17.I. DEFINING LAW (AL-HUKM AL-TAKLIFI )
As stated above, `defining law’ is a locution or communication from the Lawgiver addressed to the mukallaf which consists of a demand or of an option; it occurs in the five varieties of wajib, mandub, haram, makruh and mubah. We shall discuss each of these separately, as follows.
I.1 The Obligatory (Wajib, Fard)
For the majority of ulema, wajib and fard are synonymous, and both convey an imperative and binding demand of the Lawgiver addressed to the mukallaf in respect of doing something. Acting upon something wajib leads to reward, while omitting it leads to punishment in this world or in the hereafter. The Hanafis have, however, drawn a distinction between wajib and fard. An act is thus obligatory in the first degree, that is, fard, when the command to do it is conveyed in a clear and definitive text of the Qur’an or Sunnah. But if the command to do something is established in a speculative (zanni) authority, such as an Ahad Hadith, the act would be obligatory in the second degree (wajib). The obligatory commands to perform the salah, the hajj, and to obey one’s parents are thus classified under fard, as they are each established in a definitive text of the Quran. But the obligation to recite sura al-Fatihah in salah, or to perform salat al-witr, that is, the three units of prayers which conclude the late evening prayers (salat al-‘isha’), are on the other hand classified under wajib, as they are both established in the authority of Hadith whose authenticity is not completely free of doubt. A Muslim is bound to do acts which are obligatory either in the first or in the second degree; if he does them, he secures reward and spiritual merit, but if he willfully neglects them, he makes himself liable to punishment. The difference between the two classes of obligations, according to the vast majority of the jurists, including the Hanafis, is that the person who refuses to believe in the binding nature of a command which is established by definitive proof becomes an unbeliever, but not if he disputes the authority of an obligatory command of the second degree, although he becomes a transgressor. Thus to neglect one’s obligation to support one’s wife, children and poor parents amounts to a sin but not to infidelity.
Another consequence of the distinction between fard and wajib is that when the former is neglected in an act required by the Shari’ah, the act as a whole becomes null and void (batil). If. For example, if a person leaves out the bowing (ruku`) or prostration (sajdah) in obligatory prayers, the whole of the prayer becomes null and void. But if he leaves out the recitation of al-Fatihah, the salah is basically valid, albeit deficient. This is the Hanafi view, but according to the majority the salah is null and void in both cases. However, the difference between the Hanafis and the majority in this respect is regarded as one of form rather than substance, in that the consequences of their disagreement are on the whole negligible. Al-Ghazali is representative of the majority opinion, including that of the Shafi’is, when he writes: As far as we are concerned, there is no difference between fard and wajib; the two terms are synonymous. According to the Hanafis, fard is based on definitive authority but wajib is founded in speculative proof. Once again, we do not object to the rise of different expressions once their meaning is clear.
Wajib is subdivided into at least three varieties, the first of which is the division of wajib into personal (‘ayni) and collective (kafa’i). Wajib `ayni is addressed to every individual sui juris and cannot, in principle, be performed for or on behalf of another person. Examples of wajib (or fard) ‘ayni are salah, hajj, zakah, fulfillment of contract and obedience to one’s parents. Wajib kafa’i consists of obligations that are addressed to the community as a whole. If only some members of the community perform them, the law is satisfied and the rest of the community is absolved of it. For example, the duty to participate in jihad (holy struggle), funeral prayers, the hisbah, (promotion of good and prevention of evil), building hospitals, extinguishing fires, giving testimony and serving as a judge, etc., are all collective obligations of the community, and are thus wajib (or fard) kafa’i. Thus when a person dies leaving no property to meet the cost of his burial, it is the wajib kafa’i of the community to provide it and to give him a decent burial. Only some members of the community may actually contribute toward the costs, but the duty is nevertheless discharged from the whole of the community. The merit (thawab), however, only attaches to those who have actually taken part in discharging the wajib kafa’i duty.
The collective obligation sometimes changes into a personal obligation. This is, for example, the case with regard to jihad, which is a wajib kafa’i, although when the enemy attacks and besieges a locality it becomes the personal duty of every resident to defend it. Similarly, when there is only one mujtahid in a city, it becomes his personal duty to carry out ijtihad.
Wajib is also divided into wajib muwaqqat, that is, wajib which is contingent on a time-limit and wajib mutlaq, that is, ‘absolute wajib’, which is free of such a limitation. Fasting and the obligatory salah are examples of contingent wajib, as they must each be observed within specified time limits. But performing the hajj or the payment of an expiation (kaffarah) are not subject to such restrictions and are therefore absolute wajib. Provided that one performs the hajj once during one’s lifetime and pays the kaffarah at any time before one dies, the duty is discharged. Furthermore, the absolute wajib is called absolute because there is no time-limit on its performance and it may be fulfilled every time whenever the occasion arises. This is, for example, the case regarding one’s duty to obey one’s parents, or the obligation to carry out hisbah, namely, to promote good and to prevent evil as and when the occasion arises.
A consequence of this division is that wajib muwaqqat materialises only when the time is due for it; it may neither be hastened nor delayed, but within the given time limits the mukallaf has a measure of flexibility. Furthermore, to fulfill a contingent wajib it is necessary that the mukallaf have the intention (niyyah) specifically to discharge it.
Lastly, the wajib is divided into quantified wajib (wajib muhaddad) and unquantified wajib (wajib ghayr muhaddad). An example of the former is salah, zakah, payment of the price (thaman) by the purchaser in a sale transaction, and payment of rent in accordance with the terms of a tenancy agreement, all of which are quantified. Similarly, enforcement of the prescribed penalties (hudud) falls under the rubric of wajib muhaddad in the sense that the hadd penalties are all specified in terms of quantity. The unquantified wajib may be illustrated by reference to one’s duty to support one’s close relatives, charity to the poor, feeding the hungry, paying a dower, (mahr) to one’s wife, the length of standing (qiyam), bowing and prostration in salah, wiping the head in ablution (wudu’) and quantifying the ta’zir penalties for offences which are punishable but in regard to which the Lawgiver has not quantified the punishment. (It is for the judge to quantify the punishment in light of the individual circumstances of the offender and the offence.) Consequently, the mukallaf, be it the individual believer, the qadi or the imam, enjoys the flexibility to determine the quantitative aspect of the unquantified wajib himself.
A consequence of this division is that if the quantified wajib is not discharged within the given time- limit, it constitutes a liability on the person (dhimmah) of the individual, as in the case of unpaid zakah or an unpaid debt. Failure to discharge a wajib ghayr muhaddad, on the other hand, does not result in a personal liability.
A question arises with regard to the value of the excessive portion in the supererogation of quantified wajib. The question is whether an over-fulfillment of this type becomes a part of the wajib itself. There are two main views on this, one of which maintains that excessive performance in quantified wajib also becomes a part of the wajib. But the preferred view is that any addition to the minimal requirement becomes mandub only. For no punishment can be imposed for a failure to perform anything in addition to being required.
It would be inaccurate to say that a means to a wajib is also a wajib, or that a necessary ingredient of wajib is also wajib in every case. For such a view would tend to ignore the personal capacity of the mukallaf especially if the latter is unable to do what is required to be done: in the event, for example, when the Friday congregational prayer cannot be held for lack of a large number of people in a locality. It would be more accurate to say that when the means to wajib consist of an act which is within the capacity of the mukallaf then that act is also wajib.
The distinction between wajib and mandub is, broadly speaking, based on the idea that ignoring the wajib entails punishment (`iqab) while ignoring the mandub does not. The distinction between haram and makruh is based on a similar criterion: if doing something is punishable, it is haram, otherwise it is makruh. This is generally correct, but one must add the proviso that punishment is not a necessary requirement of a binding obligation, or wujub. In addition, as Imam Ghazali points out, the element of punishment, whether in this world or in the hereafter, is not a certainty. Whereas in its positive sense the wajib is normally enforceable in this world and might also lead to a tangible advantage or reward, the spiritual punishment for its neglect is, however, awaited and postponed to the hereafter. Hence the invocation of punishment is not a necessary requirement of wajib. When God Almighty renders an act obligatory upon people without mentioning a punishment for its omission, the act which is so demanded is still wajib.
I.2 Mandub (Recommended)
Mandub denotes a demand of the Lawgiver which asks the mukallaf to do something which is, however, not binding on the latter. To comply with the demand earns the mukallaf spiritual reward (thawab) but no punishment is inflicted for failure to perform. Creating a charitable endowment (waqf), for example, giving alms to the poor, fasting on days outside Ramadan, attending the sick, etc., are duties of this kind. Mandub is variously known as Sunnah, mustahabb and nafl, which are all here synonymous and covered by the same defination. If it is an act which the Prophet has done at one time but omitted at other times, it is called Sunnah. There are two types of Sunnah, namely Sunnah mu’akkadah (the emphatic Sunnah, also known as Sunnah al-huda), and Sunnah ghayr mu’akkadah, or supererogatory Sunnah. The call to congregational prayers (i.e. the adhan), attending congregational prayers, and gargling as a part of the ablution (wudu’) are examples of the former, whereas non-obligatory charity, and supererogatory prayers preceding the obligatory salah in early and late afternoon (i.e. zuhr, and ‘asr) are examples of supererogatory Sunnah. Performing the emphatic Sunnah leads to spiritual reward from Almighty God while its neglect is merely blameworthy but not punishable. However, if the entire population of a locality agree to abandon the emphatic Sunnah, they are to be fought for contempt of the Sunnah. To perform the supererogatory Sunnah, on the other hand, leads to spiritual reward while neglecting it is not blameworthy. There is a third variety of Sunnah known as Sunnah al-zawa id, which mainly refers to the acts and conduct performed by the Prophet as a human being, such as his style of dress and choice of food, etc., whose omission is neither abominable nor blameworthy.
Mandub often occurs in the Qur’an in the form of a command which is then accompanied by indications to suggest that the command is only intended to convey a recommendation. An example of this is the Qur’anic command which requires that giving and taking of period loans must be set down in writing (al-Baqarah, 2:282). But the subsequent portion of the same passage provides that `if any of you deposits something with another, then let the trustee [faithfully] discharge his trust’. This passage implies that if the creditor trusts the debtor, they may forego the requirement of documentation. Another example of a command which only denotes a recommendation is the Qur’anic provision regarding slaves, where the text provides, `and if any of your slaves seek their release from you in writing, set them free [fa-katibuhum] if you know any good in them’ (al-Nur, 24:3). The last portion of this text indicates an element of choice which renders the command therein mandub. But in the absence of such accompanying evidence in the text itself, the Qur’anic command is sometimes evaluated into mandub by reference to the general principles of the Shari’ah.
Sometimes the mandub is conveyed in persuasive language rather than as a command per se. An example of this is the Hadith which provides: `Whoever makes an ablution for the Friday prayers, it is good, but if he takes a bath, it is better -[afdal]. A question arises in this connection as to whether the mandub remains a mandub once it has been started, or becomes obligatory of continuation until it is completed. The Hanafis have held that once the mandub is commenced, it turns into an obligation and must be completed. For example, when a person starts a supererogatory fast, according to this view, it is obligatory that he complete it, and failure to do so renders him liable to the duty of belated performance (qada’). But according to the Shafi’is, whose view here is generally preferred, the mandub is never turned into wajib and always remains as mandub, thereby leaving the person who has started it with the choice of discontinuing it whenever he wishes. There is thus no duty of belated performance (qada) on account of failure to complete a mandub.
I.3 Haram (Forbidden)
According to the majority of ulema, haram (also known as mahzur) is a binding demand of the lawgiver in respect of abandoning something, which may be founded in a definitive or a speculative proof.Committing the haram is punishable and omitting it is rewarded. But according to the Hanafis, haram is a binding demand to abandon something which is established in definitive proof; if the demand is founded in speculative evidence, it constitutes a makruh tahrimi, but not haram. The former resembles the latter in that committing both is punished and omitting them is rewarded. But the two differ from one another insofar as the willful denial of the haram leads to infidelity, which is not the case with regard to makruh tahrimi. The textual evidence for haram occurs in a variety of forms, which may be summarised as follows:
Firstly, the text may dearly use the word haram or any of its derivatives. For example, the Qur’anic text which provides, ‘forbidden to you [hurrimat ‘alaykum] are the dead carcass, blood and pork’ (al- Ma’idah, 5:3); and `God permitted sale but prohibited [harrama] usury (al-Baqarah, 2:275). Similarly, the Hadith which provides, ‘everything belonging to a Muslim is forbidden [haram] to his fellow Muslims: his blood, his property and his honour.
Secondly, haram may be conveyed in other prohibitory terms which require the avoidance of a certain form of conduct. For example, there is the Qur’anic text which provides, ‘slay not [la taqtulu] the life that God has made sacrosanct, save in the course of justice’ (al-Ma’idah, 5:90); and ‘devour not [la ta’ kulu] one another’s property in defiance of the law’ (al-Baqarah, 2:188).
Thirdly, haram may be communicated in the form of a command to avoid a certain form of conduct. For example: there is the Qur’anic text which provides that wine-drinking and gambling are works of the devil and then orders the believers to ‘avoid it (al-Ma’idah, 5:90).
Fourthly, haram may be communicated through expressions such as ‘it is not permissible’ or ‘it is unlawful’ in a context which is indicative of total prohibition. For example, the Qur’anic text which proclaims that `it is not permissible for you [la yahillu lakum] to inherit women against their will’ (al-Nisa’, 4:19), or the Hadith which provides ‘it is unlawful [la yahillu] for a Muslim to take the property of another Muslim without his consent.
Fifthly, haram is also identified by the enactment of a punishment for a certain form of conduct. There are many instances of this in the Qur’an and Sunnah. The hudud penalties are the most obvious examples of this variety of haram. As is implied by its name, the hadd penalty is specific in reference to both the quantity of punishment and the type of conduct which it penalises. Alternatively, the text which communicates tahrim may only consist of an emphatic condemnation of a certain act without specifying a penalty for it as such. Thus the Qur’an prohibits devouring the property of orphans by denouncing it in the following terms: ‘Those who eat up the property of orphans swallow fire into their own bodies; they will soon be enduring a blazing fire’ (al-Nisa’, 4:10).
Haram is divided into two types: (a) haram li-dhatih or `that which is forbidden for its own sake’, such as theft, murder, adultery, marrying a close relative and performing salah without an ablution, all of which are forbidden for their inherent enormity; and (b) haram li-ghayrih, or ‘that which is forbidden because of something else’. An act may be originally lawful but has been made unlawful owing to the presence of certain circumstances. For example: a marriage which is contracted for the sole purpose oftahlil, that is, in order to legalise another intended marriage, performing salah in stolen clothes, and making an offer of betrothal to a woman who is already betrothed to another man. In each of these examples, the act involved is originally lawful but has become haram owing to the attending circumstances. A consequence of this distinction between the two varieties of haram is that haram li- dhatih, such as marriage to one’s sister or the sale of dead carcasses, is null and void ab initio (batil), whereas violating a prohibition which is imposed owing to an extraneous factor is fasid (irregular) but not batil, and as such may fulfill its intended legal purpose. A marriage which is contracted for the purpose of tahlil is clearly forbidden, but it validly takes place nevertheless. Similarly, a contract of sale which is concluded at the time of the Friday prayer is haram li-ghayrih and is forbidden. But according to the majority of ulema the sale takes place nevertheless; with the exception of the Hanbalis and Zahiris, who regard such a sale as batil.
Another consequence of this distinction is that haram li-dhatih is not permissible save in cases of dire necessity (darurah) of a kind which threatens the safety of the ‘five principles’ of life, religion, intellect, lineage and property. In this way, uttering a word of infidelity, or drinking wine, is only permitted when it saves life. Haram li-ghayrih, on the other hand, is permissible not only in cases of absolute necessity but also when it prevents hardship. Thus a physician is permitted to look at the private parts of a patient even in the case of illness which do not constitute an immediate threat to life.
Another criterion for distinguishing the two varieties of haram that some ulema have mentioned is that haram li-ghayrih consists of an act which leads to haram li-dhatih. In this way, looking at the private parts of another person is forbidden because it can lead to zia, which is haram by itself. Similarly, marrying two sisters simultaneously is haram because it leads to the severance of ties of kinship (qat’ al-arham), which is haram by itself.
I.4 Makruh (Abominable)
Makruh is a demand of the Lawgiver which requires the mukallaf to avoid something, but not in strictly prohibitory terms. Makruh is the opposite of mandub, which means that neglecting the mandub amounts to makruh. Since makruh does not constitute a binding law, we merely say that omitting something which is makruh is preferable to committing it. The perpetrator of something makruh is not liable to punishment, and according to the majority of ulema, he does not incur moral blame either. The Hanafis are in agreement with the majority view in respect of only one of the two varieties of makruh, namely makruh tanzihi, but not in regard to makruh tahrimi. The latter, according to the Hanafis, entails moral blame but no punishment. The ulema are all in agreement that anyone who avoids the makruh merits praise and gains closeness to God.
The textual authority for makruh may consist of a reference to something which is specifically identified as makruh, or may be so identified by words that may convey an equivalent meaning. There is a Hadith, for example, in which the Prophet discouraged any prayers at midday until the decline of the sun, with the exception of Friday. The actual word used in the Hadith is that the Prophet disliked [kariha al-nabi) prayers at that particular time. An equivalent term to makruh occurs, for example, in the Hadith which reads: ‘The most abominable of permissible things (abghad al-halal) in the sight of God is divorce.
Makruh may also be conveyed in the form of a prohibition but in language that indicates only reprehensibility. An example of this is the Qur’anic text which provides, in an address directed to the believers, ‘Ask not about things which, if made clear to you, would trouble you, but if you ask about them when the Qur’an is being revealed, then they will be explained to you’ (al-Ma’idah, 5:101). An example of this style of communication in the Hadith is as follows: ‘Leave that of which you are doubtful in favour of that which you do not doubt (…).
Makruh is the lowest degree of prohibition (tahrim), and in this sense is used as a convenient category for matters which fall in the gray areas between halal and haram, that is, matters which are definitely discouraged but where the evidence to establish them as haram is less than certain. As already noted, the Hanafis have divided makruh into the two types of makruh tanzihi and makruh tahrimi. The former is considered abominable for purposes of keeping pure such as avoiding raw onion and garlic just before going to congregational prayers, or neglecting salat al-nafl, that is, supererogatory prayers preceding, for example, the salat al-zuhr (early afternoon prayers). This kind of makruh is nearer to mubah than to haram. Its commission is not punished but its omission is rewarded. The Hanafi description of makruh tanzihi is the same as that which the majority of ulema have given to makruh in general. The majority of ulema have characterised the value of makruh to be that ‘committing it is not punishable but omitting it is praiseworthy’. Makruh tahrimi, or ‘abominable to the degree of prohibition’ is, on the other hand, nearer to haram. An act is haram when its prohibition is decreed in definitive terms, otherwise it is makruh tahrimi. An example of makruh tahrimi is the wearing of gold jewellery and silk garments for men, which are forbidden by an Ahad (solitary) Hadith. While referring to these two items, the Hadith provides: ‘These are forbidden [haram] to the men of my community but are lawful ( halal) to their women.
Similarly, it is makruh tahrimi for a person to offer to buy something for which another person has already made an offer. There is a Hadith which forbids this kind of purchase in the same way as it forbids making an offer of engagement to a woman who is already betrothed to another man. Since both of the foregoing ahadith are Ahad whose authenticity is not devoid of doubt, the prohibition therein is reduced from haram to makruh tahrimi.
The difference between the Hanafis and the majority of ulema relates to the nature of the evidence on which the makruh is founded. When a prohibition is conveyed in an imperative demand of the Lawgiver but there is some doubt over its authenticity or meaning, the majority of ulema classify it as haram, whereas the Hanafis classify it as makruh tahrimi. The Hanafi position in regard to the division of makruh into these two types is essentially similar to their approach in regard to drawing a distinction between fard and wajib.
I.5 Mubah (Permissible)
Mubah (also referred to as halal and ja’iz) is defined as communication from the Lawgiver concerning the conduct of the mukallaf which gives him the option to do or not to do something. The Lawgiver’s communication may be in the form of a clear nass such as the Qur’anic text which provides, in a reference to foodstuffs, that `this day all things good and pure have been made lawful (uhilla) to you […]’ (al-Ma’idah, 5:6). Alternatively the text may state that the mukallaf will not incur a sin, blame or liability if he wishes to act in a certain way. Concerning the permissibility of betrothal, for example, the Qur’an provides, `there is no blame on you [la junaha `alaykum] if you make an offer of betrothal to a woman [. . .]’ (al-Baqarah, 2:235). Similarly, committing a sinful act out of sheer necessity is permissible on the authority of the Qur’an, which provides, `If someone is compelled by necessity without willful disobedience or transgression, then he is guiltless [fala ithma `alayh]’ (al-Baqarah, 2:173)
Sometimes a command to the Qur’an may only amount to permissibility when the nature of the conduct in question or other relevant evidence indicates that such is the case. An example of this is the text which orders worshippers to `scatter in the earth’ once they have completed the Friday prayers (al- Jumu`ah, 62:10). Although the believers have been ordered to `scatter in the earth’, the nature of this command and the type of activity to which it relates suggest that it conveys permissibility only.
In the event where the law provides no ruling to specify the value of a certain form of conduct, then according to the doctrine of istishab al-asl (presumption of continuity), permissibility (ibahah) remains the original state which is presumed to continue. The authority for this presumption is found in the Qur’anic text which provides, in an address to mankind, that God Almighty `has created everything in the earth for your benefit’ (al-Baqarah, 2:29). By implication, it is understood that the benefit in question cannot materialise unless `everything in the earth’ is made mubah for mankind to use and to utilise in the first place.
Mubah has been divided into three types. The first is mubah which does not entail any harm to the individual whether he acts upon it or not, such as eating, hunting or walking in the fresh air. The second type of mubah is that whose commission does not harm the individual although it is essentially forbidden. Included in this category are the prohibited acts which the Lawgiver has made permissible on account of necessity, such as uttering words of unbelief raider duress, or eating the flesh of a dead carcass to save one’s life. The third variety of mubah is not really mubah per se; it is included under mubah for lack of better alternative. This category of mubah consists of things which were practiced at one time but were then prohibited with the proviso that those who indulged in them before the prohibition are exonerated. The Qur’an thus prohibits marriage with certain relatives, and the text then continues to make an exception for such marriages that might have occurred in the past (al-Nisa’, 4:22). Similarly, wine-drinking was not prohibited until the Prophet’s migration to Madinah, and fell under the category of mubah until the revelation of the ayah in sura al-Ma’idah (5:90) which imposed a total ban on it.
It would be incorrect, as al-Ghazali explains, to apply the term ‘mubah’ to the acts of a child, an insane person, or an animal, nor would it be correct to call the acts of God mubah. Acts and events which took place prior to the advent of Islam are not to be called mubah either. ‘As far as we are concerned, our position regarding them is one of abandonment [tark]’, which obviously means that such activities are not to be evaluated at all. Mubah proper, al-Ghazali adds, is established in the express permission of Almighty God which renders the commission or omission of an act permissible either in religious terms or in respect of a possible benefit or harm that may accrue from it in this world. The ulema of usul definitely consider mubah to be a hukm shar’i, although including it under al-hukm al-taklifi is on the basis of mere probability as there is basically no liability [taklif] in mubah as one of the five varieties of defining law. The Hanafis have only differed with the majority with regard to the subdivisions of wajib and makruh as already explained, but not with regard to mubah.
Bearing in mind the two subdivisions of wajib and makruh that the Hanafis have added to al-hukm al- taklifi, the Hanafis thus classify the latter into seven types, whereas the majority divide it into five varieties only.
by M. H. Kamali.
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