Abdul-Wahab Ibrahim Abu Sulaiman
Praise be to Allah the Lord of the Worlds and peace be upon Muhammad, who was sent as a messenger of mercy to humankind, and upon his family and companions, and upon those who followed them with good deeds till the day of judgment.
It is a truism that the Ummah is now going through a new era of change in all aspects of life in a way not witnessed before. Change is taking place in social, political, economic, cultural and other fields, a situation in which Muslims cannot help asking the following question:
What is the Islamic legal view in matters not provided for in Islamic jurisprudence?
This is known in Arabic as tark, that is to say ‘the principle of omission/gap in Islamic jurisprudence’, a subject which studies in jurisprudence have dealt with.
From the various studies on the subject of jurisprudential omission (tark) and on legislation (tashree‘), the following definition has emerged. Tark means: absense of a jurisprudential ruling from the Prophet Mohamed (PBUH) regarding new issues.
This study aims to tackle this important topic in a way which gives a clear picture of the stand of jurisprudence and of the ulterior objectives of the Shari’a (maqasid al-Shari’ah) in its regards, while taking into account the jurisprudence (fiqh) of the present time reality. Therefore, this study will focus on the attitudes of the jurisprudence and of the ulterior motives of the Shari’ah regarding the two aspects of tark: the legislative and the obligatory aspects.
This topic was tackled by one of the Islamic scholars, the late Mr. Abdallah bin as-Siddiq al-Ghumari (may Allah be pleased with him) in an independent document under the title: “Husn al-tafahum wal-dark fi mas’alat al-tark” (Understanding and Grasping Clearly the Principle of Jurisprudential Omission - Tark). The author clarified the issue by saying: “Reference to it (i.e. tark, or issues on which the Prophet, peace be upon him, did not make rulings) has been rife among contemporary scholars in order to prohibit or decry issues, while some hardline, scatter-brained authors have indulged in a lot of waste.
In his book Daleel at-Tark bayna al-Muhadditheen wa al-Usuliyeen (Definition of the principle of Omission among the Hadith Reporters and the scholars of Jurisprudence Fundamentals), Dr. Ahmad Kafi says: “Tark is considered to be one of the areas where ' many scholars have produced works permeated with confusion and bigotry. Such scholars have turned every issue not ruled upon at the time of the Prophet (PBHU) a prohibited one (haram) and a blamable innovation (bid‘a); every such issue among the righteous ancestors, not worth considering. They believe that what the state of the Ummah will improve if we abide by what the legacy of the righteous ancestors: what they had received and put into practise, we take into account and commit ourselves to it and what they had left aside, we do not touch.”
On the other hand, another group of authors went to the other extreme when they made licit every omitted issue and interpreted the Prophet’s Tradition (Sunnah) without much knowledge of it. Therefore, because of the permissive attitude, the door was opened to issues which the Prophet warned against when he stated: “Beware of not creating new issues (of doubtful, uncertain origins) in matters of religion; this is because every such doubtful new issue is a blamable innovation and that every such innovation leads astray.”
The fact that pertinent matters have not been mentioned in jurisprudence does not mean that there are jurisprudential gaps and this simply because of absence of reference to constantly changing issues. Islamic jurisprudence is rich in sources and rulings regarding important events.
As for the advancement and renewals achieved by nations, and which are not governed by any legal rulings, the Shari’ah has provided the law interpreters with numerous references thus equipping them to tackle issues with no legal precedents. In this case, the Law Giver in His wisdom has left the door open for the implementation of aims of a legal, universal, political, social and educational nature, whose legal grounding is derived from these Shari’ah references. This will enable the nations to adapt their situations in time and space in accordance with their potentialities and with no violation of the rules and their legal bases, and without creating a civilisational discrepancy between the jurisprudence and its modern societies.Prominent among these legislative rules and bases regarding the principle of omission (tark) are 1) analogy (qiyas); 2) communal interests; 3) fundamental innocence.
These legal principles along with the other fundamental rules were laid down with a view to deriving legal rulings for pertinent issues of everyday life that have not been provided for in the Qur’an and the Sunnah. The point is for Muslims to live in time and space within the framework of the noble Shari’ah, with a flexibility that enables them to behave in accordance with their time and while encouraging their Ummah to manage all its affairs within an organized legal framework in harmony with the Shari’ah rules and legal bases, not going against its aims.On the basis of these rules, the Ummah achieves its interests and manages its affairs in all the fields of modern life without any inconvenient, misgivings or disorder, but in conformity with the Shari’ah rules, as a whole legal corpus.
In Islamic jurisprudence, the principle of omission has led to three conflicting views:
- Dropping anything that did not exist during the time of the Prophet (PBUH). Therefore, the omitted subject will fall within the realms of the prohibited (haram) or the undesirable (makruh).
- The omitted subject is permissible and all uneasiness surrounding it should be lifted entirely.
- Decision on it needs to be made according to the specific situations and their circumstances in the light of the Shari’ah rules and aims, and in accordance with what works in the interests and projects of humankind as vice-regent on earth (al-mukallaf). However, man is required here to make sure Shari’ah is not violated, to shun what goes against its rules and against its aims, while reinforcing what is in agreement with it and with its aims.
This last view is the fairest and most appropriate in the distinction between events shuns harm, while strengthening what is righteous and beneficial.
Among the most syncretic view in this respect is that of the scholar of jurisprudence Muhammad ibn ‘Aqeel al-Hanbali who proposed a definition of the jurisprudential process during a debate with some scholars. Ibn ‘Aqeel said: “Political activity necessitates determination and no imam can evade this.” Another scholar stated: “There is no politics without conformity to Islamic law.” Ibn ‘Aqeel elaborated: “Politics is the body of actions whereby people involved in it are closer to righteousness and far from corruption.” If the Prophet (PBUH)
If the Prophet (PBUH) did not legislate for it and the Qur’an did not provide for it, then there are two alternatives: if you mean to say that ‘there is no politics unless it is in conformity with Islamic law, then this is correct. But if by politics you mean the sayings of the Prophet’s companions, then this is wrong and you are proving the companions wrong. Indeed, the Caliphs did…what no scholar would hush. For example, in the burning of copies of the Qur’an, they based their action on the principle of interest..”
For his part, Ibn al-Qayyim completes this statement in his response to the bigots and the narrow-minded, when he says:
“Where justice is established and where the intellect prevails, that is where Allah’s law, His religion, His satisfaction and His order are. For Allah assembled the means to justice, their evidence and His order in one single entity, while He deterred others from pursuing routes too difficult for them. He showed and made clear that his aim was the establishment of truth and justice, the upholding of equity by humankind. Therefore, whatever the means used to derive truth and the knowledge of justice, these must be the subject of rules. We are not saying that just politics runs against Islamic law as a whole; in fact it is one of its aspects, one of its chapters.”
THE PLACE OF THE PRINCIPLE OF OMISSION IN THE OBJECTIVES OF THE SHARI’A
It is common knowledge that the Prophet (PBUH) had special powers not shared by his Ummah. These constituted his prerogatives; hence his great deeds. He did not mean those deeds to be used for legislating and Muslims have not used these for worship, save when there was a definite purpose.The latter case apart, whenever the Prophet (PBUH) omitted to pronounce on one of the legislative issues, this is so for a definite legal purpose and for a particular interest in favour of humankind. The Prophet’s aims in omitting to enact rulings in the legislative process can be summarised as follows:
- Omission is a means to clarify rulings, such as action;
- Omission is a means to prevent the change of heart
- Omission is meant as an alleviation of burden for the Ummah;
- Omission is meant to favour mercy among the Ummah;
- Omission takes into account the feelings of others;
- Omission is meant to give flexibility to the Ummah in the management of its affairs in accordance with its interests in time and space without violation to its principles and values.
These items have been dealt with in detail in the research paper.SECOND PART: OMISSION IN MAN’S VICE-REGENCY /OBLIGATIONS ON EARTH (TAKLEEF)
The principle of omission regarding man’s earthly obligations (takleef) concerns the rulings pertaining to the actions of man.
Omission in the view of analysts of the jurisprudence of the various Islamic schools of thought (madhahib) is defined as “Any action for the purpose of choice.”
The purposes of omission regarding man’s obligations on earth concern the fundamental and secondary jurisprudential rulings derived by the Islamic scholars from legal sources based on the writings (naqliyah) and interpretations (‘aqliyah) of earlier scholars. For one reason or another, scholars preferred not to deal with such events and showed flexibility about them because they thought that tackling them would possible cause harm.
The purposes embodied in the principle of omission with respect to man’s earthly obligations include:
- The fear that ordinary people would take for obligatory issues that are part of the Prophet’s Tradition (Sunnah). The righteous ancestors (may Allah be satisfied with them) avoided to deal with some of the Prophet’s traditions on purpose for fear that ignorant people may take them to be Islamic obligations. This concerns, for example, the sacrifice of a sheep during the end-of-hajj festival.
- The interests:It is taken into account in relation to what antagonises it.
- Avoidance of harm
- Fostering closeness of heart among Muslims
- Forsaking what is doubtful for fear of falling into what is prohibited.
The research paper ends with whatever rules could be possible to assemble regarding the principle of omission in jurisprudence and in man’s earthly obligations (takleef). The paper conclusion can be summarised as follows:
- Social change is evidence of the vitality of human societies across time. This takes place in conformity with the criteria of their time, the directions pursued by their generations. Their subjects progress materially, culturally and from the civilisational point of view. This is the reality of the Ummah in the present time that is a new era in all aspects of life.
- Omission in jurisprudence was not the result of inadvertence or moments of unawareness on the part of the Wise Legislator (the Prophet of Islam) where pertinent events were concerned. On the contrary, he deliberately left these issues for the Ummah’s scholars to make intellectual efforts to interpret them according to the requirements of their own life and civilisational reality. He left them without rulings for lofty objectives, so that they link his perennial principles with their time-bound reality.
- He left without ruling whatever number of issues for reasons that serve human interests for a happy and easy life.
- The permission granted for some pertinent matters of life, after the time of prophethood, was taken for granted by the Prophet’s companions and those who followed them.
- One must take what is new and beneficial in the life of Muslims and test it against the global Shari’ah rulings and its lofty objectives and against the lawful objectives of man as a vice-regent on earth (mukallaf).
- It is not the role of the Islamic scholars to use the term ‘blamable innovation’ (bid’ah) on the derived secondary rulings which had not existed among the righteous ancestors, even if their subject-matter was accurate, if everyone takes upon himself to refer to the fundamentals of jurisprudence.
- The scope of the Shari’ah must widen to include pertinent issues in the light of the rules and objectives of the Shari’ah.
- The condition regarding all the issues mentioned so far is the moderation in any attempted action and the shunning of the extremes in defending or objecting to a given view.
- Last but not least, the Islamic scholars have shown a high degree of rigor when dealing with Shari’ah rulings that carry significant meaning in terms of the objectives of the Shari’ah. They drafted them meticulously, giving them a wealth of meanings. The research paper covered some of these rulings that fell within its scope without delving deep into their meaning.
Allah is our guide to the right path.
Author: Abdul-Wahab Ibrahim Abu Sulaiman.
The Holy Makkah 16/12/1432