Al-Istihlaal

Meaning of alistihlaal, the ruling upon it, and examples of it.

1. Meaning: Alistihlaal technically means, in Sharee'ah terminology: making something that Allah has prohibited, halal on a personal or general (i.e. imposing) level.

2. Ruling: It's major kufr, evidences:

[a] From the book of Allah: 'The postponing (of a Sacred Month) is indeed an addition to disbelief: thereby the disbelievers are led astray, for they make it lawful one year and forbid it another year in order to adjust the number of months forbidden by Allah, and make such forbidden ones lawful. The evil of their deeds seems pleasing to them. And Allah guides not the people, who disbelieve.' - (Surat at-Tawbah: 37). So here, Allah shows to us how making halaal, what is haraam is only an increase in kufr, and an increase in kufr is kufr; more in this ayah will come up in this discussion.

[b] From the Sunnah: the hadeeth of al-Baraa` bin 'Aazib (ra) who said: "My uncle, al-Haarith bin 'Amro passed by me, and he had a banner that the Prophet - s - had signed for, so I asked him [about it], so he said: The Prophet of Allah (saws) sent me to kill a man who married his fathers wife."  See Imaam Ahmad's Musnad, Abu Dawood's collection, an-Nisaa'i, Ibn Maajah, and Ibn al-Qayyim considered it hasan in hisTahtheeb Sunan Abi Dawood, and al-Albaani considered it saheeh in his Irwaa` al-Ghaleel.

Ibn Jareer comments on this hadith, and says: "So this act of his - marrying his fathers wife - was the strongest of proofs that he denied (taktheeb) of the Prophet of Allah (saws) and his rejection (juhood) of amuhkam ayah, for that reason whoever does it (man fa'alahu), he was ruled with killing, and the striking of his neck. For that reason, the Prophet (saws) ordered his killing and the striking of his neck, for this is the sunnah of the apostate in Islaam" - See Tahtheeb al-Athaar, volume 2/148.

Shaykh 'Abdul'azeez bin 'Abdullateef says in his book, Nawaaqid al-Imaan al-Qawliyyah wal-'Amaliyyah in the footnote under that hadith, page 328: "And compare what you read and what happens in Muslim societies, when the ruling entities in those Muslim countries allowed places of interest, fornication, alcohol and so on from the prohibited things, and it licensed those evil things, even imposing those evil things, and defending them and strengthening them, not only this, but these governments have also allowed alliance to the kufaar, under the pretext of 'benefit', and 'living together friendily' and Allah is the only helper". 

[c.] The ijmaa' of the Sahabah: In the story of Qudaamah bin Math'oon who drank alcohol thinking it was halaal for him, due to his wrong ta`weel of the following ayah: "Those who believe and do righteous good deeds, there is no sin on them for what they ate..." - (Surat al-Maa`idah: 93).

So 'Umar explained the mistake in his ta`weel to him, and the sahabah agreed that if Qudaamah affirms that alcohol is forbidden then he is to be flogged, if he however insisted on it being halaal then he would have been killed an apostate. And the hadith is narrated by 'Abdurazzaaq, with a saheeh isnaad, as Ibn Hajr said in Fath al-Baari, volume 13/141.

And so these evidences prove that whether istihlaal is done on a personal level, or a general imposing level then it is kufr. From this you understand that it is not a condition for istihlaal to be kufr to make it a law, rather it can be kufr even on a personal level (i.e. I believe alcohol to be permissible, as in the case of Qudaamah).

How istihlaal is done:

[a] Orally: such as in the aforementioned ayah in Surat at-Tawbah, on an-Nasee`(the postponing of sacred months), and what used to be done is that a man would raise up during the time of Hajj - in Jaahiliyyah, before Islaam - and would announce that he has made the month of Muhharam in the next year not-sacred, and he has made the month of Safar sacred instead. Also, we have the case of Qudaamah who made istihlaal by tongue too.

[b] By writing: because writing takes the place of speaking, which is why we have the fiqhi principle: 'Writing is like Addressing/Talking' (al-Kitaab kalkhitaab). See - Sharh al-Qawaa'id al-Fiqhiyyah for Shaykh Ahmad al-Zarqaa, page 285, Daar al-Gharb al-Islaami print, 1403 AH; and al-Mughni Ma' ash-Sharh al-Kabeer for Ibn Qudaamah, volume 11/326-327.

Examples of istihlaal:

[a] Orally: The swearing in act when a man is to become a ruler, he swears by the constitution, and how he will stick to it, and protect it, and in these man-made constitutions we have the permissible made impermissible, and the impermissible made permissible.

[b] Writing: What these constitutions have written of them, making forbidden things permissible, such as interest, alcohol, gambling and fornication and adultery, and how they permit the blood of a Muslim for the blood of a kaafir, and the examples of this are many, and take many forms:

- From it, is the obligation to rule by the forbidden, as we read in the constitutions: 'Ruling in the Courts is with the Law', and this law is falsehood, and forbidden and disbelief; but they make it an obligation to rule by it, and imposing is greater than making a matter permissible, for the permissible, you have a choice, you can do it, and you can not do it, but imposing something means that if you do not do it, you get punished. For that reason, these people (law-makers), they punish those who do not rule by their man-made laws.

- From it, is making the blood of a Muslim permissible without an Islaamic shar'ee reason, so that if a Muslim was to rebel against one of them apostates - whom it is obligatory to remove - his blood would become permissible and they would kill him, and this man, this Mujaahid, who is fulfilling an Islaamic obligation would be killed and his blood would is considered halaal by the law.

- From it as well, is their permittance of forbidden things, such as providing licenses for interest-based banks, and the opening of bars, and dance clubs and gambling (betting) places, and prostitute homes (brothels), and so on. And licensing (at-tarkhees) is like permitting something as Ibn Manthoor says in Lisaan al-'Arab under that entrance. Whoever makes something on which there is an ijmaa' on permissible, disbelieves with ijmaa' as Ibn Taymiyyah mentions in Majmoo' al-Fatawaa, volume 3/267. We see, in this day and age, some states claiming to be Islaamic, and rule by the Book and the Sunnah, yet they give licenses and permit interest banks, and this alone is enough to do takfeer of those governments, for this is licensing and permitting and allowing interest, on which there is an ijmaa' that is prohibited.

- From it, is their silence on criminal acts that Allah has made forbidden, which means that it is permissible in their law, because their laws state: 'No crime, or punishment except with the principles of the law'. Supporting this statement, is the statement of one of the men who legislated laws in Egypt, who said: "And the matter which the law does not consider a crime, then it is permitted in origin, with respect to [or in the eyes of] the authority..." - See Sharh Qaanoon al-'Uqoobaat, for Doctor Mahmood Mustafa, page 14, Jaam'iat al-Qaahirah print, edition 10, 1983 print.

Therefore, according to this, apostasy could be permissible, because these man-made laws do not punish due to it, so if a man insulted Allah or His Prophet (saws), he is not punished instantly; but if he insults the King who rules the country, then he would have been punished due to that, because these constitutions that are put in place in the lands of the Muslims today state that the King/Ruler is infallible and cannot be criticized! Furthermore, we can also say then that according to these man-made laws, fornication is permissible, and alcohol is permissible, and music is permissible, and dancing in public and so on...