If abrogation is not valid except from the Lawgiver Himself, is it valid in independent legal reasoning to change rulings that the Lawgiver has not abrogated?
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The Shaykh : There is a second question. The first questioner asks: If abrogation is not valid except from the Lawgiver Himself, is it valid in independent legal reasoning to change rulings that the Lawgiver has not abrogated? And when does that occur?
It is agreed upon among the scholars of the Muslims that abrogation cannot occur after the Islamic rulings have become established. This certainty does not become apparent until after the death of the Messenger (peace be upon him). Therefore, any ruling that the Messenger (peace and blessings be upon him) passed away with, and which remained in that state, cannot be abrogated after him (peace be upon him) in any way. Perhaps we should all recall that the meaning of abrogation is invalidating a ruling and canceling it from its root. This is not the case of what the questioner may be referring to when he asks: "Is it valid in independent legal reasoning to change rulings that the Lawgiver has not abrogated? And when does that occur?"
It is not possible for a ruling that has been established as a fixed ruling, as we mentioned, and which continued until the last breath of his life (peace be upon him), to be abrogated in any way. However, what can occur in specific circumstances and conditions is the suspension of a fixed, non-abrogated ruling for a specific period due to circumstances surrounding the people that necessitated delaying that ruling to a specific time. For example, 'Umar ibn al-Khattab (may Allah be pleased with him) made the triple divorce, which was considered a single divorce during the time of the Messenger (peace and blessings be upon him), and likewise during the time of Abu Bakr al-Siddiq, and likewise for a portion of 'Umar's own caliphate, into three divorces. After that, 'Umar (may Allah be pleased with him) made this triple divorce count as three. So, whoever divorces three times in one waiting period, it is considered effective as three, contrary to how the matter was during the time of the Messenger (peace and blessings be upon him), during the time of Abu Bakr, and during a portion of 'Umar's own caliphate, as we mentioned.
Some later jurists, who saw that the majority of Muslim scholars adopted this ruling as if it were a necessary and fixed ruling until the Day of Judgment, hold that 'Umar's implementation of the triple divorce as three cannot be done unless he had an abrogating text. They say this because they do not find in the texts of the Sunnah, let alone the texts of the Book, anything that allows them to support that what 'Umar did was a fixed ruling before the Messenger (peace be upon him). They do not find it; except to say that 'Umar did not come to this unless he had a text abrogating the previous ruling, which is that a divorce pronounced with the phrase "three" is considered a single divorce.
Perhaps all those present understand what a divorce pronounced with the phrase "three" means, and that it is considered three in 'Umar's independent legal reasoning, whereas it was not so during the time of the Messenger (peace and blessings be upon him), Abu Bakr, and a portion of 'Umar's caliphate. It seems to me that it is necessary for me to pause here for a moment to clarify the difference for you, because this is an aspect in which people have differed greatly today.
The original rule in lawful divorce is that the one who wants to divorce his wife with a lawful divorce must meet several conditions in this divorce. I am not going into them now, but I am mentioning this one condition: that he does not combine the three divorces about which Allah said:[Al-Baqarah 2:229], the divorce is twice, in each instance either retaining her with kindness (meaning after he has divorced her) or releasing her with generosity; , and in the third [Al-Baqarah 2:230]. This is one of the conditions of lawful divorce: that he divorces, then thinks about whether he will retain her, take her back to himself, or let her go, and Allah will compensate him with something better than her and compensate her with something better than him.
Allah (Mighty and Majestic) gave him a space for reflection, which is the waiting period. The woman's waiting period after her husband divorces her is three menstrual cycles, approximately three months and ten days. The man thinks about this woman during this time: will he take her back or not? When the waiting period ends, the woman becomes free, and he has no way to take her back. Before the waiting period, he can take her back without a new marriage contract, but it is counted as a divorce for him.
It is agreed upon among the scholars of the Muslims that abrogation cannot occur after the Islamic rulings have become established. This certainty does not become apparent until after the death of the Messenger (peace be upon him). Therefore, any ruling that the Messenger (peace and blessings be upon him) passed away with, and which remained in that state, cannot be abrogated after him (peace be upon him) in any way. Perhaps we should all recall that the meaning of abrogation is invalidating a ruling and canceling it from its root. This is not the case of what the questioner may be referring to when he asks: "Is it valid in independent legal reasoning to change rulings that the Lawgiver has not abrogated? And when does that occur?"
It is not possible for a ruling that has been established as a fixed ruling, as we mentioned, and which continued until the last breath of his life (peace be upon him), to be abrogated in any way. However, what can occur in specific circumstances and conditions is the suspension of a fixed, non-abrogated ruling for a specific period due to circumstances surrounding the people that necessitated delaying that ruling to a specific time. For example, 'Umar ibn al-Khattab (may Allah be pleased with him) made the triple divorce, which was considered a single divorce during the time of the Messenger (peace and blessings be upon him), and likewise during the time of Abu Bakr al-Siddiq, and likewise for a portion of 'Umar's own caliphate, into three divorces. After that, 'Umar (may Allah be pleased with him) made this triple divorce count as three. So, whoever divorces three times in one waiting period, it is considered effective as three, contrary to how the matter was during the time of the Messenger (peace and blessings be upon him), during the time of Abu Bakr, and during a portion of 'Umar's own caliphate, as we mentioned.
Some later jurists, who saw that the majority of Muslim scholars adopted this ruling as if it were a necessary and fixed ruling until the Day of Judgment, hold that 'Umar's implementation of the triple divorce as three cannot be done unless he had an abrogating text. They say this because they do not find in the texts of the Sunnah, let alone the texts of the Book, anything that allows them to support that what 'Umar did was a fixed ruling before the Messenger (peace be upon him). They do not find it; except to say that 'Umar did not come to this unless he had a text abrogating the previous ruling, which is that a divorce pronounced with the phrase "three" is considered a single divorce.
Perhaps all those present understand what a divorce pronounced with the phrase "three" means, and that it is considered three in 'Umar's independent legal reasoning, whereas it was not so during the time of the Messenger (peace and blessings be upon him), Abu Bakr, and a portion of 'Umar's caliphate. It seems to me that it is necessary for me to pause here for a moment to clarify the difference for you, because this is an aspect in which people have differed greatly today.
The original rule in lawful divorce is that the one who wants to divorce his wife with a lawful divorce must meet several conditions in this divorce. I am not going into them now, but I am mentioning this one condition: that he does not combine the three divorces about which Allah said:
Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.
الطَّلَاقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍIf he divorces her
فَإِنْ طَلَّقَهَاshe is not lawful to him afterward until [after] she marries a husband other than him
فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُAllah (Mighty and Majestic) gave him a space for reflection, which is the waiting period. The woman's waiting period after her husband divorces her is three menstrual cycles, approximately three months and ten days. The man thinks about this woman during this time: will he take her back or not? When the waiting period ends, the woman becomes free, and he has no way to take her back. Before the waiting period, he can take her back without a new marriage contract, but it is counted as a divorce for him.
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.
