The Fixed and the Variable
The rules of Islamic legislation at our disposal, as a result of the evolution in jurisprudence and ijtihad, can be classified into two:
1. Nass (Stipulation): This is a clear rule about which no ijtihad is exercised. For example, the obligation of prayers, fasting, zakat, catering for the wife, forbidding of alcoholic drinks, adultery and interest and permissibility of business transactions, marriage, acquiring property, partaking of the flesh of some livestocks…etc.
2. Ijtihad Rules: This class can be further divided into two sections:
a. Ijtihad rules deduced by the jurists, from the Qur'an and the pure sunna, because of the existence of proofs covering such rules in a general sense or proofs indicating such rules, directly, in a way that makes deduction possible while they are not direct stipula-tions.
b. Vacant zones or where the rules are allowed legislative competence: These are areas left for the rules to fill by specifying the appropriate rules in the light of the Book or the Pure Sunna. Some of these areas include disallowing the hoarding of goods, services and utilities about which neither a clear stipulation or a general rule is available. Others include the imposition of additional taxes for the purpose of redeeming bad economic situations of the Muslims and controlling the prices of goods, considered by the rules as experiencing imbalance, in which the consumer, seller or producer is cheated.
While discussing on fixed and changing aspects of Islamic rules it is desirable to differentiate between change in the understanding of the jurist deriving the rules i.e., the legal ruler (Hakim al-Shar`i), from whom the change in the rules emanates, on the one hand, and the conditions in which a clear stipulation (nass) or ijtihad ruling would accept change or remain constant, on the other.
While treating the issue of fixed and changing rules, it is pertinent to define the elements of the Islamic message, susceptible to change, and those that do not admit any variation:
1- Belief: Precepts like the belief in Allah, the Glorious, and the belief in His Messengers. These fundamentals are immune to changes and abrogation throughout the period of divine messages, not only in the Islamic message. However, we can find differences among the Muslims as regards the details of ideological principles, like the issue of explaining the nature of man's actions and his relationship with His Lord, understanding of the attributes of Allah, etc. This difference in understanding does not mean that these ideological issues are variable, but it exposes the fact that there exists two conflicting opinions in understand-ing the precepts, or the obstinacy and overstepping the bounds by some groups who refuse to accept the fact.
2- Ethics: This is among the fixed fundamentals in Islam and all other divine legislations. Ethical issues include truthfulness, justice, mercy, etc. These principles are not liable to change or substitution, being of similar nature to the precepts of belief.
3- Declarations and expositions of many questions of thought, knowledge, life, et.c: A lot of statements, in the Holy Qur'an and sunna, discuss and explain the norms and laws governing history, society, bodily and spiritual nature of man, etc. These are but fixed scientific laws neither changing nor admitting substitutes, since they portray established facts that govern the formation of man and nature.
4. Legislation: This comprises of rules and laws enacted to regulate man's relationship with Allah, with himself and with others. The portion which guarantees the regulation of man's relationship with Allah, the Glorious, i.e., rules on worship, such as prayer, fasting and pilgrimage are fixed and do not accept any substitute. As for the section on social organization, it can be seen that it consists of two parts; one fixed and unchangeable while the other is variable. We shall take up each part and discuss it later.