Is this bid'ah?

[Zlatan Ibrahimovic]

Hadith #1:

Narrated As-Sa'ib bin Yazid: We used to strike the drunks with our hands, shoes, clothes (by twisting it into the shape of lashes) during the lifetime of the Prophet, Abu Bakr and the early part of `Umar's caliphate. But during the last period of `Umar's caliphate, he used to give the drunk forty lashes; and when drunks became mischievous and disobedient, he used to scourge them eighty lashes.

Source: Sahih Al-Bukhari

Comments: why did the punishment change in Umar's time - according to this hadith?

____________

Hadith #2:

Abu al-Sahba' said to Ibn 'Abbas:
Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah's Messenger (ﷺ) and Abu Bakr. He said: It was in fact so, but when during the caliphate of 'Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).

Source: Sahih Muslim

Comments: under what authority was Umar given the right to legislate alterations in how people pronounce divorce? Or is there another hadith which explains why Umar did this?

Please enlighten me. Thanks.

[Farid]

The answer to #1 is that there is no Hadd for consuming alcohol. This is the correct view and the narration implies it since it describes a chaotic beating in which multiple people in the house carried out the punishment simultaneously. You cannot count the amount of hits when they occur simultaneously from multiple people.

This led the scholars to believe that there is no Hadd for drinking, but only Ta'zeer, in which the judge would determine the punishment.

I do not have an answer to the second question since I didn't do my homework.
Perhaps others can help.

[Hani]

I didn't research this second one either but let me tell you the impression I get so far regarding Islamic rulings. The qualified Muslim leader has a certain freedom to modify rulings based on their personal effort and research (Ijtihad) as well as a careful study of the situation in their time. Obviously the early Caliphs knew a lot more details than we do in our days about certain laws and the intentions behind them (Maqasid).

This to me is actually a blessing, that Islamic rulings can be tweaked to serve the best interest of Islam and Muslims depending on temporal and geographic factors. All Caliphs did this if you read books of Fiqh and history, here's a quick example from Nahj-ul-Balaghah where `Ali changed a ruling that was practiced all throughout the life of the Prophet (saw):

In Nahjul Balagha Saying #16, when Ali was asked about the Prophet’s – peace be upon him – sunnah of “changing the color of grey hairs and to be different from the Jews,” Ali replied, “This was said by him – peace be upon him and his household – when the religion was made upon of a small number of people, as for now, since it has widened and settled, one is free to choose as he wishes.”

As you can see, he didn't just stick to it blindly, he noticed the situation became very different, based on his understanding this ruling is no longer binding.

Of course, if the intention are evil and are to score points and attack `Ali's person then that's very narrow minded attack because `Ali only changed it when he saw benefit in doing so.

[Noor-us-Sunnah]

Hadith #1:

Narrated As-Sa'ib bin Yazid: We used to strike the drunks with our hands, shoes, clothes (by twisting it into the shape of lashes) during the lifetime of the Prophet, Abu Bakr and the early part of `Umar's caliphate. But during the last period of `Umar's caliphate, he used to give the drunk forty lashes; and when drunks became mischievous and disobedient, he used to scourge them eighty lashes.

Source: Sahih Al-Bukhari

Comments: why did the punishment change in Umar's time - according to this hadith?

Hudain b. al-Mundhir Abu Sasan reported: I saw that Walid was brought to Uthmin b. ‘Affan as he had prayed two rak’ahs of the dawn prayer, and then he said: I make an increase for you. And two men bore witness against him. One of them was Humran who said that he had drunk wine. The second one gave witness that he had seen him vomiting. Uthman said: He would not have vomited (wine) unless he had drunk it. He said: ‘Ali, stand up and lash him. ‘Ali said: Hasan, stand up and lash him. Thereupon Hasan said: Let him suffer the heat (of Caliphate) who has enjoyed its coolness. (‘Ali felt annoyed at this remark) and he said: ‘Abdullah b. Ja’far, stand up and flog him, and he began to flog him and ‘Ali counted the stripes until these were forty. He (Hadrat ‘Ali) said: Stop now, and then said: Allah’s Apostle (may peace be upon him) gave forty stripes, and Abu Bakr also gave forty stripes, and Umar gave eighty stripes, and all these fall under the category of the Sunnah, but this one (forty stripes) is dearer to me. [ Sahih Muslim Book 017, Number 4231.

Imam Nawawi said “This narration is manifest proof that Ali (r.a) honoured the actions and commandments of Umar and Abu Bakr by acknowledging their actions as a Sunnah, contrary to the lies which the shias ascribe to him. The benefits from this authentic report are:

1- ‘Ali did not claim that ‘Umar did a “Bida’ah” because of the Hadith we posted above, he said “All of them are Sunnah”.
2- ‘Ali did not say “Forty is correct and eighty is wrong” he said “This one(forty) is what I prefer the most.”


____________

Hadith #2:

Abu al-Sahba' said to Ibn 'Abbas:
Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah's Messenger (ﷺ) and Abu Bakr. He said: It was in fact so, but when during the caliphate of 'Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).

Source: Sahih Muslim

Comments: under what authority was Umar given the right to legislate alterations in how people pronounce divorce? Or is there another hadith which explains why Umar did this?

Please enlighten me. Thanks.

Sheikh Ali Muhammad as-Sallabee explained this misconception in his book, as follows:

[Umar justified this punishment by noting that the practise of uttering a three-fold divorce is one go was on the rise, and he wanted to bring the people back to the form of divorce that is outlined in the Sunnah, which is prescribed by Allah, which is that the man should pronounce one divorce, then leave her(the wife) until she has completed her iddah; then if he wants to take her back as his wife, he may do so before the iddah ends, and so on, until the three divorces have been completed. [Al-Qada’ fee Ahd Umar ibn Khattab, by Nasir at-Tareefi 2/733]

The truth of the matter is that, by doing this, Umar did not go against the definitive texts, rather he was striving to understand the texts, because there are some reports which support his view.

(i). Malik narrated from Ashhab from al-Qasim ibn Abdullah that Yahya ibn Saeed told him that Ibn Shihab told him, that Ibn Musayyib told him that: “ A man from Aslam divorced his wife at the time of the Messenger of Allah(Saw) with three divorces. Some of the Sahaba said to him, You have the right to take her back. But his wife went to Messenger of Allah(saw) and said, “My Husband divorced me with three divorces in one go.” The Messenger of Allah(saw) said to her, ‘You are irrevocably divorced, and there is no inheritance between you”. [Al Mudawanah al-Kubra, Kitab al-talaq, Bab Talaq as-sunnah , 2/62]

(ii). Nasai narrated that: The Messenger of Allah(saw) was told about a man who divorced his wife three times all in one go. He got up angrily and said, “Is the book of Allah being toyed with when I am still among you? Then a man stood up and said, “ O Messenger of Allah, shall I kill him?” [Sunan an-Nasai, Kitab at-Talaq, at-Talaq ath-Thalath al-Majmoo’ah, 6/142 ; Ibn Hajar said: Men are thiqat. Fath al-Bari, 9/362. Ibn al-Qayyim said: Its isnad is in accordance with the conditions of Muslim. Zad al-Ma’ad, 5/241].

In this hadeeth we see that the Messenger of Allah(saw) got angry with one who divorced his wife three times in one sitting, and denounced him, which indicates that this happened . If three-fold divorce had not taken place in one sitting, the Messenger of Allah(saw) would have said so, because it is not permissible to delay giving an explanation at the time when it is needed. [Al-Qada fee Ahd Umar bin Khattab, 2/736]

(iii). It was narrated from Nafi ibn Umayr ibn Abd Yazeed ibn Rakanah, that: Rakanah ibn Abd Yazeed divorced his wife Suhaymah irrevocably. The Prophet(saw) was told about that and He said, “ By Allah, I only intended it to be one(divorce)”. The Messenger of Allah(saw) said: “By Allah, you intended it to be one ?” Rakanah said, “By Allah, I only intended it to be one”. So the messenger of Allah sent her back to him. He divorced her second time in Umar’s reign and for the third time in Uthman’s reign .[Sunan Abi Dawood, Kitab at-Talaq, Baab fee al-battah , 1/511. Abu Dawud said: This is more Sahih than the hadeeth of Jurayj / Nawawi said: As for the differing report which says that Rakanah divorced his wife three times and made it one, it is daeef report narrated from Majhool(anonymous) people. The correct report is one which is quoted above, which says that he divorced her irrevocably(al-battah) and the word al-battah may mean once or thrice. Sharh an-Nawawi, 10/71]

According to this hadeeth, when Rakanah divorced his wife irrevocably and claimed that he only meant one divorce, the Messenger of Allah(saw) asked him to swear that he only meant one divorce, so he swore that and the Prophet(saw) sent his wife back to him. This indicates that if he had intended to irrevocable three-times divorce, it would have taken effect, otherwise his oath would have had no meaning.

After quoting the above, we see that Caliph Umar(ra) based his decision on evidence from the Sunnah of the Messenger of Allah(saw), and that by allowing a divorce that was uttered three times in one go to count as a threefold divorce, he was not introducing an innovation that he had made up. Many of the Sahabah agreed with his opinion, such as Uthman ibn Affan, Ali ibn Abi Talib, Abdullah ibn Abbas and Abdullah ibn Masood – who are mentioned in more than one report – and Imran ibn Husayn. Based on this, the issue of whether the threefold divorce uttered in one go counts as such, or whether it counts when a man says words such as “You are thrice divorced”, or “You are divorced and divorced and divorced”, or “You are divorced three times, ten times or hundred times”, and so on, is a matter that is subjected to ijtihad of the ruler, according to whether he thinks it is best at that time and in that place for it to count as a threefold divorce or a single, revocable divorce. [al-Fuqaha fee Ahd Umar ibn al-Khattab, 2/736-739].

Ibn Qayyim(rah) said: Umar(ra) was not dissenting from the consensus of those who had come before him, rather he thought that they should be forced to adhere to the threefold divorce as punishment to them, because they knew that it was Haram(unlawful), but they persisted in doing it. Undoubtedly it is acceptable for the rulers to force people to go through with what they have brought upon themselves by not accepting the concession granted by Allah. [Zad al-Ma’ad 5/270].

[Source: Umar ibn al-Khattab, His life and times, by Ali Muhammad as-Sallabee, vol 1, page 536-540]

[Zlatan Ibrahimovic]

Thank you for your answers

[Noor-us-Sunnah]

Related to point #1

(روى [ابن] (1) وبرة الكلبى قال: ” أرسلنى خالد بن الوليد إلى عمر رضى الله عنه فأتيته فى المسجد ومعه عثمان وعلى وطلحة والزبير وعبد الرحمن فقلت: إن خالدا يقول: إن الناس انهمكوا فى الخمر وتحاقروا عقوبته فقال عمر: هؤلاء عندك فسلهم.
Ibn Wabrah Al-Kalbee narrated, he said: “Khaalid ibn Waleed sent me to `Umar . I approached him when he was sitting in the mosque with Uthmaan, Ali, Talhah, Zubayr and Abdur-Rahmaan , I said, „Indeed Khaalid says: Indeed the people have become extremely involved in drinking alcohol considering that its punishment is light‟. Umar said, „They are here with you, ask them.‟ Ali said, „We think, he who becomes intoxicated, he raves, and when he raves he makes up lies, and the one who makes up lies, is punished eighty lashes. Thereupon, Umar said, „Your friend has made a good opinion by what he has said.”  [Ref: Weak as per shaykh Albaanee,  Al-Daaraqutnee (354) and Al-Bayhaqee (8/320) but this fatwa of `Ali (r.a) is accepted ]

Al-Ghazali says :

An example  of Ijtihad is what Ali (ra) said regarding punishment (Hadd) for the crime of drinking alcohol. He said: ‘Whoever drinks it will speak nonsense, and who did so would fabricate lies, so I see that he must be punished like the fabricator of lies.’  Ali (ra) made an analogy between drinking and fabrication because he understood from Shar’a that it could be considered that which is likely to happen to be the same as that which actually happens. All these are examples of Ijtihad from the time of the Sahaba and Ijma’a as-Sahaba on the issue of Ijtihad. The fact that the Companions resorted to ijtihad in the absence of a text is established by continuous testimony (tawatur).  [Ref: See Ghazali’s Mustasfa, 2/106; Ibn al-Qayyim, I’lam, I / 176; Kassab, Adwa’, p. 19.]