1. The mubah leads to harm or to haram
2. Principle: The means to haram is haram
3. Principle: If one specific element of a mubah matter leads to harm, that particular element becomes Haram and the matter remains mubah
4. The mubah relates to specific areas of the state
5. The regulation of state funds and public amenities
6. Implementation of the collective obligations which are the responsibility of the state
7. Conclusion

This article is based on an excerpt from the book Al-Hakimiyah Wa Siyadah Ash-Shar’i, by Professor Muḥammad al-Mass’ari produced by the Renascence Foundation.

It has become widespread among the masses[1] that the state is permitted to “Prevent and compel in the mubah” (المَنْع وَ الإِلْزام بِالمُباح), due to what some have called the public benefit (al-maslaha al-‘aamah). This understanding is based upon the premise that the shar’a has provided the legally responsible person (mukallaf) with a choice in performing or not performing the mubah.

An erroneous view has arisen from this belief, which is the prohibition (tahreem) of what Allah and His Messenger have made halal, and obliging that which Allah ta’ala did not make obligatory, by compelling the subjects, and punishing them for their violations, without any clear shar’i restriction, or permission of Al-Shaari’ (the legislator) to do that.

Allah ta’ala has rebuked the one who makes haram what He has made halal with the greatest rebuke, and has named the one who has done that from a legislative perspective as a mushrik. Allah ta’ala says:

سَيَقُولُ ٱلَّذِينَ أَشْرَكُوا۟ لَوْ شَآءَ ٱللَّهُ مَآ أَشْرَكْنَا وَلَآ ءَابَآؤُنَا وَلَا حَرَّمْنَا مِن شَىْءٍۢ ۚ

The polytheists will argue, “Had it been Allah’s Will, neither we nor our forefathers would have associated others with Him ˹in worship˺ or made anything unlawful.”[2]

قُلْ أَرَءَيْتُم مَّآ أَنزَلَ ٱللَّهُ لَكُم مِّن رِّزْقٍۢ فَجَعَلْتُم مِّنْهُ حَرَامًۭا وَحَلَـٰلًۭا قُلْ ءَآللَّهُ أَذِنَ لَكُمْ ۖ أَمْ عَلَى ٱللَّهِ تَفْتَرُونَ

Ask ˹the pagans, O Prophet˺, “Have you seen that which Allah has sent down for you as a provision, of which you have made some lawful and some unlawful?” Say, “Has Allah given you authorization, or are you fabricating lies against Allah?”[3]

قَدْ خَسِرَ ٱلَّذِينَ قَتَلُوٓا۟ أَوْلَـٰدَهُمْ سَفَهًۢا بِغَيْرِ عِلْمٍۢ وَحَرَّمُوا۟ مَا رَزَقَهُمُ ٱللَّهُ ٱفْتِرَآءً عَلَى ٱللَّهِ ۚ قَدْ ضَلُّوا۟ وَمَا كَانُوا۟ مُهْتَدِينَ

Lost indeed are those who have murdered their own children foolishly out of ignorance and have forbidden what Allah has provided for them—falsely attributing lies to Allah. They have certainly strayed and are not ˹rightly˺ guided.[4]

The sharia has forbidden the person from compelling himself to refrain from a mubah action, even if it was with the intention of worship. This is like the Messenger’s ﷺ rebuke of the one who obliged himself not to eat meat or marry women, or who made a vow (nadhr) that he would not sit or seek shade. If this is the case in respect to the mukallaf, who intended worship by leaving the mubah, then how is it halal for the state to prohibit some of the mubah generally, or to make the action rest upon its permission or license?

The detailed sharia evidences have only indicated that it is permissible for the state to intervene, by compelling or preventing a matter from the mubah matters, in a temporary manner in specific circumstances which are restricted by clear sharia principles. We will now present these circumstances in order to remove any ambiguity in this matter.

1-     The mubah leads to harm or to haram

The legitimate ruler can always intervene in this circumstance to prevent the occurrence of the harm or prohibited matter. This is like preventing the one who is sick with a dangerous disease, or contagious leprosy, may Allah protect us from that, from marrying in order to prevent the contagious spread, or preventing the one who is losing his sight, or eho has weak eyesight from driving vehicles on the roads, in order to prevent the occurrence of any harm. This principle is established by the ahadeeth related to preventing the harm and its reciprocation. The Messenger of Allah ﷺ said,

لاَ ضَرَرَ وَلاَ ضِرَارَ

“Do not cause harm or return harm.”[5]

Principle: The means to haram is haram

As for the principle of preventing that which leads to haram i.e. ‘the means to haram is haram’ (الوسيلة إلى الحرام محرمة), then it is like the prohibition of insulting the deities of the mushrikeen if it is known that they will insult Allah aggressively and ignorantly. Allah ta’ala says,

وَلَا تَسُبُّوا۟ ٱلَّذِينَ يَدْعُونَ مِن دُونِ ٱللَّهِ فَيَسُبُّوا۟ ٱللَّهَ عَدْوًۢا بِغَيْرِ عِلْمٍۢ ۗ كَذَٰلِكَ زَيَّنَّا لِكُلِّ أُمَّةٍ عَمَلَهُمْ ثُمَّ إِلَىٰ رَبِّهِم مَّرْجِعُهُمْ فَيُنَبِّئُهُم بِمَا كَانُوا۟ يَعْمَلُونَ

˹O believers!˺ Do not insult what they invoke besides Allah or they will insult Allah spitefully out of ignorance. This is how We have made each people’s deeds appealing to them. Then to their Lord is their return, and He will inform them of what they used to do.[6]

Similar to this, is the Messenger of Allah ﷺ forbidding the storage of the meat of ritually slaughtered animals beyond three days due to the harm of famine.

Another example is what Uthman (ra) did by compelling the recital of the mushaf in the tongue of Quraish. He did this out of fear that fitna and division between the Muslims would spread across the regions, since the precursors of such division had already occurred, and the early signs of fitnah had manifested themselves.

It is stipulated in respect to all of this that the mubah matter definitely leads to harm (Ad-Darar) or the haram.

It is not permissible to prohibit the mubah matter which leads to harm or haram by way of probability or possibility, speculative thought or imagination, as all of these are not sufficient to deliver the hukm (verdict) of prevention or prohibition upon the matter.

Therefore, if the means were not considered in the most likely probability to lead to haram but it was merely feared that it may lead to haram, such as a woman going out without a face cover, where it is feared that it might cause fitna, the means in this case would not be haram, because the mere fear that it might lead to haram is not sufficient to warrant a prohibition. On top of that, the fitnah with respect to itself is not prohibited upon the women herself.[7]

Principle: If one specific element of a mubah matter leads to harm, that particular element becomes Haram and the matter remains mubah[8]

There is a sister principle to ‘the means to haram is haram’ which is

أذا كل فرد من افراد المباح كان ضارا او مؤديا الى ضرر حرم ذلك الفرد و ظل الامر مباح

“If one specific element of a Mubah matter leads to harm, that particular element becomes Haram and the matter remains Mubah”.

This is reflected in what the Messenger of Allah ﷺ did when he passed through the land of Al-Hijr and people took water from its well. When they left the Messenger of Allah said “Do not drink anything from its water and do not use it to make ablution for prayer. Whatever dough that you prepared, give to the animals and do not eat anything from it. None of you should go out at night unless he has a companion with him.”[9]

Drinking water is permitted, but that particular water, which is the water of Thamud, had been made prohibited by the Messenger of Allah because it led to harm. However, water in general remained permitted.

Also, it is permitted for a person to go out at night without a companion, but the Messenger of Allah prohibited anyone from among that army, in that particular night and at that particular place, from going out because it led to harm. Apart from this, going out at night without a companion remained permitted. This serves as evidence that a particular element of the permitted matter becomes prohibited if it leads to harm, while the matter in general remains permitted.”[10]

2-     The mubah relates to specific areas of the state

If the mubah matter relates to specific affairs of the state like the affairs of the army, employees and what is similar to these, then in such circumstances the state has the right to compel, and to prevent or forbid those related to these affairs such as employees and army personnel. This has to be in order to accomplish a shar’i aim and purpose, and not for the mere purpose of imposing dominance, or to curtail them based on mere whims.

This is like imposing particular tasks and hours of work upon employees of the state, or specifiying a uniform for the army personnel and so forth. This has been established in the Sunnah and the actions of the rightly guided caliphs, such as when the Messenger ﷺ forbade his governors from accepting gifts. ‘Umar (ra) used to stipulate the wealth of his governors, and forbade them from having locked doors and barriers between them and their subjects.

“When Umar heard that Sa’d ibn Abi Waqqas (ra) had put a gate on his house, he sent Muhammad ibn Maslamah to him and told him to burn that gate. The reason for that gate was that the market was close to his house, and the loud voices in the market were disturbing Sa’d, so he put a gate to block the noise of the people in the market.

News of Sa’d’s house and its gate reached Umar, and he heard that people were calling it Sa’d’s palace. So he called Muhammad ibn Maslamah and sent him to Kufah. He said: “Go to the palace and burn its gate, then come back straight away.” So he went to Kufah, where he bought some firewood, took it to the palace and burned the gate.”[11]

3-     The regulation of state funds and public amenities

This is where the Sunnah has established that there are amenities which the Muslims have a share in like the water, pasture lands, fire, public roads and paths, and what relates to the public funds in terms of the fay’ (booty) and ghana’im (spoils). This is because the regulation of these matters is left to the state in order to accomplish a shar’i aim or purpose without favouring anyone over anyone else in respect to them, and to accomplish the well-being of the Muslims through their distribution.

The state also has the right, in such a circumstance, to compel or forbid some of the mubah matters upon this shar’i basis.

The Prophet ﷺ made Naqee’[12] a protected sanctuary, and he ﷺ asked Abyad bin Hammaal to return a salt flat due to the people’s need for it.

He ﷺ also distributed the properties of Hunain to the Muhaajireen due to their poverty and to attract the hearts, whilst he did not distribute it upon the Ansar, may Allah be pleased with them all.

He ﷺ commanded that the road be made seven cubits wide to regulate its passage.

‘Umar ibn Al-Khattab (ra) made Ash-Sharaf and Az-Zabdah protected sanctuaries, and there are many other examples, all of which indicate that the Imam and the state have the right to intervene and regulate the amenities and public funds, in order to achieve a Shar’i Maqsad (aim).

4-     Implementation of the collective obligations which are the responsibility of the state

The shar’a has made the state responsible over the execution of some of the Furud Al-Kifayah (collective obligations of sufficiency) like the collection of the Zakah and waging Al-Jihad. In such a circumstance, it is for the state to compel and forbid those whom this relates to. The Messenger ﷺ legislated registration for the army of Jihad, and compelled those who were registered to attend, and not be absent unless he gave permission to that person.

Uthman used to specify a specific month for the collection of the Zakah as was mentioned in Al-Muwatta’.

Therefore, whatever has been made the responsibility of the state in terms of the collective obligations of sufficiency, it has the right to regulate that by way of compulsion and prohibition, in order to accomplish their establishment in accordance with the Shar’a.

If, however, the obligation of sufficiency is not related to the state like the obligation of Ijtihad, to deduce the Ahkam (rulings), and to be creative and innovative in the various fields of sciences, arts, manufacturing and crafts, then the state has no right to interfere with the scholars, scientists or inventers, to prevent or compel them. Rather, the state must facilitate the Ummah, in its collective capacity to undertake and fulfil those obligations of sufficiency.

Examples of this include the opening of schools, universities, higher learning institutes, centres for research and thought of the highest standards and levels, whilst designating grants and bursaries to researchers, students and teachers, and other such matters. This is in order to meet the objective to generate from the Ummah a great mass of mujtahideen, thinkers and inventers in all fields – sharia, natural, medical and engineering sciences. The Ummah must be enabled as a whole, with every capable and desiring individual from its sons, to fulfil the obligation of sufficiency in those areas.

Conclusion

It is clearly evident that in other than those circumstances listed above, the original position is that the state cannot prohibit or prevent the mubah, oblige it, restrict it or limit it to the one who has been provided with a licence to undertake it.

This is because ibahah (permissibility) is a hukm (ruling) from Allah, the Creator of the slaves and their Rabb. When the permissibility of an action has been established by the shar’i daleel (legal evidence), it is not for the creation to have any say in preventing or compelling it.

This is affirmed by the hadith of ‘Adi bin Hatim where he said, I came to the Prophet ﷺ while I had a crucifix of gold around my neck. The Prophet said, “O ‘Adi! Remove this idol from yourself!” I heard him reciting the verse in Surat al-Tawbah,ٱتَّخَذُوٓا۟ أَحْبَارَهُمْ وَرُهْبَـٰنَهُمْ أَرْبَابًۭا مِّن دُونِ ٱللَّهِ “They have taken their priests and rabbis as lords besides Allah.”[13] The Prophet said, “As for them, they did not worship them, but rather when they made something lawful for them, they considered it lawful. When they made something unlawful for them, they considered it unlawful.”[14]

Notes

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[1] https://www.dar-alifta.org/ar/fatawa/14158/%D8%AD%D8%AF%D9%88%D8%AF-%D8%B3%D9%84%D8%B7%D8%A9-%D8%A7%D9%84%D8%AD%D8%A7%D9%83%D9%85-%D9%81%D9%8A-%D8%AA%D9%82%D9%8A%D9%8A%D8%AF-%D8%A7%D9%84%D9%85%D8%A8%D8%A7%D8%AD

[2] Holy Qur’an, Surah Al-An’am ayah 148

[3] Holy Qur’an, Surah Yunus ayah 59

[4] Holy Qur’an, Surah Al-An’am ayah 140

[5] Muwatta of Imam Malik, Book 36, Hadith 1435, https://sunnah.com/urn/514340

[6] Holy Qur’an, Surah Al-An’am ayah 108

[7] Taqiuddin an-Nabhani, ‘An Introduction to the Constitution and its obligation’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 15, p.64. This is a supplementary comment from Taqiudeen an-Nabhani and not Al-Mass’ari

[8] This is a supplementary comment from Taqiudeen an-Nabhani and not Al-Mass’ari

[9] Reported by ibn Hisham in his seerah and ibn Hibban in his al-thiqat.

[10] Taqiuddin an-Nabhani, Op.Cit., p.65

[11] Dr Ali Muhammad Sallabi, ‘Umar bin al-Khattab, His life and Times,’ Vol. 2, International Islamic Publishing House, p.98

[12] a place near Al-Madinah where camels were kept

[13] Holy Qur’an, Surah Tawbah, ayah 31

[14] Jami at-Tirmidhi 3095, https://sunnah.com/tirmidhi:3095 Grade: Hasan li ghayrihi (fair due to external evidence) according to Al-Albani