What is the meaning of the statement of al-Shafi'i (may Allah have mercy on him), "Whoever exercises juristic preference has legislated"? And is it permissible to argue using juristic preference by making it one of the recognized legal proofs?
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The questioner : What is the meaning of the statement of al-Shafi'i (may Allah have mercy on him) "Whoever exercises juristic preference has legislated", and is it permissible to argue using juristic preference by making it one of the recognized legal proofs, as is the case with the Hanafis?
The Shaykh : No, and the statement of Imam al-Shafi'i is the relied-upon position.
The questioner : What is juristic preference?
The Shaykh : It is as understood from some opinions that divide religious innovation into two types: good innovation and bad innovation. And in some words attributed to al-Shafi'i, there is a reality that suggests that if an innovation is not contrary to the Sunnah, it is good.
But this general statement should not be relied upon; rather, the matter requires precise detail. We mentioned this in some of our recent sessions.
The Hanafis' statement regarding juristic preference may sometimes lead to suspending an action based on an explicit text due to circumstances surrounding the matter. But this is a very dangerous slippery slope, because the judgment regarding the matter that surrounded the legislated action, suspended it, and established a new, modern ruling in its place—considering this as juristic preference—is a matter of extreme danger.
For example, it is established from 'Umar ibn al-Khattab that he made divorce pronounced with the phrase "three, three" count as three, knowing that divorce with the phrase "three" was not in the time of the Prophet (peace and blessings be upon him) except as three separate instances. But when he saw people continuing to combine the pronouncements of divorce with the phrase "three," and in that there was a clear contradiction of the saying of the Exalted[Al-Baqarah 2:229], he implemented that for them as a discretionary punishment and discipline for them. This may be from the category of juristic preference and independent legal reasoning, but who is it that does this? It is from someone like the Rightly Guided Caliph 'Umar ibn al-Khattab (may Allah be pleased with him).
Therefore, since there is sensitivity in the subject, this door must be closed and one should not speak of juristic preference, because it will lead to the alteration of legal rulings by some people. And for this reason, Imam al-Shafi'i turned away from it with his statement "Whoever exercises juristic preference has legislated". This is what can be mentioned in response to this question.
The Shaykh : No, and the statement of Imam al-Shafi'i is the relied-upon position.
The questioner : What is juristic preference?
The Shaykh : It is as understood from some opinions that divide religious innovation into two types: good innovation and bad innovation. And in some words attributed to al-Shafi'i, there is a reality that suggests that if an innovation is not contrary to the Sunnah, it is good.
But this general statement should not be relied upon; rather, the matter requires precise detail. We mentioned this in some of our recent sessions.
The Hanafis' statement regarding juristic preference may sometimes lead to suspending an action based on an explicit text due to circumstances surrounding the matter. But this is a very dangerous slippery slope, because the judgment regarding the matter that surrounded the legislated action, suspended it, and established a new, modern ruling in its place—considering this as juristic preference—is a matter of extreme danger.
For example, it is established from 'Umar ibn al-Khattab that he made divorce pronounced with the phrase "three, three" count as three, knowing that divorce with the phrase "three" was not in the time of the Prophet (peace and blessings be upon him) except as three separate instances. But when he saw people continuing to combine the pronouncements of divorce with the phrase "three," and in that there was a clear contradiction of the saying of the Exalted
Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.
الطلاق مرتان فإمساك بمعروف أو تسريح بإحسانTherefore, since there is sensitivity in the subject, this door must be closed and one should not speak of juristic preference, because it will lead to the alteration of legal rulings by some people. And for this reason, Imam al-Shafi'i turned away from it with his statement "Whoever exercises juristic preference has legislated". This is what can be mentioned in response to this question.