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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 is the ruling on the ablution of one from whom blood exits from his nose or a wound?

Blood flowing from a wound or a nosebleed does not invalidate ablution. However, performing ablution is recommended to avoid scholarly disagreement with those who make ablution obligatory after blood flows. And Allah the Almighty knows best.

What is the ruling on praying alone (munfaridan) in a row, and what should I do if I enter the mosque together with another person, and there is only a single gap in the first row with no second row present — should I fill that gap in the first row, or should I stand together with him in a new second row?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah ﷺ.
If a person enters [the congregation] and finds no space available in the row, it is recommended for him — after making his opening takbīr for the prayer — to gently pull someone from the row in front of him to pray alongside him, provided he senses that this person would be agreeable to it. If that person does not agree, then he prays alone, and there is no dislike attached to his doing so in that case.
If he ends up praying alone [behind the row], it is sunnah for him to stand directly behind the imam. Then, if someone else arrives, that person stands to his right; and whoever comes after them stands to his left — and so on — such that the imam remains centered in the middle of the row. This is done so that everyone attains the reward of congregational prayer.
As for the case where two people enter the prayer together, and there is a gap in the row wide enough for only one person, then the two of them should pray together in a new row [of their own], and whoever arrives after them should fill that original gap. This is because if only one of the two fills the gap, the other would end up praying alone [which is to be avoided when it can easily be prevented].
Al-Khaṭīb ash-Shirbīnī (raḥimahullāh) said in Mughnī al-Muḥtāj (Vol.1/P.494): "If he does not find space, then it is recommended for him, while still standing, to gently pull a single person from the row toward himself after making his opening takbīr — out of caution, so as to avoid the position held by some scholars that a person's prayer standing alone behind the row is not valid.
Az-Zarkashī and others said: this should only be done if it seems he would agree to it; otherwise, he should not pull anyone — indeed, doing so becomes impermissible, out of fear of causing discord (fitnah). It is recommended for the person being pulled to cooperate and agree, so that he may attain the reward of assisting in righteousness and piety (al-birr wat-taqwā). However, he should not pull one of two people [praying together] from the row, since this would cause one of them to end up praying alone. This is why the 'pulling' described here takes place only after the opening takbīr [i.e., once the person doing the pulling has already validly begun his own prayer]."
Accordingly: it is sunnah for you to pray alongside the person praying alone, and then, if someone else arrives afterward, you may go and fill the gap in the original row. And Allah, the Exalted, knows best.

What is the ruling of Islamic Law on a fictitious marriage for the purpose of obtaining citizenship?

All praise is due to Allah, and peace and blessings be upon our master the Messenger of Allah ﷺ.
There is no such thing in our noble sharīʿah as a "nominal" or "fictitious" marriage or divorce. Marriage and divorce are among the sacred ordinances of Allah, and it is not permissible to manipulate them or use them as a stratagem to obtain worldly gains.
The foundational purpose of a marriage contract is the permanence and continuity of the relationship between the spouses — to establish a family, and to bring forth righteous offspring. So sacred is this bond that Allah the Almighty Himself described it as a solemn covenant (mīthāq ghalīẓ), saying {what means}: "And if you wish to replace one wife with another and you have given one of them a great amount of wealth, do not take any of it back. Would you take it in injustice and manifest sin? And how could you take it while you have gone in unto each other and they have taken from you a solemn covenant?" [Al-Nisāʾ/ 20–21]
Accordingly, it is not permissible to resort to manipulation and deception in contracts that Allah, Mighty and Majestic, has described as a "solemn covenant" — all for the sake of material and worldly benefit. Marriage is built upon permanence and does not admit of a fixed time limit. If a time limit is stipulated in the contract, the contract is rendered invalid by the consensus of the jurists. Similarly, marriage is impermissible when there exists a mutual, concealed intention to limit its duration — even if no time limit is explicitly mentioned in the contract — for this constitutes a form of unlawful circumvention of the sharīʿah. This is to say nothing of the lying and deception that such conduct involves, the prohibition of which needs no elaboration. Lying, deception, and fraud for the purpose of obtaining worldly gains are among the gravest of sins.
If, however, the marriage contract is first concluded in a valid sharʿī manner and then registered civilly, it is sound and fully valid. And Allah the Almighty knows best.

Is it permissible to use unscented petroleum jelly (Vaseline) during ‘Umrah, in order to prevent skin chafing or irritation?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah ﷺ.
According to the Shāfi‘ī school, it is permissible for someone in the state of iḥrām to use oils and creams free of perfume/fragrance on parts of the body other than the head and beard, for a genuine medical need — such as preventing skin chafing or irritation. However, applying them to the head or beard remains unlawful.
Shaykh al-Islām, Imam an-Nawawī (raḥimahullāh), says in al-Majmū‘ (Vol.7/P.279): "Oils are of two types: the first is an oil that is neither perfumed itself nor contains any perfume — such as olive oil, sesame oil, ghee, butter, walnut oil, almond oil, and similar oils. The use of this type is not unlawful anywhere on the body, except on the head and beard — where its use is unlawful without any disagreement [among the scholars]." And Allah, the Exalted, knows best.

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