(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to Questions from Visitors to his Facebook Page "Feqhi")
Answer to a Question
To Hamdi al-Husseini
Question:
Eminent Scholar Ata Bin Khalil Abu al-Rashtah, may Allah protect you. Peace be upon you and the mercy of Allah.
It was stated in the book Ash-Shakhsiyyah al-Islamiyyah (The Islamic Personality), Vol. 3, p. 232: "Furthermore, the Companions (may Allah be pleased with them) used the prohibition as evidence for the defectiveness (fasad) and invalidity (butlan) of contracts. Among these is the argument of Ibn Umar regarding the invalidity of marrying polytheist women by citing the verse: 'And do not marry polytheistic women.' No one objected to him, and thus it was a consensus (Ijma')." My question, may Allah bless you, is: how can the matter be a consensus when the evidence—the verse—is already revealed?
Peace be upon you and the mercy of Allah.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuhu,
To clarify the answer to your question, I will quote the text you are asking about in its entirety. It appears under the title: "Prohibition of Actions and Contracts":
"The prohibition of actions and contracts that yield legal rulings, such as sale, marriage, and the like, is either directed at the essence of the contract itself or at something external to it. If it is directed at something other than the action or the contract—such as the prohibition of sale during the call to prayer on Friday—it does not affect the contract or the action in terms of invalidity (butlan) or defectiveness (fasad). However, if it is directed at the essence of the action or the contract itself, it undoubtedly affects the contract and the action, making it void (batil) or defective (fasid). The evidence that prohibition affects actions by making them void or defective is the saying of the Prophet ﷺ:
مَنْ عَمِلَ عَمَلاً لَيْسَ عَلَيْهِ أَمْرُنَا فَهُوَ رَدٌّ
'Whoever performs a deed that is not in accordance with our matter [religion], it is rejected.' (Narrated by Muslim).
What is meant is that it is not valid or accepted. There is no doubt that the prohibited act is not commanded, nor is it part of the Deen; therefore, it is rejected. There is no meaning to it being rejected other than voidness and defectiveness. Furthermore, the Companions (may Allah be pleased with them) used the prohibition as evidence for the defectiveness and invalidity of contracts. Among these is the argument of Ibn Umar regarding the defectiveness of marrying polytheist women—meaning its invalidity—by citing the verse:
وَلَا تَنْكِحُوا الْمُشْرِكَاتِ
'And do not marry polytheistic women...' (Surah al-Baqarah [2]: 221)
No one objected to him, and thus it was a consensus. Another example is the Companions’ argument for the defectiveness of interest-based (riba) contracts—meaning their invalidity—by citing the verse:
وَذَرُوا مَا بَقِيَ مِنَ الرِّبَا
'...and give up what remains [due to you] of interest.' (Surah al-Baqarah [2]: 278)
And by the saying of the Prophet ﷺ:
لاَ تَبِيعُوا الذَّهَبَ بِالذَّهَبِ وَلاَ الْوَرِقَ بِالْوَرِقِ
'Do not sell gold for gold, or silver for silver...' (Narrated by Muslim).
All of this is evidence that prohibition affects actions by making them void or defective. However, this applies only if the prohibition implies a prohibition (Tahrim) by being a decisive request to abstain. If the prohibition does not imply Tahrim—such as when it implies dislike (Karaha)—it does not affect the actions and contracts, because the effect stems from the Tahrim. Thus, the prohibition of an action or contract makes it void or defective." End quote.
By reviewing this text, it becomes clear that the "consensus" referred to in this context is the consensus of the Companions (Ijma' al-Sahabah) that the prohibition mentioned in the verse: "And do not marry polytheistic women" implies the invalidity of this marriage contract. Ibn Umar (ra) used this verse as evidence for the invalidity of the marriage contract with polytheist women, and none of the Companions objected to him. This indicates that the Companions held the view that a prohibition related to contracts and actions in the legislative texts—as in the mentioned verse—means the invalidity of the contract or action.
This is distinct from the direct indication of the verse. The verse directly indicates the prohibition of marrying polytheist women. However, the Companions agreed beyond that that the prohibition in the verse also signifies the invalidity of the contract. This is the point of consensus; it is a matter not explicitly "revealed" by the literal text of the verse itself, but rather clarified by the consensus.
To make the picture even clearer, let me present two scenarios:
First: A man asks you: "Is it permissible to marry a polytheist woman?" You would answer: "It is not permissible." He asks: "What is the evidence?" You reply: "And do not marry polytheistic women."
Second: A man asks you: "I am already married to a polytheist woman; should I continue or what should I do?" Here, merely mentioning the verse is not a complete answer. If you say to him, "The Almighty says: 'And do not marry polytheistic women,'" he might reply that he will not do it in the future, but he is asking about his current situation. Here, the answer is only complete when you tell him that a consensus was reached that the prohibition in the Noble Verse means the invalidity of the contract. Thus, you answer that he must end the marriage contract with his wife because his contract is void (batil), as the prohibition in the verse, by consensus, implies the invalidity of the contract.
You can see here that the answer is not complete unless you mention the verse, state that there is a prohibition in the verse, and then add that the meaning of this prohibition by consensus is the invalidity of the contract. Were it not for the consensus that prohibition implies invalidity, you would be left uncertain in answering him about his prior marriage.
I hope the matter has become clear to you.
Your brother, Ata Bin Khalil Abu al-Rashtah
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