Series of Answers by the Honorable Scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of His Facebook Page Visitors "Fiqhi" (Jurisprudential)
To: Muhammad Ibrahim
Question:
Assalamu Alaikum wa Rahmatullahi wa Barakatuh,
Our honorable brother and guided scholar, I hope you can answer the following question:
The claim that "the origin in transactions is lawfulness and permissibility" is a statement that requires scrutiny, and attributing it to the majority of the four schools of thought requires precision and research...
This principle became widespread among later scholars, but in the books of relatively earlier scholars, we have not found this principle. For instance, Ibn Nujaym al-Hanafi, who is one of the Hanafi jurists (and it is said that this rule was common among them), mentioned only two rules:
"The origin in things is permissibility as long as no prohibition has been mentioned," and "The origin in conjugal relations is prohibition."
The question is: if the Noble Legislator exercised caution regarding conjugal relations and made prohibition the origin to protect lineage, does it not seem consistent to apply this to wealth and financial transactions, or at least not to say that the origin in them is lawfulness? Therefore, transaction issues must be studied within their general regulations to provide a ruling, for just as the Legislator protected lineage, He protected wealth...
I might be mistaken, especially since I have not tracked everything said by the scholars and jurists on this issue...
Because the danger is that for every modern form of transaction, we might move towards a ruling of lawfulness based on "the origin in transactions is lawfulness" without studying the reality of the issue and the nature of the evidence addressing it.
So, how valid is this rule? And did the jurists advocate for it?
Sender: Abu Zakaria from Lebanon.
Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
My brother, there are rules held by some mujtahidin (jurists) that we consider marjuh (less predominant/weaker), including the rule you mentioned ("the origin in transactions is lawfulness"). As for what is adopted by us (al-mu'tamad) and embraced due to the strength of its evidence, it is that "the origin in things is permissibility as long as no evidence of prohibition has been mentioned" and "the origin in actions is restrictedness by the Shari’ah ruling." We have addressed several other rules and explained that they are not predominant. Here is the clarification:
First: It was mentioned in The Islamic Personality, Volume 3, in the chapter "No Ruling Before the Arrival of the Shari'ah":
"[Accordingly, it is not said that the origin in things and actions is prohibition on the grounds that it is disposal in the property of Allah without His permission, thus making it prohibited by analogy to created beings; because the clear text of the Ayah states that Allah does not punish until He sends a Messenger, so one is not held accountable until the ruling is clarified. Furthermore, created beings are harmed [by unauthorized use of their property], while Allah (swt) is far removed from benefit or harm.
Likewise, it is not said that the origin in actions and things is permissibility on the grounds that they are a benefit free from any sign of corruption or harm to the owner, and thus are permitted. This is not said because the implication of the Ayah is that man is restricted by what the Messenger brought, as he is punished for violating it. Thus, the origin became the following of the Messenger and the restrictedness by the rulings of his message. The origin is not permissibility—meaning lack of restrictedness—because the generality of the verses of rulings indicates the obligation of returning to the Shari’ah and the obligation of adhering to it. Allah (swt) says:
وَمَا اخْتَلَفْتُمْ فِيهِ مِنْ شَيْءٍ فَحُكْمُهُ إِلَى اللَّهِ
"And whatever you differ in, its judgment is with Allah." (Surah Ash-Shura [42]: 10)
And He says:
فَإِن تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ
"If you disagree over anything, refer it to Allah and the Messenger." (Surah An-Nisa [4]: 59)
And He says:
وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَاناً لِّكُلِّ شَيْءٍ
"And We have sent down to you the Book as a clarification for all things." (Surah An-Nahl [16]: 89)
And because the Messenger (saw) says, in what was narrated by Ad-Daraqutni:
«كُلُّ أَمْرٍ لَيْسَ عَلَيْهِ أَمْرُنَا فَهُوَ رَدٌّ»
"Every matter that is not in accordance with our matter [this religion] is rejected."
This indicates that the origin is to follow the Shari’ah and be restricted by it. Furthermore, benefit that is free from signs of corruption or harm to the owner is not an evidence for permissibility...
Likewise, it is not said that the origin in things is suspension (tawaqquf) and the absence of a ruling; because suspension means the suspension of action or the suspension of the Shari’ah ruling, which is not permissible. What is established in the Quran and Hadith, in the case of lack of knowledge, is to ask about the ruling, not suspension and absence of a ruling. Allah (swt) says:
فَاسْأَلُوا أَهْلَ الذِّكْرِ إِن كُنتُمْ لَا تَعْلَمُونَ
"So ask the people of the message if you do not know." (Surah An-Nahl [16]: 43)
And the Prophet (saw) said in the Hadith of Tayammum, as narrated by Abu Dawood from Jabir:
«أَلاَ سَأَلُوا إِذْ لَمْ يَعْلَمُوا فَإِنَّمَا شِفَاءُ الْعِيِّ السُّؤَالُ»
"Why did they not ask if they did not know? For the cure for ignorance is the question."
This indicates that the origin is not suspension or the absence of a ruling.
Accordingly, after the mission of the Messenger (saw), the ruling became for the Shari’ah, and there is no ruling before the arrival of the Shari’ah. Thus, the ruling depends on the arrival of the Shari’ah, meaning the existence of Shari’ah evidence for a single issue. Therefore, no ruling is given except from evidence, just as no ruling is given except after the arrival of the Shari’ah. The origin is to search for the ruling in the Shari’ah, meaning the origin is to search for the Shari’ah evidence for the ruling from the Shari’ah...
By this, the Shari'ah principle is confirmed: 'The origin in human actions is restrictedness by the ruling of Allah.' It is not permissible for a Muslim to proceed with an action until after knowing the ruling of Allah regarding that action from the Address of the Legislator. Permissibility is one of the Shari'ah rulings; therefore, there must be evidence for it from the Shari'ah...
This applies to actions. As for things, which are the objects related to actions, the origin in them is permissibility as long as no evidence of prohibition has been mentioned. The origin in a thing is to be permissible, and it is not prohibited unless a Shari'ah evidence for its prohibition is mentioned. This is because the Shari'ah texts have permitted all things, and these texts came as general (‘amm) covering everything. Allah (swt) says:
أَلَمْ تَرَ أَنَّ اللَّهَ سَخَّرَ لَكُم مَّا فِي الْأَرْضِ
"Do you not see that Allah has subjected to you whatever is on the earth?" (Surah Al-Hajj [22]: 65)
The meaning of Allah subjecting everything on earth to man is His permitting everything on earth. Allah (swt) says:
يَا أَيُّهَا النَّاسُ كُلُوا مِمَّا فِي الْأَرْضِ حَلَالاً طَيِّباً
"O mankind, eat from whatever is on earth [that is] lawful and good." (Surah Al-Baqarah [2]: 168)
And He says:
يَا بَنِي آدَمَ خُذُوا زِينَتَكُمْ عِندَ كُلِّ مَسْجِدٍ وَكُلُوا وَاشْرَبُوا
"O children of Adam, take your adornment at every masjid, and eat and drink." (Surah Al-A'raf [7]: 31)
And He says:
هُوَ الَّذِي جَعَلَ لَكُمُ الْأَرْضَ ذَلُولاً فَامْشُوا فِي مَنَاكِبِهَا وَكُلُوا مِن رِّزْقِهِ
"It is He who made the earth tame for you - so walk among its slopes and eat of His provision." (Surah Al-Mulk [67]: 15)
Thus, all the verses regarding the permissibility of things came as general, so their generality indicated the permissibility of all things. Therefore, the permissibility of all things came by the general Address of the Legislator. The evidence for their permissibility is the Shari'ah texts that came permitting everything. If something is prohibited, there must be a text that specifies (mukhassis) this generality, indicating the exception of this thing from the general permissibility; hence, the origin in things is permissibility. Therefore, we find that the Shari'ah, when it prohibited things, specified these things themselves as an exception to the general text. Allah (swt) says:
حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ وَالدَّمُ وَلَحْمُ الْخِنزِيرِ
"Prohibited to you are dead animals, blood, the flesh of swine." (Surah Al-Ma'idah [5]: 3)
And the Messenger (saw) said:
«حُرِّمَتِ الْخَمْرَةُ لِعَيْنِهَا»
"Wine has been forbidden for itself." (Mentioned in Al-Mabsut from Ibn Abbas)
Thus, what the Shari’ah has stipulated as prohibited among things is an exception to the general text, and it is contrary to the origin...]**
From this, it becomes clear that those rules—whether the one you referred to ("the origin in transactions is lawfulness") or others as we indicated above—are marjuh rules to us. The correct opinion is that which relates to actions and things in the manner we mentioned, i.e., ("the origin in actions is restrictedness by the Shari’ah ruling") and ("the origin in things is permissibility as long as no evidence of prohibition has been mentioned").
I hope this is sufficient, and Allah is most Knowing and most Wise.
Your brother, Ata Bin Khalil Abu al-Rashtah
29 Jumada al-Akhirah 1441 AH Corresponding to 23/02/2020 CE
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