Article 13
In origin, every
individual is innocent. No one should be punished without a court verdict. It
is absolutely forbidden to torture anyone;
and anyone who does this will be punished.
This article covers three issues:
The principle of innocence, the prohibition of imposing a penalty without a
judge’s sentence and the prohibition of torture.
As for the first issue, its
evidence is derived from what was reported by Wa’il Ibn Hajr who said: “A
man from Hadramowt and a man from Kindah came to the Messenger of Allah
and the Hadhrami said: “O Messenger of Allah
, this man has taken
from land which belonged to my father.” The Kindi said: “It is my land, it is
in my possession and I am farming it. He has no claim over it.” the Messenger
of Allah
said to the Hadhrami: “Do you have any proof?”
He said: “No.” Upon this the Messenger of Allah
said: “In this case you have his oath.” He
said: “O Messenger of Allah
! He is a rebel, he
does not care what he swears and he does not fear of anything.” He
said: “You have no other rights over him but
this” (reported by
Muslim). He
also said, “the burden of proof is upon
the plaintiff, and the onus of the oath lies with the
defendant”(reported by al-Bayhaqi with a sahih chain). In the
first narration, the Messenger of Allah
commissioned the plaintiff with the proof, and
this means that the defendant is innocent until proven guilty; in the second
narration, the Messenger of Allah
explained that in origin, the proof should be
provided by the plaintiff. This serves as evidence that the defendant is
innocent until proven guilty.
As for the second matter, its
evidence is derived from the saying of the Messenger of Allah
, “He
whose wealth I have taken, here is my wealth, let him take from it, and he
whose back I have lashed, here is my back, let him lash it” (reported by Abu
Ya’la from al-Fadl bin ‘Abbas). Al-Haythami said that in the chain of Abu Ya’la
Ata’ bin Muslim, who Ibn Hibban verified as trustworthy whereas others claimed
he is weak, and the remainder of the men are trustworthy. It is narrated in al-Mu’jam
al-Awsat of al-Tabarani with the wording “Whoever’s back I have lashed,
here is my back let him do the same to it, and whosoever’s honour I have abused
here is my honour let him do the same to it, and whosoever I have taken wealth
from here is my wealth let him do the same to it”. And in Ibn
Kathir’s al-Bidayah wa’l-Nihayah it came with the wording “Whoever’s
back I have lashed, here is my back let him do the same to it, and whosoever I
have taken wealth from, here is my wealth so take from it, and whosoever’s
honour I have abused, here is my honour let him do the same”. The
Messenger of Allah
said this in his capacity as a ruler; it means
let the one who has been wrongly punished retaliate against me and this serves
as evidence prohibiting the ruler from punishing any of the subjects without
establishing the charge for which he deserves such punishment. Also, it is
reported in the story of the mula’anah (husband’s accusation of his
spouse of adultery without witnesses) that the Messenger of Allah
said “If I was going to stone anyone
without proof I would have stoned her” (agreed upon and the wording is from
Muslim), and this means that he
did not stone her due to the absence of clear
proof even though there was doubt over her. This understanding is confirmed by
what is narrated by Ibn Abbas in the narration in which the Messenger of
Allah
ordered
a mula’anah to be carried out between the couple (refer
to Quran 24: 4-9), where the text says “So a man at the gathering said
to Ibn Abbas: “Is she the woman about whom the Messenger of Allah
said: “If I were to stone anyone without proof
I would stone such and such woman?”” He said: “No, that was a woman who used to
display vice after Islam””
(agreed upon), meaning that she used to be indiscreet but it was not proven; neither
through evidence and nor through admission. This means that the suspicion of
adultery was there, but despite this the Messenger of Allah
did not stone her, for it had not been
confirmed, and so he
said: “If I were to stone anyone, I would stone
such and such woman”. The conjunction “if” in the Arabic language denotes
abstention due to the absence of something, thus the stoning was not carried
out due to the absence of evidence. This serves as evidence that the ruler is
forbidden from imposing a penalty on anyone from among the subjects, unless he
or she perpetrates a crime which the Shari’ah deems to be a crime, and
once his or her perpetration of the crime has been proven before a competent
judge and in a court of law, because the evidence could not be admissible
unless it is established before a competent judge and in a court of law.
However, the ruler reserves the
right to take someone accused of a crime into custody before the charge is
established, pending a court appearance to look into the charge brought against
him. However, the detention should be for a limited period of time and it would
be wrong to detain the accused for an indefinite period. This period must be
short. Evidence about the permissibility of detaining the accused is derived
from what Al-Tirmidhi reported in a hasan narration, which Ahmad also
reported, and al-Hakim stated that the narration has a sahih chain, on
the authority of Bahz bin Hakim on that of his father on that of his
grandfather who said: “The Messenger of Allah
detained a person accused of a crime and then
he released him.” It has also been reported similarly by al-Hakim on the
authority of Abu Hurayrah that “The Messenger of Allah
detained someone accused of a crime for a day
and a night”, and though the
chain includes Ibrahim bin Khaitam who there is dispute over, it has also been
reported though other chains by al-Bayhaqi in al-kubra and Ibn al-Jarud
in al-Muntaqi on the authority of Bahzi bin Hakim bin
Mu’awiyah on that of his father on that of his grandfather: “The Prophet
detained someone accused of a crime for an
hour during the day and then released him”. All of this is evidence about the obligation of limiting
the period of detention, and that it should be for the shortest time possible,
since the Messenger of Allah
detained him for a day and a night, and that
he detained him for an hour during the day. Besides, this detention is not a
punishment, but it is rather a detention aimed at helping with the enquiries.
As for the third matter, it
denotes the prohibition of imposing a penalty upon the accused before the
charge against him has been established; it also denotes the prohibition of
imposing a penalty which Allah (swt) has made as a punishment in the hereafter,
that is the Hellfire, in other words the prohibition of punishing by burning
with fire. As for the prohibition of inflicting a punishment before
establishing the charge, its evidence is derived from the narration of the
Messenger of Allah
in which he
was reported to have said “If I were to stone anyone without
proof, I would have stoned her” (agreed upon from the narration of Ibn Abbas),
despite the fact that she was known to be an adulteress according to what is
understood from the words of Ibn Abbas. If it were fitting to inflict
punishment upon the accused in order to make them confess, the Messenger of
Allah
would have tortured that woman to make her
confess, knowing that she was indiscreet about her illicit behaviour. It is
absolutely forbidden to punish the accused and therefore it is forbidden to beat
the accused before the charge has been established. It is also forbidden to
insult him or to inflict upon him any punishment as long as his guilt has not
been confirmed. This is supported by what has been narrated from Ibn Abbas: “A man
consumed alcohol and got intoxicated; he was spotted staggering in a mountain
pass so he was taken to the Messenger of Allah
. As he neared the
house of Abbas, he gave his escort the slip and entered Abbas’s house and hid
behind him. They mentioned this to the Messenger of Allah
, so he
laughed and said: “Did he do it?” Then he
did not order them with anything regarding
him” (reported by Abu
Dawud and Ahmad, with the wording from Abu Dawud). So the Messenger of Allah
did not apply the punishment upon that man because
he did not confess and nor were the charges against him established in his
presence. This means that he was accused of drunkenness but this was not
confirmed and thus he was not tortured in order to make him confess and no
penalty was imposed upon him just for the mere accusation. Therefore, it would
be wrong to inflict any punishment on the accused prior to the establishment of
the charge before a competent judge and in a court of law.
As for the reports of “al-ifk”
(the lie) incident that ‘Ali (ra) beat the slave-girl before the
Messenger of Allah
, it should be
recognised that the slave-girl was not accused, thus it cannot be used as
evidence denoting the permissibility of beating the accused. Besides the
narration of ‘Ali’s (ra) beating of Burayrah, the Messenger of Allah’s
slave-girl, was reported by Bukhari and he
said that
‘Ali (ra) said to the Messenger of Allah
“Ask
the slave-girl”. It was the Messenger of Allah
who
did the asking. Bukhari did not mention that ‘Ali (ra) had beaten the
slave-girl. To quote from the narration “‘Ali bin Abi Talib said O
Messenger of Allah
, Allah has not made
it hard upon you and there are plenty of other women apart from her, and if you
asked the slave-girl she would tell you the truth.” So the Messenger of Allah
summoned the slave-girl and said: “O
Burayrah!…” In another narration from al-Bukhari, it was reported: “The
Messenger of Allah
came to my house and asked about my
slave-girl, so she said: “No by Allah, I do not know of any blemish, apart from
the fact that she would sleep to the point that the sheep would enter and eat
her dough. Some of his companions rebuked her and said: “Tell the truth to the
Messenger of Allah…”, and al-Bukhari did not mention that ‘Ali (ra) had
beaten the slave-girl.
However, in other reports, it was
mentioned that ‘Ali (ra) had beaten the slave-girl. Ibn Hisham mentioned that
he did beat her. In the Sirah of Ibn Hisham it was reported: “As
for ‘Ali, he said: “O Messenger of Allah
Women are plentiful and you can easily change
one for another. Ask the slave-girl, for she will tell you the truth.” So the
Messenger of Allah
called Burayrah to ask her, and ‘Ali got up
and gave her a violent beating, saying: “Tell the Messenger of Allah
the truth.” To which she replied: “I know only
good of her””. Assuming that this
report is sound, it however does not stipulate the permissibility of beating
the accused, because the slave-girl Burayrah was not accused in this case and
it cannot be said that she was a witness. She was not beaten for being a
witness because the Messenger of Allah
did ask other people but did not beat them. He
asked Zaynab Bint Jahsh and he did not beat
her, despite the fact that her sister Hamnah Bint Jahsh used to spread rumours
about Aaisha (ra) as al-Bukahri reported in the narration of al-ifk:
“…And her sister Hamna set about fighting her battle, so she perished alongside
those who perished”. Hence, Zaynab was suspected of knowing something and she was
questioned, but she was never beaten. Therefore, it would be wrong to say that
Burayrah was beaten in her quality as a witness; rather, she was rather beaten
in her quality as the slave-girl of the Messenger of Allah
. The Messenger of
Allah
is entitled to beat his slave-girl and to
order her beating. The Messenger of Allah
did ask his
slave-girl and he asked others as well and at the same time he kept silent over
Ali’s (ra) beating of the slave-girl and over the companions reprimanding her.
However he
did not beat any other person and nor did he
keep silent over the beating of any other person, which indicates that he
permitted her beating because she was his
slave-girl, and one is entitled to beat his
slave-girl in order to discipline her or to investigate a matter. Therefore,
this narration cannot be used as evidence about the permissibility of beating
the accused and the evidence pertaining to the prohibition of his beating
stands; this is reflected in the saying of the Messenger of Allah
: “If I
were to stone anyone without proof I would have stoned her” (agreed upon from
Ibn Abbas). Therefore, it is absolutely forbidden to beat, insult,
reprimand or torture the accused. It is however permitted to detain him because
evidence exists about this.
This is as far as the prohibition
of inflicting punishment upon the accused prior to establishing the charge is
concerned. As for the prohibition of inflicting a punishment which Allah (swt)
has made a punishment in the Hereafter, its evidence is reflected in what
al-Bukhari reported on the authority of ‘Ikrimah who said: “A group of apostates were
brought to the Amir of the believers ‘Ali so he burnt them; Ibn Abbas heard of
this and said: If I had been him, I would not have burnt them because the Messenger
of Allah
has prohibited this by saying: Do not punish
with the punishment of Allah”. Al-Bukhari narrated
on the authority of Abu Hurayrah that the Messenger of Allah
said “No one can punish by fire except
Allah”. Abu Dawud reported from the narration of Ibn Mas’ud with the
words, “It is not proper that anyone should punish by fire except the
Lord of the fire”. Therefore, if
the accused was brought before a competent judge in a court of law and shown to
have committed the crime he was accused of, he should not be punished by fire,
nor by that which is similar to it, such as electricity and nor by anything
else which Allah (swt) punishes with. Furthermore, it is forbidden to inflict
any punishment from among those not decreed by the Legislator (swt). This is so
because the Legislator (swt) has determined the punishments to be imposed upon
the guilty parties, and these are killing, lashing, stoning, exile, cutting,
and imprisonment, destruction of property, imposing a fine, vilification and
branding any part of the body. Apart from these, it is forbidden to inflict any
other type of punishment upon anyone. Hence, no one should be punished by
burning with fire, though it is permitted to burn his property, and nor should
anyone be punished by pulling his nails, nor by pulling his eyebrows, nor by
electrocution, nor by drowning, nor by pouring cold water over him, nor by
starving him, nor by letting him go cold and nor by anything similar. Punishing
the accused should be confined to the penalties decreed by the Shari’ah
and the ruler is forbidden from applying any other form of punishment apart
from these. Therefore, it is absolutely forbidden to torture anyone, and
whoever does so will be violating the Shari’ah. If it is established
that someone has tortured anyone else, he will be punished. These are the
evidences of this article.
Article 14
Actions are
originally bound by the Shari’ah
rules. Hence, no action should be undertaken unless its rule is known. The
things on the other side are originally mubah (permitted) as long as there is no evidence
that stipulates prohibition.
The Muslim is commanded to
conduct his actions according to the Shari’ah rules. Allah (swt) says “No
by your God, they shall not have true belief until they make you judge in all
disputes between them” (TMQ 4:65).
He (swt) also says, “Whatever
the Messenger brought you take it and whatever he forbids you abstain from it” (TMQ
59:7).
Therefore, the origin is that the
Muslim restricts himself to the Shari’ah rules. Besides that the Shari’ah
principle states: “No rule before the advent of Shari’ah”. In other words, no matter should be
given any rule whatsoever before the advent of the rule of Allah (swt) pertaining
it. Hence, before the advent of Allah’s (swt) rule, no matter should be given
any rule. This means that it should not be given the rule of permissibility,
for the Ibaha is a Shari’ah rule that must be established through
the address of the Legislator; otherwise it cannot be considered a Shari’ah
rule. This is so because the Shari’ah rule is the speech of the Legislator related to the
actions of the worshippers. Therefore, anything that has not been
mentioned in the address of the Legislator cannot be considered a Shari’ah
rule. Therefore, permissibility is not the non-advent of a prohibition, it is
rather the advent of Shari’ah evidence stipulating the mubah (permitted);
in other words the advent of the choice from the Legislator to either undertake
or abstain. Therefore, the origin is the abidance by the speech of the
Legislator, not the Ibahah; because the rule of Ibahah itself
requires a confirmation from the speech of the Legislator. This principle is
general, covering the actions and the things. So if a Muslim wanted to perform
any action, it would be incumbent upon him to abide by the rule of Allah (swt)
pertaining that action. Therefore, he must search for that rule until he knows
it and abides by it. In the same manner if a Muslim wanted to take or give
anything, whatever that object may be, it is incumbent upon him to abide by the
rule of Allah (swt) regarding that object. So he must search for that rule
until he knows it and abides by it. This is what the verses and the hadith
have indicated in their literal indication and their understanding. Therefore,
it is forbidden for a Muslim to undertake any action or to act towards anything
upon other than the Shari’ah rule; rather he is obliged to abide by the Shari’ah
rule in every action he undertakes and in every matter. After Allah (swt)
revealed “Today, I have perfected your Deen for you, completed my favour upon
you and have chosen for you Islam as your Deen” (TMQ 5:3), and
after He (swt) says, “And We have sent down to you the Book
explaining everything” (TMQ 16:89), neither one single action, nor one
single object has been left except that Allah (swt) has explained the evidence
for its rule, and it is forbidden for anyone, having understood these two
verses, to claim that some actions, some things or some situations are devoid
of the Shari’ah rule; meaning that Shari’ah has completely
ignored it and therefore it failed to designate an evidence or a sign to draw
the attention of the obligated to the presence of this Shari’ah rule, in
other words the presence of an Illah that indicated the rule to the
person obligated to abide by it; is it Wajib, or Mandub, or Haram,
or Makruh or Mubah? Such a claim and anything similar is
considered a slander against Shari’ah. Therefore, it is forbidden for
anyone to claim that such action is permitted because no Shari’ah rule
related to it has been mentioned and the principle is that if no Shari’ah
rule is mentioned it must be permitted, and in the same way it is not permitted
for anyone to say that this object is permitted because there is no Shari’ah
evidence related to it so the origin is permissibility if there is no Shari’ah
evidence. It is forbidden to claim this because every action and everything has
its evidence in Shari’ah; one must search for the rule of Allah (swt)
pertaining to the action or the object to take it and apply it as opposed to
making it permitted under the pretext that there is no evidence for it.
However, since the Shari’ah
rule is the speech of the Legislator related to the actions of the worshippers,
the speech has therefore come to deal with the action of the worshipper, not to
deal with the object. This speech has come to deal with the object in
consideration of its connection to the action of the worshipper. Thus the
speech is originally directed at the action of the worshipper and the object
came linked to the action of the worshipper. This is whether the speech was
regarding the action without any mention of the object whatsoever, such as
Allah (swt) saying “Eat and drink” (TMQ 2:60), or it has come regarding the object
without any mention of the action whatsoever, such as Allah (swt) saying “Dead
meat, blood and the flesh of the swine has been made forbidden to you” (TMQ 5:3).
Accordingly, the rule of prohibition in these three things is only in relation
to the action of the worshipper in terms of eating, buying, selling and hiring
and other actions. Therefore, the Shari'ah rule deals with the action of
the worshipper, whether this were a rule for the action or a rule for the
object. This is why the origin in actions is to be restricted (to the Shari’ah
rule) because the address is only related to the action of the worshipper.
However, by scrutinising the
elaborated evidences of the Shari’ah rules, it becomes clear that within
the texts which have come as evidences of the rules, the state of the text that
acts as an evidence for the action is different to the state of the text that
acts as evidence for the object, in terms of the manner in which the address is
directed. In the text related to the action, the address is directed to the
action alone, regardless of whether the object is mentioned or not. For
instance, Allah (swt) says “Dead meat, blood and the flesh of the swine
has been made forbidden to you” (TMQ 5:3)
Allah (swt) says, “And
Allah has made trade lawful and He has forbidden usury” (TMQ 2:275)
And He (swt) says, “Fight
the disbelievers who are close to you” (TMQ 9:123)
And He (swt) says, “Let
the man of means spend according to his means” (TMQ 65:7)
And He (swt) says, “Let
the trustee discharge his trust” (TMQ 2:283)
And Allah (swt) says, “Eat and drink” (TMQ 2:60)
And the Messenger of Allah
said “The buyer and the
vendor reserve the right to change their minds provided they do not separate” agreed upon through Ibn Umar and others.
And he
said “Give the employee his wage”reported by Ibn
Maja through Ibn Umar and al-Bayhaqi through Abu Hurayrah with a chain that was
deemed as Hasan by al-Baghawi.
In all of these texts, the
address has been directed at the action, and the object has not been mentioned.
And in other examples, Allah
(swt) says, “Yet from each kind you eat tender flesh” (TMQ 35:12).
And He (swt) says, “It
is He Who has made the sea so that you may eat thereof tender flesh” (TMQ
16:14).
And He (swt) says, “and We bring forth from it
grains, so that they may eat thereof” (TMQ 36:33).
And He (swt) says, “Verily those who unjustly eat up
the property of orphans” (TMQ 4:10).
And Allah (swt) says, “So that they may enjoy its fruits” (TMQ
36:35).
The address in all these is also
directed at the action, although the object has been mentioned and this is
similar to the address related directly to the action of the worshipper.
This state is different to the
state of the text related to the object, where the address is directed
exclusively towards the object, regardless of whether the action was mentioned
alongside it or not. For instance Allah (swt) says “Dead meat has been made
forbidden to you” (TMQ 5:3).
Allah (swt) also says “He
has only forbidden to you dead meat, blood and the flesh of the swine” (TMQ
2:173).
Allah (swt) also says “And
We have sent down water from the sky” (TMQ 23:18).
Allah (swt) also says “And
We have made from water everything that is living” (TMQ 21:30).
Also, the saying of the Messenger
of Allah (saw) pertaining the sea water: “Its water is pure and its dead flesh is
Halal”
(Sahih as reported by Malik through Abu Hurayrah).
In all of these the address is directed at the
object without mention of the action.
For instance, Allah (swt) says “O
you who have believed, Verily intoxicants, gambling, dedication of stones and
divination of arrows are an abomination of Satan’s handiwork. Avoid such things
that you may prosper” (TMQ 5:90).
Allah (swt) says “Did
you see the water that you drink” (TMQ 56:68).
Allah (swt) says “Did
you see the fire that you kindle” (TMQ 56:71).
Allah (swt) says “And
from the fruit of the date palm and the vine you get out wholesome drink and
food” (TMQ.16:67).
Allah (swt) says “And
truly in cattle will you find an instructive sign from what is within their
bodies between excretions and blood. We produce for your drink milk pure and
agreeable to those who drink it” (TMQ 16:66).
The address in all of these texts
is directed at the object, though the action has been mentioned. Such an
address is related to the object; thus it is an outlining of a rule pertaining
to that object. However, the rule’s relation to the object is reflected in the
fact that it outlines its rule vis-à-vis the action of the worshipper, not
vis-à-vis the object detached from the action of the servant, since it is
inconceivable for a object to have a rule unless it is related to the servant.
Therefore, the difference in the state of the text becomes clear with regard to
the manner in which the address is targeted.
This difference indicates that
although the Shari’ah rule is the speech of the Legislator related to
the actions of the worshippers some rules specified to things have however come
to outline the rule of these things in an unrestricted manner, even though
their rule was in relation to the worshipper as opposed to being isolated from
the worshipper. Through scrutiny, this indication outlines to us that the rules
of things have come through a general evidence, which in turn has come to
outline the evidence of the actions, and that whatever came specifically related
to things is in fact an exception from the general rule which had come as
evidence for them through the evidence of the actions. This is so because
detailed study has revealed that the Shari’ah text in which the address
was directly targeted at the action has come in general terms. Therefore all
the things related to it would be permitted because the request to perform or
the choice was general, encompassing all that which is permitted vis-à-vis this
request, and the prohibition of something requires a text. For instance, Allah
(swt) says “And (He) has subjected to you everything that is in the Heavens and
Earth” (TMQ 45:13). This means that the things in the skies and the earth have
been created for us by Allah, and therefore are permitted.
Allah (swt) also says “And
Allah has permitted trade” (TMQ 2:275) which means that Allah (swt) has
made the buying and selling of all things permitted; thus the ibahah of
selling and buying any of these things does not require an evidence, because
the general evidence comprises everything. So, the prohibition of selling
something, such as alcohol for instance, requires evidence.
Also, Allah (swt) says “Eat
of what is on Earth lawful and good” (TMQ 2:168) which means that
eating everything is Halal (lawful); thus the eating of a specific item
does not require an evidence to make it Halal, because the general
evidence has made it Halal. The prohibition of eating something, such as
dead meat for instance, requires evidence.
Allah (swt) says “Eat
and drink but do not waste by excess” (TMQ 7:31) which means that the
drinking of everything is permitted; thus the drinking of a specific item does
not require an evidence to make it permitted, because the general evidence has
made it permitted. However, the prohibition of drinking a specific item, such
as intoxicants for instance, requires evidence.
Similar to these, general
evidences are found permitting everything related to actions such as talking,
walking, playing, smelling, inhaling, looking and other actions which man
performs; thus the permission of anything related to them does not require an
evidence, but the prohibition of anything related to these actions does require
an evidence to make it forbidden.
Therefore, the evidences brought
by the texts and targeted at the actions have outlined the rule of things in a
general and unrestricted manner; therefore they do not require other texts to
outline their rules. Thus, the advent of specific texts related to things, once
the general rule of these things had been outlined, serves as evidence that
these specific rules have come to exclude the rule of these things from the
general rule. Hence, the Shari’ah texts have come to outline the Shari’ah
rule pertaining things, denoting that they are permitted; hence, they are
permitted unless a text exists to prohibit them. It is in this manner that the Shari’ah
principle “The origion of things is ibahah” is derived. These are the evidences for this article.
Article 15
The means to Haram
(unlawful) are forbidden if they most likely lead to Haram. But if there
is a doubt that a means might lead to Haram, then this means will not be
forbidden.
The evidence of this article is
reflected in Allah’s (swt) saying “Do not revile those who call upon other
than Allah lest they out of spite revile Allah in their ignorance” (TMQ
6:108). Insulting
the disbelievers is permissible and Allah (swt) has insulted them in the Quran.
However, if this insult were to lead the disbelievers to most probably insult
Allah (swt), it would become prohibited. This is because insulting Allah (swt)
is not permittedm and it is prohibited in the sternest fashion. This is how the
Shari’ah principle, “The means to Haram is forbidden”, has been deduced. However, the means
becomes prohibited if it would most likely lead to something prohibited, since
the prohibition of insulting their idols was because it was the cause which
would lead to the insulting of Allah (swt) – as demonstrated by the use of the
letter “fa” (lest) of causality in the verse, and if it was not most likely
that Allah (swt) will be insulted because of insulting their idols, like the
most likely probability (ghalabat al-dhann) required in any Shari’ah rule,
then the “fa” which indicates causality would not have been used to indicate
the prohibition. Therefore, if the means were not considered in the most likely
probability to lead to Haram but it was merely feared that it may lead
to haram, such as a woman going out without a face cover, where it is
feared that it might cause Fitnah, the means in this case would not be Haram,
because the mere fear that it might lead to Haram is not sufficient to
warrant a prohibition. On top of that, the Fitnah with respect to itself
is not prohibited upon the woman herself. This is the evidence of this article.
Another similar principle to this
one is the following principle: “If one specific item of a Mubah thing leads
to harm, that particular item becomes Haram and the thing remains Mubah”. This
is reflected in what is narrated when the Messenger of Allah
passed
through the land of Al-Hijr and people took water from its well. When they left
the Messenger of Allah
said “Do not drink
anything from its water and do not use it to make ablution for prayer. Whatever
dough that you prepared, give to the animals and do not eat anything from it.
None of you should go out at night unless he has a companion with him” reported by Ibn Hisham in his Sirah and Ibn Hibban in his al-thiqat. Drinking water is permitted, but that particular
water, which is the water of Thamud, has been made prohibited by the Messenger
of Allah
because it led to harm. However, water in
general remained permitted. Also, it is permitted for a person to go out at
night without a companion, but the Messenger of Allah
prohibited anyone from among that army, in
that particular night and at that particular place, from going out because it
led to harm. Apart from this, going out at night without a companion remained
permitted. This serves as evidence that a particular item of the permitted
thing becomes prohibited if it led to harm, while the thing in general remains
permitted.
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