The statement of al-Shafi'i (may Allah have mercy on him): "Whoever exercises juristic preference has legislated"
Machine translationRead the Arabic original
The questioner : The meaning of the statement of al-Shafi'i (may Allah have mercy on him): "Whoever exercises juristic preference has legislated." And is juristic preference cited as one of the recognized legal evidences, as it is with the Hanafis?
The Shaykh : No, what Imam al-Shafi'i said is the relied-upon position.
The questioner : What is ... al-Shafi'i?
The Shaykh : It is as understood from some opinions that divide religious innovation into two categories: a good innovation and a 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, as we have mentioned in some of our various sessions. The Hanafis' reliance on juristic preference can 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 assessing the circumstance that surrounded the well-known matter, suspended it, and established a new ruling in its place is considered a juristic preference that involves extreme danger. As is established, for example, from 'Umar ibn al-Khattab that he made divorce by the phrase of three count as three, while he knew that divorce by the phrase of three was not three in the time of the Prophet (peace and blessings be upon him), but when he saw people following one another in preventing divorces by the phrase of three, and in that there is a clear contradiction of His saying (the Exalted):[Al-Baqarah 2:229], he enforced it upon 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 this for? It is for the Rightly Guided Caliph 'Umar ibn al-Khattab (may Allah be pleased with him) himself. And because there is sensitivity in the subject, this door must be blocked and one should not speak of juristic preference; because it will lead to changing legal rulings by some people. And therefore Imam al-Shafi'i opposed it with his saying: "Whoever exercises juristic preference has legislated."
This is what can be mentioned.
The Shaykh : No, what Imam al-Shafi'i said is the relied-upon position.
The questioner : What is ... al-Shafi'i?
The Shaykh : It is as understood from some opinions that divide religious innovation into two categories: a good innovation and a 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, as we have mentioned in some of our various sessions. The Hanafis' reliance on juristic preference can 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 assessing the circumstance that surrounded the well-known matter, suspended it, and established a new ruling in its place is considered a juristic preference that involves extreme danger. As is established, for example, from 'Umar ibn al-Khattab that he made divorce by the phrase of three count as three, while he knew that divorce by the phrase of three was not three in the time of the Prophet (peace and blessings be upon him), but when he saw people following one another in preventing divorces by the phrase of three, and in that there is a clear contradiction of His saying (the Exalted):
Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.
الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍThis is what can be mentioned.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.