حَدَّثَنَا قُتَيْبَةُ بْنُ سَعِيدٍ، قَالَ: حَدَّثَنَا حَمَّادُ بْنُ زَيْدٍ، عَنْ مُجَالِدٍ، عَنْ الشَّعْبِيِّ، عَنْ النُّعْمَانِ بْنِ بَشِيرٍ، قَالَ: سَمِعْتُ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ يَقُولُ: «الحَلَالُ بَيِّنٌ وَالحَرَامُ بَيِّنٌ، وَبَيْنَ ذَلِكَ أُمُورٌ مُشْتَبِهَاتٌ، لَا يَدْرِي كَثِيرٌ مِنَ النَّاسِ أَمِنَ الحَلَالِ هِيَ أَمْ مِنَ الحَرَامِ، فَمَنْ تَرَكَهَا اسْتِبْرَاءً لِدِينِهِ وَعِرْضِهِ فَقَدْ سَلِمَ، وَمَنْ وَاقَعَ شَيْئًا مِنْهَا، يُوشِكُ أَنْ يُوَاقِعَ الحَرَامَ، كَمَا أَنَّهُ مَنْ يَرْعَى حَوْلَ الحِمَى، يُوشِكُ أَنْ يُوَاقِعَهُ، أَلَا وَإِنَّ لِكُلِّ مَلِكٍ حِمًى، أَلَا وَإِنَّ حِمَى اللَّهِ مَحَارِمُهُ» سنن الترمذي (3/ 503) ، مطبعة مصطفى البابي الحلبي – مصر
Imam Tirmidhi has established a chapter on leaving out the doubtful and started with the above hadīth. Qutaibah ibn Sa῾īd narrates that Hammād ibn Zaid narrated from Mujāhid from Sha῾bī on authority of Nu῾mān ibn Bashīr, who said, “I heard Rasulullah salallahu ῾alayhi wasallam said, “Halāl is clear and Harām is clear, and between them are matters which are doubtful. Many people are not aware which of these (matters) are halāl and which ones are harām. So whosoever leaves these matters out seeking sanctity of his religion and his honor, then he is saved. And whosoever indulged in these matters then it is feared that he will soon indulge in harām. Just like a shepherd grazes his sheep near the pastures of a king, it is near that soon he will enter the king’s pastures. Lo! Every king has pastures, and Allah Ta῾ālā’s pastures are those which He has declared harām” (Sunan Tirmidhi #1205)
Hence, just as it is not permissible for a Muslim to enter Allah’s pastures, similarly he should not go near the boundaries of these pastures as well, lest it so happen that he enters these pastures by mistake and commits a sinful act.
In the olden times, the leader or head of a tribe would demarcate a particular pasturing land for himself. He would then announce that no one has the permission to utilize these lands for their needs. This personal pasture of the leader or the king was referred to as “حمى” (himā). The method of demarcating this land was such that the leader would go to hillock or heightened land, and bring along a dog that could bark loudly. There he would make the dog bark. Then all the areas where that sound of barking could be heard would be demarcated as the “حمى” of that leader. Thereafter no one would be allowed to enter and graze in these fields.
When Rasulullah salallahu ῾alayhi wasallam came he abolished this custom and declared that,
“لا حمى الا الله و لرسوله”
There shall be no حمى except for Allah and His Rasul.
This means that “حمى” can be demarcated for the use of the governmental reserve (بيت المال [ baytul māl ]) but it cannot be made for any personal usage.
In this hadīth Rasulullah Salallahu ῾alayhi wasallam is reminding the people about the custom of the past, where they would worry and be scared of grazing their animals even near the king’s pastures, lest one of the lone animals enter these pastures by mistake and the shepherd becomes liable for the punishment of the king. Similarly, to engage in doubtful matters is akin to grazing ones cattle near the pasturing grounds of Allah. It must not happen that by falling into some prohibited matter, one becomes liable for punishment of Allah. Imām Abu Dawūd rahmatullah alayh has declared this hadīth 1/3rd of religion.
The order of abstaining from the doubtful which Rasulullah salallahu ῾alayhi wasallam has given in this hadīth is at times Wajūb (compulsory) and at times it is Istihbāb (desirable). Let us say that an ῾ālim or a mujtahid is researching the permissibility or impermissibility of a matter, to issue a verdict of halāl or harām for it. In this research he ends up with evidence of both sides. Some evidence points towards the matter being permissible while other evidence points towards it being impermissible. After comparing both these evidences, both seem to be equally valid and he cannot find any reason for preference toward either side. In such a case, this matter will be doubtful (Mushtabah). Hence in this condition the ῾ālim or mujtahid should prefer towards harām and give the ruling of impermissibility. This is because in this scenario, it is incumbent to abstain from doubtful (mushtabah).
Similar is the case of one layman and a fatwā from two ῾ulama about the same issue, one of them giving the ruling of permissibility and other one giving the ruling of impermissibility. Now if this layman’s heart is more content with the knowledge and piety of one of these ῾ulama, then it is wājib (compulsory) for him to follow the ruling of that ῾ālim (who he is more content with). However, if his heart does not distinguish between these two ῾Ulama, and consider them both equal in their knowledge and piety, then in this case it will be compulsory (wājib) for him to follow the one who issued the verdict of impermissibility. This is because in this case the issue has become from the doubtful matters and such that one becomes obligated to abstain from.
In some conditions it is “desirable” (mustahab) to abstain from the matter. For example, if in an issue there is contrary evidence in its permissibility and impermissibility, such that the evidence supporting the permissibility outweighs that indicating towards its impermissibility, in this case an ῾ālim or Mufti would look at the stronger evidence and rule the matter permissible. However, since there remain “some” evidence suggesting its impermissibility, the matter becomes doubtful. But this doubt is such that abstaining from such matter is only “desirable” (mustahab) (and not compulsory). Therefore, the demand of piety is that one abstains from this matter and opts for impermissibility.*
(Taqrīr Tirmidhi of Mufti Taqi Uthmani, Vol. 1 Pg. 35-37)
* When the jurists say that “in such and such matter piety demands one to abstain from it”, this abstaining is a sign of piety and a cause of reward in sight of Allah. Although, the legal verdict on the matter will remain that of permissibility such that if someone chooses to engage in it, he will not be sinful, albeit he will lose out on the reward of opting for a cautious approach.