Articles

Realism of Islamic Legislation
Author : Dr. Hassan Abu_Arqoub
Date Added : 09-03-2016

 

 

Realism of Islamic Legislation and its Different Aspects

 

All perfect praise be to Allah, The Lord of The Worlds; and may His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

 

Realism of Islamic legislation means: "Observing the reality present in legislation and addressing its issues." [Introduction to Sharia and Fiqh, pp.110, Al-Qaradawi].

 

In each of its divisions, Islamic legislation is realistic since it is neither imaginary nor idealistic; rather, it copes with the nature of man whom Allah has entrusted with delivering the message of Islam.

 

This realistic nature is among the reasons that drove people to accept Islamic legislation, and it guaranteed its continuity and eligibility for every time and place.

 

The gradual legislation of provisions is one aspect of realism in Islamic legislation, which was revealed while the Arabs were following customs that it didn`t approve of. However, it didn`t ban them from those customs all at once so that they don`t turn away from it; therefore, they were prohibited gradually. This led them to accept this change in custom and behavior and become more inclined to adhere to Sharia without adamancy or hardship, [Introduction to Islamic Fiqh, pp.15, Madkour].

 

For example, wine, which the Arabs adored, was prohibited on gradual basis. The following verse was revealed in Makkah, it states (What means): "And from the fruit of the date-palm and the vine, ye get out wholesome drink and food: behold, in this also is a sign for those who are wise." [An`nahil/67]. As a result, Muslims used to drink it and it was permissible for them to do so.

 

Afterwards, the following verse was revealed, it states (What means): "They ask thee concerning wine and gambling. Say: "In them is great sin, and some profit, for men; but the sin is greater than the profit." [Al-Baqarah/219]. As a result, some drank it, but others didn`t. After that, the following verse was revealed, it Says (What means): "O ye who believe! Approach not prayers with a mind befogged, until ye can understand all that ye say,- " [An-Nisa/43].

 

As a result, the number of drinkers decreased. Finally, the following verse was revealed, declaring that wine is prohibited as it Says (What means): "O ye who believe! Intoxicants and gambling, (dedication of) stones, and (divination by) arrows, are an abomination, - of Satan’s handwork: eschew such (abomination), that ye may prosper. Satan’s plan is (but) to excite enmity and hatred between you, with intoxicants and gambling, and hinder you from the remembrance of Allah, and from prayer: will ye not then abstain?" [Al-Mai`da/90-91].

 

After the revealation of the above verse, Omar Ibn Al-Khattab (May Allah Be Pleased with him) said: "Ooh Allah, sure we abstained." [Mafatih Al-Ghayb vol.6/pp.395].

 

Another aspect of realism in Islamic legislation is lifting religious difficulties because among the principles of legislation is that the responsible Muslim should be capable of performing the religious duties required from him, at first. However, when hardship arises from performing some of these duties, the Lawgiver enjoys the authority to lift them. Allah, The Almighty, Said (What means): "and has imposed no difficulties on you in religion." [Al-Hajj/78].

 

Al-Imam Ashatibi said: "Evidence supporting relieving the Muslim nation from the religious difficulties is conclusive." [Almowafakat Fi Osool Al-Sharia, vol.1/pp.213, Ash-shatibi].

 

Moreover, Islamic legislation draws up general rules for most transactions. For instance, most texts pertaining to the provisions governing different transactions are general, taking into consideration the change in people`s interests due to changes in time and place. However, religious texts (Quran and Sunna) introduced the general rules and left the details to the Ijtihad (Independent reasoning) of the scholars to address any new or sudden issues. For instance, forbidding Riba (Usury), cheating, eating up people`s property unjustly and the like.

 

In conclusion, realism is among the characteristics of Islamic legislation, and it has been manifested in three key aspects: gradualism, mitigation, lifting difficulties in religious duties, and drawing up general rules on various transactions. Being realistic in legislations and rulings (Lawful or unlawful) makes Islamic Sharia a blessing that Allah has bestowed upon Muslims because it aims to lead them to the path of righteousness to win His pleasure and enter paradise; therefore, we should be thankful to Allah and adhere to His Sharia in our word and deed.

 

And All praise be to Allah, The Lord of The Worlds and may His Blessings and Peace be upon our Prophet Mohammad and upon all his family and companions. 

 

The published article reflects the opinion of its author

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Summarized Fatawaa

What are the Sunnahs and etiquettes recommended for the person offering the Udhiyah?

 
In the Name of Allah, and may peace and blessings be upon our Master, the Messenger of Allah.
 
There are several Sunnahs (prophetic traditions) and etiquettes that are highly recommended for the person offering an Udhiyah (sacrificial offering) to observe:
 
First:
It is a Sunnah for anyone intending to offer a sacrifice to refrain from cutting or removing any of their hair or nails once the first ten days of Dhul-Hijjah begin. This is based on the statement of the Prophet (peace and blessings be upon him): "When the ten days [of Dhul-Hijjah] begin and one of you intends to offer a sacrifice, let him not touch any of his hair or skin." (Narrated by Muslim)
 
However, if someone does happen to remove any hair or nails, they have not committed a sin, and their sacrifice remains perfectly valid.
 
Second:
The person offering the sacrifice should ideally slaughter the animal themselves. If they are unable to do so, they should at least witness its slaughter. This is drawn from what our Master, the Messenger of Allah (peace and blessings be upon him), said to Lady Fatima (may Allah be pleased with her):
 
"Stand up and witness your sacrifice, for with its very first drop of blood, every sin you have committed will be forgiven." (Narrated by Al-Tabarani in his Mu'jam, Al-Hakim in his Mustadrak, and Al-Bayhaqi in his Sunan)
 
Third:
Face the Qiblah (the direction of prayer) at the time of slaughtering, as the Qiblah is the most honorable of directions.
 
Fourth:
Pronounce the name of Allah (Tasmiyah) at the moment of slaughter by saying: "Bismillah ar-Rahman ar-Rahim" (In the Name of Allah, the Most Gracious, the Most Merciful). Even if one forgets to say it, the meat remains lawful (Halal) to eat. Allah, Blessed and Exalted is He, says:
 
"So eat of that [meat] upon which the name of Allah has been mentioned." (Al-An'am: 118)
 
It is also recommended to send blessings upon our Master, the Messenger of Allah (peace and blessings be upon him), and to follow it with the Takbeer (Allahu Akbar).
 
Fifth:
Supplicate for acceptance by saying: "Allahumma hadhihi minka wa ilayka, fa-taqabbal minni" (O Allah, this is a blessing from You and is offered back to You, so please accept it from me). This means: This sacrifice is a blessing that originated from You, and I am offering it to draw closer to You. And Allah the Almighty Knows Best.

What should a person who was favored from Allah with a newborn, but couldn`t afford an Aqeeqah, do?

Aqeeqah (the sheep slaughtered on the seventh day from the child`s birth) is a desirable Sunnah for the financially able since Allah, The Exalted, charges not a soul beyond its capacity. Therefore, if the father couldn`t afford the Aqeeqah before the end of his wife`s confinement, then it isn`t due on him, and if he was able to afford it later on, then it is permissible, but if he didn`t until the child reached puberty, the latter can offer the Aqeeqah himself.

What is the ruling of Islamic Law on a latecomer who joins the imam during the standing position of the first rakʿah but was unable to complete the recitation of al-Fātiḥah?

All praise is due to Allah, and peace and blessings be upon our master the Messenger of Allah ﷺ.
If a latecomer (masbuq) joins the prayer while the imam is standing, he should begin reciting Sūrat al-Fātiḥah immediately, without pausing to recite the opening supplication (duʿāʾ al-istiftāḥ) or the seeking of refuge (taʿawwudh). If the imam bows before he completes al-Fātiḥah, he follows the imam into the bow and leaves whatever remains of al-Fātiḥah — the imam bears it on his behalf.
It is stated in ʿUmdat al-Sālik (p. 47): "If a latecomer finds the imam standing and is confident that he has enough time to recite the taʿawwudh and al-Fātiḥah in full, he may do so. If he is uncertain, he should neither recite the opening supplication nor the taʿawwudh, but rather begin directly with al-Fātiḥah. If the imam bows before he completes it, he follows him into the bow — provided he had not already begun the opening supplication or the taʿawwudh. If he had begun either of them, he continues reciting al-Fātiḥah for as long as he spent on them." And Allah the Almighty knows best.

What is the ruling on swearing an oath by the Prophet ﷺ, and does such an oath take effect according to Imām Aḥmad ibn Ḥanbal, requiring expiation upon its breach?

All praise is due to Allah, and peace and blessings be upon our master the Messenger of Allah ﷺ.
Swearing an oath by a created being is disliked (makrūh) in our Shāfiʿī school. Shaykh al-Islām Imām al-Nawawī, may Allah have mercy upon him, states: "Swearing by a created being is disliked — such as swearing by the Prophet, the Kaʿbah, Jibrīl, the Companions, or the Prophet's family. Al-Shāfiʿī, may Allah have mercy upon him, said: 'I fear that swearing by other than Allah the Almighty may constitute an act of disobedience.' The scholars of the school explained this to mean: that is, something forbidden and sinful — indicating that he had some hesitation in the matter. Al-Imām stated: the established position of the school is that it is categorically not forbidden, but rather disliked. Furthermore, whoever swears by a created being, his oath does not take effect and no expiation (kaffārah) is required if he breaks it." [Rawḍat al-Ṭālibīn wa ʿUmdat al-Muftīn, Vol. 11/P.6]
According to the Ḥanbalī school, however, expiation becomes obligatory upon one who swears by our master the Prophet ﷺ and then breaks his oath. Imām al-Bahūtī al-Ḥanbalī, may Allah have mercy upon him, states: "No expiation is required for swearing by other than Allah the Almighty, even if the oath is broken — because expiation was made obligatory for swearing by Allah and His attributes, out of reverence for His names, and nothing else is equal to Him in this regard... except in the case of swearing by our Prophet Muḥammad ﷺ, for expiation becomes obligatory when one swears by him and then breaks the oath. This was explicitly stated in the narration of Abū Ṭālib, because he is one of the two conditions of the two testimonies of faith by which a disbeliever becomes a Muslim. Ibn ʿAqīl held the view that swearing by any of the other prophets, peace and blessings be upon them all, carries the same ruling." [Sharḥ Muntahā al-Irādāt, Vol. 3/P.441]. And Allah the Almighty knows best.