If abrogation is only valid from the Lawgiver Himself, is it permissible in independent legal reasoning to change rulings that the Lawgiver did not abrogate, and when does this occur?
Machine translationRead the Arabic original
The Shaykh : There is a second question. The first questioner asks: If abrogation is only valid from the Lawgiver Himself, is it permissible in independent legal reasoning to change rulings that the Lawgiver did not abrogate, and when does this occur?
It is agreed upon by the scholars of the Muslims that abrogation cannot occur after the Islamic rulings have become established. This establishment is not known with certainty until after the death of the Messenger (peace and blessings 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 and blessings be upon him) in any way. Perhaps we should all recall that the meaning of abrogation is the invalidation of a ruling and its cancellation from its root. This is not the case of what the questioner may be referring to when he asks, "Is it permissible in independent legal reasoning to change rulings that the Lawgiver did not abrogate, and when does this 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 and blessings be upon him), to be abrogated in any way. However, what can occur in special 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 during a portion of 'Umar's own caliphate, count as three divorces. So, if a man divorced his wife three times in one waiting period, 'Umar (may Allah be pleased with him) considered it effective as three, contrary to how the matter was during the time of the Messenger (peace and blessings be upon him), the time of Abu Bakr, and a portion of 'Umar's own caliphate, as we mentioned.
Some later jurists, who saw that the majority of Muslim scholars adopted this ruling, and who considered this a binding and fixed ruling until the Day of Judgment, hold that 'Umar's implementation of the triple divorce with the phrase "three, three" could not have been 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 can support the idea that what 'Umar did is a fixed ruling... They do not find anything regarding the Messenger (peace and blessings be upon him) except to say that 'Umar did not come to this unless he had a text abrogating the previous ruling, which is that a divorce with the phrase "three" is considered a single divorce. Perhaps all those present understand what it means for a divorce with the phrase "three" to be 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 a portion of 'Umar's caliphate. I feel it is necessary for me to pause here for a moment to explain the difference to you, because this is an aspect in which people have differed greatly today.
The principle 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. After that, either keep her with kindness or let her go with kindness. If he divorces her for the third time, she is not lawful to him thereafter until she marries another husband." This is one of the conditions of lawful divorce: that he divorces her, then thinks about whether he will keep her, take her back 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) has given him a period for reflection, which is the waiting period. After a woman is divorced by her husband, her waiting period is three menstrual cycles, which is approximately three months and ten days. The man reflects on this woman during this time: will he take her back or not? Once the waiting period ends, the woman becomes free, and he has no way to take her back. Before the waiting period ends, he can take her back without a new marriage contract, but it counts as a divorce for him.
It is agreed upon by the scholars of the Muslims that abrogation cannot occur after the Islamic rulings have become established. This establishment is not known with certainty until after the death of the Messenger (peace and blessings 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 and blessings be upon him) in any way. Perhaps we should all recall that the meaning of abrogation is the invalidation of a ruling and its cancellation from its root. This is not the case of what the questioner may be referring to when he asks, "Is it permissible in independent legal reasoning to change rulings that the Lawgiver did not abrogate, and when does this 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 and blessings be upon him), to be abrogated in any way. However, what can occur in special 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 during a portion of 'Umar's own caliphate, count as three divorces. So, if a man divorced his wife three times in one waiting period, 'Umar (may Allah be pleased with him) considered it effective as three, contrary to how the matter was during the time of the Messenger (peace and blessings be upon him), the time of Abu Bakr, and a portion of 'Umar's own caliphate, as we mentioned.
Some later jurists, who saw that the majority of Muslim scholars adopted this ruling, and who considered this a binding and fixed ruling until the Day of Judgment, hold that 'Umar's implementation of the triple divorce with the phrase "three, three" could not have been 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 can support the idea that what 'Umar did is a fixed ruling... They do not find anything regarding the Messenger (peace and blessings be upon him) except to say that 'Umar did not come to this unless he had a text abrogating the previous ruling, which is that a divorce with the phrase "three" is considered a single divorce. Perhaps all those present understand what it means for a divorce with the phrase "three" to be 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 a portion of 'Umar's caliphate. I feel it is necessary for me to pause here for a moment to explain the difference to you, because this is an aspect in which people have differed greatly today.
The principle 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.
الطلاق مرتان فإمساك بمعروف أو تسريح بإحسانAllah (Mighty and Majestic) has given him a period for reflection, which is the waiting period. After a woman is divorced by her husband, her waiting period is three menstrual cycles, which is approximately three months and ten days. The man reflects on this woman during this time: will he take her back or not? Once the waiting period ends, the woman becomes free, and he has no way to take her back. Before the waiting period ends, he can take her back without a new marriage contract, but it counts as a divorce for him.