Every Occurrence has a Divine Judgement
The Islamic texts of Shari'ah and its general concepts state for the jurisprudents fuqaha and the experts of Islamic legislation, to formulate the widest applicable rule of jurisprudence which says: "Never is there any occurrence without a divine judgement concerning it," as an expression of the spirit of the Shari'ah and an explanation of its reality.
To look for a source for such rule and its source of lightening, we will find many contexts in the Holy Qur'an and the Prophetic tradition hadith which we referred to in our previous books of this series, therefore, there is no need for repeating them.
It is better to mention here a quotation from Imam Ja'far al-Sadiq (a.s.) which refers to the same subject:
"Never is there anything without a law concerning it or a known sunnah (Prophetic tradition)." 3
This rule has a wide ideological and a legislative impact which not only participates in developing the life of Muslims and expanding the sphere of their activities but also in its adaptability to Islamic Shari'ah in order to strengthen the bonds between a Muslim and his Creator.
This rule confirms that no deed or intention done by man - whether good or evil; useful or harmful; concerning individuals or groups unless Islam views its opinion regarding it should fall under one of the following categories: prohibited; obligatory; permitted; disliked; recommended.
Man's acts altogether, being small or big, are described under one of the five above-mentioned categories. In Islam there is a divine judgement for each of them. This generality in Islam gives a Muslim a general rule under which he measures all his actions and evaluates them before performing or committing them.
This universality in Islamic Shari'ah helps man to correct his behaviour; protect the society against disorder and chaos; shows him the right path towards safeguarding the rights, responsibilities and interests against loss and waste; develops in him the spirit of moral and legal consciousness; and instills in him the spirit of responsibility. Therefore, he never takes any decision nor practises any action before he thinks and specifies his legal (Islamic) duty and responsibility towards it.
Thus, a man comprehends in all actions and subjects by taking legal opinion into consideration. For instance, if he finds it (an action) obligatory, will surely try to do his duty and perform his responsibility in the best and absolute way.
But if he sees it prohibited, he will not only refrain from doing it but will also try to avoid what leads towards vain and disaster.
If he sees is it an act permissible, he will freely do it or leave it aside.
And if he sees it undesirable or recommended, he is free to do or abandon it. But due to his sincerity for achieving perfectness in his belief and also as a result of his religious spirit, it is better for him to educate himself of the merits of recommended deeds and leave the undesirable ones.
Necessity and Change of a Divine Law
As we mentioned in the previous chapter that the divine judgement hukum is connected with the nature of an action and its impact. And it is the identical description of the subject which decides (specifies) the nature of a divine judgement hukum, such as prohibition, obligation; permission ... etc; it is a divine judgement itself which discloses the nature of the topic (subject).
Hence, a single action does not have more than one hukum (a divine judgement) in an occurrence. For instance, drinking wine cannot be described in its reality save with prohibition: jihad (holy struggle) cannot be described other than an obligation ... etc. Sometimes, it may happen that man may face some external and unexpected circumstances which may lead to the change of the divine judgment hukum or require the change of peculiarity of an action itself.
Indeed, Islamic legislation deals with such facts with more reality and accuracy. Islam permits the shelving of the original given judgement- the first real judgement - temporarily, if some unavoidable and extraordinary , circumstances happen. In such cases, man is obliged either to refuse or change such judgement in order to ward off danger, hardship and harm against him or his interests.
With this observance, the aim of the exceptional legislation - the secondary real judgement - is safeguarding the essential purpose of Islamic legislation itself which is primarily in the interest of man and society and is to avoid loss and corruption.
According to this Islamic principle, topics of many subjects could be changed. It may happen that an obligatory or permissible act becomes prohibited or a prohibited and permissible act becomes obligatory:
For example, Islam makes it permissible for a Muslim to do a forbidden act if circumstances compel him to do so or by doing so he will be able to ward off, through an impending danger himself or his property or honour. But once such an emergency or compulsion ends, the permission to commit the forbidden will end too.
Allah, the Exalted says:
"... then whoever is driven by necessity, not desiring, nor exceeding the limit, no sin is upon him. Surely Allah is Forgiving, Merciful."
Holy Qur'an (2:173)
To go along with this wise declaration of the Holy Qur'an, the following jurisprudential rule is formed "At the time of necessity, the forbidden becomes permissible".
On the basis of this rule, Islam permits a hungry man at the point of death to eat carrion or the flesh of a dead animal. He may even take by force his legitimate needs from other's properties - if others do not supply his need - in order to ward off destructive hunger of himself and his family.
For this reason, Islam gives the oppressed the right to backbite the oppressor.
The Almighty, Allah says;
"Allah loves not the public utterance of hurtful speech, except by one who bas been wronged. And Allah is ever Hearing, Knowing."
Holy Qur'an (4:148)
Another example for the change of a divine judgement hukum is: the change of a permissible act mubah through transforming it from the state of permission ibahah into the state of an obligation wujub or a prohibition hurmah, according to an urgent necessity which requires such change in order to deal with objectivity and reality with this urgent and exceptional circumstance, until affairs return to their natural course. Thus the natural legislation plays its role as stated in the origin of legislation. Examples of permissible acts mubah which become forbidden, are many, among them is "Every permissible act mubah in which no interest can be achieved except by leaving it aside or harm and loss is resulted for doing it- because of an urgent cause."
For example: Some permitted foods whose eating becomes dangerous for man's life and his health. Like a patient who insists on using certain kind of food prevented by a doctor and which may cause him damage and harm. If he eats such food, which may harm his health or causes him death, he will do a forbidden act and thus commits sin for refusing his doctor's advice.
As this change of permission happens in the individual field, it may also happen in other fields including social, economic, political ... etc.
Regarding the change of the laws of permission in the social field is what happened in Iran when the great jurist mujtahid 4 Mirza Hassan Shirazi who proclaimed his famous verdict fatwa from Najaf in 1891, December about the prohibition of smoking under temporary circumstances.
Because tobacco was monopolized by a British colonialist company at that time, so his verdict was a declaration for an economic war against the usurper colonialists. Consequently smoking became forbidden after its being permissible and lawful because Muslim interests were in danger and required the taking of a decision for the sake of safeguarding the rights of the Muslim community and protecting it from the exploiting enemy. Thus this prohibition took its effect and became obligatory for all Muslims to refrain from tobacco until its main causes were removed. Iranian Muslims including the mother of the then Qajarid king Naseruddin Shah adhered to the prohibition until the agreement with the British company Laws cancelled in early 1892. Thus giving back Muslims the rights to control their own wealth and property.
In similar situations wajib kifa'i 5 becomes wajib 'aini 6 as the necessity is concerned. For example: If an Islamic state, based on Islamic rules, requests that the Muslim country is in need of scientific specialization in special branches of science because of the general interest and it demands that some qualified individuals should do their duty concerning this specialization. This specialization becomes wajib 'aini which was hither-to wajib kifa'i. Thus it becomes obligatory for concerned individuals to specialize in such fields.
Another example is, if a truly Islamic state gives the responsibility or a post in the governmental system to qualified individuals, it becomes obligatory for such individuals to respond to the state's decision without having the right to refuse except in case of a reasonable legal excuse. There are many different examples concerning this subject which are outside the purview of this book.
Before proceeding further, we state once again that such changes in the original hukum are only of a temporary nature caused by expediency in the interests of an Islamic state and the society, and certainly not against public interests. It should, however, be kept in mind that there is no other viable solution except this temporary change under pressing circumstances, and solely in the interest of Islam and Muslims, by a competent Islamic authority and in conformity with the Divine laws of the Supreme Law-Maker and His Wisdom.
The change of divine judgements - caused by urgent circumstances- does not mean to play with the spirit of Shari'ah or scheme against its aims at the whims and narrow interests of unqualified leaders or so-called experts. It is not correct to take this capability in the Islamic Shari'ah as a mean (a cover) to change the judgements and laws or play with them according to one's own will.
This change in judgements has special principles and rules which should be followed in a way which leads to the guarding of principles and rules related to formulating and discovering laws in general.
Regarding the change of judgement- which comes out of a case of expediency - the new judgement has not only its legitimacy as the first one but is also considered as commandment binding upon the concerned group or society.
Likewise, if fasting is compulsory for every mukalf person, provided that some conditions are met, it becomes prohibited for the sick. The prohibition of such fasting becomes like any other legal prohibitions and the sick person's fasting becomes a forbidden act which deserves other laws.
