Sunna's
fiqh

The Islamic Sharia between stability and flexibility 02.

II. Flexibility in the Islamic Sharia.

In Islam, there is a set of matters that have no fixed stance (i.e. the Almighty Allah did not prescribe absolute and definitive injunctions for these matters). He let it as such intentionally as to facilitate matters for mankind and to consider their renewing states. Thus, we find in the Noble Koran some texts or verses which are metaphorical and not clear. These are subjects to many interpretations according to the new matters and the change in circumstances. The Almighty Allah said: «…And others are metaphorical. Those who have deviation in their hearts adhere to what is metaphorical desiring sedition through their own interpretation. And those who are deeply rooted in knowledge say: "we believe in it, it is all form our Lord." Yet only those who possess minds remember». [Surat Al-Imran/The Family of Imran, from the verse 07].

This zone is found for many reasons:

1. The existence of a set of matters that have no fixed stance in the Noble Koran and the Sunna.

This set is the one which is left intentionally without allowance or forbiddance. The prophet- may peace be upon him- said: «Indeed, Allah sets for you limits so do not transgress them, and He ordained for you things so do not lose them, and He forbade things so do not violate them, and He kept silent intentionally about some matters as a mercy on you, so do not look after them». [Reported by Edâr Qatni and sounded by En-Nawawi].       

When the prophet-may peace be upon him- was asked about pilgrimage if it is to be performed annually, he said: «If I said, it would have become obligatory, stick to what I left.

Indeed, those before you were perished because of their (lot of) questioning and their contrast with their prophets». [Reported by El-Boukhari, Muslim and Ahmad in his Musnad].

He also said: «What Allah allowed in His Book (the Koran) is lawful and what He forbade is unlawful, and what he did not mention is what He permitted, so accept from Allah His pardon for Allah was not to forget anything». [Reported by El-Bazar], then the prophet recited the following verse: «… And your Lord is never forgetful». [Surat Maryam/Mary, from the verse 64].

The existence of this set of matters that have no fixed stance is considered as a gap that must be fulfilled. This would be by:

a) Analogy: It is a source among the sources of the Islamic legislation. As an example of it, the following one: the forbiddance of all kinds of commerce and contracts when the call is made for Friday prayer. This is by analogy with the forbiddance of selling at that moment, as it is affirmed in the following verse: «O you who believe! When the call for prayer is made on Friday then hasten to the remembrance of Allah, and leave trading aside that is better for you, if only you know». [Surat Al-Jumu'a/The Friday, 09].

b) The unrestricted interests: They are the free matters that are neither considered nor cancelled by the Noble Koran and the Sunna.

Some examples of these interests:

- The compilation of the Noble Koran in one Book.

- The establishment of the Arabic language rules. It was Imam Ali -may Allah honor him- who ordered Abi El-Asswad Ed-Duâli to set these rules.

In addition, there are other new matters that these interests considered like the legislation of traffic code to preserve the selves, the minds and prosperity.

c) Custom: It refers to what people were accustomed to and acquainted with in their lives: a saying or a deed, a general or a particular custom like the commercial and marriage customs.

2- The establishment of some general principles by divine texts.

The Islamic Sharia sets some rules without giving details or showing the manner of dealing with them. For example:

a) Consultation: this principle is affirmed in the following verse: «… Conduct them by mutual consultation…». [Surat Ash-Shûra/The Consultation, from the verse 38]. But the manner of its application is let to the intellectual development of the Islamic society. Therefore, the methods and the manners of its application differ from time to time and from place to place.

b) Justice: it is confirmed in many verses, among them the following Almighty Allah saying: «… And when you judge between people, that you judge with justice…». [Surat An-Nissâ'/The Women, from the verse 58].   

Concerning the execution of this principle and the diversity of the judging degrees and many other matters, they are left for the knowledgeable and the experts who will put the necessary rules that facilitate its application.

3- The consideration of the excuses and the different needs.

Many injunctions that suit these excuses and needs are legislated in conformity with the principle of removing embarrassment that is affirmed in many verses. Among them, we mention:

«Allah desires ease for you and not hardship». [Surat Al-Baqara/The Heifer, from the verse 185].

«Allah desires ease to make things easier for you, for mankind is created weak (to resist his lusts) ». [Surat An-Nissâ'/The Women, 28].    

This is why many permissions and lessening were established because of illness, traveling…

4- The changing of Fatawa by the change in time, place, human being and statutes.

Ibnu Qaim El-Djawzia said: "This chapter (that of Fatawa) is of great benefit and because of our ignorance of it, the Islamic Sharia was wronged and misunderstood. The fact that caused embarrassment and hardships and burdened people with what is not necessary, and what the Islamic Sharia which achieved the highest degrees in preserving people’ interests did not bring. Indeed, the Islamic Sharia is built on rules and based on realizing people’s interests, either in their lives or in the Hereafter, and it is all justice, all mercy, all interests and all wisdom. Each matter that passes from justice to oppression, from mercy to hardness, from interest to mischief, and from wisdom to abuse, is undoubtedly not from the Islamic Sharia even if it is included in it by interpretation. The Islamic Sharia is the justice of Allah set between His people, His mercy He bestowed on His creatures, His shadow He castes on His earth and His wisdom that shows His greatness and that points out the trueness of His prophet Muhammad- may peace be upon him. The Islamic Sharia is Allah’s light by which the sagacious/ cognizant see, His guidance in which there is a cure of all the sick and His right way that if one follows it, he is guided to the straight path". [Ilam El-Muwaqiîn (Informing the Signers), Chapter: The Changing and the Difference of Fatawa according to Epochs, Statutes, Customs and Intentions, volume 03, page 03].    

IV. Conclusions

1. The Islamic Sharia includes definitive and fixed injunctions that guarantee their stability and firmness.

2. The Islamic Sharia comprehends flexible texts that respond to people's needs and that make it suitable at any time and place.

3- The Islamic Sharia brings out the Muslim nation from the different kinds of embarrassment and tightness that are caused by the scientific developments. For example, it permitted blood transfusion and organ transplantation if the legal conditions are fulfilled.

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