Concerning the matters of fiqh in which there is a difference of opinion between ḥalāl and ḥarām, Imām Ibn Taymiyyah [d. 728 AH] said:
If it is said: Who will actually be punished [for the perpetration of ḥarām acts derived from verdicts of the Muslim scholars]? For the [scholar] who enacts any ḥarām act has either made judicial strife [which has led him to believe the matter to be ḥalāl] or he imitates one who has done so, and both scenarios are exempt from punishment.1
The Answer to This is in the Following Points:
1.) The underlying intention must first be to clarify that the [debated] judicial action is deserving of punishment regardless of whether it is enacted or not. If we were to make the assumption that this act has no perpetrators except that the prerequisites of punishment have been negated with respect to them [i.e. one who has implemented judicial strife [ijtihād] or imitates one who has done so as aforementioned], or their case has certain aspects which prevent punishment [such as complete ignorance, being far removed from the Mulsim populace, lack of scholars or access to knowledge], this does not alleviate the ruling of prohibition [insofar as the action itself is concerned from a purely fiqh standpoint]. Rather, we know it to be ḥarām so let whoever knows its status of ḥarām refrain from it. Then if someone was to perpetrate it [thinking it ḥalāl], it is only the mercy of Allāh that punishment does not befall him in this case. Just as minor sin is undoubtedly ḥarām, but may be expiated by complete avoidance of major sin. Such is the case with all prohibited matters in which there is a difference of opinion. Thus, if it is clear that it is ḥarām and its perpetrators are excused as they are either among those who have implemented judicial strife [ijtihād] or imitate those who have done so, this shall not prevent our belief that it is prohibited.
2.) Clarifying the nature of a ruling is a means by which we can remove the confusion [i.e. settle the debate between ḥarām and ḥalāl] and thus remove [the excuse that would] prevent punishment [for someone carrying out the debated action]. For the persistence of an excuse [ignorance of the true ruling] should not be a goal. Rather, what is required is the complete removal of this excuse to the very best of our ability. If this was not the case, clarifying [issues of Islamic] knowledge would not have been obligatory, and leaving the people in their state of ignorance would have been better for them, and leaving the evidences of the much-debated issues would have been better than clarifying them.
3.) Clarifying the ruling and its promise of punishment is a means by which those already refraining from that action continue their refrainment. Otherwise, enacting [this ḥarām act] would spread.
4.) The excuse [of ignorance] is only valid when clarification of the actual state of the debated issue is impossible. Otherwise, whenever an individual is able to become acquainted with the truth but is deficient regarding it he cannot be excused.
5.) There may be from among the people those who execute this [ḥarām] act for whom judicial strife [ijtihād] is impermissible, or they imitate [others] where imitation is impermissible. A means of punishment, therefore, applies to this substrata of people as these specific excuses do not apply to them. Thus, they are amenable to any punishment that will befall them, except that another valid excuse is appropriated from sincere repentance, or expiating deeds of righteousness, or other than that. Also, this matter is incongruent with reality. A person may believe it fully permissible for him to implement judicial strife [ijtihād], or imitate others [who have done so], and he may be right in some issues and mistaken in others. However, so long as he always strives to reach the truth, unhampered by secretly following his own desires, then indeed Allāh charges none with more than his capacity.
1. Referring to the ḥadīth: If an implementer of strife in a judicial issue reaches the truth, he is deserving of two rewards, and if he does not reach the truth he is rewarded once for the strife he implemented.
Source: Rafʿ al-Malām: 74-75
Translated by: Riyāḍ al-Kanadī