, they would not have been appointed or chosen for office. The government of these men would have been considered corrupt at that time. The best of our time is the worst of that time, and government by the worst is corruption. What was ugly then is now considered good and what was narrow is now wide. Judgements differ in different times." (From the Tabsira of Ibn Farhun.)
The men of knowledge have said that if someone is deep in debt and he is entitled to something from someone else deep in debt, judgement is awarded to him according to the dictates of general policy, but not according to the texts of fiqh since in reality, the property does not belong to either of them. However, giving that judgement according to the texts would lead to great corruption. Furthermore, it is well established in the Shari'a that it is actually a duty to choose the lesser of two evils. (This is from an-Nawazil by Ibn al-A�mash.)
The men of knowledge say that every time requires its own judgements inasmuch as the things which are considered permissible can be either recommended, forbidden, or disliked. Something that is recommended or permitted at one time can become forbidden and disliked at another. This comes about because in each case the new judgement is arrived at by using other evidence that requires that judgement. The statement that it is forbidden to gather for dhikr and that doing so is disliked in this time is a consequence of this � as is forbidding women to go out to the mosques and other things which have been forbidden because of what happens in them and because of them. There are two positions about these things. Some people say that because of the principle of cutting off the means, everything leading to a forbidden thing is forbidden on account of the thing itself. That is according to the school of Malik, may Allah have mercy on him. Others do not say this, but say that only the thing that takes a forbidden form is forbidden. This is according to the school of ash-Shafi'i and others. (See at-Tamhid.)
Al-Mawwaq said, "There are two permitted ways of honouring people. The first is what has come in the Shari'a, like offering the greeting "as-salamu 'alaykum". The second is what is not based on a text and was not done by the Salaf because the occasion for it did not arise at that time. It has only arisen in our time. Therefore it is now an obligation for us because the occasion for it has developed. This is like the types of address used by kings and men in high position, and standing up to honour people. All these and things like them are matters of custom which did not exist in the time of the Salaf, but which we do today. They are permissible."
Then he added that if it were not that there were recently developed reasons for these things, they would be disliked, but not haram. But after these reasons have developed, abandoning these customs would occasion a break in continuity which would itself be haram. When the disliked and the forbidden come into conflict with each other, then the decision has to be taken against the haram, even if something disliked occurs because of that. The ruling of these matters should be divided into the five categories of the Shari'a (i.e. wajib (obligatory), mandub (recommended), mubah (permissible), makruh (disliked), haram (forbidden). (cf. Sunan al-Muhtadin.)
Chapter Three: Principle:
Custom is when a particular usage predominates within an entire country or part of it. Coinage, furniture, weddings, the oaths of Muslims, indirect ways of declaring divorce, sales transactions and wills come under that heading. In other words, judgements about these things are based on customs. If those customs change, then the judgements change. If a new custom develops, that is taken into consideration. If a custom is abandoned, the judgements based on it disappear.
Ibn Farhun said about this in the Tabsira, "You find fatwas based on this principle, in other words, certain judgements are always based on custom. If a new custom develops, it is taken into consideration and if a custom is abandoned, judgements based on it disappear and you never need to refer to the texts in the books. When a man comes to you from outside your area to ask you for fatwa, do not answer him according to the customs which exist in your land. Ask him about the customs of his land and act accordingly following his customs rather than the customs of your own land and what is written in your books. This is clearly the truth. Rigidity regarding texts is always misguidance in the deen and ignorance of the goals of Muslim scholars and the Salaf.
Oaths about divorce and setting free are derived by means of this principle, both in their explicit and their indirect forms. Explicit statements can become allusions that require an explicit intention. And in the same way, allusions can become explicit statements that do not require an intention.
In the Kitab al-Ahkam, al-Qarafi said about the difference between fatwas and judgements (Question 39):
"The sound rulings concerning these matters in the school of Malik and ash-Shafi'i and others are based on habits and customs which then attain to the state of being legal precedents for the 'ulama' in these rulings. If these customs change and begin to indicate the opposite of what they indicated in the first place, are the fatwas which are written in the books invalid, thus necessitating a fatwa according to what the new customs demand, or should we say, "We must follow what went before (taqlid) and not invent Shari'a, because we are not worthy of making ijtihad, and therefore we can only give fatwa according to what is in the books transmitted from the mujtahids"?' The answer to this is that when these judgements based on customs are faced with a change in those customs, they then become contrary to legal consensus (ijma') and in this case, keeping to them amounts to ignorance in the deen. Rather, the rulings concerning everything in the Shari'a which follow custom have to change when the customs themselves change according to what the change in custom demands. This does not mean a new ijtihad on the part of those following what came before (muqallidun) which would necessitate their being qualified to make ijtihad as a precondition for doing so. It is rather a principle about which 'ulama' have already made ijtihad and they have agreed that it should be applied. We follow them in that without having to make any new ijtihad.
"It is also not a precondition that the custom has to change. For if we leave one land for another land where the custom is different from the custom of the land where we were at first, we must give fatwa according to the custom of that land, even though the custom of the land where we were has not changed. It is the same when anyone comes to us from a land whose custom is different to that in our land. We can only give him a fatwa according to the custom of his land.
"This being confirmed, I will present rulings by the people of the School which were made according to custom, thus making custom the basis of their fatwa. What happens today is different, so the ruling must be specific to what the new custom demands. You should know that in this case the meaning of custom is when the uttering of a phrase and its use tend to have a particular meaning so that when that phrase is used, that meaning is understood, even though the words themselves do not necessarily indicate it. This is the meaning of a custom where phrases are concerned and the true meaning of customary usage. It is the generally understood meaning which dominates, and this is what the fuqaha' mean when they say that customary usage takes precedence over literal meaning when there is conflict between the two. The Mudawanna states, 'When a man says to his wife, "You are haram for me" or "let go" or "free" or "I have given you to your family," the use of those phrases makes the treble divorce binding. It is no good him claiming that he meant less than three.' This is based on the fact that according to customary usage; these phrases are known to untie the bond of marriage and known to bring the divorce about. What is understood from the statement that the woman is haram is changed from what it normally means because if the phrase retained its literal meaning, the man would definitely be a liar, since by general agreement she is in fact lawful for him. The statement that she is haram is clearly false. The sense of this phrase taken literally does not mean that she is haram for him and that the state of her being haram existed before he made this statement. This is definitely not the truth. Therefore it must be said that it is custom that has changed the meaning in three ways � it dissolves the knot of marriage, signifies a treble divorce, and makes the divorce effective. On the other hand, some of the phrases used for divorce do not effect it although they are meant to and the marriage-knot is not definitively untied. Observing this principle is the reason for the apparent difference between the later people and the Salaf concerning this matter.
"This being confirmed, you know how you will not find anybody using these earlier forms for divorce. A long time has now passed and you do not hear of anyone using these phrases to dissolve the bond of marriage nor to signify a treble divorce. Therefore the custom involving these phrases is absolutely discarded. When the custom no longer exists, only the literal meaning remains, and in normal language, these phrases are not used to mean this and no one claims that they do mean this except for someone who does not know the language. If these phrases do not convey this meaning either literally or by custom or by intention or by extension, then these rulings are without any foundation, and fatwas without foundation are null and void by legal consensus and haram for anyone who pronounces them or believes them. In fact, the expression "haram" according to our custom today does dissolve the bond of marriage, but does not signify a treble divorce. It is well known that it now means this, unlike the other expressions mentioned at the beginning, and it can only occasion a ruling of divorce which is not final. If a man uses the other expressions for divorce, he must have a specific intention. If he does not make an intention or clarify it, nothing is binding because they are hidden allusions. However, most of the people of the School and the people of this time do not agree with this and do not acknowledge it. I believe that their position is contrary to the consensus of the community regarding it. These words are clear for anyone who reflects on this matter and has a sound intellect and good opinion, and is free of fanatical adherence to anyone of the schools, a state which is not fitting for the character of those who are fearfully aware of Allah ta'ala.
"The strange thing about them is that when they are asked the question: "If a man says to his wife, 'You are divorced (taliq),' does he need an intention?" They say, "No, because it is a linguistically clear statement intending to dissolve the bond of marriage because the word ta'-lam-qaf means "to set free" without qualification. That is why one says, 'a general (mutlaq) statement),' unreservedly (talq) halal,' 'an open (talq) face,' 'and so-and-so was freed (utliq) from prison' and 'his stomach was emptied (intalaq).' The tie of marriage is a type of bond. When any bond, including the bond of marriage, is undone, then the bond of marriage must necessarily be undone." But when it is said to them, "The expression 'You are free (muntaliqa) contains all of this," their only answer is that this has been abandoned in customary usage and can only be used in divorce when a specific intention is made. When it is said to them, "If it happens that someone utters the expression "muntaliqa" and this is know as meaning to dissolve the bond of marriage at that time or in that place while 'You are taliq' is not known to dissolve the bond of marriage according to their custom, then what is the ruling?" They have no choice but to say that the divorce is binding by the expression "muntaliqa" rather than "taliq" unless by using "taliq," the man intends to untie the marriage-knot, and this is the opposite of our position today. Then it must be said to them that it is the same with the phrase "haram" and what is said in fatwas regarding it must apply to the other expressions mentioned with it whether or not they are known by custom. Anything that is well known can be used without an intention whereas something which is not well known must be accompanied by an intention. As far as being well-known is concerned, it is not enough that it is just taken to have that meaning for that comes from the study of the School and investigation into it. Rather, well-known means that the people of that place only understand that phrase to mean that thing. It is not something which comes from what the fuqaha' say. They use the expression to mean that. This is what 'being well-known' means and it changes the meaning of an expression by customary usage. And Allah knows best."
The same rule applies to dress. Clothes are neither praiseworthy nor blameworthy in themselves. They can be praiseworthy or blameworthy with to different individuals and in different places. Thus it is said that one of the earlier people related that the Messenger of Allah, may Allah bless him and grant him peace, forbade the Arabs from trying to look like non-Arabs. But it has not been related that he commanded any foreign delegation that came to him to abandon their clothes in favour of the clothing of the Arabs. This is the basis of Ibn Rushd's approach to the Murabitun. He said, "There is no harm in what they wear because they are known by the way they dress and are the protectors of the deen." And he said, "Allah created people and he separated them in different lands and gave them different kinds of clothing. He did not oblige any of them to abandon his own clothing for any other kind of dress. The veil of the Murabitun is their garment and it is recommended for them to keep it and disliked for them to abandon it." He said, "There is no objection if any of them prays wearing a veil which is not the case with other people." (cf. Sunan al-Muhtadin by al-Mawwaq.)
The 'ulama' say that nothing that non-Arabs wear is forbidden unless it is forbidden in the Shari�a and basic principles indicate that it should be abandoned. What was meant by the non-Arabs it was forbidden to imitate were those who followed the way of life of Khosrau at that time. The prohibition was specific to what they did which was contrary to the demands of the Shari'a. If people do something which is in harmony with what is recommended, obligatory, or permitted in our Shari'a, we do not reject that simply because they use it, because the Shari'a is not prejudiced by virtue of resemblance. The Prophet, may Allah bless him and grant him peace, dug the ditch around Madina imitating the Persians. (See the above-mentioned book.)
It is said that when 'Umar came to Syria and found that Mu'awiya ibn Abi Sufyan had appointed a chamberlain, was using fine horses, wearing sumptuous clothes and acting like a king, he questioned him about it. Mu�awiya said to him, "We are in a land where this is necessary." Then' Umar said, "I neither order you to do that nor forbid you from it." He meant, "You have the best knowledge of your state and know whether you really need to do this, thus making it a good thing, or whether it is unnecessary and so not a good thing." This indicates that 'Umar and others thought that the states of the rulers and governors differ in different cities, times, and circumstances. That is why it is necessary to institute new adornments and political systems which did not exist in the past. It could even be that they are necessary in certain cases. (Refer to the book mentioned above. That has already been stated.)
Chapter Four: Principle:
The demands made on a person should be according to his rank and he should be addressed according to his background. A common man is not expected to have more than taqwa. A faqih is not expected to be anything other than correct. The murid is expected to have sincerity as well as the first two qualities. The gnostic is expected to have scrupulousness. A common man without taqwa is corrupt. A faqih without correctness is incompetent. A murid without truthfulness is a fraud who is amusing himself. (This is one of the principles in al-Qawa'id by Zarruq.)
Something that is common practice among ordinary people can constitute a shortcoming in the elite. That is how things are. The imperfection of the age, the imperfection of the people and the blameworthiness of the rulers, qadis, and false pretenders to piety does not mean that there has to be general corruption. Among the community of Musa there was a group who were guided by the truth and judged by it. This group continued to base themselves on the command of Allah and those who opposed them did not harm them until the command of Allah came. There is a poem on this:
Except for a group of them with virtue and restraint. There is
in respect to the common people,
a people who are elite in the sight of Allah.
This elite adorns the land as gems adorn the rings of kings.
"People are mines." In every land there are masters and in every region there are leaders. An individual is measured by his character. That is why it is said that people are the creatures of their character. As a general rule, no one is blamed unless there is a reason for it. (This is from al-Qawa'id by Zarruq with some additions.
Chapter Five: Principle:
If undue hardship would result, things are made easy. Grapes can be cultivated in this world even though that might lead to winemaking and wine-drinking. In the same way, you have to go out to get the necessities of life and go into the marketplace even though that might lead to you seeing a woman unrelated to you, falling into argument or indulging in forbidden behaviour. This and things like it are means which could lead to wrong action, but which it is not considered necessary to ban them on that account. This is the case when the Shari'a makes it easy for the nursing woman in respect of impurities which get onto her as a result of the child, provided they cannot be seen on the nursing garment. Things are also made easy in respect of mud resulting from rain, even if there is impurity and filth in it. It is also the case when someone has impurities on him as a result of being wounded in many places, for the fighter in respect of the urine of his horse, and for the person with haemorrhoids in respect of any discharge resulting from them. It is also permitted to abandon the pillars of the prayer and the conditions applying to it when you are under constraint as in the fear prayer or in the case of a sick person who cannot pray properly or other cases of that nature.
Ash-Shafi'i said, "Whenever there is constraint, there is an accompanying dispensation," indicating these instances when dispensation is allowed. The same thing applies when we are in a state where it is difficult to avert corruption. Then allowances are made as they are made in the previously mentioned instances. (Ibn Farhun said that in the Tabsira.)
An example of that is discovering the truth about a person who is accused of something and who is notorious for corruption according to how strong the suspicion is and the extent of his notoriety. It might be done by beating and imprisonment or by imprisonment without beating according to how notorious he is. Ibn Qayyim al-Jawziyya al-Hanbali said, "I have not heard of any of the Imams of the Muslims saying that a person against whom accusations of this sort are made can give an oath and be released without going to prison or undergoing sane other form of punishment. The release of someone like this after his giving an oath is not a ruling given by any school of the four Imams nor anyone else. If we were to let any of them take an oath and release him and let him go on his way in spite of knowing that he is notorious for corruption and has committed many thefts, and were to say that we could only arrest him if we have evidence from two just witnesses, that action would be contrary to the direction of the Shari�a. Whoever thinks that the position of the Shari'a is that someone like this gives an oath and is then released is terribly mistaken and opposes the texts of the Messenger of Allah, may Allah bless him and grant him peace, and the consensus of the community. Because of this terrible mistake, rulers have dared to oppose the Shari'a under the false apprehension that the direction of the Shari'a is not capable of dealing with people and the best interests of the community. They overstep the limits of Allah and abandon the Shari�a by rebelling in various ways and imposing innovations in government in a way that is not permitted. The reason for this is ignorance of the Shari'a. There is a sound hadith from the Prophet, may Allah bless him and grant him peace, in which he states, "Whoever holds to the Book and the Sunna will not be misguided." The actions of the Messenger of Allah, may Allah bless and grant him peace, indicating punishment and imprisonment of the suspect, have already been mentioned. Know that it is permitted to beat and imprison this sort of suspect and there is evidence in the Shari'a to establish that.
Another example is the punishment of someone who accuses righteous people of something not commensurate with their state. This is to protect the honour of the innocent from the people of evil and enmity. Asbagh said, "If the accused is someone known for righteousness and innocence, the accuser is punished whether or not he intended harm. "
Another example is stopping people from obduracy in telling the truth. This is one of the great sicknesses and its cure is recognition of the situations where the truth must be stated. Even if backbiting is true, it is still prohibited. Even if scandal-mongering is true, it is still prohibited. It is also forbidden for a man to talk about what he does with his wife in bed when he comes to her, even if it is true. Talking about this is one of the great wrong actions. Even if good counsel to someone in an assembly is true, it is humiliating. Only ignorant people do that because the point of giving legitimate good counsel lies in it being put to good use and reinforcing the ties of affection. If it is given in a gathering, it will not gain acceptance and it will bring about enmity and incur the blame of Allah. The person doing this should be too embarrassed to give good counsel in a gathering because when he counsels someone in a gathering, he forces the person to lie when he makes excuses for himself and to develop a grudge against him. That is a cause of great corruption. If, however, he gives him good counsel in private, when just the two of them are present, in a sympathetic manner and shows him how he is at fault regarding the matter in question with the intention of teaching him if he is ignorant of its shamefulness, the person who is counselled will thank him and love him for that and supplicate on his behalf. That will bring him good and will weigh in his favour in his balance. Telling the truth in every instance is neither commanded nor recommended either by Shari'a or by custom except when the recipient is someone who does not accept counsel because of his insolence. This person must be told the truth because his state demands it. Anyone who removes the veil of modesty from his own face should be censured. But if civil strife occurs and the scholar remains silent, then the curse of Allah is on him.
Yet another example of this is that when travelling, someone rebelling against Allah is not allowed to shorten the prayers nor is he granted any allowance to eat carrion in case of necessity. This is to act as a restraint in order to root out the rebellion in which he is involved, whether it is highway robbery, or extortion or fleeing from justice or simply disobedience. There is disagreement about whether he is permitted to eat carrion or forbidden from it to the point that he dies of hunger. Some of the 'ulama' have given permission to eat carrion. Ibn al-Faris and Ibn 'Abdu'l-Barr said that and it is the sound position.
If someone has an objection, their objection must be either based on ijtihad or intended to prevent something which might lead to the haram or due to lack of verification or weak understanding or insufficient knowledge or ignorance of the point or confusion in the presentation or sheer stubbornness. The way to guidance in all these cases is to refer back to the truth in what was said except in the last case. A stubborn man will not be impartial in the matter. As for the person whose objection is based on wanting to prevent something which might lead to corruption, if he refers back to the truth he will find that by maintaining his objection, which is intended to avert corruption, he is bringing about the very corruption which his objection is intended to prevent. An example of this is the warning which Abu Hayyan in his book, "The Sea" and "The River" and Ibn al-Jawzi in his "Tablis" and others have claimed and sworn to. What they have said indicates that this has been done by ijtihad on their part. Ibn al-Jawzi puts margins in his books containing the statements of various people and his rejection of them. That shows that his intention was to prevent something which might lead to the haram. Allah knows best.
Praise be to Allah in the first and the last. May Allah bless Sayyiduna Muhammad and his family and Companions and grant them much peace. Oh Allah, forgive me and all of those who say, "There is no god but Allah, Muhammad is the Messenger of Allah, may Allah bless him and grant him peace."