The Fixed and Changeable in Islamic Legislation (1)

(Reading time: 12-15 minutes | Difficulty: Moderate-Advanced)

This is a translation of lessons given by Ayatullah Sayyid Munīr al-Khabbāz attended in the year 2019-20. For the sake of comprehensibility, there has been additions, removals and paraphrases. Original transcripts can be found here. I will also include comments and questions that have struck my incapable mind along the series.


بسم الله الرحمن الرحيم

و صلی الله علی محمد و آله الطیبین الطاهرین

Introduction:

The topic of the fixed (al-thābit) and the changeable (al-mutaghayyir) in Islamic legislation has been discussed for many centuries. The Sunni scholar al-Qurāfī has authored a book called al-Furūq where he explores the fixed and the changeable in the traditions of the Prophet (s.a.w.). In similar fashion, Al-Shahīd al-Awwal has followed suit with his book al-Qawāʿid wa al-Fawāʿid in which he divides all the rulings issued from the Prophet (s.a.w.) in multiple categories.

Categories of rulings issued by the Prophet (s.a.w.):

First category: what was issued from him qua a Messenger of God, such as the issuance of the obligation (wujūb) of prayers and fasting.

Second category: what was issued from him qua the authority (walī al-ʿamr), leader and commander, like his prohibition from eating the meat of domesticated donkeys on the day of Khaybar, as has been transmitted in an authentic tradition:

نَهَى رَسُولُ اللَّهِ صلى الله عليه وآله عَنْهَا وعَنْ أَكْلِهَا يَوْمَ خَيْبَرَ وَ إِنَّمَا نَهَى عَنْ أَكْلِهَا فِي ذَلِكَ الْوَقْتِ لِأَنَّهَا كَانَتْ حَمُولَةَ النَّاس.

The Prophet prohibited it and its consuming on the day of Khaybar, and he prohibited from its consuming only in that occasion because it was [used] for carrying the people.[1]

This prohibition was issued from him as the walī al-ʿamr and the leader, and not as a Messenger. This form of ruling is incumbent to be obeyed in all circumstances as the following verse mandates:

يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنكُمْ

Oh you who believer, obey Allah, obey the Messenger and those vested in authority amongst you.[2]

Third category: what was issued from him qua a judge (qāḍī) amongst the people working to alleviate disputes and end disagreements. Jurists have differed whether what is issued from him in the following credible narration is a form of judgement (qaḍā`) or not:

قَضَى رَسُولُ اللَّهِ صلى الله عليه وآله بَيْنَ أَهْلِ الْمَدِينَةِ فِي مَشَارِبِ النَّخْلِ أَنَّهُ لَا يُمْنَعُ‏ نَفْعُ‏ الشَّيْ‏ءِ وَ قَضَى ص بَيْنَ أَهْلِ الْبَادِيَةِ أَنَّهُ لَا يُمْنَعُ فَضْلُ مَاءٍ لِيُمْنَعَ بِهِ فَضْلُ كَلَإٍ.

The messenger of God judged amongst the people of Medina about the waterways of palm trees, that no benefit should be prevented [from anyone due to the waterways] and judged amongst the people of the outskirts that [the flow of] excess water should not be prevented etc.[3]

They have also differed whether the word qaḍā` in the following verse is indicative of a religious ruling or not:

وَقَضَىٰ رَبُّكَ أَلَّا تَعْبُدُوا إِلَّا إِيَّاهُ

And your Lord has decreed that you do not worship except Him.[4]

Was this decree a legal ruling (ḥukm shar’ī)?

Fourth category: What issued from him qua a guide (murshid) to real existing affairs (ʿumūr wāqi’īyah takwīnīyah). Some scholars have included medical statements issued by the Prophet (s.a.w.) as examples of this category:

كُلُوا التُّفَّاحَ‏ عَلَى‏ الرِّيقِ‏ فَإِنَّهُ يُصَوِّحُ الْمَعِدَة.

Eat apples first thing in the morning [with an empty stomach] for it moisturizes the stomach.[5]

Or:

مَنْ‏ أَكَلَ‏ كُلَ‏ يَوْمٍ‏ عَلَى‏ الرِّيقِ‏ إِحْدَى‏ وَعِشْرِينَ‏ زَبِيبَةً حَمْرَاءَ لَمْ‏ يَعْتَلَ‏ إِلَّا عِلَّةَ الْمَوْت

Whoever eats twenty one red sultanas every day, they  will not become ill unless for the cause of his death.[6]

Were these reports issued by him (s.a.w.) in his role as a messenger and are to be treated as ḥukm shar’ī, or were they issued in his capacity as a guide aware of the reality of affairs, and this isn’t a ḥukm shar’ī but only as an irshād (guidance, instruction, direction) to real affairs?

After this categorization, Shahīd al-Awwal asserts the Prophet (s.a.w.) is a multi-facted personality and hence not all that was issued by him is to be enumerated as a ḥukm shar’ī.

This discussion developed over the eras under the scrutiny of different thinkers until it has reached our time. Some contemporary experts maintain that issued aḥkām shar’īyah in their capacity as a ḥukm shar’ī divide into two types: fixed rulings (aḥkām thābitah)  and changeable rulings (aḥkām mutaghayyirah) and to distinguish between them they have proposed two criteria:

First criteria: This proposal is attributed to Dr Mahdi Bazargan who puts forward that rulings are either primary (aṣlī) or secondary (far’ī).

Aṣlī rulings extend to fulfill necessary mandatory interests (maṣālih) of people and hence cannot experience change with time and place. The wājibāt and muharramāt are listed under this section.

Far’ī rulings extend to fulfil non-necessary and complementary interests of people. Mustaḥabbāt such as the istiḥbāb of supererogatory prayers and connecting with one’s kin (ṣilat al-arḥām) more than the wājib degree are examples of such rulings. Due to their non-necessary nature, change is conceivable with them.  

Second criteria: Proposed by Dr Abdulkarim Sorush who suggests rulings can be envisaged to be inherent (dhātī) or accidental (‘araḍī).

Inherent rulings: He claims rulings which relate to the general interests of people and  do not differ from one person to the next and from one community to another are regarded as inherent rulings (aḥkām dhātīyah). An example is the prohibition of drinking alcohol as has been transmitted in this blessed report:

إِنَّ اللَّهَ عَزَّ وجَلَّ لَمْ يُحَرِّمِ الْخَمْرَ لِاسْمِهَا ولَكِنَّهُ حَرَّمَهَا لِعَاقِبَتِهَا فَمَا كَانَ‏ عَاقِبَتُهُ‏ عَاقِبَةَ الْخَمْرِ فَهُوَ خَمْر

Surely Allah, glory be to Him, has not prohibited alcohol due to its name; instead, He has prohibited it due to its [harmful] repercussions. So whatsoever’s repercussion is that of alcohol, that is [also] alcohol [meaning it is also prohibited even if it is not referred to as alcohol].[7]

Or the prohibition of usury as a form of wrongdoing and transgression (ẓulm) against the right of others:

وَإِن تُبْتُمْ فَلَكُمْ رُءُوسُ أَمْوَالِكُمْ لَا تَظْلِمُونَ وَلَا تُظْلَمُونَ

But if you repent, you may have your principal wealth; [thus] you do no wrong, nor are you wronged.[8]

In this light, the prohibition of alcohol and usury are protecting the general interests of people and will not differ with societies and times. These are inherent rulings of the religion.

Accidental rulings: Rulings which do not relate to the general interests but onld find relevance in specific environments and cultures are accidental.  

For instance, jurists stipulate that marriage contracts, divorces and vows (al-nidhr)   are to be recited in Arabic in order to be legally acceptable. These stipulations have no relevance to general interests but are only important in certain environments. We can argue that the Islam began in the Arabic community and as a result its legislations were revealed in Arabic. This led many jurists to assert that the ascertained minimum(al-qadr al-mutayaqqan)for a binding marriage, divorce or vow is one which is pronounced in Arabic. Otherwise, language has no influence or role in the formation of a conventional social agreement named marriage; a conventional construct named divorce or a commitment agreement between the individual and his Lord named al-nidhr. Language has no real influence in these conventional matters.

Therefore, stipulating the recital to be in Arabic language is an accidental ruling and not an inherent element of the Islamic legislation. Whatever constitutes an inherent element is a fixed ruling and whatever is accidental is dynamic, changeable and open to update and alteration.

Of course, we will speak about these proposals in depth and provide our analysis. Currently our aim is to present an introduction to the topic.

Prerequisite material

After our introduction, it is also important we cover the following material required for understanding the trajectory of our discussion:

  1. Human relationships

Some scholars – such as ‘Allāmah Ṭabāṭabāi (may Allah have mercy on his soul), the author of al-Mīzān  – have divided the relationships we as humans have into four types:

  1. Our relationship with our Lord
  2. With our environment
  3. With our society
  4. With our selves  

He stresses only the relationship with our Lord which manifests in our need for worship is fixed and necessary, and cannot experience change.

Whereas our relationship with our natural environment, our need for shelter, nutrition and clothing is dynamic and variable. Our form of clothing, form of residence and choice of food and nutrition are all prone to change and variation.  

Our relationship with our society such as the relationship with our neighbours,  family and friend are also dynamic. In some human communities neighbour-to-neighbour, familial and other forms of  human interaction are not engaged in as enegertically as others. They do not evaluate social engagements as important or deem it as a serious need. This is testimony to the possibility of change with social relationships across different times and communities.  

Our relationship with our selves is also affected by the rapidly changing nature of our cultural contexts. This is true regardless of how we define our interaction with our selves. Whether it is one of freedom and openness, strictness and stringency, progress and growth or stagnancy and staleness, this relationship changes with the changing of cultures.

Therefore, the only stable and fixed relationship which we can propose a fixed mode of legislation (tashrī’) is our relationship with our Lord. That is, all legislative process in the domain of worship is not changeable. The other cases respond and coordinate themselves to the changing atmosphere they are exposed to and therefore, all legislative processes in these domains can accept variation and alteration.

2. Where to look for fixed and changeable rulings (1)

What we intend from fixedness and changeability is post the prophetic promulgation (tablīgh) of the message of Islam. Prior to the completion of the tablīgh stage, there were updates to the legislation in the form of abrogator (nāsikh) and  abrogated (mansūkh) rulings. What concerns us is the nature of rulings in the post-tablīgh stage.  

3. Where to look for fixed and changeable rulings (2)

We can envisage for religion three stages: the real (wāqi’ī) religion, the promulgated (muballagh) religion and the received (wāṣil) religion.

First stage (the real religion): This is the religion constituted in the Secured Tablet (al-lawḥ al-maḥfūẓ) and descended upon the heart of Prophet Muhammad (s.a.w.). This stage is not our area of focus for we cannot access the Secured Tablet, rendering any discussion surrounding it pointless.

Second stage (the promulgated religion): This is the religion issued by the Ma’ṣūm in the form of tablīgh. This stage also falls outside our discussion for we have no access to all of the promulgated and preached religion.

Third stage (the received religion): Our area of discussion concerns what we classify as the received religion. This is the religion as constructed by the verses of the Qurʿān and the blessed traditions of the Ma’ṣūmīn. We can further divide the content of the received religion into two classes: necessary (ḍarūrī) and theoretic (naẓarī).

Necessary received religion: the set of rulings which has reached us via tawātur or via contextual evidences which grant us conviction. A small portion of the received religion falls under this class.

Theoretic received religion: is any understanding of a religious ruling prone to error. It includes what has reached us via the literal prima-facie meanings (ẓuhūr) of texts. The text in question can be a verse of the Quran whose ẓāhir has been used to arrive at the ruling. Given ẓuhūr is at best a speculative indication (ammārah ẓanīyah), it is subject to error. Or the text can be a reliable report (khabar thiqqa), which also is speculative and not definite. Or we have arrived at the ruling via rational principles that potentially do not coincide with reality or may appear compelling due to our compound ignorance (jahl murakkab)


Thus, every ruling which has reached us and is sensitive to error whether we consider it speculative or definite is a theoretic ruling. And each ruling we do not presume a possibility of error whether it has reached us via tawātur or evidence culminative to reliability and conviction, is a necessary ruling. We will discuss the possibility of change in both the theoretic and necessary classes.

4. Islam and change

Islam is identified with four distinguished characteristics:

  1. It is a complete religion. Allah (swt) has said:  الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ

Today I have completed for you your religion.[9]

  1. It is the seal and last of all religions: مَّا كَانَ مُحَمَّدٌ أَبَا أَحَدٍ مِّن رِّجَالِكُمْ وَلَٰكِن رَّسُولَ اللَّهِ وَخَاتَمَ النَّبِيِّينَ

Mohammad is not the father of [any] one of your men, but he is the messenger of God and the seal of the prophets.[10]

  1. It is a universal religion for all of mankind: وَمَا أَرْسَلْنَاكَ إِلَّا كَافَّةً لِّلنَّاسِ

 We did not send you except comprehensively to mankind.[11]

  1. It will not be abrogated as a religion: إِنَّ الدِّينَ عِندَ اللَّهِ الْإِسْلَامُ

Surely the religion [accepted with] Allah is Islam.[12]

Can we conceive of change for a religion which has these characteristics of completion, finality, universality and stability?

  1. Change with the subject (mawḍū’)

There is no issue with rulings changing with the changing of their subject (mawḍū’).

This can happen via two ways:

Primary attribution (‘unwān awwalī): A traveler who arrives to his hometown will change from performing his worships in the incomplete form (qaṣr) to performing in the complete form (tamām). Or a person who did not earn profit on his income is not obligated for khums but when he does earn such a profit, khums becomes obligatory on him. This ruling changed with a change in its subject, while in its primary attribution.

Secondary attribution (‘unwān thānawī): An acquired attribution of the subject can change the applicability of the ruling on them. Such as when the ruling exposes the persons to unbearable difficulty (ḥaraj).; The Almighty has said:

مَا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ

He has not placed in the religion any difficulty.[13]

Or exposes them to harm (ḍarar), as in the tradition:

لَا ضَرَرَ وَ لَا ضِرَارَ عَلَى‏ مُؤْمِن‏.

There is no harm or harming for a believer.”[14]

Or due to a lack in the person’s ability (qudrah) to perform his obligation such as the cases of conflict (tazāhum) between the execution of an obligatory prayer close to its time of expiry (qaḍā)and rescuing a drowning person where he is unable to carry out both obligations. Here, due to involuntary inability imposed on the individual, the ruling can change. The obligation of prayers which had become applicable (fi’lī) is no longer so due to its conflict with what is more important – the rescuing of a drowning person.

Thus, there is no debate with change in a ruling with change in its subject via its primary attribution or secondary.

Our discussion is of a jurisprudential-theological (fiqhī kalāmī) nature.  Accordingly if we claim change is possible, we ask for its fiqhī sources of evidence worthy of conviction and reliability? Having mentioned what falls outside our discussion, we can present scenarios which requires our attention:

Scenario A: Change in the ruling while keeping the subject fixed

Some argue that in our times the blood-money of a woman murdered unintentionally should be readjusted to be the same of a man, even if the issued ruling dictates it to be half. The subject, a woman murdered unintentionally, has not changed, but the claimant requires an updated ruling due to contextual justifications.

Scenario B: The creation of new a ruling not present in the received religion

Other argue that in our times human societies (mujtama’ ‘uqalāyī) and their legal states generically grant inventors the right to intellectual property and patents. In addition, they deem not respecting this right a form of injustice towards the inventor. Based on this predominant collective agreement, is it possible to constitute a matching ruling in the Islamic legislation while we observe no evidence for it in our received religion?

The argument can be structured as follows:

Minor premise: Current human societies officially respect the right to intellectual property and patents

Major premise: Depriving inventors from this right is a form injustice and all such injustice is reprehensible.

Given the above, can the shar’ formally respect such a phenomenon while it has no evidential basis in the received religion?

Scenario C: Reconciliation between aḥkām ẓāhirī (apparent rulings) and aḥkām wāqi’ī (real rulings)

This discussion is found within Uṣūl, in the books of Sheikh Muẓaffar, the Uṣūl series of Shahīd al-Ṣadr, the Rasāʿil of Sheikh al- Anṣārī and in Akhūndal-Khurasani’s al-Kifāyah of. Although, it is a theological discussion, nonetheless, they have presented it in Uṣūl.

We know the lawgiver has granted authority to reliable reports, but we also know these reports don’t always coincide with real rulings and what the lawgiver actually desired. For example, if we assume that on the noon of Friday the real ruling is the obligation of Friday prayers but an indication(amārah) has reached us informing ẓuhr (noon) prayers are  obligatory [and not Friday prayers], the amārah has clearly been mistaken. From here, ibn Qiba has formulated his famous objection: granting authority to potentially mistaken reliable reports is self-defeating (naqḍ al-gharaḍh).

He argues that religious rulings have been issued for the sake of fulfilling real necessary interests of the people. Thus, when the lawgiver grants authority to an amārah which negates the real ruling, in reality He has acted counter to his goal to fulfill the interests of the agents (mukallaf).

Ibn Qiba’s objection has been given numerous replies by our scholars:

Reply #1: the interest of ease (tashīl) for the agents

We accept the agent forfeits his real interests when he abides by the report – in our case, the benefit nested in the obligation of Friday prayers – but in exchange for this he has acquired the benefit of ease (tashīl). When it is not possible for the agent to reach the real ruling with conviction, abandoning his search for it and sufficing with following the reliable report removes the responsibility from him. This is a form of easing for the agent.  Furthermore, we know the lawgiver generally does not desire to place difficulty upon his agents. Thus, achieving the benefit of ease per se is valuable enough for the lawgiver and does not negate his goal to fulfil the interests of his servants.

Reply #2:

When a ruling has reached its maximum importance in the eyes of the lawgiver, it is then upon Him to ensure it reaches the agents via evidences ensuring conviction. This ensures His objectives are secured. However, when a ruling fundamentally does not reach a noticeable degree of importance, subsequently it is does not encourage the lawgiver to ensure it reaches the agents. In his eyes, if it reaches the agents then they have acquired its benefits and if it does not reach them no significant interest has been forfeited. Applying this to our example, if the obligation of Friday prayers reaches the agent then so does its interest, and if it does not, no serious interest has been forfeited.

Reply #3: Maṣlaḥah Sulūkīyah (Methodological/Behavioural Interest)

The previous two replies leave the initial ruling without change, whereas, this reply as chosen by the great Sheikh al-Anṣārī follows a different approach:

If the amārah – e.g reliable report – corresponds and coincides with the real ruling, the real intended interest has been acquired, and if it does not correspond, a new interest attached to the action prescribed by the amārah will substitute the missed interest.

Some scholars like Sayīd al-Khoeī  have questioned Sheikh al-Anṣārī’s position, objecting that his position leads to taṣwīb.

We can witness that according to Sheikh al-Anṣārī’s position change in a ruling is possible. The real ruling for the person who did not receive the amārah is the obligation of Friday prayers and for the person who did is noon prayers. Therefore, there are two real interests: one residing in the obligation of Friday prayers and the other in the sulūk: following the instructions of the amārah. Given this dual nature, we can conclude that the lawgiver has not  issued a single ruling (the obligation of Friday prayers) but rather a parent ruling (jāmi’) from the two rulings.

Sayīd Khoeī further objects that if a parent ruling was legislated, this is equivalent to saying the real ruling of Friday prayers changed with respect to the person who received the amārah while maintaining that both of these rulings achieve a real interst (maṣlaḥah wāq’īyah) as opposed to some secondary interest we mentioned in the first reply (tashīl). Is this an acceptable result?

In conclusion, we will discuss around these three scenarios:

  1. Change of the ruling with a fixed subject
  2. The creation of a new ruling which has no evidence in the received religion
  3. Change of the wāqi’ (reality) to match the amārah found against it

We will follow our discussion with Sheikh Ḥasan ‘Alī Akbarīyān’s book The fixed and the dynamic in religious evidence. Naturally, we will present our commentary  on iteither in confirmation or rejection. Important teachers of the seminary have shown interest in this book and have also expressed disagreements in many areas. Ultimately, the trajectory of our discussion will be guided via this text with our commentaries, confirmations, additions and removals. As we previously mentioned, this is a theological and jurisprudential discussion and so we will encounter the topic of infallibility(ismah) as a basis for our upcoming analysis.


[1] Kulayni, al-Kāfī, vol.6, p. 246.

[2] Quran 4:30

[3] Kulayni, al-Kāfī, vol. 5, p. 294.

[4] Quran, 17:23.

[5] Al-Ṭabarsi, Makārim al-Akhlāq,p. 173.

[6] Ṭabarsi, Makārim al-Akhlāq p175

[7] Kulayni, al-Kāfī, vol. 6, p. 412.

[8] Quran, 2:279.

[9] Quran, 5.3.

[10] Quran, 33:40.

[11] Quran, 32:28.

[12] Quran, 3:19.

[13] Quran, 22:78.

[14] Kulayni, al-Kāfī, vol. 5, p. 294.

2 thoughts on “The Fixed and Changeable in Islamic Legislation (1)

  1. Salaam brother. Great post! This is the first time I read something from Ayatullah Muneer Al-Khabbaz. Please do continue translating his lecture on this topic.

    Like

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