6.3. VALUE OF LEGAL INJUNCTIONS
The object of a prohibition may be to prevent an act such as adultery (zina), or it may be to prevent the utterance of words such as those purporting to effect the sale of dead corpses, or of a freeman, by means of offer and acceptance. In either case, the prohibition does not produce any rights or legal effects whatsoever. Hence no right of paternity is established through zina; on the contrary, the perpetrator is liable to punishment. Similarly, no contract is concluded and no right of ownership is proven as a result of the sale of a corpse.
If the object of prohibition is an act, and it is prohibited owing to an extraneous attribute rather than the essence of the act itself, such as fasting on the day of `id, then the act is null and void (batil) according to the Shafi`is but is irregular (fasid) according to the Hanafis, The act, in other words, can produce no legal result according to the Shafi`is, but does create legal consequences according to the Hanafis, although it is basically sinful. The Hanafis consider such acts to be defective and must be dissolved by means of annulment (faskh), or must be rectified if possible. If the prohibition consists of words such as concluding a contract of sale which partakes in usury, it is still batil according to the Shafi’is but fasid according to the Hanafis, which means that it should be either revoked or amended to the extent that it is purified of its usurious content.
The position is, however, different with regard to devotional matters (`ibadat) whose purpose is seeking the pleasure of God. The fasid in this area is equivalent to batil. Hence there is no merit to be gained by fasting on the day of id, nor will it be taken into account in compensation to the fasting owed by the mukallaf.
But if the prohibition is due to an external factor such as a sale concluded at the time of the Friday prayer, or when salah is performed in usurped land (al-ard al-maghsubah), the ulema are generally in agreement that all the legal consequences will follow from the prohibited act, although the perpetrator would have incurred a sin. Thus the sale so concluded will prove the right of ownership and the salah is valid and no compensatory performance of the same salah will be required. Further detail on the fasid and batil can be found in our discussion of the ahkam, which is the subject of a separate chapter.
As for the question of whether a prohibition requires both immediate as well as repeated compliance, the ulema are generally in agreement that it does and that this is the only way a prohibition can be observed. Unless the object of a prohibition is avoided at all times, the prohibition is basically not observed. It is therefore necessary to avoid the prohibited act as from the moment it is issued and whenever it is applicable. This is the case with regard to prohibitions that are not qualified in any way, such as the Qur’anic text concerning the property of the orphans which provides: ‘Do not approach [la taqrabu] the property of the orphan except in the way that is best’ (al-An’am, 6:152). However if a prohibition is qualified by a condition that overrules immediate compliance, then it has to be observed within the meaning of that condition. An example of this occurs in the Qur’an (al-Mumtahinah, 60:10) which reads, in an address to the believers: ‘When they come to you believing women refugees, examine [and test] them. God knows best as to their faith. If you find that they are believers, then send them not back to the unbelievers.’ In this ayah, the prohibition (not to send them back) is conditional upon finding that they are believers, and until then the prohibition must remain in abeyance.
There is a difference between a command and a prohibition in that the purpose of the former is to create something or to establish the existence of something, and this is realized by a single instance of execution, and there is basically no need for repetition. A prohibition on the other hand aims at the absence of something, and this cannot be realized unless it is absent all the time. A single instance of absence is thus not enough to fulfill the purpose of a prohibition.
As already stated, a command which succeeds a prohibition conveys permissibility only. The position is once again different with regard to a prohibition: whenever a prohibition succeeds a command, it conveys illegality or tahrim, not a mere permissibility.
Injunctions, whether occurring in the Qur’an or the Sunnah, are of two types: explicit (sarih) and implicit (ghayr sarih). Explicit commands and prohibitions require total obedience without any allowance for individual circumstances and regardless as to whether they are found to be rational or not. For it is in the essence of devotion (ibadah) that obedience does not depend on the rationality or otherwise of an injunction. The question arises as to whether one should adopt a literal approach to the enforcement of commands and prohibitions, or should allow considerations of rationality and maslahah to play a part in the manner of their implementation. For example, the Hadith which provides that the owners of livestock must give `one in forty sheep’ in zakah should this provision be followed literally, or could we say that the equivalent price of one or many
sheep could also be given in zakah? Similarly, when the Qur’an enjoins the Muslims concerning attendance at the Friday congregational prayers to `rush to the remembrance of God and abandon sale’ (al-Jumu’ah, 62:9), should the word rush (fa’s aw) be taken literally or in the sense of an emphasis on diligence at attending the Friday prayers? A similar question can be raised with regard to the second part of the same ayah which commands the Muslims to ‘abandon sale’ (wa dharu’l-bay’). Should this be taken to imply that a sale which has occurred at the specified time is actually unlawful and void, or should it once again be taken as an order that requires perseverance and consistent observance? Should one follow the main objective of the Lawgiver or the literal requirements of the text which convey a command or a prohibition? These are but some of the questions which are asked concerning the correct understanding of Qur’anic injunctions.
The implicit injunctions are also divided into two types. The first of these is when a ruling of the Qur’an is conveyed in implicit terms but has been substantiated by the explicit terms of the Hadith, in which case it becomes equivalent to an explicit ruling. The second type of implicit injunction is when a ruling of the Qur’an occurs, not in the form of a command or a prohibition, but as praise or condemnation of a certain conduct. The precise import of such provisions cannot always be ascertained as to whether they convey an injunction or a mere warning or recommendation as the case may be. Note for example the text which reads that `God does not love the prodigals (al-musrifin)’ (al- A’raf, 7:31). The text of this ayah does not indicate the precise legal or religious enormity of extravagance, and it cannot be ascertained whether extravagance is prohibited or merely disapproved.
Another question which merits attention in the study of commands and prohibitions is related to the means that lead to the performance of a command, or the avoidance of a prohibition. The question is whether the means should also be covered by the rules which regulate their ends. Briefly, the answer to this question is in the affirmative. The means which lead to the observance of commands and prohibitions are covered by the same ruling which applies to the command/prohibition in the first place.
A mujtahid who deduces the law from a given text must be adequately familiar with the language of the Qur’an and must know that the ahkam are not only expressed in the imperative but that a praise or a promise of reward may in effect be equivalent to a command. Similarly, a mere denunciation, a threat of punishment in the hereafter, or a reference to the adverse consequences of a form of conduct, may be equivalent to a prohibition. The distinction as to whether a command in the Qur’an conveys an obligation (wujub), a recommendation (nadb) or mere permissibility (ibahah) must be determined in the light of the objectives of the Shari’ah as well as by looking at the meaning of the words of the Qur’an. To determine the value (hukm) of a command, attention is paid not only to the grammatical form of the words in which it is conveyed, but also to the general objectives of the law. This is equally true of a prohibitory text. To determine whether a prohibition conveys actual tahrim, or mere reprehension (karahah) is not always easily understood from the words of the nusus. Only a portion of the nusus convey a precise meaning by virtue of clarity of their language. In Shatibi’s estimation, a much larger portion of the nusus of the Qur’an cannot be determined by reference only to the linguistic forms in which they are expressed. The mujtahid must therefore be fully informed of the general principles and objectives of the Shari’ah so as to be able to determine the precise values of the nusus and the commands or prohibitions that they contain.
by M. H. Kamali.
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