'Umar's Ruling on the Triple Divorce and the Limits of Legitimate Policy (al-Siyasah al-Shar'iyyah) إمضاء عمر للطلاق الثلاث وضابط السياسة الشرعية

Questioner: May Allah be good to you, O Shaykh: what 'Umar (may Allah be pleased with him) did in some issues, such as divorce — there is, for example, a text from the Prophet ﷺ, and then 'Umar saw that… So, O Shaykh, some scholars, for example, take from this that this is policy in governing people.

What is the objection? What is the difficulty for you?

Questioner: I mean, isn't this a contradiction of the text?

Which text?

Questioner: The Prophet ﷺ, for example, when he set the ruling on divorce.

You mean like 'Umar's saying, "Make it binding on them"?

Questioner: Yes. So what is the criterion in [matters of] policy, and may everyone cite this and act by it?

The default in the rulings of the Shari'ah and the hudud is that they remain in force as long as night and day remain. They do not change with the change of times, nor with the change of circumstances, and this is general and consistent in all the definitive matters of the Shari'ah. As for what is reported in the narrations — that some Companions, for example in the Year of Ashes ('Am al-Ramadah) and on some military expeditions, did not cut off the hand — what is meant is not that they dropped the cutting of the hand; rather, this was by way of postponement.

Because if the hadd is carried out on a Muslim in enemy territory, he may go over to the enemy. Imam al-Tirmidhi (may Allah have mercy on him) explained this issue in his Jami', in the Book of Hudud. Those who think that the hadd is dropped — this is a sheer mistake with no basis. Indeed, a group of scholars say: the hadd is carried out on him even in enemy territory, even if he goes over to the land of the enemy; he brought it on himself, it is not our concern: "And say: The truth is from your Lord, so whoever wills, let him believe; and whoever wills, let him disbelieve" [al-Kahf: 29]. But a group hold that it would lead to this, and there is no objection to postponing the hadd. This is by way of postponing the hadd, not suspending the hadd.

Likewise the issue of the hadith in Muslim — the hadith of 'Abd al-Razzaq from Ma'mar from 'Abdullah ibn Tawus from his father from Ibn 'Abbas (may Allah be pleased with them both), who said: "In the time of the Messenger of Allah ﷺ, of Abu Bakr, and for two years of the caliphate of 'Umar, the triple divorce was [counted as] one. Then, in the time of 'Umar, he said: 'People have become hasty in a matter in which they had latitude; if only we made it binding on them.' So he made it binding on them." Yes, this may be cited by one who says ijtihad is permissible in issues like these.

This too is questionable, because the triple divorce is a disputed issue, not one of the agreed-upon issues, and there are three views on it:

Some said: the three are one.

Some said: the three are three.

And some said: the ruler has a choice in this; it is one of the issues of choice, according to what he sees of benefit and the like.

Even though the view that it is one is the most preponderant view, it remains a view. So those who proceeded from this starting point did so on the basis of this view — not because rulings change with the change of time, or so that every Tom, Dick and Harry can come and say, "We change according to the change of the age, as 'Umar changed." 'Umar (may Allah be pleased with him) did not change a definitive ruling — Allah forbid! — that, had this happened, the Companions would approve it! So it is known that it was settled in their minds, their custom, and their knowledge that this is among what is admissible in a matter like this.

That is why some scholars held that the Companions may have had, in what they had memorised, two views on the issue:

A view of making it binding.

And a view of counting the three as one.

So 'Umar saw fit not to apply the other hadith at that time, because it was more beneficial for the people. This is not far-fetched: that is, if two hadiths came from the Prophet ﷺ, one with leniency and one with severity, the scholar may give fatwa by one at one time, and at another time take the second, for the sake of benefit and legitimate policy (al-siyasah al-shar'iyyah).

As for legitimate policy — whether, as you say in the question, every person may build on it: no, not every person. This belongs to the people of knowledge and virtue, the people of religion and scrupulousness, and it is not determined the way the secularists and their like do it. They speak about these issues while caring nothing at all, neither for divorce nor for anything else; rather, by getting to this hadith he wants to suspend the law of Allah, Majestic and Exalted, and tie it to the opinions of the creation, so that neither Islam nor the divine Shari'ah has any authority over their opinions, their conduct, or their actions.

They want to do whatever they wish under this label, and this has no basis. Allah, Majestic and Exalted, says: "Follow what has been revealed to you from your Lord, and do not follow other allies besides Him. Little do you remember" [al-A'raf: 3].

And Allah, Majestic and Exalted, says: "So let those who oppose his command beware, lest a trial strike them or a painful punishment" [al-Nur: 63]. The Prophet ﷺ used to command his Companions to obey him, and the Companions (may Allah be pleased with them) never put anything before the word of the Messenger of Allah ﷺ. They used to carry out the hudud on the small and the great, on the basis of his saying ﷺ: "By Allah, if Fatimah the daughter of Muhammad were to steal, I would cut off her hand." Its authenticity is agreed upon.

So the rulings of the Shari'ah are not tied to people's opinions or their ijtihad. As for matters of ijtihad, yes, these are built on legitimate policy — and even then not by everyone. The evidence for this is that when al-Hajjaj asked Anas ibn Malik: "What is the severest punishment the Prophet ﷺ carried out?"

Anas (may Allah be pleased with him), out of the goodness of his heart and not knowing al-Hajjaj's purpose, told him the hadith of the story of the 'Uranis. Al-Hajjaj then stood on the minbar to give a sermon, related this hadith, and said: "You blame me for flogging so-and-so and killing so-and-so, and here is the Prophet ﷺ, who did more than I did!" Then he related this report.

That is why a number of imams, such as al-Hasan al-Basri, reproached Anas for narrating such a hadith to such a tyrant. And that is why some jurists hold that one should be careful about relating certain hadiths to certain people, because they may put them in the wrong place and understand them in the wrong way. So you do not narrate such hadiths to people like these. This al-Hajjaj exploited such a hadith and put it in the wrong place.

The Prophet did that with apostates; he did not do it with his Companions, nor did he do it with the good and righteous as al-Hajjaj did — flogging the righteous and leaving the wicked alone, throwing the God-fearing into prisons and honouring the misguided.

Consequently, legitimate policy is tied to knowledge, piety, and awareness of the interests of the Muslims. This is the meaning of the saying of 'Ali (may Allah be pleased with him): "Speak to people according to what they know" — this is from legitimate policy — "Do you want Allah and His Messenger to be denied?" Among this is 'Umar (may Allah be pleased with him) burning the house of Ruwayshid when he was selling wine; this is from legitimate policy. When people are seen to be indulging widely in drinking wine and flogging does not deter them, they may be punished with another punishment, which is from legitimate policy and not from legislation — purely by way of deterrence, as 'Umar (may Allah be pleased with him) did.

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