Assalaamu alaykum. I was reading about the difference which the scholars of Fiqh have made in case of haram (Muharram lithaatih and Muharram lighayrih), but the Hanbali scholars do not consider this categorization. Can you elobrate on this issue and present the better opinion in this regard? May Allah reward you.
Answer:
All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallahu ‘alayhi wa sallam, is His slave and Messenger.
The rule which reads: ‘The muharram lithaatih (what is prohibited in and of itself) is stronger in prohibition than the muharram lighayrih’ (what is prohibited due to external factors) means that what is forbidden is not all on the same level, as there are categories in this regard. The prohibition in muharram lithaatih is much stronger than in the muharram lighayrih.
Al-Qaraafi said in Al-Furooq, “In our school of Fiqh, the prohibition of what is muharram lighayrih and the dislike of what is makrooh (disliked) lighayrih (due to external factors) are of a lesser degree than in what is muharram lithaatih and what is makrooh lithaatih (disliked in and of itself); so be aware of this.”
So, if something is muharram lithaatih, then it is due to the evils that it involves, and if it is muharram lighayrih, then its prohibition is occasional, and its original ruling is either that it is obligatory, recommended, or permissible. Az-Zuhayli said in his book Al-Fiqh Al-Islaami wa Adillatih, “The muharram lithaatih does not become permissible except in case of necessity, such as eating dead meat, blood, and pork; and what is muharram lighayrih, as a way of preventing harm, is made permissible because of the need for it and for its benefit that outweighs its evil.”
The books of the principles of Fiqh of the Hanbali School establish this categorization, and that the prohibited things (muharrams) vary in degree. At-Tahbeer Sharh At-Tahreer, authored by Al-Mardaawi of the Hanbali School of Fiqh, reads:
“The forbidden things are of various categories:
1- Sometimes something is forbidden in and of itself: our companions (Hanbali scholars) and most scholars are of the view that the absolute forbiddance of something entails that it is inherently evil. This is the correct accredited ruling stated by the scholars of Fiqh of the Hanafi, Maaliki, Shaafi‘i, and Hanbali Schools and the scholars who interpret the texts according to their literal meaning. They gave the following examples of the things that are forbidden in and of themselves: Kufr (disbelief), lying, injustice, and other morally despiteful matters in and of themselves.
2- Sometimes something is forbidden for a description attached to it, i.e. forbidden due to external factors, such as the forbiddance of fasting on the day of ‘Eed and fasting on the days of Tashreeq (the 11th, 12th and 13th of Thul-Hijjah), and interest because of the description of excess that accompanies the binding contract. The forbiddance of such things (things that are forbidden for a description attached to them) entails that they are defective, according to the view of our School and the Shaafi‘i School and other Schools. According to the Hanafi School, it entails the soundness of the thing itself and the defectiveness of its description…”
The verifying scholar Ibn Al-Qayyim, may Allah have mercy on him, said: “There are two kinds of muharrams (prohibited things): muharram lithaatih, which is not permissible in any case; and muharram occasionally at some times but not at other times. The difference between the two is based on the reason for prohibiting that thing. The muharram lithaatih is prohibited because of the evil it involves, so its prohibition is intended in itself and in principle, such as the prohibition of injustice.
As regards the muharram lighayrih, it is prohibited because it is a reason that leads to an evil. So it is forbidden by consequence and not in principle, such as the prohibition of buying and selling after the second athaan of the Friday prayer, and so forth.”
Hence, you come to know that the Hanbali scholars agree with the majority of the scholars in categorizing haraam and that its degrees vary. But perhaps you meant the difference of opinion in regard to what the forbiddance entails; whether it entails the absolute defectiveness of the forbidden thing whether it is muharram lithaatih or muharram lighayrih, or it entails it in what is muharram lithaatih but not in what is muharram lighayrih.
These issues are among the topics of the Fundamentals of Fiqh. You may refer in this regard to the statements of the Hanbali scholar Al-Mardaawi in Sharh At-Tahreer, to what Al-Qaraafi mentioned about it in Al-Furooq, as well as to what Ibn Al-Qayyim, may Allah have mercy on him, wrote about it in his useful book I‘laam Al-Muwaqqi‘een ‘an Rabil ‘Aalameen.
Allah knows best.