If abrogation is only valid from the Lawgiver Himself, is it valid in independent legal reasoning to change rulings that the Lawgiver did not abrogate?

The questioner : He saysThe questioner .

The Shaykh : The second question says:The questioner : The first: If abrogation is only valid from the Lawgiver Himself, is it valid in independent legal reasoning to change rulings that the Lawgiver did not abrogate, and when does that occur?
It is agreed upon by 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). So, any ruling that the Messenger (peace and blessings be upon him) passed to the highest companion and that ruling became established in a certain way, it is not possible for that ruling to be abrogated after him (peace and blessings be upon him) in any way. Perhaps we all remember that the meaning of abrogation is invalidating the ruling and canceling it from its root. It is not of this type what may be indicated byThe questioner : in his statement: "Is it valid in independent legal reasoning to change rulings that the Lawgiver did not abrogate? And when does that occur?"
It is not possible for a ruling that has been established as a fixed ruling, as we mentioned, and that continued until the last breath of the life of the Messenger (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 a single divorce in the time of the Messenger (peace and blessings be upon him), and also in the time of Abu Bakr al-Siddiq, and also in part 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 divorced three times in one waiting period, it was considered effective as three, contrary to how the matter was in the time of the Messenger (peace and blessings be upon him), in the time of Abu Bakr, and in part of 'Umar's own caliphate, as we mentioned.
Some later jurists, who saw that the majority of the scholars of the Muslims 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 except that 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 would allow them to concede that what 'Umar did was a fixed ruling before the Messenger (peace be upon him). They find nothing to say except that 'Umar did not come to this except that he had a text abrogating the previous ruling, which is that a triple divorce is considered a single divorce. Perhaps all those present understand what a triple divorce means, and that it is considered three in 'Umar's independent legal reasoning, whereas it was not so in the time of the Messenger (peace and blessings be upon him), Abu Bakr, and part 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 a point on which many people differ today.
The original rule in Islamic divorce is that whoever wants to divorce his wife with a valid divorce must meet many conditions in this divorce, and we are not discussing them now. I only mention this one condition: that the three divorces, about which Allah said: . In each instance, retention with kindness—meaning after the divorce—or release with honor, in the third . This is one of the conditions of valid divorce: that he divorces, then thinks about whether he will retain her and return her to himself, or let her go, and Allah will replace her with something better for him and replace him with something better for her?
Allah (Mighty and Majestic) gave him a space for reflection, which is the waiting period. So, the woman, after her husband has divorced her, has a waiting period of three menstrual cycles, approximately three months and ten days. The man reflects on this woman: will he return her or not? When the waiting period ends, the woman becomes free, and he has no way to return her. Before the waiting period, he can return her to himself without a new marriage contract, but it is counted as a divorce for him.
Then he reconsidered and saw that this woman does not get along with him, so he divorced her with a second divorce after he had returned her to himself and the second divorce was counted for him. And so on, every divorce has a waiting period. Either he lets her go and she becomes free, or he returns her to him during the waiting period, and the first and second divorces are recorded for him, and so on. If the husband hastens the matter and says to his wife: "I have divorced you three times, go, you are divorced, you are divorced, you are divorced," here is the point of disagreement: Does this divorce mean she is forbidden to him and separated from him with a major separation, , or is this considered a single divorce because it is one waiting period, not three waiting periods? Every divorce must have a waiting period in valid divorce? = -- May Allah have mercy on you -- = The matter in the time of the Messenger (peace and blessings be upon him), in the time of Abu Bakr, and in part of 'Umar's caliphate was that whoever said to his wife: "You are divorced three times," it was as if he said to her: "You are divorced," a single divorce is considered. That is: the phrase "three times" is considered a single phrase, because valid divorce is accompanied by a waiting period. When he said: "You are divorced three times," how many waiting periods? One. So, this is a single divorce. Ibn Taymiyyah gives a beautiful example for this, saying: The example of the one who says to his wife "You are divorced three times" from the legal perspective is like the one who says: "Glory be to Allah thirty-three times." Were thirty-three glorifications recorded for him or one glorification? One glorification. Why? Because he did not say: "Glory be to Allah, Glory be to Allah, Glory be to Allah..." thirty-three times, but rather he said: "Glory be to Allah thirty-three times." So, "thirty-three times" is a superfluous word here, because it is not like the one who counted the action and said: "Glory be to Allah, Glory be to Allah, Glory be to Allah" thirty-three times.
In summary: The matter in the time of the Messenger (peace and blessings be upon him) was that whoever said to his wife "You are divorced three times," it was a single divorce. Likewise in the time of Abu Bakr, and likewise in the time of 'Umar. Then 'Umar had an opinion; he said: "The people have hastened a matter in which they had patience—meaning patience, duration, and forbearance—so I see that I should make it three for them." This is a ruling of independent legal reasoning from 'Umar ibn al-Khattab that issued from him for a matter that arose, which he indicated by saying: "The people have hastened a matter in which they had patience." This hastening was not in the time of the Messenger, nor in the time of Abu Bakr, nor in the first part of 'Umar's caliphate, or it was but 'Umar did not notice it. So, when he noticed it, he said: "I see that I should make it three for them," and he made it three. This is a ruling from 'Umar that does not abrogate the previous ruling, and the one that 'Umar himself ruled with. How could 'Umar rule in the first part of his caliphate that whoever said to his wife: "You are divorced three times," it is a single divorce? He must have ruled with that just as his predecessor, the first caliph, Abu Bakr al-Siddiq, ruled with it. And Abu Bakr did not rule with that except because he received it from the Prophet (peace and blessings be upon him). So, it is impossible to say that 'Umar abrogated this ruling. Rather, it is impossible to say that 'Umar had evidence abrogating this ruling, because if he had, how did he rule with the opposite before that? And if we assume he was unaware of it, how can we assume that he and all the Companions were unaware of it in his first caliphate? Then how was Abu Bakr al-Siddiq unaware of it? Then how did the Messenger (peace and blessings be upon him) leave the Companions all with this divorce being a single divorce?
It is not possible, then, for the ruling of a clear, established text to be abrogated upon the death of the Messenger (peace and blessings be upon him) by the independent legal reasoning of a scholar, no matter how knowledgeable that scholar may be, such as 'Umar. Rather, this scholar may see fit to suspend the previous ruling due to a circumstance that arose which was not present previously. You have learned what that circumstance was; it is the statement of 'Umar: "They used to be patient in this matter, but they hastened the affair." That is, they did not exercise patience; one person would pronounce divorce and combine the divorce with the wording of three, which is contrary to the Sunnah. As a disciplinary measure and to compel them to follow the Sunnah, he saw fit to make the divorce pronounced with the wording of three count as three.
This is exactly the case. Some of the contemporary writers today, who possess what is called comparative jurisprudence but do not possess the jurisprudence mentioned by the Messenger (peace and blessings be upon him) in the authentic hadith: ; because this jurisprudence is the understanding of the Book and the Sunnah. Most—if we do not say all—of those who study comparative jurisprudence today, with great regret, do not study it based on the Book and the Sunnah; because the door of independent legal reasoning is closed to them. Instead, they study based on the sayings that have come to them, and then the stronger position for them is what they call considering the public benefit, considering what suits people today because of the atmospheres they live in that their predecessors did not live in. So they take from the rulings what suits this time, and they do not take from those rulings in which the scholars disagreed what has valid evidence from the Book and the Sunnah supporting its preference. This is the case with the insistence of some, in order to support the principle that is also misused to the greatest extent: the principle that "rulings change with the change of time and place."
They argue for this principle by citing 'Umar ibn al-Khattab's suspension of the category of those whose hearts are to be reconciled from zakah. They argue for this by the action of 'Umar, and 'Umar suspended this category and said: "When Allah (Mighty and Majestic) made obligatory a share of zakah for those whose hearts are to be reconciled, that was when Islam was in need of support, aid, and backing. But now that ... Allah has established Islam on earth, I am not in need of these people whose hearts are to be reconciled." It is as if 'Umar (may Allah be pleased with him) understood that the only operative cause for the category of those whose hearts are to be reconciled was the need of Islam for support and for repelling the harm of some people who were still between Islam and disbelief, among those whose hearts are to be reconciled. But the truth—as indicated by the Prophetic biography and as held by many of the exegetes, such as al-Hafiz Ibn Kathir—is that the category of those whose hearts are to be reconciled is not for this purpose only, but also to draw the hearts of people to faith and to Islam, even if we did not fear harm from them or their influence on the weak-hearted among the Muslims. So they—meaning some of the writers or those who study jurisprudence in the present era—argue with this action of 'Umar that the time requires changing this ruling. Therefore, this is the opinion of 'Umar, and if it is permissible for us to say that 'Umar erred, we would only say that he understood the verse with a limited understanding. It is not permissible for us to say that he abrogated the ruling that was established—far be it from that. As for the threshold or category of zakah for those whose hearts are to be reconciled, this is the ultimate wisdom of legislation for the Muslims. We now feel completely that the Muslim state, if it existed, is in need of allocating a specific percentage of zakah funds to disbelievers, disbelievers who have not yet submitted to Islam; that funds be given to them to draw their hearts to us, as the poet said:
Be kind to people, and you will enslave their hearts, *** For as long as there is kindness, it enslaves the human being.
We are in even greater need to spend on people who have embraced Islam in foreign lands, in the lands of disbelief, so that we strengthen them and take support from them with these funds that we give them. How can it be said that Islam is not in need? Islam is always in need to increase its numbers by every lawful means; especially what our Lord (Mighty and Majestic) has specified in the Noble Qur'an.
This is what is feasible as an answer to this question.