We may deal with this principle in two ways:

1. When we do not know if an act is permissible or prohibited, this principle attests that unless there is a clear text that prohibits such an act, we have to regard it as being permissible - mubah. In other words, anyone who commits such an act is deemed to be free from legal liability.

For example, consider smoking. There is no clear text in either the Qur'an or the ahadith regarding this. No one is able to claim that there is evidence to prohibit smoking in these two primary sources of Islamic law. If the mujtahid examines the third source, i.e. consensus - ijma'a - he will not find even there any verdict concerning smoking from the jurists of earlier times, for tobacco was only introduced from the Americas four centuries ago. There is thus no clear evidence that smoking is prohibited and the conclusion is that smoking is therefore permissible.

However, when we discuss the principle that ‘Islamic law does not occasion harm’ (see chapter 5) and know that smoking does damage health - according to some experts fatally - a mujtahid needs to take cognizance of that information!

2. When we do not know if a certain food is lawful or unlawful, the ‘principle of permissibility’ guides us to it being lawful.

It is clear that (a) and (b) reflect the two faces of the same coin.

The Basis Of This Principle

From The Qur'an

A) “Wedo not punish those to whom We have not sent a messenger.” (Surah Isra’, 17:15).

When a faqih is faced with a subject not mentioned in either the Qur'an or ahadith, when permissibility and non-permissibility may be equally valid, most jurists tend to conclude that the subject is permissible. They base such conclusions on the above ayah. (No chastisement before We have sent a Messenger.) The sending of a Messenger is not to be understood in any literal sense, but rather as an indication that clear proof has been sent. In other words, do not penalize those who have not been provided with clear proof.

B) “Allah has explained to you in detail what is forbidden to you unless you are in desperate need” (Surah Al-‘An’am, 6:119).

Permissibility is thus the norm with regard to matters that are not otherwise regulated. When all the prohibited acts have been explained in detail and we do not find the subject matter included in them, the only legal ruling to be followed is that of ‘permissibility’. Presumption is not enough to declare something unlawful. In other words, prohibition needs to be clear and specific.

From Ahadith

1. Hadith al-Raf.1 The Prophet (S) is reported to have said: ‘Nine things have been removed from my nation’:

1. Mistakes

2. Forgetfulness

3. Actions committed under duress

4. What they do not know

5. What they are unable to afford

6. What they are in desperate need of

7. Envy (which they have not acted on)

8. Evil omens

9. Whispering doubts regarding Allah's creation.'

The removal of the above nine things means that people are not to be held legally liable for such actions committed by them.

This includes the fourth item, 'What they do not know', that complies with the phrase used in common law, 'Everyone is deemed to be innocent unless proven guilty'. In every juridical system it is the duty of the prosecutor to prove guilt, not for the accused to prove themselves innocent.

And it is the obligation of the Law Maker to clearly explain the rulings within Islamic law that are to be binding on people. If He has not informed His servants of restrictions or prohibitions, the subject is clearly categorized as 'What they do not know' of which the Messenger of Allah said, 'They have no liability'.

2. The Prophet (S) is reported to have said:

‘Allah has made certain things obligatory - so be sure not to neglect them. He has also laid down certain limits that you may not exceed. And has prohibited certain things that you are obliged to adhere to. He has, out of His mercy - not forgetfulness - also chosen to remain silent about certain matters - so do not be inquisitive and enquire into them.’2

In the Qur'an Allah has provided a comprehensive list of prohibitions that have to be observed regarding marriage, but has made only general reference to those whom it is lawful to marry.

Ayah 23 of surah 4 details the category of women who are not marriageable3; however in the next ayah Allah tells us: 'It is lawful for you to seek marriage with women other than these'.4

Similarly, the Qur'an specifies the foodstuffs that are prohibited, other than which, everything else is lawful.

“Say, I do not find in what has been revealed to me anything that has been forbidden to eat, other than carrion, gushing blood, the flesh of swine - for that is truly unclean - or animals that have been slaughtered in a name other than Allah”. (Surah Al-‘An’am, 6:145).

This ayah indicates that there is no attempt in the Qur'an to elaborate on what is permissible in either of the above instances. Any elaboration on the above subjects is found within the ahadith.

3. It has been reported that Imam al-Sadiq (‘a) said5, ‘Everything is halal, until it is specifically recognized to be haram’.

Many fuqaha, including Shaykh Murtada Al-Ansari (d. 1281 AH), Muhammad Kazem Al-Khurasani (d. 1329 AH), and Muhammad Hussain Al-Nainy (d. 1355 AH), regard the above hadith as the source that proves the principle of permissibility - when both permissibility and non-permissibility of an action or food are equally valid. This hadith clearly states the universality of 'Everything is halal according to Islamic law, until something has specifically been recognized to be haram'.

From Intellectual Reasoning

It is agreed by all reasonable people that if no prohibition clearly exists, then no governor, administrator, boss or army commander may hold employees, subjects or soldiers accountable for doing something that they have not clearly been told they must refrain from doing.

Is it acceptable to fine drivers for entering a road without having clearly indicated that 'no entry' to that road is permitted?

What is thought of an employer who punishes employees for doing something that they have not been told they must not do?

Or a lecturer who sets questions for the final examination that have not been included in the course syllabus?

The answers to the above questions are too obvious to warrant explanation. No punishment in the absence of a clear warning.

• 1. Al-Kafi, Book of Faith and Disbelief. Man La Yahdurohu al-Faqih Vol. 1, p. 36.
• 2. Nahj Al-Balaghah, Aphorism 105.
• 3. The full Verse reads:
  “Forbidden to you are your mothers and your daughters and your sisters and your paternal aunts and your maternal aunts and brothers' daughters and sisters' daughters and your mothers that have suckled you and your foster-sisters and mothers of your wives and your step-daughters who are in your guardianship, (born) of your wives to whom you have gone in, but if you have not gone in to them, there is no blame on you (in marrying them), and the wives of your sons who are of your own loins and that you should have two sisters together, except what has already passed; surely Allah is Forgiving, Merciful.” (Surah An-Nisa’, 4:23).
• 4. The full Verse reads:
  “And all married women except those whom your right hands possess (this is) Allah's ordinance to you, and lawful for you are (all women) besides those, provided that you seek (them) with your property, taking (them) in marriage not committing fornication. Then as to those whom you profit by, give them their dowries as appointed; and there is no blame on you about what you mutually agree after what is appointed; surely Allah is Knowing, Wise.” (Surah An-Nisa’, 4:24).
• 5. Wasa'il al-Shi’ah, Vol. 17, p. 89 Edition 1414 Qum.