THEORIES OF ISLAMIC LAW
The Methodology of [jtihad
Imran Ahsan Khan Nyazee
Contents
Foreword Introduction Major Themes
2.1 Ijtihdd through agrundnorm ......... 2.2 Is there a common theory of interpretatioa? .
2.3 Separation between theory and pesalcat 24 The problem of rights. ‘ 2.5 Disciplines related to wpul al-figh
The Meaning of Upal al-Figh 3.1 Ugill al-figh defined . . 3.11 The meaning of figh 3.1.2 Analysis of the definition 3.1.3 Usill al-figh . . > 3.1.4 The final definition... . 3.2 Comparison with legal theory
The Concept of Islamic Law
Law as the Hukm of Allah 4.1 The geundnorm .
4.2 The interest of Man . . 4.3 Shari‘ch and natural law . 44 Laws in casee where the shari‘ah is sileat . 4.5 The limits of Islamic law . 4.6 Law asa growing tree . .
5 Law and its Classification: The Hukm 5.1 Classification of primary rules 5.1.1 Obligations arising from primary rales 5.2 The hukm wad't or secondary rules 5.2.1 ‘Azimah and rukhsah 5.3. The purpose of the classification
6 The Actoand the Subject 6.1 The nature of the act (mabkum fih) . . 6.1.1 The conditions of obligation (tabi) . 6.1.2 The nature of the act and the aoe) involved . 6.2. The subject (mahkim ‘alayh) : 6.2.1 Ahliyah of legal capacity... 2. ee 6.2.2 Causes of defective capacity
T The Union of Primary and Secondary Riles 7.1 The union of rules
8 Doctrines of Hadd and the sokecor of Law 8.1 The spheres of Islamic law... . « Sh 8.2 A legal basis for the spheres 8.3 Interaction of the spheres 84. The spheres of law and hudid penalties 8.5 Advantages of visualizing two spheres
Il Theories of Interpretation
9 Common Features of Interpretation 9.1 Interpretation in general . ‘ 9.1.1 The law is always the Aukm of Allih 9.1.2 The hukm of Allah and literal methods 9.1.3 Qiyds and the hukmn of Allah
10 Theories of General Principles 10.1 Background 10.1.1 Approaches to legal theory 10.1.2 Developments in the law after al-Shaf' 10.2 The earlier jurists and their methodology 10.3 Main features of Hanafi theory
‘Treortes oF Istamic Law iit 11 Theories of Strict Interpretation v7 11,1 Modification of existing legal theory by al-Shafiy . 178
11.1.1 The Sunnah governs the meaning of the Qur'an 179 11.1.2 The general word and the general principle . . 180 11.1.3 The need to strengthen the ete 181 11.1.4 The opinion of a Companion ........ . . 182
11.1.5 ALShafi't's views on analogy . 183
11.2 Zéhiri and Hanbali theories Cals y eee . 1B
12 The Theory of the Purposes of Law 189
12.1 Probable reason for evolving a new theory . 190
12.2 Strict theories and the texts . . 19) 12.3 The design of traditional legal et and the iten:
sion of the law 193
12.4 Al-Ghazali’s theory of the parponel of law 195
12.4.1 Al-Juwayni's proposals... . .. . 195
12.4.2 Legal theory and the purposes of law.» |... 197 12.4.3 Qiyas and the formation of principles 12.4.4 The concept of the munasib or 12.4.5 The structure of the attributes and the han a 12.4.6 Mu'aththir, munaaib, and mulé'im .. . . 12.4.7 The broader principle of maslahah 12:4,8 The purposes of Islamic law . . - 12.5 The new theory and the methodology of the jurlat 12.5.1 The theory in simple terms... esas 12.5.2 General propositions, principles of policy, and moral norms © eee oo 28 12.5.8 The new theory and the principles employed . 220 12.54 The new theory and analogy»... .!- 24 12.6 The new theory and the development of the law... , 229
13 The Refinement of the Purposes of Law 13.1 Tying the strands together. ©. 0. ee 13.2. Magagid aleshari‘ah and the texts. asaya 13.3 The nature and structure of the magdpid .
13.3.1 Primary purposes in the service of the Hereafter240
13.3.2 The two faces of the magdsid ......
13.3.3 Primary and secondary purposes
13.3.4 Priorities within the magasid .. . . 134 Tracing the logic of the magasid . -
13.4.1 Nasi or the family unit? .
13.4.2 Public and private interests? . . - 13,5 Magagid and the Muslim community
13.5.1 The Muslim community as a living organism. .
13.5.2 The magasid and the political system
13.5.3 The magdsid and the economic system . . .
13.5.4 The magdgid and the legal system . . .
13.6 Priorities: Islamic and Western... ... . «
Ill [jtihdd Today
14 Lessons From Legal History 14.1 A theory of Islamic law 14.2 The principles of Islamic law 14.3 The Scope of [jtihad
15 The Modes of [jtihad 15.1 Strategies of Islamization ........... 15.1.1 ‘The general approach in Pakistan 15.1.2 Codification : 15.1.3 Applying the unwritten Islamic law 15.2 [jtihdd and the rule of recognition
16 Appendix 17 Select Bibliography
18 Glossary 19 Index
FOREWORD
“Islamic law,” writes Joseph Schacht, “is the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself ( Introduction to Islamic Law, Oxford, 1964, 1). Some might perhaps find an element of exaggeration in the characterization of Islamic law as the “core and kernel of Islam itself.” Nevertheless, there can be no denying that among the world religions, law occupies a distinctively important position in Islam; a position possibly no less important than in the religious tradition of Judaism.
In recent decades, interest in Islamic Law has increased both in the Islamic world and outside. It wax natural, in the first place, for the Muslims to desire, and even insist, that in the post-colonial era Islamic laws should replace the laws of colonial provenance. This provided an impetus for scholarly effort in the field of Islamic law. ‘This is evident from the considerable number of studies that have ap- peared on Islamic law and jurisprudence during the recent decades. These studies have mostly been addressed to understanding substan- Live Islamic laws - the family law, the penal law, the civil law, ete., of Islam, Compared to these, the works dealing with upui al-figh (Is- lamic jurisprudence) are scarce. Even more scarce are such studies in Western languages
‘The most significant works on Islamic jurisprudence in English by Muslim scholars are Abdur Rahim’s Principles of Muhammadan Jurisprudence. It is a competent work, but was written in the colonial setting obtaining at that time (being first published in 1905), and has thus become dated, The work of the Lebanese jurist Subhi Mahmas- sani, has been available in its English translation since 1961 under the tithe Falsafat al-Tashn* fi al-Islam, More recently, a few works by Ahmad Hasan were published by Idamic Research Institute, Is- lamabad. In addition 10 the Doctrine of Iyma’ in Islam (1978) and
vi Foreword
Analogical Reasoning in Islamic Jurisprudence (1986), the first of his projected four-volume work, The Principles of Islamic Jurispru- dence was published in 1993. Another significant work that appeared in recent years is M. Hashim Kamali, The Principles of Islamic Ju- risprudence (Selangor, Malaysia: Pelanduk, 1989), a comprehensive and lucid one-volume work on the subject.
Imran Ahsan Nyazee’s Theories of Islamic Law thus forms part of the growing, but still scarce literature on Islamic Jurisprudence in English, The forte of Nyazee’s work is that while it attempts a faithful exposition of Islamie Jurispradence—s *traditional representation” 44s the author chooses to call it—it is addressed to both Muslims and non-Muslims; and above all, the author has written at the appropri- length for the students of legal studies. Nyazee's knowledge isprudence seems both extensive and profound, and hia under- standing of “legal theories” sharp and incisive, which has made it
jossible for him to highlight significant parallels and dissimilarities tween Islamic juristic concepts and approaches and those of other juristic systems, ‘The author does not compromise a whit the unique- ness and distinctiveness of Islamic Law and Jurisprudence, But Is- lamic legal theories have been presented from the perspective of com- rative jurisprudence and with such skill that the reader is enabled 10 sharply grasp the characteristics of Islamic Law that make it a listinet legal and jurisprudential system. There is hardly any work ‘on Islamic jurisprudence which has made such a rigorous attempt to enable specialists in law to understand Islamic jurisprudence in terms they fully understand,
Theorves of Islamic Low should help lay readers, lawyers, and university students to understand Islamic jurisprudence on its own terms. For, it is indeed matic exposition of Islamic jurispru- dence, written in a clear and lucid style. The work thus eminently meets the requirements of a good text-book in Islamic jurisprudence, Unlike an ordinary text-book, however, Nyazee has presented in it some bold theses
‘One of the major contentions of the author is that
‘Tweorres oF Istamic Law fil
Each af these theories has played a useful role in the past and each can play even today a vital role in the development of Islamic law.
Likewise, the author tries to explain the paradax of the so-called rigidity of Islamic law at the theoretical level accompanied with a per- ceptible degree of laxity in practice. The author has forcefully argued that the Islami
These are separate but complementary spheres. Neither is the relative fixity of the first sphere a manifes- tation of the Muslim jurists’ mental rigidity. Nor is the flexibility of the second sphere the manifestation of any cynical disregard of the revealed texts on the part of the rulers.
‘The author has expressed his views boldly and candidly, It would be natural for many scholars to disagree with the conclusions of the author. If these disagreements spur them to serious research and study, to carefully examine the variety of theses and hypotheses con- tained in this work, one of our major purposes in publishing this study would have been fulfilled. For it is our firm conviction that a great deal of rigorous and meticulous research’is necessary for a better
into a legal system of contemporaneous relevance. For on 1! hand it would obviously be preposterous for the present gener- ‘of Muslims, especially of their scholars, to turn a blind eye to great intellectual heritage of legal doctrines bequeathed by juslim jurists and lawyers of the past. On the other hand, there is reason to believe that the last and final word on Islamic law was ‘several centuries ago and that the legal doctrines developed by earlier jurists have to be uncritically maintained, in toto, by the present generation of Muslims. Every generation, notwithstanding its reverence for its ancestors, has to carry its own cross; has to fall back on its own brain power to solve its problems.
viii Foreword
While welcoming this maiden work of the author, we fervently hope and pray that he may have a long, productive academic career in which he might enrich the tradition of Islamic legal scholarship.
Zafar Ishaq Ansari October, 1994
Chapter 1
Introduction
Usiil al-figh or Islamic jurisprudence is the queen of Islamic sciences. It has been developed, refined, and applied for the derivation of the law by some of the greatest Muslim minds, throughout the ages. The reason why it has been the object of so much interest in the past is that a thorough understanding of this discipline is a prerequisite to the study of Islamic law, tafsir, and hadith. What was true in the past is true today. Today, expertise in the subject is essential not only for the Muslim lawyer, but for all those occupied with the study of Islam in general.
It is unfortunate, however, that in the present times the discipline of ugul al-figh is not given the attention and care it deserves. This is not to say that it is not taught in our institutions of Islamic learning, ‘of even in our law schools, It is, but the methods adopted are not adequate. One cause of the lack of interest could be that there is very little attempt to explain what the subject might mean to a modern Muslim lawyer or a judge. A person trained in modern law does not even know how to approach the subject for it is never explained to him how he might relate it to concepts familiar to him. This is true even when the subject is expounded in languages other than Arabic, A reflection of this fact is to be found in the hesitation that prevails aéout assigning a title or name to the subject in English. A brief comparison with the science of Western jurisprudence might help elucidate this point,
Usal al-figh has been assigned different titles by different writ- ers, who attempt to understand what it really stands for. It has been called “Islamic jurisprudence,” “Islamic legal theory,” and “the methodology of Islamic law,” besides other things. Those who fail to relate it to corresponding fields in the law, sometimes prefer to retain
2 Introduction
the original name of ustl al-figh. There is nothing wrong with this, though, and all these titles are essentially correct, but the content and scope of the subject remain vague for the modern lawyer. There is, thus, a need to explain its meaning in a little more detail.
Part of the trouble in explaining the meaning of usu ai-figh lies in determining what we mean by jurisprudence itself, in the West- ern sense of the term. Western jurisprudence today has come to be divided into two major areas: general jurisprudence and particalar jurisprudence.' Institutions of legal learning in countries like Pak- istan are still occupied solely with particalar jurisprudence, while the Western world has moved away from it toward general jurispru- dence, Particular jurisprudence deals with legal concepts that cut across different branches of law, that is, concepts like right, prop- erty, and duty. This is the area of jurisprudence that was expounded by writers like Salmond & long time ago. General jurisprudence, as the title implies, deals with broader questions. It deals with the na- ture and concept of law itself; What is law? Why do we obey it? What is the nature of obligation? How do judges discover and apply ‘the law? How are laws validated? What constitutes a legal system? What role has morality to play in a legal system?
‘These and other questions of legal philosophy underlie this fas- cinating field that took hold in the West in the last few decades, and continues to dominate the work of legal philosophers. A study of the works of legal philosophers like H.L.A, Hart, Lon Puller, Joseph Raz, and Ronald Dworkin reveals that general jurisprudence is the same thing. as ust! al-figh, though the legal materials it operates on are secular in nature, while the materials for the latter are divine in origin. Nevertheless, both are legal materials. What is surprising is that the issues faced by Western legal philosophers today were ap- proached by Muslim jurists more than a thousand years ago. It is ‘rue that the language used by Muslim jurists was different, or some of the sophistication found today in modern legal systems was lack- ing in those days, but the basic questions answered are the same. A study of upil al-figh today must bridge this gap and relate the discussions through a common language. A study of Islamic legal theory or ustil al-figh, to be useful in the present age, must answer some fundamental questions. A few of these aré:
‘The division of jurisprudence into general and particular is followed by some legal philosophers. See, eg. J. W. Harris, Lagat Theorses (London, 1960) 1-5, 88-89.
‘TueoRIES oF Istamic Law 3
‘* What is Islamic law?
‘© What is the structure of the Islamic legal system, as it emerges from the works of the earlier jurists? Would this structure be viable today?
¢ How was the law derived by the earlier jurists from the sources of peer geile dct geese ae sci f what will be the methodology of the modern judge in discovering and applying the law??
© Who was authorized to declare a law as Islamic, that is, how was the validated? How will the law be validated as Islamic in the modern age?™
. ‘Was athe scope of thls lew? Doss it gover each spat fs Mastin
‘oF is it limited to what ia contained in the books of figh?
# If applies to all legal activity, then, why was there, in Islamic legal hutory, 8 separation between the functions of the Muslim jurist and the legislative and judicial functions of the Islamic state?
‘* What fundamental rights have been granted to Man under Islamic law, and how is justice according to law to be secured?
Books on upul ai-figh, written in modern times, whether in Arabic or in English of another language, do not answer all these questions,
Sie Staines daha te ee Seeatng sal enatlng satan waually quote the tradition of Mu'sdh ibn Jabal, The tradition ax quoted In Seman Abs Dactdin. "When the Apt of Ah intended to peed Mah om Jabal to the Yemen, he asked: How will you jadge when the occasion of deciding a case arises” fle replied: | shall jodge in accordance with Allth's Book. He asked (What will you do) if you do mot find guidance in Allah's Book? He replied: (1 will act) in accordance with the Sunnah of the Mesenger of AUAh. He asked (What ill you do) if you do sot find guidance io the Sunnoh of the Apostle of ‘Allah and in Allah's Book? ile repbed: 1 shall do my best to form an opinion and spare no pains. The Apostle of Allah then patted him on the breast and said: Praise be to Allah Who helped tbe messenger of the Apostle of Allah to find 4 thing which pleases the Apostle of Alih.” Sunan Aba Déwéd, te. Ahmad Hasan (Lahore Sh, Muhammad Ashraf, 1984), ai, No. 3585, 1019. The broad methodology based on the tradition of Mu'adh ibm Jabal is essentially correct, but in somewhat simplistic when viewed in terms of a modern legal system. Al- ‘Ghazalt (4. 505), for example, says that one should first consult ima” (consensus cof opinion) for settled principles. It is customary with the fugaha" to quote thir {radition in support of the use of reason in matters of figh or shart'ah.
"For a layman, the law laid down by his school is valid law, This is fine as fas 1 personal Lae is concerned, but what is valid Jaw is the public sphere is an iasuc that in not clearly settled. oh
4 Introduction
‘or at least they do not answer them watel Sathael iy oor rks in Arabic, are devoted to a description of the site seein ieee eer ae in itself and was first followed jurists, it is not sufficient, alone, to equip the student or the lawyer with skills that will enable him to derive the law in the present age, let alone practice it within a modera Jegal system. Much more needs to be done. ‘ needs to be developed by |. This theory must answer and
Islamic law must first understand and analyze the work of earlier uslim jurists, and then attempt to relate their analysis to the cir- ‘umstances obtaining today. Such works should not be undertaken in isolation, and these scholars must discuss and debate the important issues. It is to be acknowledged that some scholars have undertaken comparative studies of Islamic legal theory, where similarities with ‘Western law have been indicated, yet, a broader theory that encom- pastes the whole gamut of interpretation in the light of modern needs cannot be derived from such works. We have attempted a first step this direction in this book, in the hope that others will partici the process and thus contribute to the development of a wry of Islamic law that will explain the whole enterprise of in ‘ation and define some strategies of Islamization for the p1
ton, 1981); Die Zéhiriten: thre Lehrayatem und Dhre Geschichte (Leipaig, 1884), ‘This has been translated Wollgang Behn, The Zahirts (Leiden, 1971) (The trans {ator has corrected « number of errors in citations and follows a modern method of transliteration). See also Joseph Schacht, The Origins of Muhammadan Ju- rigprudence, rev. ed. (Oxford, 1953) (hereafter cited as Origins); Introduction to Jslarnic Law (Oxford, 1964) (hereafter cited as Introduction). In addition to these, there is & large number of articles written by Schacht and Coulson om various top- ‘cs. Some other scholars have also written important articles om the field, There are many other books on Islamic jurispredence, bat those mentioned here are the early authoritative books that established a pattern followed by later writers. ‘The same pattern is stil in vogue.
Tusories oF Istamic Law 5
This book, therefore, differs from those written, in English or aati, a motes Main, scenes ta Has espects. First, it at-
Ba oes bee hae tie ote Second, it does not al-figh as 2 common legal theory, as is portrayed by many modern books, and is maintained by Western scholars, though for different reasons. On the other hand, it treats deriva o . Each approach or theory has a distinct function to perform in the modern age. Third, this book at- tempts to show how the theories of Islamic law may be applied today to nerve and develop a modern legal system. The reason why we have to treat the subject of ussil al-figh in this way is based on our viction that the form in which the subject is presented by Mus- scholars of the present times is of limited benefit to those dealing ith English common law. Similar observations have been made by others too.* This is not to say that books written by modern ars are not useful at all. Indeed, these books may be highly usefal i countries where the obtaining legal systems are based on civil law.
Nevertheless, we have retained, as far as is possible, the essence of the ‘books of upil l-figh are written, 80 that the reader accustomed to them may not feel distracted. This pattern was ;
(d, 757), and is followed with some modification by modera books written in Arabic. Sadr al Shari'ah divided
jodern books discuss the hukm shar‘ first. We have done the same.
The structure of the book, which is divided into three parts, dif- fers in certain other ways as well. After two introductory chapters highlighting a few major themes and the meaning of ural al-figh, the first part deals with the hukm shar, which is a discussion of the concept of Islamic law.
ww. A description of the sources of Islamic law and the rales of literal construction has been kept to a minimum, as these are well known and can be gathered from any book on Islamic jurisprudence,
“See Riarul Hasas Gilani, The Reconstrection of Legal Thought on Isiem (Ia hore, 1974) iv.
6 Introduction
‘yet points deemed essential have been woven into the description of the theories. Where it is felt that some readers may need more ex- planation of important sources, terms, or rules, the details have been moved to the footnotes. The third part deals with the methodology through which the legal system may incorporate and employ, in the ‘present age, the theories of interpretation that are the subject-matter ‘of the discipline of usil al-figh.
As we have endeavored to develop a theory that explains the various aspects of Islamic law mentioned above, some of the ideas expressed may appear new to the reader, who is accustomed to tra- ditional books. Most of what we have stated is based on more than a decade of research and study of this law, and we invite such schol- ars to propose better explanations or theories, and to amend and improve the ideas presented here. The effort, as stated earlier, is to generate fruitful discussion so that the collective effort-of Muslim scholars may yield a system that can easily translate the ideals of Islam into an efficient modern law.
Chapters have been numbered consecutively throughout the book, irrespective of the division into parts. The system of translit- ‘eration for Arabic adopted here is based on the one followed by the American Library of Congress. The reader may, therefore, notice some differences from the transliteration system to which he might be accustomed. For example, iyy is represented by fy. Thus, Ibn ‘Taymiyah instead of Ibn Taymiyyah or Ibn Taimiyya. Footnotes were preferred in this text for ease of referrence. These have been num- bered separately for each chapter. Wherever the name of the Prophet is mentioned, the words “God's peace and blessings be upon him,” are intended to be implied without having been specifically recorded
in the text, as is the usual prayer for all his 1 would like to thank 0 has been very kind to me in s0 many ways. e manuscript twice and made
very useful suggestions with respect to content as well as style. I am also grateful to him for having agreed to edit and publish this book.
Chapter 2
Major Themes
Upil al-figh has been called Islamic legal theory on the analogy of modern law. Like legal theory upil al-figh answers the questions “What is law?" and “How do judges discover and apply the law in hard cases?”® But the analogy ends here. |
al-figh ays discovering and applying the law
. Thus, there is a difference in function and approach. The This, at least, is t! In response to the question “What is law?" pal olfigh explains
legal systern. It describes in detail why the law is analyzed into dif- ferent categories and how the interaction of primary and secondary rules takes place. Comprehension of this structure is essential for understanding the nature of Islamic law itself. On these issues, the ground covered by upiil al-figh and general jurisprudence is common,
In the Islamic legal system, a8
to be is . Usiil al-figh
‘Hard cases are those where the statute does not cover the set of facts presented to the court, and the court haa to resort to the general principles of the law. For a detailed discussion see R. Dworkin, *Hard Cases,” Harvard Law Review 8 (1975), 1087.
We will bave occasion to see later that this is not binding in Islamic law. Tk is merely an assumption saade by later scholars Shea ell sale methodology provided by al-Shafi't (4.
8 Major Themes
F NSaaerene eaten ca neers cea AN It is, in fact, the heart of the subject for it tells us
how the rule is derived. It also explains why each school of Islamic law! is a different system of interpretation that influences, by its methodology, the outcome of the opinions reached In figh, that is, the derived rule. In addition to this, it defines the area in which
qualified to do so. It, then, lays down its own system of stare decisis through a process called taglid that informs us what opinions or pas :
such a system of interpretation is absent or is not formulated, @ vacuum ix created and the rules put forth as Islamic will not be validated by the underlying rule of recogni ition of Islamic law.
tn Muslim countries, involved with ith the Talamiization Of laws, the first issue that is faced is couched in the question: How to interpret Inlamic law in the present age? It will not be an exaggeration to say that any development in Islamic law today depends upon the comprehension, development, and adaption of uyiil al-figh, In West- ‘ern systems a familiarity with legal theory is not essential to the practice or study of law, but a systematic study of uptil alfigh is ‘@ necessity for all those who wish to practice, teach, of study Is- Jamic law. It is unavoidable, particularly for those occupied with the framing or application of Islamic laws in Muslim countries, and is equally essential for non-Muslims occupied, for various reasons, with ‘the study of this law. If, however, one group that needs it most were to be singled out, a group that must undertake a penetrating study of this field, it would comprise the judges of the higher courts in Muslim countries who are responsible for laying down the law and
its general principles. The study of opal a;fgh must, therefore, have a purpose. It must ‘evolve a methodology and a system through which we can
help us
A school of law in the Islamic legal xystem is usually associated with the name of its founder. This is true, at least, of the Sunni schools. A school of law, besides being an internally consistent system of interpretation lends uniformity to the law. It is generally known that Ubere are multiplicity of opinions within the lalamic legal aystem. By following a school of law the follower accepts a uniform version within this tich variety.
‘Pupories OF Istastice Law 9
validate all new laws as Islamic, besides converting the current laws. ‘The overall purpose has already been indicated in the questions listed in the introduction, but the present book will revolve around certain important issues. Focusing on these issues will not only help us un- derstand the subject better and to remove some misconceptions, but also provide us with an opportunity to identify the utility of this discipline within a modern legal system.
To facilitate such a study, some of the important issues that may be discussed in detail in this book are described briefly to attract the attention of the reader. The first such issue relates to ijtihad.
2.1, Ijtihad through a grundnorm
Ijtihdd means striving to the utmost to discover the law from the texts through all possible means of valid interpretation. The main purpose of the subject of ugil al-figh is to teach the art or method- ology of ijtihdd. This methodology is difficult, if not impossible, to learn in « vacuum. For the purposes of this book, Pakistan will be used as the model. The reason for this is quite natural for this writer, but it is expected that the explanations provided will be of benefit to all Muslim countries, especially those functioning under the com- mon law. Examples, where necessary, will be based on judgements rendered by the superior courts in Pakistan. After the methodology of ijtihdd has been absorbed from the traditional literature, it will ‘be shown how a country like Pakistan is slowly adjusting to it, and how its senior judges are gradually taking up the responsibility that ultimately will be theirs, along with the lawyers who cooperate with them. Their methodology for validating the law vacillates between a grundnorm and a rule of recognition, sometimes benefiting from both. The explanation of this topic is one of the aims of this book.
2.2. Is there a common theory of interpretation?
‘The study of ugal al-figh in modern times has fallen prey to rome rigid and preconceived notions that have concealed its true nature.
such rigid notion that has taken hold in the Muslim world today ths ieee jour chon ms mn taste osepectaen that lawyers, judges, or Ty
In other words, they believe that they may follow a rule of interpre- tation adopted by the Hanafis, for example, and at the same time
10 Major Themes
follow another rule upheld by the Shafi‘ school. Questions of internal analytical consistency are ignored by the proponents of such a view.* i ‘This notion has arisen from the apparent uniform nature of the ubject. Pick up any book on usul written by Ssancien Jrets wad ‘you will find that it contains the statement: of Islamic law. . ..” These books appear to present the discipline as if it were a single uniform theory. This impression, arising from these books, and the consequent notion prevailing among scholars, in the opinion of this writer, has led to difficulties in nature of legal theory in Islamic law. The t
one but several theories of interpretation in this law. of the jurists can only be understood by- appreciating the detailed - principles preferred by each school
of Interpretation in no way indicates
bt or tension within the Musi wnity. On the other hand, ) re
f ‘The desire to consider uydil al-figh as a single uniform theory has also led to
in modern times to deal with new situations. The clearest example
of the vagueness that surrounds the issue of interpretation is the
proposed use of the principle of maglahah.* The principle is advocated
With great fervor, but there is no explanation as to how it is to be
judge, or how it fits into the general scheme of
. Maslahah can only be if its relationship with this theory is clearly understood.®
things.
‘The idea that there is a common legal theory is not upheld in the Muslim world alone; it is also maintained in the: West. Western
ined to reconcile the principles of various “schools. Yow hy hrc i ap ‘Cat all some jurist bas the law of that of jurisprudeatial interests. This theory, however, is not the same ss the imaginary “classical theory of law.” “Erroneously referred to either as “public interest” or as “stility.”
. owen Ghazals theory and the principle of maglahah will be explained in detail in Part 2
Tueories ov Istamic Law nh
sciclars insist that there is one theory known as the “classical legal
theory.” They also claim that this classical theory has nothing to ara ike etl demapecior law as by each school. This view was has been maintained ever since by several Western scholars. He said: “Com- mon legal theory, the discipline of usu al-fikh, has little relevance to the positive doctrine of each school.”? The truth is that there is hardly such a thing as a “common legal theory." It is only a fig- ment of Schacht's imagination. As there is no common legal theory, jit obviously cannot have anything to do with the positive doctrine of each school, or any school for that matter. It is the separate and
to merge or combine two systems of interpretation would lead to a new theory of interpretation. This would be permissible only if the new theory is developed as a whole and is also internally consistent, Such attempts have been made in Islamic law, though the jurists ad- vancing their theories have rarely claimed that they were proposing, new theories outside their schools. There is no restriction, however, and there has never been one,
competent jurists.
Vrain apace popr carer paren AF aad of a presented in the fifth century is that of the theory theory that has not been put to"
proposed by al-Ghazall (d. 505), a Practice as yet.!°
Introduction, 60. By positive doctrine he means the law stated in the books of figh. "This will be explained in detail in this book. "New theories are expected to emerge in the present times through the collec- tive efforts of scholars, judges, and lawyers, It promdes
This ‘answers that have long been sought by modern Muslim writers.
n Major Themes
‘The second part of this book will be devoted to the explanation of these thearies, and to the removal of some misconceptions that have
ce ehcp
justice according to the shari‘ah. 2.3. Separation between theory and practice?
‘An idea that bas taken hold in the West is reflected in the doctrine of
that is, the law expounded ‘by the jurists and the practice of Muslim rulers or the state over the centuries. The idea was advanced by scholars like Weber and
Schacht, and is avidly pursued by many scholars today. A student of Inlamic legal history cannot fail to notice that Muslim rulers did establish institutions like the mazilim courts, the office of the ‘émil l-séq, the institution of hisbah, and some others." It may appear strange to some that the early Muslim jurists never discussed these institetions in their regular manaals of law. It is only seldom, and
that too as ote ear ec of pe Tsndtr oor
scholars that Muslim jerists and the state were apparently going their ‘These writers have assumed that institutions and laws Rett elec the Even the taxes imposed by these rulers are deemed to be extra-shar‘t In other words, they designate the laws made by the ralers as secular.
to the rulers. As there were no political parties, it is assumed that ‘opposition groups gathered around the jurists to give vent to their
It is possible that all this may have happened on some occasions, but there is no concrete evidence for these assumptions, that is, for
"14 was Sint ab Mawenrdl and then The Khaldin who described thewe institutions in some deta.
The only books that discs the ssthority of the ruler or the state are books ‘ithed ot Abbie at Sultemspah These books do sot have the status of regular ‘mamaal of lew. The doctrine of sopinah is mentioned in later books like those by ‘Toe Taymiyah, Tbe ab Quyyim, and Tarthalust.
‘YHEORIES OF IsLaMic Law 13
the assumption that the laws and institutions established by the state were not valid according to the principles of Islamic law or the shari“ah, or that the law laid down by the fugaha” always developed im opposition to the ruling group. Had this been true, the attitude of confrontation would have emerged in some form in the law. There is, as has been stated, no evidence in the law-books of earlier about the legality or illegality of these institutions, or even a hi of some kind of confrontation between the rulers and the jurists. O1 the contrary, there appears to be perfect harmony between ‘Yet, the early Muslim jurists avoid all discussion of these institut and laws, as if they were outside their jurisdiction or domain, T! desire of Western writers to identify such a separation between and practice appears to be based on identifying and relating U development with a parallel development in Roman law. There no justification for this,
|, are wont, on the whole, ei-
ther to’ ignore this’ isawe ‘completely and not to address it, or they assume that these institutions, established by the rulers for
the
ministration of justice, were @ part of the regular shari‘ah law. The latter writers give the impression that there was no separation be-
tween the writings of the jurists and the judicial activity of the state. Perhaps they base such conclusions on the writings of later writers
like Ton ‘Taymiyah (4. 728 A.H.) and im (4, 751 AH.) The Pets i hoary cites n
ts. In addition
| Ori ing the
| consequences of such agreement.!* A recent book written on Islamic Jurisprudence, though presenting the traditional Islamic point of view with the writings of Arab scholars throughout the book, has the following statement to make in the preface: [Ujpal ab-figh bas for the most part been developed by the indi- vidual jurists who exerted themselves in theit away from the government machinery and involvement of ju- istic thought. Consequently, ust al-figh has to some extent
“Such conclusions were drawn by Max Weber, through as apparently superfi- cial study of Islamic law, and Schacht followed him—almost blindly.
"See, eg, Mi Hashim Kamali, Principles of Islamic Juruaprodence, (Avosaling Jara: juk Publications, 1989) xvii
ul Major Themes
irariounwacheneteeeeainenae ai lamic jurisprudence is marred by s polarization of interests and values between the government and the ulema. The ulema dis- ion with the government did not encourage the latter's and involvement in the development of juristic thought and institutions, and this has to some extent discour- aged flexibility and pragmatism in Islamic jurspredence. .. ‘The government on its part also did not encourage the ulema involvement and participation in its hierarchy and isolated it- self from the currents of juristic thought and the scholastic expositions of the lems. The schools of jurisprudence contin- wed to grow and succeeded to [sic] generate a body of doctrine, which however valuable, was by itself not enough to harness 1¢ widening gap between the theory and practice of law im wwernment.!® Notwithstanding the erudition of the author, it must be pointed out that the statement implies that not only is the Islamic law derived by the fugaha? righ
. This Is exactly what Joseph Schacht hhas said, both
». The only difference between this statement and those made by Western scholars is that the learned author has not said that the laws and practices of the Muslim state were secular in nature and that the taxes im, by the st
), when the law had attained Some of the areas of law discussed in thé early works of e Hanafi jurists, for example, were later to fall within the exclusive lomain of the state. The separation appears to be complete by the ). Does all this mean that jurisdiction over
ity of Definitely not, The arrangement appears
ies, that
'STbid. Emphasis added.
Taronies oF Istamic Law 15
is, the jurists and the rulers. The assumption for purposes of this book is that a separation between the functions of the jurists and the judicial activity of the state was achieved in perfect harmony, Indeed, this is a unique feature of Islamic law.
‘The agreement, as gathered from the works of the jurists, ap- pears to be that the fugahd’ would have jurisdiction over the area
of law that could be derived directly from the texts, an area that /
ay
was a permanent part of the law, while the state would make laws,
under the power of ijtthdd available to the ruler, in areas where the law was likely to change with the times, or in accordance with the policy (siydsah) of the rulers. In other words, the jurists devoted their energies to the eternal part of the law that would never change, whether the state was secular or Islamic, because it was a law that was derived directly from the texts of the Qur’én and the Sunnah, a law that could, except for hudid and gigas, be practiced as personal Jaw even by Muslim minorities. This practice appears to have con- tinued right up to the Ottoman times in Turkey, and up to the time of Awrangzeb'® ‘Alamgir in India.
In contrast, the law made by the state was also based on the shariah, but it was derived general in most cases rather than from specific texts of the Qur'an and the Sunnah, West- ern writers are still making efforts to show that the law codes laid down by Ottoman rulers had nothing to do with the shari'eh, but here and there a statement appears stating clearly that this law was made in accordance with the principles of the shari‘ah and with the approval of the Shaykh al-Islam, the leading jurist of the times. In fact, wherever a discord between the gdntn and the shari’ah was found in Ottoman times, an effort was made to achieve harmoniza- tion. Consider the following quotation from a firmdn as recorded in a book written on Ottoman criminal law by Uriel Heyd:
It is also highly perilous and most sinful to juxtapose the [] shari“a and gandn. Therefore in firmans and decrees all matters shall henceforth be based on the firm support of the noble sharia only. (Excerpt from a firman of Mustafa TI (1695-1703))'7
“The Arabic transliteration of this same as Awrangrib is being avoided intentionally.
"Gee Uriel Heyd, Studies in Old Ottoman Criminal Low, od. V. L. Ménage (Oxford, 1973), 154. See also "AysY, Hags'ig al-Haga'ig ff Takmilat al-Shogs'ty for some ideas on how the sharf'ah and glndn were harmonived in Turkey.
16 Major Themes
‘The question is whether such laws of the gandn, that were harmo- nized with the shari‘ah, are binding on later ages? The answer is in the i
‘Working on the basis of the assumption that the agreement be- ‘tween the jurists and the state was achieved in a spirit of cooper- ation, the logical conclusion would be in
rT . One
}. The flexible
sphere revolves around the permanent and fixed sphere and draws,
or should draw, its principles and inspiration from the inner sphere. The
to be a mujtahid (a qualified jurist), is responsible for the flexible
and changing sphere. If the ruler (imam) develops the law and lays
down a policy in accordance with the inner sphere, Tarabulusi, the
author of Mu‘in al-Hukkém calls it siydsah “ddilah or administration
of justice in accordance with the shari‘ah. If the ruler violates these
principles, he calls it siydsah zdlimah or tyrannical administration, !* 1!
a » Further, the idea of wo spheres of law is merely conceptual, it does not imply that there a separation or division within the legal system itself. Indeed, the w must operate as a single body of rules, based on the shari‘ah, in ne seamless operation.
As soon as we make the assumption that there are two distin- guishable conceptual spheres of the law, one permanent and the other changing with the times, we discover a powerful tool with which to analyze the structure of Islamic law. Islamic law begins to appear in a different light; it changes into a system that has not only been effective in the past, but can function with a little effort even today. In fact, many of the views and opinions of the earlier jurists assume anew meaning.
All this may be true, bat is there any evidence suggesting the existence of two cooperating spheres of Islamic law? The answer is
“See Tartbalust, Mu‘tn ol-Hukhdmm (Btlaq, n.d.) 1.
Turories oF Istamic Law 17
The Islamic law itself. An explanation will be provided later in this book, at the end of part one. It may be mentioned though that while this explanation has been woven into the traditional pattern followed in this book, it would be possible for those who are not interested in this explanation to skip this material, if they so desire. It is felt, however, that this is an important question and needs to be analyzed and answered.
2.4. The problem of rights
Another point that has not been misconceived so much as it has been neglected by modern writers is the question of rights in Islamic law, ic law revolves around a system of rights. These rights are dis- sussed by some scholars today, but not in a way Muslim jurists, at it the Hanafi jurists, intended them to be understood.
the detailed system of rights upon which the Islamic legal system is structured is a prerequisite to the study of Islamic law. The different Kinds of rights operating in Islamic law will be explained in detail in this book. The question of human rights in Islam, however, requires detailed explanation, which we intend to provide in another work on the philosophy of Islamic law.
2.5. Disciplines related to ugil al-figh
Tare are catia dinhlins that re ntertwisnd with saab, When we consider these disciplines in the sense of Islamic legal the-
ory, however, it is not possible to separate these subjects, and they have to be considered a part of upil al-figh. These subjects are al-
8 A.H.), but the discipline itself the Hanafi jurists,
part of this book that deals with legal theories.
eRe aes
Tha ecoad nile, Een sa fer, isthe ato datinenih) tn "ing cases. It is an art with which the modern judge trained in the
f*
18 Major Themes
The credit for this goes to the Maliki , but again this does not mean that he is the author of the field it: because he wrote a book on the subject.
a au ‘@ book. It is assumed that just because there was no book.on a subject the discipline itself did not exist, This
. The classic case is that of Islamic legal theory itself. The tire discipline is attributed by some to the great jurist al-Shafi'y because he wrote the first book on the subject. Does that mean that there was no legal theory in Islam before al-Risdlah appeared on the scene? It would be incorrect to assume that there was none. As long as Islamic law existed before him, there had to be a legal theory. True, this theory would be somewhat different from the one expounded by al-Shafi'T, but it did exist nevertheless. ‘The purpose is to emphasize that
many sub-branches tends to conceal the global picture, a picture that is extremely important for understanding a Jegal system as complex as the Islamic, This brings us to the observation that Islamic law is indeed complex, and its legal theory is even more difficult to un- derstand. It takes years of study to understand its basics. It is for this reason that an effort has been made to present the material in a simple form. This implies that some of the finer details may be missing and the interested reader will have to work on his own to discover them.
Chapter 3
The Meaning of Usil al-Figh
‘The same definitions, however, may be widened slightly to apply to the flexible part as well, The focus of jurists, as has been stated earlier, was on the part of the law that was stated explicitly in the texts of the Qur'an and the Sunnah,
\joyed by delegation, Thus, there can be no doubt that the first jour Caliphs were full mujtahids. Some later rulers have also been by the jurists to be mujtahids, Today suck a qualification ‘obviously be enjoyed by delegation.
“To explain the matter in a little more detail, we may say that the focus of Muslim jurists dealing with the fixed part of the law was more on the , while the these evidences. Thus, the Muslim jurist was occupied more with the juz or the specific evidence, while the state was to use the kulli or the general evidence. Having said this, we may note that both the>,
ist and the state could use either type of evidence, the specific
well as the general without restriction. Because our purpose here ia only to identify the broader trends, we may assume for the time being that the Muslim jurist focused on the juz't, while the imam
2 The Meaning of Usi al-Figh
employed the kullf for the derivation of the law. It is with this in mind that we may approach the definition of uss al-figh provided by the jurists.
3.1, Usiil al-figh defined
‘The meaning of ugil alfigh is explained by the jurists in great detail. They split up the term into two parts and define or explain these components separately. Once the constituent parts are defined, they combine the two parts to arrive at the definition. It would certainly be easier to skip this definition and explain the meaning of the discipline in simple terms, but we feel that the reader is entitled to understand the language of the jurists directly. We will, therefore, proceed with the definition provided by jurists. Once this has been done, we will provide a simpler explanation. The used by the fugahd’ (plural of fagih: jo- rist) is what we call genus-species definition, a method that origi- nated with Plato and Aristotle.’ It is not considered very effective in modern times, but to undetstand what the fugahd’ said we must use the method they wanted us to. This method, which is one of the most common, consists in the selection of a word called definiendum. This word is first set into ite genus (class) and then distinguished from the other members of the class, Most definitions formulated by Muslim jurists are based on this pattern. ‘The term updl al-figh is composed of two terms: wad! (pl. of asl) and figh. The jurists usually define the term figh first,
3.1.1, The meaning of figh The literal meaning of f¢h
The term ” and in this sense the . It,implies
term ‘idm (knowl- edge) also gives , and in the
‘There is an elementary distinction in philosophy between the definition of a
word and that of ax eatity. Definitions of words ate called nominal definition,
While those of entities, that is, concepts, objects etc. are called real definitions. *The word has been used in the Quin on severg! occasions:
Sas 5 ills 58K 9 pa TA What bath come to these people that they fail to understand a ingle fact. [Qur'ss 4: 78};
‘Titgoates of Istamic Law 21
there appears to be no difference in the two terms. Later, as sophis- tication crept in, the term ‘ilm came to be applied in a narrow sense to mean knowledge that comes through reports, that is, traditions: hadith and dthar. The term figh, on the other hand, came to be used exclusively for a knowledge of the law. Thus the terms ‘ilm and figh
Similarly, Ie tae ieee ad me ea aa ke prectuo poac toa 218 A.H.). Figh till such thme embraced both ul and legal issues.* Abi Hanifah (d. 150 A.H.)
Gels OG a51S 5 oF “a person's knowledge of his rights and obligations."* Abé Hanifah is said to have applied the term al-figh al-akbar (the greater understanding) to ‘ilm al-kalém,
by Sat Vg a 2 ‘They have hearts wherewith they understand not. (Qut’in 7: 179) ‘The same meaning is reflected in the words of the Prophet: Call pa Uae Dla oo He for whom Allah wills His blessings is granted the understanding of din, [Sabih Muslim: Kitdb al-Amarah}
"Sen, © jad Hasan, The Early Development of Islamic Jurieprudence (aamabed, ioe “I tebe ned that ‘fom the vary begining caried ef hacedge that came through on utheciy—it may be God or the Promiet" Td 8 “Tid. 3
"See Sadr abShast'ah (4. 147 A.H.), of-Towdth fF Ball Jawamid al-Tongth (Karachi, 1979) 22. Explaining the definition given by Ab@ Hantfah he says that it includes three things:
1. knowledge of the tenets of faith;
2. knowledge of ethics and mysticiam (leyowwuf), and
3. knowledge pertaining to acts.
‘The first is covered by ‘iim al-kalam, the second by ethics and mysticiam, and Ube third by figh. Ibid. 25. Thus, he says, if you wish to confine the definition to figh alone, that w, al-figh al-asghar, you most add at the end of the definition the word ‘omalan Ibid. The definition would then become:
(9 le OG IS
‘A person's knowledge of his rights and obligations {with respect to his acta). Ibid. 22.
n The Meaning of Usil al-Figh
implying thereby that figh pertaining to acts is al-figh al-ayghar.® The subject of kaldm was introduced by the Mu‘tazilah during the time of al-Ma’mén and the term figh came to be restricted to the corpus of Islamic law. It is in this sense that we understand the term igh as will be obvious from the definition given below.
‘The technical meaning of figh
Tthas been explained above that the word figh was used in the early jays in a comprehensive way to include the tenets of Islam, ite ethics, ‘a ui ing oh el pt ings for which the term tagawwuf subsequently came into use. In ite technical sense, however, it was restricted to Islamic law alone.
Tohi wach an application the term igh wee defined aa follows: bee Sap RAC hele cl (Le My fall This may translated into English ax:
Roos
3.1.2. Analysis of the definition
In order to comprehend fully the exact meaning of the term figh ‘an analysis of the above definition is required. Each word used is intended to affect the required meaning and to sharpen our under standing of the t ined. 1 segment e” identifies the genus we are dealing with. The hy rigin. If the definition were restricted to this segment alone, figh would mean all‘and any
Abs Hastfah is attributed to have written book entitled al-Figh al-Akbar dealing wish the tenets of faith. This i a very small book comprising « few pages. ‘A.commentary on this book was written by Mubammad iba Muhammad Maturids (4. 944 or 8) Sharh al-Figh al-Akbor (Sayds: Manabirat al-Maktabah al'Asctyah, (104-}). Its also said that Abs Hanifah wrote a book on usd! al-figh, but this has ‘ot reached us.
"The term adillsh ta/ytiyah has beea inteotionally translated here to mean specific evidences rather than the ususal translation—detailed proals,”— which \s likely (o confuse the reader. Its the specific evidences that are referred to in the definition, as distinguished (rom the general evidences ot the adillah sjméliyah,
Tueortes oF IsLamic Law 23
kind of knowledge. In this sense it would co: its Ti 4 meaning. This wide meaning, however, is
word “ahkdm,” which exclude from the definition of figh all vinds of knowledge that do not pertain to a/kim or rules. This is further qualified by the term “shar‘s” and the meaning of figh is confined to the knowledge of the shar't ahkam, Here we must i rea
-ahkdm are of three types:
. Those that are rational, like 2+2=4, or the rule that the sum is greater than its parts;
he ghayr shart
|. Those that are perceived by the senses, like tire burns or wood floats on water; and
3. Those that are discovered through experience, like aspirin cures headache.
All these are not shart ahkdm. In other words, they are the ghayr shart ahkam and do not form part of the shary‘eh,” or figh for that matter,
We have noticed that the first word used to define figh is al-'ilm and it conveys fo us that “figh is knowledge.” The second word is al- ahkdm which restricts this knowledge to that of rules, to the exclusion of all other kinds of knowledge. The next word is al-shar‘iyah. This
farther wazrowe down the masalng of fight that of la rules and
“The term ghayr shar's does not necessarily mean egal, ax it might sqinetimes imply in Urda, bot those rules which do not fall within the ambit of figh or shart'oh.
"Modern Muslim thinkers who consider that there are disciplines, like mathe- matics, physice and chemistry, that can be cast into the Islamic mold and called “Islamic” may have an observation to make here, The classical jariats considered these disciplines, as is obvious from the definition, to be outside the pale of the ‘thorfah. This would not mean that they are mot to be pursued. The question whether such disciplines can be called Islamic or flourish within the matrix of the shartah ie not relevant here. This definition will, therefore, not be used here to
m The Meaning of Uyil al-Figh
law. Figh then is the knowledge of the shar‘ ahkam. In order to proceed further, we must understand what we mean by the term shar ahkém. Shar't ahkém are of two types:
1, the ahkim relating to belie (;'tigdd) like the existence of Allsh, His oneness, the truth of the mission of the Prophet, belief in the Day of Judgment, and so on;
the ahkim relating to acts (a'mal). These are divisible into three kinds:
‘© those which pertain to physical acts, like the acts of prayer (saldh), or those constituting wilful homicide (gatl ‘amd);
© those which take place within the galb, like intention, love, hate, or jealousy;
© those that relate to speech, like recitation during prayers, or offer and acceptance in a contract.
‘The word used next in our definition is al-‘amatiyah, which quali-
edge of the shar't ahkam that affect conduct. acts, acts of the galb, and acts arising out of the spoken word.!°
“The knowledge of the sbar't abkdm (legal rales) in fact relaten to the khijab (commonication) of AUS. The usw (rule) {rom thie aspect is divisible into two Ainds:
1, that which dows not depend on the shari‘sh for ite attainment, like belief in God, of belief in the truth of the mission of the Prophet; 2. that which is dependent os the sharf'ah for its content.
‘This is further divisible into two kinds:
| Ghat which ia nasort or theoretical like the justification that gman & hugh (proof) or guyas is & hurjah;, © that which relates to ‘omal (conduct).
Here again we may notice that the emphasis is on ‘amel or conduct, and on (he rales related tot. The important peat to notice fe thet the dacemicn of the justification of sources of law like ijond” and giyds, whether they are a valid proof oo hujjah, takes ample space in modera books os usil alfigh, but such knowledge is considered theoretical or nazar by the jurists. In this sense, once a source ie accepted a8 valid proof, it does sot affect the discipline of applied upd al-figh, which is being emphasized in this book.
Tugories oF Istamic Law 25
‘The use of the word al-‘amaliyah will confine the definition to the knowledge of ‘amali rules alone.
‘The definition is further qualified by the use of the word al- spabieaatehy ubich, mene hestved ae somrieed lired. The employment of this ludes from the definition of figh the following types of knowledge of the shar'é ahkdm:
1, knowledge of these ahkdm that rests with Allah Almighty; 2. knowledge of the ahkdm granted to the Prophet;!? 3. knowledge of the ahtdm granted to Jibrit (Gabriel).
‘These three types of knowledge are not acquired and, therefore, are not included in the definition of figh. On the other hand, there are two types of knowledge that are acquired: the knowledge of the
‘At this stage the definition is qualified further with the term adil- The specific evidences are primar |. whether of the Qur'an or of the Sunnah, The def- inition, stated above, still includes two kinds of derived or acquired knowledge: the acquired knowledge of the fagih and the acqui knowledge of the mugallid, The use of the term
‘The reason is that the layman does not acquire his knowledge of figh directly from specific evidences in the Qur'dn and Sunnah, as does the fagih; the mugallid acquires his knowledge of figh from the jurist.
The defintition of figh explained above began by first encompass-
ing all knowledge within it, and then sy: ose types of knowledge that do not form part of figh. The final form the definition declares figh to be that knowledge of the rules of cor juct that has been derived by the from specific evidences It would be helpful for the reader if afew distinctions are drawn.
First, the definition indicates that there is a difference between the
‘The jurits discuss « situation where the Prophet may be considered to have exercised itihad, This, in their view, may affect the binding force of such a ruling. It appears to be an idle distinction, ss it would be very difficalt to separate it from the Sunnah
26 The Meaning of Usil al-Figh
‘ah includes both figh as well as the knowledge of the tenets th that ty the ‘at. ‘The real distinction between shari‘ah |. however, is th , while figh is 0
There appears to be some distinction in later times between the terms mujtahid and fagth. Our definition of figh does not make this distinction, because both terms are applied to mean the jurist who derives the ahkdm directly from specific evidences. In later times, the term fagih came to be applied to the jurist who derived his knowledge from the manuals of figh, which contained the opinions of the muj- tahids. Such a person does acquire the knowledge of the previously derived ahkdm, but according to the definition he would be classified as a mugallid.
Does this definition of figh apply to the fixed sphere of law alone, or does it cover both the fixed and the flexible spheres? In other words, does the definition apply exclusively to the activity of the jurist, who derives the law from specific evidences, or does it alo cover the legislative activity of the state, when the state may be relying more on general principles of Islamic law, especially when the general principles employed are derived by the jurist or judge and are not stated explicitly in the texts? We have stated above that the fixed sphere of the law Kas grown out of, or has been derived from, the specific evidences, The definition talks about the specific evidences alone. The application of this definition will become clearer after we have analyzed the meaning of the term asl, the plural of ugiil, ‘We will now turn to this.
3.1.3, Ugiil al-figh
‘The meaning of ugil al-figh, as we have said, is arrived at by under- standing the meanings of upd! and figh separately and they combin- ing them. The meaning of figh has been explained above aid we now need to know the meaning of ugil, which is the plural of agl.
‘The meaning of as!
The literal meaning of the term asl is “something from which another thing originates.” Thus, the origin of a thing is its asl. That is the reason for translating the word asl as “soot.” ie tec aia means “something upon which another thing is constructed,” an
Sire plow tha peal 6f Shona alone ents casa the bee aagl is used in the sense of the Arabic word “masdar,” which means
Tueorigs oF Istamic Law a
“source.” All these are the literal applications of the word op!. For purposes of Islamic law, however, we are interested in the technical use of the term.
‘There are several technical applications of the word agl in Islamic law. Some of these are listed below:
1, The word agi is used to mean dalif. The word dali! was applied to mean a guide leading a caravan, or scout finding the trail. In this sense, a directory, like a telephone directory, may be called a dalil, because it leads us to a number or an address. In Islamic law, the word dalid is used in two ways: dalit tafgilt and dali kulli or dattl ijméli, The former, that is, dalit tafsilt is like an individual verse of the Qur’n or an individual Sun- nah in a hadith."We may refer to it as * “specific evidence,” though it is sometimes translated as “detailed proof.” For ex- ample, the verse, “Verily prayers are enjoined on believers at stated times,”!? is a specific evidence in the Qur'an that points
of Allah. As compared to this, the dalil ijmali or
because it
number of specific evidences. The Qur’én is a general evidence: it contains a large number of specific verses within it. So is the Sunnah, which contains within jt a large number of in- dividual This use of the term dali! conforms with the
‘source.” Usil al-figh is a discipline that teaches us law, It what general evidences validly indicate or point to the
ahkdm of All&h. The discipline, therefore, teaches us how ijma* (consensus of opinion), giyds (analogy), and others are general evidences and validly lead to the ahkdm. The Setanta deals with the specific evidence, or
. Tt tells us how individual jurists hae
their reasoning on specific evidences. In this sense, we
may refer to ugil al-figh as theoretical ugil and the science of Khildf as applied usal.
2. The word agl is used to indicate the foundation upon which — analogy is constructed. Thus, khamr is an asl or basis for the prohibition of the nabidh (beverage) of dates, as the common cause (‘illah) of intoxication is found in both, but is extended from khamr, which is the asl.
45103
8 The Meaning of Usiil al-Figh
3. Agl is sometimes used in the sense of the original rule. Thus,
the maxim says: ar By Leg pot ‘The original rule for all things is permissibility.
‘The principle implies that all things are permissible, unless specifically prohibited by the shari‘ch. The meaning of this principle is explained in some detail in the next chapter. This principle does relate to the methodology of the jurist, but is not part of pul al-figh.
4. Finally, the term asl is used in the meaning of a general prin- of
latter principles that we thea ate owl a We will examine these principles in a little more detail
‘The qawa'id ugaityah
The term ups generally understood to mean “sources,” but for the jurist it
texts. The use of the ‘source” in the Western sense of the term conceals this important point. The principles of interpretation with which we are concerned here are formulated by the Muslim jurists in the form of general propositions whose major premiss serves as the principle. Such a principle is referred to as a qd"idah ustiliyah, While formulating this principle the jurist tries to ensure that the intention of the Lawgiver is supreme. Thus, for example, a proposition may be stated as follows:
‘The ahkém of Allah are to be found in the Qur'an. The Qur'an is w source of law. Thus, each time a hukm is found in the Qur’in it ia proved as the bukm of Allah.!?
‘The principle that emerges, and which is usually stated, is that the Qur'an is a source of law. The emphasis, however, is always on the
"Sade abShart'ah, ol- Towgih, i, 45.
Tweortes oF Istamic Law 29
last sentence; namely, each time a hukm ts found in the Qur’én it is proved as the hukm of Allah. The same is the case with the Sunnah as well as ijma‘, when it is said that they are sources of law, the emphasis is identical. The same emphasis is applied by the Sunni schools of law when they are formulating a principle for giyés. Thus, when the jurist maintains that analogy (qiyds) is a source of law, the emphasis always be on the fact that “each time analogy is successfully used discover the law (from the Qur'an and Sunnah) a hukm of Allah discovered or proved.”"* This is so as gijds is merely a method of liscovering a law laid down in the Qur'an and the Sunnah, and the
w is actually being proved from the two primary sources.
‘The jurist, in this way, arrives at
These
interpretation related to the four acceptable sources of the law. are what we really mean by the term adillah ijméliyah referred to
above, that is, comprehensive sources that a ‘These four winpis Gee ike ey only principles used in this disci- Bach school formulates principles for the additional sources
pline. that it accepts and acts upon. The emphasis is the same as for the first four sources with respect to the resulting rule being the hukm of Allah. This body of rules or principles is known as upill. These, jowever, are only part of a larger whole. A large number of such inciples are derived from the rules of literal interpretation that are part of upll, a subject that we shall discuss in the second part this book in a little more detail.
3.1.4. The final definition
When the meaning of gaw@‘id usiliyah is combined with the meaning
of figh explained earlier, we arrive at the definition of uy al-figh,
This is stated very simply as:
Kasil D9 ype lel yA eM! aebl he Seg Plsbal > This explains the meaning of ugiil al-figh as it is elaborated by
Muslim jurists, It will be helpful if we compare this meaning with
that of legal theory in secular or positive law, and try to relate certain ideas in that discipline to those in ugul al-figh.
“Dbid.
30 The Meaning of Usill al-Figh
3.2. Comparison with legal theory
We have seen above that one of the major questions asked in gen- eral jurisprudence or in legal theory is: How do judges discover and apply the law? This gives rise to what are termed as theories of ad- judication in law, Each legal philosopher may try to give his own idea of how the mind of the judge works and operates upon the le- gal materials available to him. Thus, Hart may have one view, the Realists another, and Ronald Dworkin another. In Islamic law too the situation is somewhat similar. The major question asked is: How
do Muslim jurists discover the law from the Qur'an and Sunnah and apply it to the set of facts facing them? There are different views in cin ieteetond These, however, have been
}, and are found today in
the ). Each school represents a unique answer to the question posed. Each school Daalhs ova viey of eg, Masten ree penne pe soe Each , therefore, presents
its he There is a significant difference, however, between questions
eee hn esc ncaa ed eee difference holds the key to understanding some of the vital issues in Islamic
legal history, and we will have occasion to examine this in part two of this book. The difference is that or
w what the judge should do. Islamic legal theory, therefore, poses the
ability to derive the law, while it is not so in secular or postive | It may be pointed out, however, that treating legal theory as a pre-
requisite
es . Before him, the question was bi : 'F ep : f the Hanafi school.
"'Stated simply, it means one must kaow pil ol-figh before attempting to undertake wtthad
‘Tugontes oF (stamic Law al
Some Western legal philosophers are not content with answering this question alone. They ask further questions: What is the nature of law? Why do we obey the law! What is the total concept of law? Philosophers such as H-L.A. Hart have focused mainly on these ques: tions, Some of the Muslim jurists, though not all, have also answered these questions. In doing so they discuss the concept of Islamic law. It is this concept that we will be studying in the first part, The second part is devoted to answering the question: ow do Muslim jurists discover and apply the law?
We may now turn to the examination of the hukm shar'i, which means a role of Islamic law, but which is referred to in this book as the concept of Islamic law, because understanding it in its various manifestations means understanding the concept of Islamic law,
Part I
The Concept of Islamic Law
Chapter 4
Law as the Hukm of Allah
‘The source of all laws in Islam is Allah and Allah alone. The verse of the Qur'én,'“The hukm belongs to Alléh alone,”? is often cited in support of this, This basic rule i
's laws alone that are acceptable to the Muslim and no other ‘ign or temporal authority can command his obedience. This is the essence of social contract within a Muslim community. Each Muslim agrees to be a Muslim not only because he believes in the ‘existence of one God and the truth of the mission of His Messenger, but also because the laws are prescribed by the Wise and Just Lord, and these laws grant him security from oppression and ensure justice and falrplay in all dealings, A Muslim surrenders his will to Ixlam 80 that his life may be regulated in accordance with the hukm of Allah.
How do we reconcile submission to the will of Allah on the one hand, and the authority of the modern states run on the basis of constitutions, ostensibly subservient to the will of the people, on the other? Does the constitution serve as the fundamental norm validat- ing all laws and requiring obedience to them, or is it the Qur’in? If the purpose of the shariah is to lay down laws in the interest (maglahah) of Man, then, do human beings have the right to make laws in accordance with whatever they deem to be their interest? ‘What role do human reason and natural law play in the framing of laws in an Islamic state? If it is the shari‘ah alone that provides guidance for the framing of laws, then, what about the countless new situations over which the shari‘ah is silent? Finally, what is the ex-
‘Qur'an 6:57
38 Law as the Hukm of Alléh
tent to which the shari'ah is to regulate our legal system, considering the fact that it is a “complete code of life’
We shall discuss these questions very briefly, and attempt to un- derstand the position taken by Islamic law, or its jurists, on these issues. A final answer may not be indicated for each of these ques- tions,
4.1, The grundnorm
‘The fact that Allah alone is the source of all laws is in itself an in- dication of the fundamental norm of the Islamic legal system, The fundamental norm is repeated several times each day by every Mus- fim, It is contained in the declaration: “There is no god, but Allah, and Muhammad is the Messenger of Allah.” As the Muslim is ready to accept the laws of Allah, he will accept only those laws that were revealed through His Messenger. The revelation granted to the Mes- senger is in the form of the Qur'an, and the Qur'an itself declares the Sunnah of the Messenger of Allih to be a source of laws, or, as is maintained by some, the Sunnah is itself a form of revelation. Starting from the other end, the Muslim may say, “I am ready to ‘obey such and such law as it has been communicated to me by a qualified jurist. I follow.the opinion of the jurist as it is in conformity with the sources of Islamic law. I obey a law based on the sources aa they are the sources revealed to Muhammad, L obey Mubammad for he is the Messenger of Allah, and I believe in Allah.” It is obvious that the public acceptance of this declaration makes the law of Allih binding upon the person. Inner intention is of no consequence for the imposition of the obligation after such public acceptance. ‘This norm is further extended by the words of God, “O ye who be- eve! Obey Allah, and oboy the Messenger, and the dili'-amr among u; and if ye have a dispute in any matter, refer it to Allah and the Messenger, if ye are (in truth) believers in Allah and the Last Day.”? According to the jurists, the “ are t il ‘, for it is they who can help ¢ disputants to refer the dispute to Allah and the Messenger, that , to the Qur'an and Sunnah. Even if the verse refers to “those in thority” or the rulers, the first qualification for the imam or leader ‘that he be a mujtahid. The word “any” indicates that this applies to all kinds of disputes, or to laws covering each and every activity.
Qur'an 4:59 Pickthall's translation with a slight change.
‘Tweories oF IsLamic Law 39
It is, therefore, not enough to apply the laws of Allsh in the areas of marriage, divorce, and inheritance, and call the state an Islamic state.
A fundamental question that arises from any discussion of the basic norm relates to the validation of the law. Who is to decide that a new law has been made in accordance with the principles of Islamic law and is fit to be termed as “Islamic law"? Calling any provision of the law as “Islamic” is a serious matter. Each provision of the law declared as Islamic is considered, by the Islamic legal system and its jurists, to be the hukm of Allah. All laws derived by the fugahd'from the Qur'an and the Sunnah, whether directly or through analogy (giyds), are assigned this status. Are the commands of the ruler to be assigned such a status in a modern Islamic state? Will the laws passed by the legislature be assigned such a status? In modern states that have written constitutions a law passed by the legislature is valid if it has been passed through a prescribed procedure and conforms with the provisions of the constitution. All laws not conforming with the constitution are declared unconstitutional, by the courts of law, and hence not valid. The constitution, thus, serves as the basic norm, a grundnorm, that lends validity to new laws. Most Muslim states now have written constitutions. Surely, such constitutions in themselves do not serve as the fundamental norm validating the law as Islamic,
In Pakistan, the basic norm described above stands translated in the form of the Objectives Resolution. It was presented before the Constitutent Assembly on March 7, 1949, and was adopted on March 12, 1949. In Asma Jilani's case, PLD 1972 SC 139, Chief Justice Hamoodur Rahman observed:
In any event, if « grundnorm is necessary for us, I do not have to look to the Western legal theorists to discover one. Our own grundnorm is enshrined in our doctrine that the legal sovereignty over the entire universe belongs to Almighty Al-
lah alone, and the authority exercisable by the people within
the limits prescribed by Him is a sacred trust, This is an im- mutable and unalterable norm which was clearly atcepted in
the Objectives Resolution.
In Zia-ur-Rahman v. The State, PLD 1972 Lah. 382, it was deemed to be a supra-constitutional instrument, but in State v. Zia- ur-Rahman, it was held that it is not a supra-constitutional instru- ment; rather it enjoys the status of a preamble, having been incor- porated as such, The Objectives Resolution was inserted into the
40 Law as the Hukm of Allah
Constitution of 1973 as Article 2A by President's Order No. 14 of 1985, There were suggestions after this that as the Objectives Res- olution had become part of the Constitution (vide Article 2A), the Resolution had acquired the status of a supra-constitutional docu: ment, The suggestion in the words of the Court was: “Resultantly, any of the existing provisions of the Constitution which conflicts with its terms and is inconsistent or repugnant to its principles and pro- visions has become inoperative and of no legal effect and can be so declared by the Courts.”? This question finally came up before the Supreme Court in Hakim Khan v. Government of Pakistan. Chief Justice Nasim Hasan Shab held:
Accordingly, now if any question is raised in connection with the validity of any existing provision of the Constitution on the ground that it tranagresses the limite prescribed by Allah Almighty (within which His people were competent to make laws) such question can only be resolved by the Majlis-i- Shoora (Parliament), which can, if the ples is well founded, take the necessary remedial action by making suitable amend- ments in the impugned provision in order to bring it within the limits prescribed by Almighty Allah.*
‘The question of constitutional provisions having been settled, x till remains to be seen as to w
1? The institut hat pclae ins uch a function are the courts of law, and that is what appears from the judgements mentioned above. This takes us into the discussion democracy and majoritarian rule.
Laws are passed in democracies according to the wishes of the people, or better still, the wishes of the majority. If such laws are found to be incompatible with the injunctions of the Qur'an and tle Sunnah, they can be struck down by the courts, as the courts are act- ing within the mandate granted to them by the constitution. If this is not acceptable to the people they can amend the constitution and pass the laws they desire. In the Islamic legal system, it is obvious that the people do not have the power to change the Qur’an or the Sunnah, and they will have to bow before the courts and their inter- pretation of the Quran and the Sunnah. Assuming for a minute that
*Hakim Khan v. Government of Pakistan, PLD 1992 SC 559, 612. ‘PLD 1992 SC 621 (Emphasis added),
a
‘Tueonies oF IstaMic Lay ee: 41
the people decide to pass a law that is incompatible with the Qur'ai and the and the courts strike it down, would this process be < coat
‘The question that flows out naturally from the jious disci sion concerns the i state, whether it is democracy, monarchy, dictatorship, or some ot! method to be developed in the future. Muslims continue to de this question. It is considered to be the domain of political theorists,
‘The Islamic state began, as is well known, in the shape of a }). The institution existed in its proper ideal form duting the period of the first four caliphs and thereafter changed
shot ae ona termed as mulk. It retained the 3 with the Es arsaprcatitieezy center, the started usurping power, and
started ap ing ferent times in different places. In the beginning, the caliph, in the interest of the unity of the Muslim state, ratified the assumption of power by the sultén, This also had the effect, in terms of law, of providing a legal cover to the illegal acts of the sulfdns and of the legitimization of their rule. Throughout this period, the jurists clung to the idea of a unifying caliphate, deeming it essential for the legitimacy of government and the validity of legal transactions.’ When the caliphate weakened further and'things got completely out of hand, the jurists began to acknowledge “power” as a justification for a legally valid rule by the sultans, Finally, the caliphate was put to the sword by the Mongol hordes.
This ia an important point and needs to be emphasized, Many jurists clung to the ides of the caliphate for a long time, even when in practice it had Jost all power. The implication in the writings of these jurists was that the hilafoh was the only form of goversiment that could be linked to the time of the first four caliphs, a time that provides legal precedents for later times. In other words, they insisted that a form of government that was based on as earlier be maintained. This would make the goverament legal. Questions of were, therefore, not important is themselves, bat because of the validity of legal transactions. In their view, if the goversment was not legal, that is, not a khilafah, the officials appointed by the ruler, incloding tbe qédt, would have no authority, ‘and all transactions validated by these officals would become null and void. For example, all contracts of marriage, which are validated by the gadfor his delegated authority would be void, and the people would be living in nin. This was stated by al-Ghssils, while justifying the concept of shawkah (power), See e.g, al-Ghaasli al Igtisad J¥ al-I'tigsd (Ankara, 1962) 234-41
42 Law as the Hukm of Allah
the jurists were forced i, which
declared the and forms of government to be of secondary importance. This was a contribution made by Ibn “Taymiyah. The caliphate kept on raising its head in different forms after this period, but it never enjoyed the same authority or legal acceptance as the earlier caliphate. It was the Turks who finally abol- ished it in 1924, recognizing legally a reality that had existed for a Jong time.
‘Where does that leave the Muslims? Is a single caliphate neces- sary for the functioning of the Muslim state? If not, will the Muslims revive the caliphate? Is the form of government of secondary impor- tance as long as the shari‘ah is being applied and is supreme? Does Islamic law require that the Muslim states be democracies? These questions appear to be settled in the minds of some, while others continue to debate them. For the present discussion, however, it will be assumed that the basic rule is that the shari'ah is to be supreme, whatever the form of government adopted by the people in a Muslim state. This conforms with the grundnorm stated above, The con- stitution adopted by a Muslim state must itself conform with the principles laid down in the Qur'an and the Sunnah of the Prophet. ‘Thus, in an Islamic state, the constitution itself should be validated im the light of Islamic law, and that as has been determined by the Supreme Court of Pakistan should be done by the people themselves, through their representatives,
‘The judgments mentioned above are highly instructive in identi- fying such issues and others besides them. We will have occasion to refer to them again in the final chapter of this book.
4.2. The interest of Man as the Lawgiver laid down laws in the interest (maslahah) of Man? f
of istislah that seeks to secure the pees ar pe protected by the Islamic legal system.®
. This will
Tweonres oF Istamic Law 43
serene meroreertaaete There have been some’ voices
against it too, notable among them being the objections of the illus- trious Imam al-Rasi (d. 606). He gave extremely powerful arguments
arguments are too complex and difficult to be related in a rudimentary discussion. Al-Razi did concede though that whenever we consider the laws and the interests of man, we find them lying side by side, or existing together, yet we cannot establish ackaoesl etibonohie kecuetn thes; that is, the laws are laid down becaune they serve the interest of man. Let us attempt to explain the problem in a simple way.
‘Take the case of a factory producing something. The sole purpose of the existence of this factory is the creation of a product. Every directive that is issued to the workers is intended to enhance the quality of this product or to create it on time, or to create a product that is more useful. The factory does not exist for the workers, but for the creation of that product. The effective production of goods requires, however, that the interest and welfare of the workers be kept in view, for that will lead to a better product. If a worker performs well he is rewarded or promoted, because he is in harmony with the process leading to the ultimate product, If he does not perform well, he will not be rewarded and may also be punished for breach of discipline. The factory does have laws to regulate the activity of the workers. These laws are laid down primarily to ensure an effective production of goods, though the laws may indirectly serve the interest of the worker,
cage premglr cane te tian ae gaan Lee or is the purpose of this universe something larger, larger than Man?
fails Lagat
‘What! Are ye the more difficult to create or the heaven (above); (Allah) hath constructed it.?
Man is the sole purpose, then, all laws must have been made to his interest, On the other hand, if the purpose of the creation
f the universe is something other than Man, then, is Man in the jition of the worker, a servant of Allah (‘abd Allah), who is to be ded if he performs well and punished if he misbehaves? The laws
Become clear when al-Ghasai's theory ofthe parpones of law is diac
‘Qur'an 79: 27
44 Law as the Hukm of Allah
in this case would appear to be lying side by side with the interest of Man, as al-Razi maintains, though they are actually serving some larger purpose. On the other hand, if Man is the sole purpose of the universe, the laws would be laid down to serve his interest alone. Thus, there would be a causal relationship between the laws and the interest of Man. In such a case, would he be called the vicegerent of Allah (khakifat AUdh)? Some jurists have conceded that it is proper to assign this title to Man, for the Qur'én mentions it too, while others consider it as heresy and maintain that the reference in the Qur'in is to some previous creation to which Man is a successor (khalifah).® ‘The latter jurists prefer to use the title “vicegerent of the Messenger” or khalifat al-Rasdl. The answers to these questions are known to Alléh alone. That is where the jurists leave the discussion, and we should do the same. In any case, the approach we take on this issue does not alter the pecmearetie rs cise em There is It does not matter if ‘ncaa relationship. The majority of the jurists, therefore,
derivation of new laws: This in no case means that the Muslims are free to make laws in accordance with whatever they deem to be their interest. The interest of Man is determined by the Lawgiver Himself, and there is a determined methodology for this. The jurists have taken great pains to lay down this methodology in a way that the laws derived through it may still be termed as the ahkdm of Allith, would not be an exaggeration to say that the key to the future levelopment of Islamic law is through the doctrine of maslahah,” as ‘ill be shown later in this book.
4.3. Shari‘ah and natural law
There have been Aoviedisinia maces Metin jurists over this issue, though the terminology used by them was different.
‘See eg., Qamaruddin Khan, The Political Thought of Son Taymiyah (Islam- abad, 1973) TS for a discussion of Ibn Taymiyah’s views on the subject.
"The intention behind the wse of the word “doctrine” is to distingui the narsower peociln of meylsbah This wll become sbrioes lales Whee we de. ‘cuss al-Ghasill's theory of the parposes of Islamic law.
Teeortes or Istauic Law 45
Natural law has a very long history beginning with Cicero and continuing right up to our times. The classical theory of natural lay Hart puts it, is that “there are certain principles of human conduc discovery by human reason, with which man-made law mus if it is to be valid.”" It should be made clear that natural law has not always been associated with God, and even when it has been, its basic assumptions have not been dependent upon a belief in jod, Our discussion, however, pertains to a much restricted version natural law in which belief in Allah as the Lawgiver and Master of @ Universe is essential. To describe what we mean by natural law in this context, let us borrow a definition provided by He says:
Of the Divine laws, or the laws of God, some are revealed or promulgated, and others ate unrevesled. Such of the laws of God as are unrevealed are not unfrequently denoted by follow- ing names ot phrases: ‘the law of nature,’ ‘natural Iaw;’ ‘the Jaw manifested to man by the light of nature or reason;’..
- Paley and other divines have proved beyond a doubt, that it was not the purpose of Revelation to disclose the whole of these duties. Some we could not know, without the help of Revelation; and these the revealed law has stated distinctly and precisely. The rest we may know, if we will, by the light of nature or reason; and these the revealed law supposes or
assumes. Tt passes them over in silence, or with a brief and incidental notice.**
Austin also says that these unrevealed laws are the only laws which God makes for that portion of mankind who are excluded
the light of revelation.!? We may qualify Austin’s preice|
by saying that these are
that is, before the val of the light of revelation amidst a particular community. Once
revelation has come, such laws may only be discovered in the light of revelation, because revelation does not pass them over in silence; it
SHELA. Hart, The Concept of Law (Oxford, 1961), 182. John Austin, Lectures on Jurisprudence (London, 1911) i, 104. (Emphasis in the crignal). ‘Tid
46 Law es the Hukm of Allah
indicates them through general principles. We are now ready to look briefly at some of the discussions of Muslim jurists.
There was complete agreement among Muslim jurists about the meaning of the words of the God, “he Aukm belongs to Allah alone.”"? The Mu‘tazilah agreed with the majority that the source of all laws is Allah, but they disagreed with them about the identifica- tion and discovery of these laws prior to revelation, They maintained that reason can discover the laws of Allah, that is, the shart ahkam, in the absence of revelation. The Mu'tazilah were not alone in holding these views and there were other sects who held the same or similar views, especially the Mituridis, some of whom were Hanafis, though their views were slightly different. The Ash‘arites held the view that the laws of Allah can be discovered through revelation alone and there is no way in which reason can discover these laws. The basis of this disagreement is the debate over husn and qubh or good and evil or right and wrong.
The basic question was whether an act recognized by reason as good or right in itself became binding on the subject? Was he to act upon it even in the absence of revelation or prior to it? The Ash‘arites, who presumably became the majority of the Sunnis,
‘ maintained that even if reason could identify such an act there was
no obligation to obey it or act according to it, the sole criterion for right and wrong being revelation. An extreme view of the Mu‘tagilah appears to be that the laws of Allah must conform with reason; in fact, some of them appear to have gone so far as to sey that it ix binding upon Alléh to lay down laws that conform with reason. This was objected to by many as it amounted to restricting the attributes of Allah.!4
‘The essential point in all this is whether reason can be used as a source of law for those things on which the sharv‘ah js silent? In other words, if something is not expressly prohibited ar commanded by the Qur'an and the Sunnah, can the law for auch a thing be discovered through reason? The answer of the majority appears to be a clear “No!” This, however, does not mean that reason has no part to play in the discovery of laws in Islam. The requirement is that all reason and reasoning must proceed from the principles of the Qur’én and the Sunnah. The process is the same in many other legal systems,15
DQuran 6: 57 See Sadr al-Shart'ah, Towdih, |, 345-47. "In the United States, for example, during the confirmation hearings of Judge
Tueories oF Istamic Law 47
we can rely as soon as we discover that a rule of law is not directly discoverable from the texts. Such a rule, they insist, needs to be discovered directly or indirectly from the principles of Islamic law,
and not from some “ominous brooding in the sky." To explore the matter further, we may turn to the discussion of situations in which the shart'ah is apparently silent.
A principle of Islamic law is that the Lawgiver has left out nothing for which a hukm has not been laid down. The basis of this principle is considered to be the verse, “We have neglected nothing in t
Book (of Our decrees)."#¥ If nothing has been left out, there is no scope for the exercise of independent reason for the discovery of laws, as discussed in the previous section, that is, for relying on some unknown body of laws supposedly “looming out there.” Nevertheless, we find that there are many things in this modern world, at least, for which an explicit hukm cannot be found in the Qur’n or the Sunnah and it is difficult to derive a hukm for it on the basis of strict analogy,
Does the principlethat nothing has been left out—mean that even
when the hukm has not been expressly stated it still exists implicitly, and we have to discover it in the sources? How do we go about the
business of doing this and what methodology do we use? One way of approaching the problem is to say that whatever is and which cannot be dealt
elas Thomas es webia entd o06So unto wath 0 od should ity natural law to restrict the right of « woman to neck abortion. The argument of
[rights granted onder the taw must not by importing ights from natural law. Thus, in this case, they said, thot waka bow tah wo for the fetus should not be able to restrict the reproductive rights of a woman 1A phrase used by Oliver Wendell Holmes for natural law, '¥Qur'am 6 : 38. ALSBAA'T was the first jarist to emphasize this point, however, he quotes other verses to support this statement. He says: “There ix 90 incident that befalls one of those who follow the din of Allth without there being an ‘evidence in the Book of Allah providing guidance for it.” Among the verses he nasi vee 9 of Dah ooh: “Ad YW have et doa so the the Bock explaining all things, « Guide, a Mercy, and glad tidings to Muslims.” See ab ‘SAA, al-Rizaigh (Cairo, 1309/1891) 20.
48 Law as the Hukm of Allah
with through
is that of permissibility (ibahah), unless a legal ‘idence prohibits it.* This would imply that anything that is not pressly mentioned in the texts need not be assigned a hukm and should be left to function under the original rule of permissibility. In other words, anything that has not been specifically prohibited by Allah is permissible. This principle forms the foundation for the ‘Shafitite principle of istishab. Such an understanding would be one way of explaining the actions of governments that are concerned only with “Islamizing” the laws contained in the books of the jurists, for almost all the ahkdm there can either be found in the texts or can be linked to the evidences through analogy. Perhaps, these governments wish to leave the rest of the laws untouched, One also finds many learned scholars asserting this rule in support of the permissibility of many modern activities for which a hukm may be needed. Some of them insist on this rule without even considering it as a whole, while others, it appears, ignore its overall implications. There are difficulties involved in this approach.
Purther, it is ‘this principle, whether an the texts Icncnas ectcanuaansrctecolunbacestuaenanaies tly, to justify the permissibility of the act. If we have to justify this - permissibility, the benefits of the principle appear to fade away. ‘There is another aspect of the problem. This becomes obvious when the implicati Wall things are permissible, unless expressly prohibited by the shari‘ah, such lah
=e Tor the sake of argument, let us consider the case of smuggling carried ‘on between two neighboring Muslim countries. Is it not trade that has been permitted by Allah, not only implicitly, but explicitly in the Qur'an? Will not the prohibition of such trade amount to the restric- tion of a fundamental right granted by Allah? Is it evasion of tariff? the imposition of tariff valid among Muslims? This is a hypothetical example and the purpose is merely to show that on the basis of this
SEL LoS, OUTLET BS
‘Turorwes oF Istamic Law 49
rinciple any prohibition, whatever its nature, can be challenged as oon s diner er easel Goaees Meee |, without a di ii evi he
Se aagematy declares things permissible, it rarely, if ever,
that is, plugging the wut is this a valid principle? Is the objective legal? Further, even this may not work in certain cases. Let us now consider approach for situations where the shari'ah is silent
‘Al-SuyGtt (d. 911) is of the view that the principle of permissibil- ity discussed above is professed by the Shafi'ites, The Hanafites, he says, uphold the opposite principle: “The original rule for each thing
9 ALSuyati borrows
this statement from the Imam al-Haramayn, al-Juwayni. One does find some of the Hanafites invoking the principle of permissibility at general approach of the Hanafis seems to confirm
times, but the the principle of prohibition as a basic methodology. This could be one |
for declaring permissible things that appear to be per- missible on the face of it, like hire (ijérah) for example, for which evidences can be found in the texts.
is likely to ensure that a hukr will be found for each activity in an Islamic state, Such permission or permissibility will proceed from the | principles of Islamic law. This is what all the jurists appear to have
ice as found in re ccd ya eee Sere rernaieas p) guarantees comp! on and absorption of all laws in a more reliable manner, and makes the phrase “Islam is a complete
‘AL-Suylt made this statement is hie book ol-Ashbah wa al-Noaa ir. This wan reproduced by Ibn Nujaym in his book with the same title. Tha Nujaym (4. 970),
‘Ashbah wa al-Nazi er (Bayrut, 1980) 66.
Tha Nujaym, al-Ashbah we al- Naga ir 66. Babs al-“Ulim, commenting on the ‘words of Mubibb Ash al-Bihari, says that the principle of sbahah is upheld by the Hanafls alongwith the Shafts, bot be acknowledges that there are many things besides sexual activity that arc prohibited. Thus, marder and assault, as well as sexual activity, are also probibited. Bahr al-’Ulom asserts that mankind has never ‘been without guidance from Allab, right from the days of Adam, therefore, mont of the things prohibited are known, See "Abd ab’AUi iba Nizém al-Din al-Ansiri, Fawatih al- Raharoat, i, 49-80
50 Law as the Hukm of Allah
code of life” more meaningful. This, however, is merely am opinion and others may disagree. Further, this principle may have its own problems.
It obvious that eighty per cent or more of the activities of a modern state are not covered by the books of Muslim jurists, and would need an effective methodology for the derivation of the nec- essary ahkam. This methodology has been developed by the fugaha” and will be described in the third part of the book.
4.5. The limits of Islamic law
Islam, it is generally acknowledged, is a “complete code of life" and ‘at the core of this code is the law of Islam. This implies that a Muslim through his submission to Islam not only accepts the unity of God, the truth of the mission of Muhammad, but also agrees through a contract (bay‘oh) with the Muslim community that his life be regulated in accordance-with the ahkdm** of Allah, and in accordance with these ahkdm alone, No other sovereign ot authority is acceptable to the Muslim, unless it guarantees the application of these laws in their entirety.-Any other legal system, howsoever attractive it may appear on the surface, is alien for Muslims and is not likely to succeed in the solution of their problems; it would be doomed from the start. A comprehensive application of these laws, which flow directly or \directly from the decrees (ahkim) of Allah, would mean that they wuld regulate every area of life, from polities to private transac- ions, from criminal justice to the laws of traffic, from ritual to inter- ational law, an from the laws of taxation and finance to embezale- vent and white collar crimes. The books” of the fugaha’ (Muslim
jurists) r, ‘
*\ Abkaen is the plural of hukm. The term hukm has been translated into English in diflereat ways: injunction, command, prescription, and sharrah-value, None of these terms conveys completely the comprehensive meaning of the term, as will be obvious in the discussions to follow. It is preferable to retain wuch terms in ‘heir transliterated forme.
* These are manuals of substantive law, as distinguished from the books on ugdl ol. figh Similar books, patterned on the Muslim manuals of law, have been called “codes” by the Jewish scholars. See, bg, the code by Maimonides, and the later Shulln Araith. The term “code” is being avoided here, as it denotes a document enforced by the state. The Muslim maswals, or the Jewish for that matter, were never enforced by the state.
Tweories of Istauic Law 51
" of ws
do so. Yet, all some of the Muslim count:
} Perhaps, it has been assumed that
ization will have been undertaken if the laws described in the figh books are enforced, leaving the rest of the area in the control of the secular authority, to be shaped and reformed as thought fit. ‘This is not likely to have much effect on Muslim society as a whole. Tt would amount to no more than an addition to the personal law the Muslims, which is already applicable in the Muslim countries, = well as in some secular countries like India. What, after all, woul be the difference between a Muslim country that enforces only the personal law of Muslims and between India, a secular country that does the same? The only difference would be that the percentage of Muzalims living in that country would be greater than the percentage in India.
Despite the application of the personal law and the additions made to it in recent times in some countries, the demand for Is- lamization arises again and again. It is obvious that the Muslims want the entire law to be Islamized so that they can feel its impact on their lives; small additions to their personal law are not likely to satisfy them. In addition to this, emphasis on Muslim personal law alone is likely to relegate the vital forces of Islam to the background, as is the case with other great religions, reducing It to the status of a “personal affair.” This, in our view, is contrary to the spirit of Islam.
There would be very few Muslims who would agree to confine Is- Iamic law to personal matters of inheritance, marriage, and divorce, or to a few penalties that are actually laid down as deterrents by the Lawgiver, and are meant to be applied rarely. They would deem it imperative that Islamic law deal with matters covered by the law of torts, the law of contracts, taxation, and above all constitutional law and fundamental rights. They would like to see Islamic law tak- ing into its fold the laws of business organization and commerce. Of particular interest to them would be the seeking of justice under ad- ministrative law, labor law, and the laws governing the granting of government contracts, which in most places are a source of exploita- tion and corruption. Most former British colonies would especially like to see the criminal procedure codes to be altered in the light of Islam. Many such laws are the heritage of a colonial past, laws de- signed to enslave nations, laws that are being retained by the present
82 Law as the Hukm of Allah
lors against the interests of an aware, yet often helpless public. It is true the eta ‘ . This led to the development,
tl
he rulers, of many institutions and laws with which the fugahd’ had . Many Orientalists have, therefore, concluded that here was a separation between theory and practice in the Islamic system; what the fugahd’ laid down in their books stayed in the books, while the rulers and sultans did as they pleased. The question is why did the fugaha’ ignore many areas that seem so important to us today and must have appeared important to them too? In fact, they ‘even mentioned these institutions sometimes without even a hint as to their legality. It cannot be said that they were busy developing the Jaw contained in their books and did not have time for such matters, while the rulers exploited the opportunity to elude the dictates of the shari‘ah, The fugahé” had fourteen centuries in which at least some of them could have taken up the burden. It has already been suggested that the fugaha’ left these matters to the rulers by design. ‘There is a method in their avoidance of some issues. In other words, the fugahd? dealt with a part of the law, which they considered their duty to develop, leaving the rest to the rulers in each age.”* This is an important issue that attempts to penetrate the nature of Islamic Jaw, It will be explained further in the chapters to follow.
4.6, Law as a growing tree
Islamic law is like an ever-growing tree. The seed of this tree was sown in the hearts and minds of men, fourteen hundred years ago, by Muhammad, the Messenger of Allah, Since then it has taken root, grown, and spread its branches on all sides. With each passing cen- tury, the tree grows in size. Its evolution and growth never stop, Its spreading branches cast their shade on all sides covering different cultures, peoples, and races.
Like the trunk of this tree, Islamic law has a part that is fixed, and like.its branches and leaves, the law has a part that changes in shape and color in every season. The fixed part of this tree is closer to the roots and cutting this part is likely to damage the tree itself. Like the trunk of this tree, the fixed part of Islamic law has grown directly from its roots or sources. Changing this fixed part will affect the nature of the legal system. Like the branches of the tree, the
The rulers are to base their methodology on the principle of perminsibility or that of probibition, as discussed earlier
Tusonies ov Istamic Law 53
flexible part of the law has been changing with the times, sometimes yielding abundant fruit, sometimes less.
‘When the branches of this tzee are cut off, its cool shade is miss- ing, but its strong trunk continues to guide and protect those who cling to it in storms and times of e1 Thus, when the state does not let the branches of Islamic law provide their shade, it is the fixed part that continues to keep the Muslims on the right track. For those ‘Muslims living in secular states, the fixed part of the tree is the only guide, and this is all they are obliged to follow, except for certain parts that are beyond their power to implement.
‘Tending the trunk of the tree, the fixed part, has always been the task of Muslim jurists (the fugahd’). They have looked after it with loving care for fourteen centuries. Their labor has made the trunk so strong that ceaseless attacks against it have failed to budge it, Not only this, many attacks on its roots have also failed. When the tree was young, its stem was tended jointly by the state and the jurists, as then there was no distinction between the fixed and the flexible part. It was later, when the tree reached a mature stage of development, that the fixed part could be distinguished from the changing part with ease. At this stage the jurists left the care of the flexible part in the hands of the imam or the state, while they devoted themselves to the strengthening and refinement of the fixed
rt of the law. The only condition that the jurists imposed uy imam for developing the flexible part of the law was that
‘The rulers in some ages did care for the branches of this tree, while in others they did not. On occasions, some rulers cut off the branches that had grown in earlier ages and started all ove} again, ‘This discouraged the development of firm offshoots from the tree, that is, the development of legal institutions and practices that could be developed further in later ages. After some centuries, when the Muslim empire split up, the branches of the tree were divided into different segments on different sides, with each ruler looking after the branches on his own side of the tree, as it suited his wisdom. Some took interest in this law while others did not. Thus, for example, the Ottoman rulers tended these branches in their own way in the Ottoman empire, while Awrangzeb ‘Alamgir developed the law in his ‘own fashion in India.
‘The period of these rulers was followed by violent storms around
4 Law as the Hukm of Allah
this tree, and alien winds struck it destroying the branches on all tides, On some sides the Muslims pulled down the branches them- selves. The age of colonization left nothing, but the solid trunk of the tree, which could not be uprooted with ease, thanks to centuries of dedicated work by Muslim jurists. When the storms were over and the Muslims were left alone to take care of the tree, all they could see was the trunk of the tree with no branches or leaves. In their confu- sion they started blaming the jurists for not having looked after the branches, and having fallen prey to taglid. They failed to distinguish between the fixed part and the flexible part. They did not realize ‘that it was some of the rulers and not the jurists who were to blame for not having established lasting institutions. Some even tried to bring branches from other alien trees to hang on their own tree, least realizing that these would rot one day. Today, some Muslim states are trying to look after the tree in their own way and on their own side, while others are busy trying to cut down the tree and even dig at its very roots, Nevertheless, branches have begun to sprout and it will not be too long before they start to bear fruit. Indeed, they must bear fruit, because the culture, history, life, and the very identity of Muslims are associated with this tree.
‘A question may be asked here as to what we mean by the “fixed”
‘Tweories oF Istamic Law 55
part of the law, Very simply, the law that is stated explicitly in the texts, the Qur’dn and Sunnah, or is derived through strict anal- ogy (giyds), is more or less fixed. The rules relating to ‘ibadat are \ fixed; the rules relating to inheritance are fixed; the rules relating to | marriage and divorce are fixed; and the rules relating to the hudiid ; penalties are fixed. These laws are not likely to change over time. In comparison, if we make laws about incomie-tax, traffic, new forms of crimes, and other areas in accordance with the sharieh, we might change them through fresh ijtihdd in a later age, because these rules are not stated explicitly in the texts.
Islamic law has no parallel in history. It is the only legal system that has accommodated a large variety of races, peoples, and cultures for such a long time. Some of its features, however, may be compared to those of the English common law. Like the commontaw,Islamic law hi for
fe the sys- While the principles of common law may be found in aorta
u dedllons, the principles of Ilamic law are laid dowa in the Gur" and the Sunnah of the Prophet. The principles of common law may change and be modified over time, but all the principles of Islamic Jaw are not subject to change. Some ase fixed, while others derived by the jurists may be modified in the light of the fixed principles. One strength of the common law is that it lends iteelf to adaption, It is today applied in somewhat different forms in England, United States, Australia, Canada, and even in former colonies with widely differing cultures like India and Pakistan. This has been the strength of Islamic law from the start, and is reflected in its schools with their ore or Jess con-
Another feature of the common law is that it is a precedent-based legal system, as compared to the civil law practiced in Europe. Is-
fiance on precedent. In short, the and longevity exhibited by Islamic law are not exhibited by any other legal ‘The reason is that Islamic law has a built-in and is
ture of adaptability, a feature that is vital for the survival of every
_ living organism.
Chapter 5
Law and its Classification: The Hukm
‘The structure of Islamic law, its classification, and the consequential obligations and duties, revolve around set’ of rights. Most writ- ers on Islamic law focus their attention on the five-fold classification Islamic laws, This is the well known division into wajib (obliga~ ), mandub (recommended), mubéh (permissible), makrih (disap~ roved), and hardm (prohibited), The classification is important in itself, but it must be realized that it is not a classification of laws; it is a clagsification of obligations resulting from the operation of / thalare. i tie oe apter we will try to adopt a different approach ‘his pie can poherapemoneepmaproarriatzy at least, two Hanafi jurists: -al-Sarakhal (d. 496) and Sadr al-Shari'ah. The reason why we will be using materials from Hanafi works is that not only is
|, but the Hanafi school has had t! ogee ee Hart, that Islamic laws are first divided into primary and secondary
rules. Tt may come as a surprise to some if we say that tI
SELLA. Hast, The Concept of Low, 77-96
58 Law and its Classification
than one thousand years ago.? The only difference is that the rules of Islamic law, being based on religious law, present a picture that is much more complex. The category of primary rules is designated
by the Muslim jurists as the hukm taklifi, or . The category
of ecndorngen® as the hukm wad'i or a category of rules ¢!
» the
All this will be ex- plained shortly. ‘There are other secondary rules that determine how the laws are implemented, renewed and validated, but we cannot go into too many details in a rudimentary discussion such as this, A full explanation requires an exhaustive study devoted to these divisions. ie it to say, that some of these rules considered secondary by
cit
lart are considered as primary by Muslim jurists, because Islamic ww is a religious law. The role and function of such secondary rules, however, is recognized by Muslim jurists in the same way. Each primary rule or hukm taklifi is based on a right. There are ‘three kinds of basic rights in Islamic law: the right of Allah, the right of the individual, and the rights of the individuals collectively or the right of the state. The third category of rights is mentioned very seldom by jurists, because it relates to the area of law with which they did not deal directly. This is the area left to the imam, Recalling our example of the tree, we may say that this right pertains to the flexible part of the law, the area of the branches of the tree. ‘This kind of right is sometimes designated as the right of the ruler ‘hagq al-sultén)? or as the right of the state (hagg al-saltanah).* Some modern writers have unfortunately lumped up some of these rights together, and thereby created difficulties in the comprehension of the structure of the law, I would like to emphasize here that Tum nlawT OF ALLAN IS DISTINCT AND INDEPENDENT OF THE RIGHT oF THR STATE. This is of crucial significance in understanding the structure of Islamic law. On the other hand, when we use the term hugug al-"ibad in the plural we may mean the tights of individuals generally, , oF we may mean the that is, the rights of
the community as a whole. In this latter sense, that Is, the rights
*Those who wish to understand this system in greater detail must consult Hart's outstanding work, The Concept of Law.
*See tba Rushd, Bidayat al- Muytahid, i, 303,
‘See al-Mawardt, ol-Ahkim al-Sulténtyah, 237-38.
Tueories oF Istamic Law 59
of the community, the implication should be the same as the rights of the state or saltanah. Again, the rights of the state should not be merged with the rights of Allah. Once this has been unders
In these cases, it is either the is predominant or it is the right of the individual that is in the forefront, This gives rise, in all, to the following kinds of rights:
“L. The right of Allah (hagg Allah) (2. The right of the individual (hagg al-‘abd)
‘3. The right of Allah lying side by side with the right of the in- dividual — with ite two cases of predominance of one or the other.
4. The collective rights of the individuals or of the community, also referred to as hagg al-saltenah or hagg al-sultan.
‘The classification of rights is of great significance in understand- ing the structure and operation of Islamic law. There are many prac- tical consequences attached to these rights. The discussion of how these rights affect the overall structure of the legal system is post- poned till a later chapter. For the present we need to focus on the classification of primary and secondary rules, and also on the obliga- tions arising from the primary rules. Let us, therefore, look at how the Hanafis classify laws.
5.1. Classification of primary rules
just be pointed out again that the jurists deal with the fixed part the law, therefore, they do not mention the classification of the within the category of the right of the state, For the jurists it falls within the category of the right of the individuals collectively, In actual fact, it is left to the imam, who is theoretically a full mujtahid, to decide how the rights of the state are to be classified. This may vary in different ages. The classification that follows deals with the fixed part of the law.
‘The ‘ . jurist ‘Does this mean that the other sary ee
“Shams al-A’immah Aba Bakr Muhammad iba Abi Sahl Ahmad Al-Sarakhet
60 Law and its Classification
‘80, or were not concious of such a classification? Indeed, they were, and they presented such a classfication, but in a manner that modern writers, especially those who belong to disciplines other than law, fail to notice, or fail to put in its proper perspective. The majority of the juriste classified laws under the heading of mahkum fih or the act to which the hukm is related. Under the heading of the hukm shart, they give an account of the obligations arising from the operation of the act in relation to the hukm. Al-Sarakshsi combined the two, It is in this combined form that we approach the subject here.
of "Fights, These are further subdivided as follows:
7 1 Rates that relate to to the right of All aloue, These are of
* Pure Worship. The first of these is belief in Allah or tan, ‘The second is prayer. The third is zokdh. The fourth is fasting (sawm). The fifth is hajj. The sixth is jihéd. There are other acts of worship associated with the above like ‘umrd and i‘tikdf (seclusion in a mosque).
* Pure punishments. These are the hudid penalties that have been instituted as deterrents, as a pure right of Allah.
© Imperfect punishments. The example of this type is pre- vention from inheritance in case of murder, that is, the murderer cannot inherit from the victim.
© Those vacillating between a worship and a penalty, These are the kaffardt, that is, expiation made for different rea- sons.
‘© Worship in which there is an element of a financial lia- bility. The example for this is sadagat al-fifr, which is 3 payment made before the ‘/d following Ramadan.
(490/1097), Kitab al Upal (title page UyGl al-Serakhel) Ed. Abe abWaft’ al- po ave freed tae te bv chmlarati grt 2. I have given & different Gtation form abSarakhst by using his full name. In opinion,
SutGi wes scnal Gages isiasokantioas Neledin oe cet niar of his
‘that cam match the power of this book. His book om ugsil is equally good,
‘Tueoates oF Istamic Law 61
. ‘This is like ‘ushr, the ten percent charge levied on the produce of land.
¢ Financial liability in which there is an element of a pun- ishment. The example given by al-Sarakhs! is that of the hard} tax.
r. These are three: those Initially as a rale; those that are imposed as an nt and those that are associated with the rule. The examples of these are the khums levied
‘on cattle, minerals, and treasure-troves,
"2, ‘Those in which the right of Allah and the right ofthe individual
but the right of AUl&h is predominant, These like the the hadd of qadhf. Please note that for the Shafl'y his is a pure right of the individual. -% Those in which the right of Alldh and the right of the individ: t It is the right of the individual that
is predominant. For this category the example is qisdg or re- taliation for bodily injuries or culpable homicide amounting to murder.
4. The last category is that of the This categuryinciter amo recying that oot nuded the gone te reseed The important point to consider is that jarakshsi does not mention to‘sir or discretionary penalties. The reason is that the discretionary penalties fall within the category of the right of the individuals, when these are considered _coljectively,-that,is, they are the right of the state, The: states that-all ta‘zir relates to the right Of the individual. The Shafiri jurist al- Mawardi has ‘caused some confusion by stating that some ta‘zir penalties fall under the right of Allah.” Al-Mawardi's statement
ii, 65. He makes this statement while explain- ing how ta'sir is proved.
Bs specmems erp angry 5 ap This is not to say that his state. ment is incorrect. In fact, jn the ShAR'T school to which be belongs, even the hadd rof gadhfis a right of the individudal, He includes other penalties within the hudad, like the refusal to pay debts, and considers them the right of the individual. Ibid 223,
62 Law and its Classification
leads to analytical inconsistencies, as will be discussed in a later chapter. Some later Hanafi jurists have also given confusing opinions on the issue. For our purposes, we adopt the more reliable Hanafi view.
‘The above classification is generally adopted by all the Hanafi jurists and is discussed in detail by Sadr al-Shari‘ah.* Al-Sarakhsi has given detailed reasons for the inclusion of each example under ‘a particular heading and is beneficial for those interested in further analysis,
‘This classification pertains to primary rules and shows how each type of law is linked with a right, which is either a right of Allah, or the right of the individual, or the right of both. We may now turn to the classification of the obligations arising from the primary rules,
5.1.1. Obligations arising from primary rules”
has been on u . Some have This is quite
natural, because the idea is tied to the definition provided by the jurists for the hukm shar't or Islamic law. It is also tied in with the jerivation of a rule of law from the text, because the first thing that cerns the jurist is whether a command in the texts implies an bligation, a recommendation, or something else. To understand this we will examine the definition of the hukm shar‘f provided by jurists in some detail, because this is usually given prominence, not only in the books of modern scholars, but also in the books of earlier jurists. } John Austin’s theory of law, which states that laws are com-
mands of the sovereign backed by threats of punishment, was first criticized by Kelsen and more recently by Hart. Hart maintains that the Austinian theory fails to explain different kinds of laws that are not commands.” Such laws are called the “secondary rules” of a legal system by Hart, while those that create obligations are termed as “primary rules.” Rules that facilitate the conclusion of contracts, for xample, cannot be considered as commands creating obligations, nor = those rules that enable the officials to change, create, or enforce
Jaws within the legal system. These are power conferring rules. The
“Sadr al-Shart'h, of Tosedth, i, section on the hukm shart *HLL.A. Hart, The Concept of Law, 84-88,
‘Tueories oF Istamic Law 63
Austinian theory fails to explain such rules. Hart himself presents a model of a legal system in which commands play no role, and it is ‘rule of recognition’ tion” that Er
Earlier Hans Kelsen had prevented the idea of a basic rule or norm (grundnorm) as unifying, and laying, the foundations of a legal system.!"
Hart also shows that a modern legal system, as distinguished pin anny Hino bt ay Ad secondary rules and their union is perhaps bis bution to the analysis of modern legal systems.
more than one thousand years’ ago. Although dealing with a legal system based on religious law (which Austin ealled law proper) they
described in detail how the Islamic legal 5 ondary rules. In addition to this, Muslim jurists not only postulate details of a rule of recognition
a basic norm, but also give the that flows directly out of this grundnorm and fu . The definition they re
inction as that described by Hart. Islamic law avoids the criticisms Hart levelled against Austin’s def- inition. This definition not only describes laws that are commands, but also takes into account those secondary rules that facilitate the operation of the primary rules.
A definition of Islamic law
The Arabic word hukm (pl. ahkam) means a “rule.” This may be a rule of any kind. Thus, it may be a rational rule, like 2 + 2 = 4;or the rule that the whole is greater than its parts. It may be a rule perceived by the senses, like fire burns. Again, it may also be based upon experience or experiment, like aspirin is good for headache (and bad for the kidneys). When we wish to consider a rule of Islamic law, we qualify it with the term shart (legal), or a rule belonging to the Islamic shari‘ah or law. It is the hukm shar that is defined by
“Ibid. 92-93, 96-120. “Hans Kelsen, General Theory of Low and Stote (Wedberg tr, 1945); Pure Theory of Law (Knight tz, 1967).
64 Low and its Classification
1s, when they attempt to answer the question: What is coe gL Lawl cya Jul, Ghat fle DI ths
eee
The first point to notice about this definition is that hukm or a ral of law (tobe referred to as balm from now on) le 8 comsmn- nication from Allah. This means that it is is Coarse Scat avenn be he a ruler or someone else, Needless
communication is related to the acts of the subjects. ‘his relationship enables the jurist to understand whether the re- juirement is for the commission of the act or its omission, or whether choice has been granted for the commission or omission of this act, thus, the words of Allah, “Do not go near unlawful sexual intercourse (zind),"" contain a hukm that requires omission. Third, the hukm may be expressed through a demand. The de- mand in this case may be for the commission of an act or its omis- sion. In each case the demand may be expressed in binding terms or otherwise, i and Fequires the commission of an act, the h
The definition has so far given four categories of obligations aris ing from primary rules with obligation at one end and prohibition at the other, with the two categories of recommendation and dis- approval in between. These categories are associated with primary rules that create obligations, that is, obligations for the commission
Qur'ka 17 < 32,
Tweoates oF IsLamic Law 65
or omission of an act. These obligations are mostly associated with sanctions.
Fourth, the t for
the commission oF omission of an act. In other words, the subject E The bulk of the Islamic
free to perform the act at his discretion. ws 1 these categories and include all kinds of see
. What Hart terms as “power-conferring rules” mi all under this category. This ls the area that Austin's defsition fails to explain, in Hart's view. The category ia known as permissible -mubéh. It is not to be concluded from this that the subject is f 10 do anything he likes under the protection of this category. All
se in this category too are validated by the “rule of recognition” of
ic law, and we have already seen this in the previous chapter, while discussing the issue of laws in cases where the shart“ah is silent,
yy, the definition states that the communication may be ex- . This is the area of*pure secondary In this case, the communication declares or determines the re- tionship of an act or set of facts with the act of the subject or ite
ted hukm. The
hee Per example, in the hukm of the payment of zakdt (obliga- tory religious contribution), the possession of a minimum amount of wealth (nigdb) is the cause for the application of the hukm, having retained this wealth for a year (haw!) is a condition for the hukm, and the existence of debts against the subject may be the impediment or obstacle in the way of fixing liability for 2akdt. We shall take up this topic in some detail while discussing the union of the primary and secondary rules,
From these types Muslim jurists form two main categories for the hukm. The first is called the hukm taklifi or the obligation-creating Po ‘This is the category of primary rules. None of these are desig-
‘as commands, though some do carry the force of commands. second category is called the /
hukm, These are the like those of adjudication
66 Law and its Classification
We may now list the categories discussed so far and point out a few more categories of secondary rules to complete the discussion. ‘The hukm taklift
‘The emerging or rules that create obligations, are five:
. Obligatory (wdyib) 2, Recommended (mandub) 3. Reprehensible (makrih) 4, Prohibited (hardm) 5. Permissible (mubdh)
These five categories emerge from the operation of laws in the opinion of the majority of the schools of Islamic law. The Hanafis derive seven categories from the same definition:
1. Far: Obligatory. This obligation arises from an evidence or source that is definitive with respect to its implication.
2. Wajib: Obligatory. This obligation is slightly weaker than the first. It arises from a source that is probable with respect to its
implication and authenticity.
3. Mandtib: Recommended. The difference between recommenda- tion and the two kinds of obligation above, it should be recalled, is based on the binding or absolute nature of the command.
4. Makrih kardhat al-tahrim: Abomination. This category arises from a definitive evidence not expressed in binding terms. It is dlose to prohibition.
5. Makrih kardhat al-tanzih: Disapproval. It arises from a proba ‘ble evidence,
2
Harém: Probibited. Mubdk: Permissible.
~
Tueorigs oF Istamic Law 67
Some writers try to ignore this division by saying that the addi- Se ee er js seems questionable, for there are some practical consequences
. We may, if we like rovide other definitions for Islamic law from different _ TIT cameos of he ondary rer ho fw fom hi , but let us try and look at them independently.
5.2, The hukm wad'‘f or secondary rules.
ie definition provided above stated that the communication from ah may be related to the acts of the subjects in a manner that is declaratory. This is stated in order to accommodate rules that cannot
be classified under the primary rules. There is also a. and
what jis not. We will include the secondary rules. The categories derived are:
1, Sabab: It is the cause on the basis of which a primary rule or hukm taklift is invoked or is established.!*
The literal meaning In its technical meaning sis tba Lunges eaentet soo he eee of alge do sacs
‘abGhazal, ob-Mustog/s, i, 93-94. Thus, it is each entity or inch: dent whove existence the Lawgiver has determined to be the prerequisite for the ‘exintence of the hukm, and ite absence am indication of the absence of the hukm. ‘Unlawful sexual intercourse is a cause for the obligation of implementing hod, while insanity in the cause for interdiction, bat when Ubese causes are miming ‘there is no obligation to impose hadd «+ interdiction.
‘The cause sabab is divided with respect to the act of the subject into two types The frst is not dependent on the act of the subject, nor is it within his power to bring it about. Yet, when such a cause is found the hukm exists, like the setting of the sun as « cause for the obligation of the evening prayer, and the beginning of the month of Ramadin as a canse for the obligation of fasting, and like insanity for the obligation of interdiction. The second type is an act of the subject and in ‘within hia power to bring about, like journey for the permissibility of not {asting, or premeditated marder for the obligation of gisd¢, or the formation of contracts a s cause for enforcing their performance. Such an act may itself be the aubject of a primary rule, that is, it would be required or prohibited or recommended, and ‘it may fall under the category of rules,
i, 188. Thus, marriage becomes obligatory when there is fear of prey (0
68 Law and its Classification
3) Mant: A the
‘There are some more categories of rules that are considered sec- ondary by the jurists.
Sihhah and butlan ‘An act that is obligatory, recommended, or permissible big quired to be performed in a certain manner by the Lawgiver.
Unlaveful sexual intercourse, There are other ways of understanding the cause, but we may avoid them here
‘At important point to understand is about the difference between a sobob that in & subab alone and a sabob that amounts to a8 ‘lah for a cause. The simplest way (o wodetsiand this is to say that when a cause can be rationally perceived {o be reason for the existence for the hukm it is an ‘Wiah, but when the cause is obscure for human teason and it is not possible to understand why the cause has been associated with « hukm, the cause is simply a cause and not an ‘illah. For example, human reason can comprehend why joursey bas been determined to be the cause for the permissibility of sot fasting, bat it may not understand why the month of Ramadaa has been fixed for fasting. For further details spe al-Sarakhst, pal, i, 301
\“The existence of a condition indicates the existence of another thing, but the absence of a condition does not necessarily indicate the absence of the thing. In its echnical sense, however, it implies a necemary indication for a hukm. Ablution is ‘4 condition for prayer and the presence of witnesses 4 condition for the marriage contract. The meaning of shart is understood by distinguishing its meaning from ‘other signs related to a hukm. Ths, a hulk i related to its cause. [tis established by its ‘Miah. And, it is brought to fulfilment by its shart. The shart is different from the sabad insofar as the absence of the cause indicates the absence of the hhukm, but the absence of the shart does not indicate the absence of the huken The condition differs from the rukn (essential element) also, because the element is & part of the thing to which it i related, while the condition is an external factor, Thus, ruka in prayer is part of the prayer, but ablution is « condition And is not past of the peayer itself For additional details refer to abSarakhat's book referred to above for the sabab at page 302-303 of volume 2
The obstacle or mani’ is a factor whose existence indicates the absence of « ‘yuken or its sabab, This implies that an obstacle is of two types. The first type negates the hukm or prevents it from coming into operation, like the negation of the fukn of retaliation when the accused is the father of the victim, The other tape's the obetace that affects the cane and prevent it from coming into beng ‘The majority of the obstacles are of this type.
RIES OF ISLAMIC 69
the act is performed properly it is deemed as other wise it is ). Here too the 7
called |. Such an act can become if the cause of the irregularity is removed, otherwise it stays ded. It may, however, have some legal effects.
5.2.1. ‘Azximah and rukhsah
‘The Lawgiver may indicate that one hukm is to be considered as an
obligation imposed initially as a This may be
followed by another rule that is an from the
general rule. The drinking of wine is prohibited as a general rule, In
cases of duress (idtirdr), however, one is jume it, if it one from dying of thirst.
is and helps the jurist achieve analytical consistency, One important significance is that analogy (giyds) cannot proceed from an exemption, it must be This provision, considered with other strict
conditions, further narrows down the operation of giyds.
5.3. The purpose of the classification
‘The primary purpose for Mualimn jurists in classifying the hukm shar‘ into obligation-creating or primary rules and into declaratory or sec- ondary rules was to ». L have stated earlier that Austin defined
Jaw as a command of the sovereign, for which he bas been criticized by H.L.A. Hart, Hart maintains that Austin’s definition fails to ex. plain the existence of pawer conferring rules, which are equally a part
law, but they cannot be explained as commands, The definition i ided by Muslim jurists for the hukm shar is much wider than in's definition and thereby overcomes such objections,
In addition to this, the classification helps us understand how the primary and secondary sules, that is, the faklfi and wad’? rules interact to create obligations and determine the operation of law ‘This aspect of the classification will be explained in what follows,
Chapter 6 The Act and the Subject
“The hukm shar‘, as stated, has four elements, which interact with each other to give rise to liability and to the obligation to obey the law. The four elements of the hukm or a rule of law in the Islamic legal system are; the Lawgiver (Hakim); the hukm or the relevant law; the act to which the hukm is related (mahkim fih, also referred to as mahkim bih); and the subject who performs the act (mahkim ‘alayh), that is, the person who is under an obligation to obey the law,
We have already discussed the topics relevant to the first two elements. The third element has also been referred to within the discussion of the classification of laws. In this chapter, we will first briefly examine the third element and then deal at some length with the fourth. The interaction of the four elements, or the union of primary and secondary rules, will be taken up in the next chapter.
6.1. The nature of the act (mahkim fih)
‘The mahkim fih is the act to which the hukm is related. If the com- munication from Allah is related to this act by way of tablif, that is,
when it creates an obligation, the act is always the act of the subject.
If the communication (Ehifab) is related to an act by way of declara-
‘tion, that is, through a secondary rule, the act may not be the act of — the subject, but is indirectly related to it. For example, when there is a command to pay the zakah, the obligation it creates is linked to ‘the act of the subject. On the other band, when there is a command to fix the minimum nigdb for zakah, there is an obligation to obey a secondary rule (hukm wad's), which is in the nature of a declaration supporting the imposition of zakdh.
72 The Act and the Subject
Muslim jurists discuss the mahkwim fth from two aspects: the con- ditions of taklif and the nature of the act.
6.1.1, The conditions of obligation (taklif)
‘The first condition for the creation of an obligation is that the subject is no obligation to perform an unknown or uncertain act. The reason is that the subject has to conceive the act in his mind and formulate an intention to perform it. There is a tradition to the effect that the performance intention, Knowledge of we subject about the act here implies actual knowledge or at least tential knowledge, that is, he should either be aware of the nature
or indirectly. For knowledge about the nature of the act, the existence of the subject within the Islamic territory (dér al-Jslém) is considered sufficient. Thus, the rule within the dar al-Js/ém is the same as that in law: “ignorance of law is no excuse even in a layman,” Islamic law, however, makes an exception in the cases of shubhah fi al-dalit (doubt in the case of conflicting evidences). We shall have occasion to explain this later.
‘The second condition is that the act should be such that it can
be performed by the subject; it should sia ipinreedipnacts Te purpose of creating an obligation is to command the obedience of the
subject, If the subject is not able to perform the act, the creation of the obligation becomes futile. This condition is split up into two sub-conditions: there is no obligation to perform an impossible act; and the performance of the act should be dependent on the will of the subject. The former case is obvious. The latter includes the acts that involve his inner emotions over which he may have little control. Thus, the tradition that requires the subject not to feel angry is not in the nature of an absolute command creating a binding obligation, It is more in the nature of a recommendation or an advice. The same would apply to a father loving some of his children more than the others, though he is not permitted to let this love interfere with his other legal obligations towards his children whom he is supposed to treat equally.
Ability to perform the act may be relative to the nature of the act, so what about acts in which hardship is excessive? The answer depends upon the act itself. For example, hardship involved during a journey while fasting is more than normal, and here the Lawgiver
Tueortes or Istamic Law 3
has provided relief. In other cases, however, where the act relates toa communal or collective obligation and has to be undertaken by some, the act must be performed even with the accompanying hardship, as in the case of jihad. There are cases where the subject invokes the hardship himself, because of his eagerness to please the Lawgiver or for some other reason. Consider the case of the person who used to stand constantly under the sun while fasting. He was ordered to sit or stay in the shade to complete his fast. There were several other incidents like this during the period of the Prophet.
6.1.2. The nature of the act and the right involved
The nature of the act is determined by the kind of right that is asso- ciated with it. This has already been explained at some length, while discussing the classification of laws provided by al-Sarakhsi. We may recall that Islamic law is based on a system of rights. Each primary rule or the hukm takiiff is based on a right, while the rule falling under the hukm wad't is related to the primary rule based on such a right. It is generally believed by writers that there are two kinds of rights: right of Allah and the right of the individual. Two other " categories are derived by a combination of these two rights based on the predominance of one or the other, The right of Allah is equated by these writers with the right of the community or with matters that affect the public at large, The position taken in this book is that while the right of Allih usually relates to matters affecting the public at large, it is not the same thing as the right of the community or the right of the ruler or the right of the state, it is distinct from all these. The attempt to equate the right of Allah with the right of the state will confuse matters and insert inconsistencies within the law, An example is to be found in the case of Nizam ws, the Government of Pakistan,’ which will be discussed later.
‘Thus, there are three kinds of basic rights in Islamic law: the right
‘of Allah, the right of the individual, and the rights of the individuals collectively or the right of the state. The right of the state Js rarely mentioned by the fugaha’ because it covers the area of law with which
they did not deal directly, the area left to the imam. The right of the state pertains to the flexible part of the law explained earlier. This
*PLD 1992 SC 595.
4 The Act and the Subject
kind of right is sometimes designated as the right of the ruler (haqq al-sultan)? or as the right of the state (hagg al-saltanah).*
‘The distinction between the right of Allah and the right of the state is of crucial significance for understanding the structure of Is- lamic law, We will maintain this distinction and will attempt to ex- plain the effect of not maintaining it wherever possible.
According to this analysis, therefore, there are the following kinds of rights:
1, The right of Allah (hagg Allah).
2. The right of the individual (hagg al-‘abd).
3. The right of Alléh lying side by side with the right of the individual—with its two cases of predominance of one or the other,
4, ‘The collective rights of the individuals or of the community, also referred to as hag al-saltanah or hagg al-sultén.
‘The significance of this classification of rights for understanding ‘the structure of Islamic law and its classifications has already been explained in the previous chapter. The most important thing to re- member, however, is that each act to which a hukm is related must be assigned a specific right or combination of rights. Each act, therefore, must be a right of Allah, or the right of the individual, or a combina- tion of the two. In the classification provided by jurists, the right of the saltanah is not mentioned, because the further sub-classification of this right is left to the ruler. It should be obvious, however, that all acts related to ta‘sir offenses, to taxes other than zakdh, and a host of other areas will all be affected by the right of the state, as distinct from the right of Allah, Acts affecting the the right of Allah involve duties owed to Allah alone, while the right of the state relates
obligations created by the state. As the causes, consequences,
ditions affecting the right of state vary with the passage oie \@ fugaha’ saw no need to issue permanent rulings for them.
6.2. The subject (makkim ‘alayh)
‘The subject or the mahkum ‘alayh forms the fourth element of the hukm shar, He is the person whose act invokes a hukm, In legal
*See tba Rushd, Bidayat al Mujtahed, i 303 See al-MawardI, al-Abkim al-Sultantyah, 237-8,
Tueories ov Istamic Law 75
parlance, he is known as the mukallaf. It is an essential condition’ for an obligation affecting this person that he have legal capacity, whether he performs the act directly or through delegation. The first requirement for this is that he be able to understand the communi- In addition to this, there are a large number of other conditions that must be fulfilled before the law can ve against or for a person. These conditions are all related to , known as ahliyah in juristic terminology. This topic ix somewhat difficult, but very important at the same time,
6.2.1. Ahliyah or legal capacity — ‘The literal meaning of the word ahliyah (Lal) is absolute fitness or
ability, When we say that a person is capable of doing something or of undertaking some work, it implies that he has the ability to do 80, We alio say that a person is capable of doing something when ‘we mean that the accomplishment of that task would be expected of him,
Some jurists used the word in its literal sense to convey the legal or technical meaning. The majority of the jurists, however, employ the term in a restricted sense. This use associates it with the concept of rights that underlies all laws. Thus, they define ahliyah as *the ability or fitness to acquire rights and exercise them and to accept duties and perform them.” This definition indicates two types of capacity. These are called ahliyat al-wujib and ahliyat al-ada’ or the capacity for acquisition (of rights) and the capacity for execution.
Capacity for acquisition enables a person to acquire both rights and obligations, while capacity for execution gives him the ability to exercise such rights and perform his duties. We may now examine these two types of legal capacity in some detail.
Capacity for acquisition or ahliyat al-wujab - Ahliyat al-wujud is defined as the ability of a human being to acquire rights and obligations. In the opinion of some jurists, there is no difference between the term dhimmah (%23) and the term ahliyat al- wujib. They maintain that dhimmah is also defined as the ability to make a distinction between these two terms, and consider dhimmah
as an imaginary container or vessel that holds both the capacity for acquisition and the capacity for execution. It is the location or
76 ‘The Act and the Subject
place of residence for the two kinds of ity. In short, dhingmah— is the terms of his rights and obligations.
‘A closer examination reveals that the term dhimmah corresponds
exactly with the term personality in the law. A slave in early Roman law was a “person,” because he was a human being, but he had
no “personality,” which was an attribute assigned by the law,* It
). In Islamic law,
.coording to al-Sarakhsi, dhimmah is the “trust” that was offered to jhe mountains, but they refused; Man accepted it.
‘The manat of the capacity for acquisition. Mandt is a thing |. The manat or basis for the tence of the capacity for acquisition is the attribute of being a uman. There is complete agreement among jurists that this form of capacity is possessed by each human being irrespective of his being ~ a mukallaf.
Kinds of capacity for acquisition. Capacity for acquisition may not be complete or may be deficient in some respects. In such a case the law would classify it as defective capacity, The jurists use different terms to differentiate between the kinds of this capacity. For the sake of convenience we may follow the terms used by them,
Capacity for acquisition is first of two kinds: complete capacity and ity. Complete capacity for acquisition is found in a hu his makes him eligible for the acqui-
ition of all kinds of rights and obligations. Deficient or incomplete capacity is established for an unborn child or the fetus (janin). ficient capacity implies tl
only some rights are established for the ‘he reason is that the
janin is considered part of the mother in some respects. Thus, it is free with the mother and is also sold as a part of her. An indepen-
dent personality is, therefore, not assigned to it. In other respects,
“Some modern Muslim writers, particularly those from the Arab countries, equate ahliyat al-eujub with the concept of personality im the law. This, in our view, in incorrect. It is the concept of dhimmah that is similar to the concept of personality
Tueortes oF IsLamic Law 7
the janin enjoys s separate life and is preparing for separation from the womb, Its personality is, therefore, considered deficient or incom- plete. By virtue of this deficient capacity, the janin acquires rights: freedom from slavery, inheritance, bequest, and paren On. the other hand, the janin cannot be made liable for the satisfac- tion of rights owed to others, A purchase made by the would-be walt (guardian) on behalf of the janin cannot make the janin liable for the payment of the price, Likewise, the maintenance of close relatives and the membership of the ‘agilah cannot be enforced against the Janin. Once the child is born, these rights can be enforced against it, but not when the obligations were acquired during the gestation period,
A deficient capacity for acquisition is also assigned to man or to a corpse. Thus, amounts due on account of debts, bequest, and funeral expenses are taken from the wealth of the dead man, In law, the estate of the deceased person is assigned some kind of intermediary status for this purpose, but this status is not the same as a fictitious personality, Muslim jurists do not permit the acquisition of new rights for the dead man, except those that are extensions of acts initiated while the person was alive; these are credited to his dhimmah. For example, if a person had thrown a net into the water immediately before his death, the fish caught in the net after the person's death belong to him. Likewise, if he had dug a pit before his death with the intention of trapping someone in it, then the diyah due as a result of someone falling in it is to be recovered from such a person’s property. Further, any compensation due for property destroyed by acts commencing before his death shall be recovered from his property.
Capacity of a fictitious person. We have seen above that Mus- lim jurists hold dhimmah to be the basis for capacity for acquisi- tion and further determine that dhimmah is an attribute assigned to human beings, and which entitles them to acquire rights and obli- gations, On this assumption, capacity for acquisition cannot be as- signed to a thing other than a living human being, nor have these earlier jurists ever acknowledged the existence of dhimmah or capac- ity for anything non-human. In fact, they have expressly denied such & possibility.
Moderns Muslim writers, on the other hand, being faced with the need to acknowledge the existence of a fictitious personality, as it
8 The Act and the Subject
forms the basis of the present socio-legal stracture, have claimed that ‘such a concept does exist in Islamic law. They rely for this on in- stances like wagf, bayt al-mdl, and the estate of the deceased. These assertions seem to be misplaced. ju- it will be found to clash with the provisions of this law, whether the area is that of contracts, huddd, or constitutional law. In other words, the idea of a fictitious person is incompatible with Islamic law as ‘expounded by the jurists. Let me show this by one example, Muslim jurists insist that in the offense of sarigah (theft) liable to hadd is op- ‘erative where the property is owned by someone. The question arises ‘as to mosques, or to the bayt al-mdl, whether hadd can be awarded in these cases. The former is considered to be property belonging to Allah, while the latter is joint property in which the thief is deemed to have a potential share. The Hudtid Ordinance pertaining to theft issued in Pakistan in 1979 goes against the unanimous opinion of the jurists and considers possession of stolen property sufficient for awarding hadd, the condition of ownership deemed essential by the jurists is excluded. This enables the awarding of hadd to persons who have stolen property owned by fictitious persons. ‘The troth is that the
‘erate within the flexible sphere of the law, which has been described earlier and will be referred to again in a later chapter. The fixed part of the law does not need this concept and will reject it. If this ncept is thrust upon the fixed part, a number of inconsistencies develop in the law. The case of the flexible sphere is different. ‘he imdm can introduce the concept of a juristic person within the ible sphere, but this should not affect the law operative in the ced part,
We may raise a question here about the head of state. The office of the head of state is a juristic person, but is it compatible with
Islamic law? The answer is left as an exercise for the reader.
Legal effects of the capacity for acquisition. The existence or proof of rights and obligations against the dhimmah of a subject is not an end in itself; the Lawgiver is concerned more with the exercise of rights and the fulfillment of obligations. There is no difficulty in such exercise or fulfillment when the subject enjoys full legal capacity. In addition to this, the shari‘ah permits the exercise of rights and the meeting of obligations in several other cases, such as the following:
Treories or Istamic Law 79
. Rights established for such that they do not require acceptance. Likewise, bligations and duties are not established against the unborn
A child possesses a complete capacity for acquisition = ‘ights and obligations, but
Ye facilitate matters, this child is made liable by the shari'ah’ . These are listed
@ Pure financial transactions are established against the dhimmah of the sabi. Though he cannot meet them per- sonally due to the absence of the capacity for execution, the Lawgi
damage caused to another's property, and for the main tenance of his wives and near relatives. He is also liable, except in the opinion of the Hanafi school, for the payment
apeemed mises
of zakdt
© Criminal liability does not exist in the person who has not attained puberty, because he is not a mutallaf, and the
fenses: punishments being deterrents for the offender his self and not for those who represent them. This, however,
© The ‘ibddat are not obligatory on the sabi, as he does not possess the capacity for execution,
3. Cases of imperfect capacity for acquisition. Capacity for execution may be perfect or imperfect. Imperfect capacity is The slave does not possess ‘ht of ownership, but he does have a capacity for acquirin \bligations pertaining to ‘ibéddt, and for criminal offenses.’ A
Some might observe that slavery no longer exists, 20 why do we have to study ‘examples that mention slaves? The answer is that a nomber of legal principles ‘explained by the jurists may fall under this topic. To anderstand these principles,
80 The Act and the Subject
"woman, on the other hand, is said to possess an imperfect ca- .. Those who hold this view deny her the to be the head of state, the right to be a gddi (judge), nd the right to testify in cases being tried under huddd and provisions. In addition to this, she does not have the right to divorce, like the right given to a man, she is given a share in inheritance that is equal to half the share of male heirs, and the diyah paid in compensation of her death is half that of a man. These provisions have led certain Orientalists, like Joseph Schacht, to observe that in Islamic law “a woman is half a man.” Women who are struggling for the emancipation ‘of women and the acceptance of their rights in Muslim coun- tries, whether or not they are influenced by the writings of the Orientalists, have objected seriously to such a status granted to, them, Demanding equality with men, they maintain that the status of women should be the same as that of men, by which they mean that their legal capacity should not be considered imperfect or deficient in any way. The purpose here is not to argue for one side or the other, but to identify the legal issues involved. Reasons or solutions will become obvious once these issues are grasped.
‘The most important issue appears to be that of the evidence of women. This is split into two sub-issues, The first is whether the evidence of women is excluded by the texts of the Qur'in
and Sunnah in cases of hudid? The usual answer given in reply is that the evidence of women is excluded in such cases on the basis of the Sunnah, which is also a source of law. These are ‘cases involving the right of Allah. The approach to this issue is that somehow women have been deprived of a right. This incorrect. Evidence in these cases, and in otheys too, is a juty and not a right. Women have been spared the burden of his duty. The purpose is to waive the penalty of hadd, which y usually an extreme punishment, and to show mercy to the accused in an indirect way. This, perhaps, is the intention of the Lawgjver. Related to this is a misconception that the offense of rape cannot be proved and punished with the evidence of one woman. It is true that hadd cannot be awarded upon the testimony of one woman, but that does not mean that no other
the discussions of issues related to slavery are sometimes unavoidable, Some of these ismues may pertain to human rights
Tueonies oF Istamic Law 31
punishment can be awarded to the rapist on the basis of such testimony. The ruler or the state has wide powers under the doctrine of siyéaah to award an equally stiff penalty.
The second sub-issue is about the evidence of two women being equal to that of one man. This requirement is derived from a verte of the Qur'an, and is supported by the Sunnah. The details of this problem cannot be discussed here. It is suggested,
testimony
it leads to the protection of rights.
‘The next issue is whether it is justified in the present times to givea The answer is that the La ‘The justification provided by scholars is that the Islamic legal system places & much greater financial burden on the male in terms of maintenance of his family and near ones. Such a bur- den has not been placed on a woman. Further, a woman is paid dower upon her marriage by the husband. This increases the financial liability for males. The argument from the other side may be that Islamic law, like any comprehensive legal system, especially one that is a complete code of life, is to be applied as a whole, in toto, not in pieces. In such a situation, is it possible for a woman who is left all alone to go to a court of law and enforcing her rights ask her brother, uncle, or cousin to support her? It is obvious that many such rights that the law provides her may not be enforceable today, as compared to other duties that have been placed upon her,
As to the question of a woman not having a right to divorce the husband, the jurists unanimously agree that such a right has are, however, provisions the law like takhyir and tamilik through which she may be
a To explain this point, let us quote Ibn Rushd, the famous philosopher and jurist, also known as Averries,
Procedures that are counted among the categories of di- vorce, and which are considered to have specific ehkim, are
i fing to Malik there is a differ-
The Act and the Subject
‘ence between famlik and takhyir (im this
is may udiation or more, thus, the maa is entitled to deny her right to more than one repudiation. Khiyér is differ- ‘ent from this, as far as it implies the execution of divorce
only has the choice to choose her husband or opt for irre- vocable separation from him through the pronouncement of three repudiations, but she is not entitled to choose a single repudiatica
‘The right under tamiik, according to him (Malik) in one narration, is not annulled even if it is not exercised by the authorized woman for a long period of time, of till they part from the session. According to a second narration from him, the right under temlik stays with ber till she revokes it or exercises it through repudiation. The differ-
Penns Lie pedantry bey bles she secon wc gore ba i otha dor not have that right. Al-Shafi'i said that statements like, “choose yourself” or “your affair is in your hands” mean the same thing, but this does not amount to granting the
80, and wl he intends it to be a
single repudiation it is #0 and if he intends three repudie- tions, then, that will be the case. He is entitled, according to al-ShafiT, to deny her the right of repudiation itself, or restrict her with respect to the number (of repudiations) in both tathyir and tamlik cording to him (al-Shafi'T), if she divorces herself it cunts to a revocable divorce, which iaalso the ease ac- ing to Malik in fami. AbG Hanifah and his disciples said that granting a choice does not amount to divorce, but if she divorces berself even through a single repudia- tion in tamilit, it amounts to an irrevocable divorce. Al- ‘Thawrl said that bhigér and tomlik are the same thing ‘and there is no difference between them. It in said that the acceptable statement is bers about the number of repudiations in (amlék and the husband cannot, rebut her statement. This opinion is related from ‘Ali and Ibn al-Musayyib, and it was also adopted by al-Zubri and
THEORIES OF nc Law
‘AU. It is said that the woman, in the case of tamitk is not entitled to divorce herself, except through a single repudiation. This is related from Ibn ‘Abbas and ‘Umar, may Allh be pleased with them both. It is reported that. man.came to Ibn Mas'dd and said, “There was between and my wife, the kind of relationship that exists people (normally). She said (to me), "Had the power {you possess over me, been in my hands, you would known how I would treat you." I said to her, ‘In that
however, consult with the Amir al-Mu'minén, ‘Umag.” He then met ‘Umar and related the case to him. ‘Umar said, “Allah has given men what He did. If they desire to place in the ‘of women, what Alléh has placed in their then, dust in in their jaws. How did you decide said, “I held it to be a single repudiation, and that he atill bas a right over her.” ‘Umar said, “I hold it to be the same, and if you had decided it differently | would have considered you to be wrong.”
* about the woman fis that she has 1 choice between divorce and holding fast to the nuptial tie as long as she is in the session (of assignment), which is also the opinion of al-ShafiT, Abd Hanifah, al-Awxa't, and a group of other jurists of the provinces. According to al-Shafi's, tamdik is like agency (wakilah), when he in- tends divorce, and he has the right to retract it whenever he likes, as long as divorce has not come into affect.
ye majority decided in favor of tamiik and fakhyir and it to be a provision for women, because of what Geese aks Messenger of Allah
his wives, ws. 'Avahah said “The Messenger of Allah (God's peace and blessings be upon him) granted us a choice, and we chose him so it did not amount to a divorce.” ‘The Zahirites, however, maintain that the meaning of this would be that if they had opted for themselves, the Mes-
of Allah (God's peace and blessings be upon him) would have divorced them, not that they could divorce
The Act and the Subject
themselves by the very option of divorce. ‘The majority also maintained the validity of takhyir and
option for his wives, and the meaning implied by this op- tion is of irrevocability, ik was of the view, in the case of tamlik, that the s statement, to the extent that be did not intend divorce thereby, is not to be accepted (in case of dispute) when he makes such » claim, for it is an authorization clear in ite meaning about placing of the right of divorce AL-Shafi, because the words used are not
the apparent meaning of the text or to intention. He did the same in takhyir ‘They agreed that he haa the right to deny her the (maxi- mum) number (of repudiations), that is, through the im- plication of the word temlit, as it does not carry an ad- ditional meaning beyond the literal. Malik and al-Sbafi'l held that if she divorced herself through his assignment ‘of authority to her, with a single repudiation, it would be a revocable divorce, as divorce in legal usage is { absuanah, Abi Hanifah held that it is irrevocable, for if it in revocable it is of no use in view of what she expects from it and also in view of what he intends thereby. ‘Those who maintained that she has the right to divorce herself thrice through tamlit, and that the husband does not have the right to deny her this, because the meaning of tamlit, according to them, considers all the authority possessed by the man to have passed on to the woman, aid that she has a choice in the number of repudiations the pronounces. Those who deemed tamlié to be a single repudiation or a choice (restricted to it), held that it is minimum (number) to which the term can be applied, } & precaution for the sake of men, because the under- reason for granting the authority of divcrce to men the weaker rationality of women, their being normally by emotions, and their inclination to disturb
at
Tueortes oF Istamic Law 85
‘The majority of the jurists maintained that if the woman saeare hak ine: & (hen sie leash sever Fo
sult from either category (tamlik or tathyir). Second, that both categories cause separation (divorce) between the two (husband and wife). Third, that there is a distinc- tion between akhyir and tamlik with respect to the right acquired by the woman; that is, through tathyir she pos: seases the right to an irrevocable divorce, and through tamlik what is less than that. When we concede that it i is said that she possesses a sin-
repudiation, It saad that it lead toa revocable divorce, ‘and it is said to an irrevocable divorce.
‘The words that a woman pronounces in takhyir and tamick refer to the Aukm of words with which divorce is pro- nounced insofar as they are explicit, indirect, or equivocal ‘The details will come up in the discussion of words used for divorce,*
she liyah under of woman | the other half as additional compensation. There is no doubt about the fact that ‘today and are
equally efficient working fact, some of them may be earning
The proposed law of gigdy and goes a step further and makes no distinction between a ale and female for purposes of valuation of diyah.
‘The reason why a woman cannot become a gddf or judge is linked to the question of evidence. A gddf can only hear cases in which he can also be an eligible witness. This is a qualifica- tion for the gadf. As a woman cannot be a witness in cases of
“Ibu Rushd, Bidayat ol-Mujtahid, i, $3-SS
86 The Act and the Subject
hadd, she cannot be a ga¢i for hearing the cases and passing sentence. The question of being a head of state is also similar. ‘The primary duty of a head of state is the implementation of huddd (igémat ol-hudad), which again requires the qualifica- tion of a witness for such cases. A woman is, therefore, con- sidered ineligible for the job. In Pakistan, women judges today are deciding cases under the hudid laws.
Capacity for execution or ahlfyat al-ada”
Capacity for execution (+135! iLal) is defined as the “capability of a human being to issue statements and perform acts to which the Lawelver has assigned certain legal effects.” This kind of capacity is considered to be of three kinds:
er for the khifab jind’t. This is the
i ." In other words, wl es such a capacity can acquire through his statements and deeds a liability for the offenses constituted by such state-
ents or acts. This kind of capacity is known as the capacity for criminal liability or the ability to comprehend the khitab fina
* tht for the khitab of ‘ibadat. It is the capacity for
the issuance of words and performance of deeds the legal effects which are produced in the shape of rewards or thawdb in the jereafter, and also the freedom of the dhimmah in the present ld, This is termed as the capacity for ‘ibadat or the capacity
1 the Rhitab of ‘ibadat.
‘apacity for the khifab of mu‘amalat. It is the capacity for the issuance of words and the performance of deeds the legal effects of which are the exercise of rights and the fulfill- ment of obligations for contracts and other transactions, It may be called the capacity for transactions or the capacity for the bhitab of mu‘émalat.
‘The reason for separating the capacity for execution into these three types is to indicate that a person may, for example, be in posses- sion of the capacity for transactions, but not the capacity for punish- ments. To put it differently, all three kinds of capacity may be found
Treories oF Istamic Law 87
in the person who is sane and a major, but one or more of these may be lacking in other persons.
The mandt of chliyat cl-adé’, The mandf or basis of the ca is ‘agi (intellect) and (rushd) discretion. “Agi here impliei the full development of the mental faculty. As there is no definitive method for checking whether this faculty is fully devel- oped, the Lawgiver has associated it with buldgh or puberty. Th a pubescent person is assumed to possess ‘ag! necessary for the istence of the capacity for execution. This presumption, however, rebuttable, and if it is proved that though a person has attained pi berty, he does not yet possess ‘agl, capacity for execution cannot assigned to such a person. This is the view of the majority of t! jurists.
deficient capacity
on, even if his menti 0 op | "Thus, a minor (abi) ten poesesees‘tcreth may be aseigned sach a capacity, for the &Aijab of mu‘émalAt. Again, there is no way here of determining whether the minor has attaine discretion. The Hanafi jurists have, therefore, fixed the minimum age of seven years for assigning such a capacity; anyone over seven year ‘of age who has not yet attained puberty may be assigned such capacity.
Deficient capacity is also assigned by the Hanafis to a person who has attained puberty, but is not fully developed mentally, like the ma‘tih (mentally retarded; idiot).
for execution ts, Wu
it
mn, Capacity Deficient capacity is assigned to sesses some discretion, or to 4 math who has attained puberty lacks complete mental development.
‘The person who possesses deficient capacity is not subject to the khitab ying’; he cannot, therefore, be held criminally liable. The minor, however, is subjected to ta’dib—the reason being that the khifab jind't is applicable to that person alone who comprehends the khitab fully.
88 The Act and the Subject
With respect to the ‘ibadat, there are detailed discussions whether the khifab is addressed to the sab and ma‘th by way of nadb (recommendation) or khiyar (choice), or whether it is addressed to them at all. There is no dispute that there is reward (thawdb) for such a person for the performance of the ‘ibadat.
‘We are concerned here with the capacity of such a w vitpes of eeoaen Ths Son abidy cama le at
types for this purpose:
1, Purely beneficial transactions. The transactions falling un- der this category are the acceptance of a gift or of sadagah. ‘These are allowed to the person who has not attained puberty, but who can discriminate and has been permitted by his walt (guardian) to exercise such acceptance,
2. Purely harmful transactions. The granting of divorce, man- umission (‘itg), charity (gadagah), loan (gard), and gift (hi- bah), as well as the making of & trust (wagf) and bequest (wasiyah) are considered transactions resulting in pure finan- cial lows. These are not permitted to the sabi. mumayyiz (dis- criminating minor)
3. ‘Transactions vacillating between profit and loss. Sale, hire, partnership, and other such transactions are considered valid if ratified by the walt.
‘The deficient capacity granted to the discriminating minor by the Hanafis is also granted to the ma‘tih. The majority of the ju- rists (jurahuir) oppose the Hanafis and refuse to acknowledge any kind of capacity for the discriminating minor, They maintain that the communication (khifab) is not directed toward such a minor at all, and it is of no consequence whether the transactions are bene- ficial or harmful. In practice, however, we find young boys minding stores on behalf of their fathers, and often handling the transactions exceptionally well.
Complete capacity. Complete capacity is established for a human being when he or she attains full mental development, and acquires the ability to discriminate. This stage is associated with the external standard of puberty. The physical signs indicating the attainment of puberty are the commencement of ejaculation in a male and menstruation in a female. In the absence of these signs,
Tueories or Istamic Law 89
puberty is presumed at the age of fifteen in both males and females according to the majority of the jurists, and at the age of eighteen for males and seventeen for females according to Abi Hanifah.
Attaining buldgh (puberty) alone is not sufficient, however, for ‘a person to acquire complete capacity for execution. In addition to puberty, the possession of rushd (discrimination; matvrity of actions) in stipulated as well. The dali, or legal evidence, for this is the verse of the Qur'an:
Make trial of orphans until they reach the age of marriage; then if ye find sound judgement in them, release their Property to them; but consume it not wastefully, nor in haste against their growing up.”
‘This verse lays down clearly that there are two conditions that must be fulfilled before the wealth of orphans can be handed over to them, These are bultigh al-nikah and rushd,
The term rushd, according to the majority, signifies the handling of financial matters in accordance with the dictates of reason. The rashid is a person who can identify avenues of profit as well as loss, ‘and act accordingly to preserve his wealth. Rushd is the opposite of safah (foolishness), which implies waste and prodigality. Shafi‘ jurists define rushd as maturity of actions in matters of finance as well as of din, In their view, a person who has attained puberty and is adept in dealing with financial matters cannot be called rashid, unless he obeys the ahkdm of the shari‘ah in matters of “ibddat as well.
A person, then, is eligible for taking over hin wealth if he is both a baligh and a rashid. This is the general view. Aba Hanifah, however, maintains that @ person who attains the age of twenty-five years, must be delivered his property irrespective of his attaining rushd, In addition to this, he maintains that if a person attains buligh and rushd and is given his property, but subsequently loses his rushd, while yet under twenty-five, he cannot be subjected to interdiction (hajr). The majority of the jurists (jumhur) subject a person to interdiction if he has not attained rushd or even when he loses it subsequently, irrespective of his age.
On attaining complete capacity, an individual comes within the purview of the different kinds of khitab. He, therefore, becomes liable
"Qur'an 4
90 ‘The Act and the Subject
to punishments because of the khitab jina't being directed towards him, just as he becomes liable because of the titab of transactions and ibadat,
The stages of the capacity for execution. The conditions laid down by the Hanafi jurists indicate that there are three stages through which an individual passes with respect to his capacity for
execution, These are:
1. The first stage is from
which is considered to be the age of seven years. During this , the child is assumed to lack ‘agl and discretion com- y, and is ineligible for the assignment of a capacity for tion,
2, The second stage commences from the age of seven and contin- wes up to acteal puberty othe gl agn paar, whichever is earlier. Deficient capacity for execution is normally assigned
Juring this stage, as the individual possesses a certain amount ‘agl and discretion.
3. The final stage commences from fui vhpset rcberie cosh legal age determined for it. On reaching this age the individual
assigned complete capacity for execution, and becomes eligi-
le for each kind of khitéb, An exception arises in the case of safah that has already been explained, and the individual may be placed under interdiction for some time.
6.2.2, Causes of defective capacity
‘The causes affecting capacity are found in those factors that prevent capacity for acquisition and capacity for ezecution from taking full effect, The existence of these factors may result in the total absenée of capacity or in deficient or incomplete capacity, For purposes of the present discussion, we may tefer to all such forms as defective capacity.
The mandt for capacity for acquisition, as we have said, is insdniyah, and it is death alone that can cause a change in this kind of capacity. We have seen, however, that under certain circum- stances a corpse may have such a capacity. ‘Ag! and rushd, on the other hand, are the bases for capacity for execution, and each factor that has the power to influence and affect the normal functioning of
‘Tueortes oF Istamic Law a
of the human mind can become a cause for defective capacity, Muslim jurists discuss the causes of defective capacity under the conditions of takiif. Thus, they include within this discussion the knowledge of the ahkdm as well as the ability of the subject to perform acts. ‘This shows that many things that cannot be properly considered as causes of defective capacity on the basis of the criteria provided above are included within this discussion. These will be excluded from the present discussion. This does not mean that those discussions are not important, As an example, we may mention the rule that “igno- rance of law is no excuse even in a layman.” This rule is true even for Islamic law, but there may be cases where some exceptions are made, Thus, the subject may be confused about the ruling on a an issue, because there are more than one opinion based on conflicting evidences. Such cases fall under the category of shubhah fi al-dalil or doubt as to the evidence. There are other cases that are referred to as those of shubhah ff al-‘agd or doubt about the legality of the contract. Today, such cases are difficult to conceive, because the law is codified and published with the authority of the state backing up a tingle undisputed tule. It Is for this reason, perhaps, that the hudid ordinances promulgated in Pakistan have ignored all such cases of doubt.
It is pertinent to note that many of the causes of defective capac: ity mentioned here will appear to the reader to be the same thing as the general defenses in criminal law, or as other grounds for waiver of liability in civil or ritual matter
‘Th
causes that are m , and result from an act of the Lawgiver and Creator. Under this heading, the jurists list ten causes: sighar (minority);
juntin (insanity); ‘atah (idiocy); nisyan (forgetfulness); nawem (sleep); ighmd’ (unconsciousness; fainting); rigg (slavery); marad (illness); hayd (menstruation); nifas (puerperium; post-natal state of woman); and maut (death). We shall discuss a few of these here, the rest are either obvious or have a greater bearing on ‘ibédat.
92 The Act and the Subject
- $ighar (Minority). It is the state or condition of a human being after birth and before puberty. This, in fact, is not a cause of defective capacity or even an obstacle in its way, but a necessary stage in the growth of the human being. It is considered as a cause for noting its effect upon capacity or ahliyah.
© Minority does not affect capacity for acquisition or ahliyat al- wujdb, All rights and obligations are acquired as their estab- lishment requires merely a dhimmah and the mandf (being a human), which is the basis for the capacity for acquisition. Mi- nority does not oppose the mandt. The jurists, therefore, main- tain that the minor is liable for compensation for property de- stroyed by him, for goods and services bought, for maintenance of relatives, and also for zakdt according to some.
Capacity for execution or ahliyat al-ada’ requires ‘ag! for its fulfillment, and this the non-discriminating minor (sabi ghayr murayyiz) lacks, because he does not understand the khifdb. He is, therefore, not liable for the ‘“ibédét, for financial trans- actions, or for punishments. The Hanafis make an exception in the case of the sabi mumayyiz or one who has attained some discretion. The ‘ibédét of such a minor are rewarded in the Hereafter, and it is a matter of controversy whether the khitab ‘of targhib or recommendation is addressed to him. He is not liable for punishments, but financial transactions undertaken by him are valid in certain cases. Transactions that are purely harmful for such a minor, like gifting away of his property have no legal effect. Transactions that are purely beneficial or those that are evenly balanced between profit and loss are allowed, with the prior permission of the guardian or his subsequent rat- ification. The position of the sabi mumayyiz may be compared with the contract for necessaries by a minor under sections 11 and 68 of the Pakistan Contract Act. The freedom allowed to the sabf mumayyiz by the Hanafis is much wider than that under the
Jungn (Insanity). Juniin has no effect on ahliyat al-wujilb, be- cause rights and obligations are established for and against an in- sane person, who is deemed liable for itlaf (destruction of property), payment of diyah, and the like. The manat of such a capacity is
Tueories oF Istamic Law 3
insdniyah, and the majnan is a human being. Junun, however, com- pletely negates the ahiiyat al-adé', because of lack of ‘agl. The insane person, therefore, has no liability for ‘ibadat or punishments, and all his transactions are void.
‘Atah (Idiocy). It is a state in which a person at times speaks like a sane and normal person, while at others he is like a mad man, Tt is also described as a state in which a grown-up has the mind of a child. The capacity of an idiot is deemed equivalent to that of a sabi murmayyiz, who can be permitted by bis guardian to undertake some transactions.
Sleep and fits of fainting. Sleep and fits of fainting have rele- vance for purposes of ‘ibddat, as well as for crimes and torts. They do not affect ahliyat al-wujub, because the attribute of insdntyah is intact. Persons in such a condition, however, do not understand the bhitab, Their capacity to understand things is temporarily affected and prevented from normal functioning. The liability for missed “ibddat lingers against such a person and these have to be performed as qada’ (delayed performance). There is no liability for punishments and transactions. If a person, while sleeping, falls on a child during sleep and kills it, there is no liability for punishment, but compensa- tion is another matter for which there may be strict lability.*
fulness. This is astate in which a person is not very careful about things though he has full knowledge of them, as distinguished from sleep and fits of fainting in which such knowledge is lacking. Forgetfulness does not affect ahliyat al-wujtib nor does it affect the capacity for execution. The khitdb, however, becomes operative as soon as the person remembers. Transactions undertaken by such a person are valid and enforceable against him.
Marad al-maut (Death-illness). ‘This is a condition in which the mind of a sick person is dominated by the fact that he will die because of his illness. It is of no consequence whether the person
“This means that loss of life bas to be compensated anyway, irrespective of intention to harm. In traditional Islamic law, the barden in such cases is placed upon the ‘agulah, which is the tribe or group with which an individoal is considered to be associated.
4 The Act and the Subject
actually dies from this illness or from something else. Two conditions must be met before an illness may be declared a death-illness:
© The deceased person must be convinced that he is approach- ing death, irrespective of the nature of the disease. Diseases like common colds and headaches, however, are not taken into account for such purposes. Some jurists associate other circum- stances with this state, like a person on a ship that is caught in a storm, of like a person facing a death sentence.
Death should follow such a conviction, even if it is not caused by the feared illness.
Some jurists stipulate a third condition here by saying that death must occur within one year of the commencement of illness, because any period above this would mean that the person is accustomed to his illness and that the fear of death is remote,
Marad al-mawt has no effect on the capacity for acquisition or * on the capacity for execution, and it is in fact a condition of takli/, because it is the capacity to perform an act that is affected here and not the capacity to understand it, ‘A person suffering from such an illness is prohibited from entering, ito transactions that are in excess of one-third of his wealth, In other rds, it takes the hukm of wasiyah. This condition is stipulated to rrotect the rights of the heirs. The reason assigned is that the rights of the heirs get linked to the estate as soon as marad al-mawt takes hold, The Lawgiver has laid down that such rights are to come into play after the death of the person, but to protect the rights of the heirs and creditors it is assumed that death has already occurred, The justification provided is that the transactions of such a person are not those of one who wishes to live, but of one who is ready jo depart. The following rights are attached to the estate of the person suf- fering from marad al-mawt:
© Rights of creditors. The creditors have a right prior to all, even if the debts consume all the estate.
© Rights of beneficiaries. The rights of beneficiaries restrict the transactions to one-third of the estate, however, amounts in excess of one-third will be valid if permitted by the heirs.
Tukontes oF Istamic Law 95
© Rights of the heirs. These rights are Unked to the estate from the time of the commencement of illness, and any transactions undertaken! by the sick person will be assigned ahkam as fol: lows:
1, Transactions with a counter-value. If the person suffering from death-iilness concludes a contract of sale with no apparent loss in it, that is, at the market value, then the creditors or the heits cannot have it set aside. It is to be assumed that such a sale was undertaken to fulfill his genuine needs and not with the intention to deprive his creditors or heirs, Abi Hanifah maintains that if such a sale is made to one of the heirs, it is to be declared as void even if it is at market value. The two disciples of AbG Hanifah, AbG YOsuf and al-Shayb&ni, maintain that the sale is valid. The difference of opinion is due to the question whether the right of the heirs is linked to the ‘ayn (substance) of the thing or to its value.
2. Transactions without « counter-value. If the transaction ix a hibah, wagf, sadagah, or a sale at less than the market value, or a purchase at more than the market value, then such a transaction will be restricted to one-third of the value of the estate, after the creditors have been satisfied
‘Three conditions must be fulfilled, before the rights of the credi- tors can come into play:
(a) That the transaction was without a counter-value or without adequate counter-value, This would cover transactions like gift, charity, wag/, sale at discount, or purchase at a premium.
(b) That the transaction involves the transfer of a thing (‘ayn) it self and not its use, provided that the benefit conferred through use will terminate upon the death of the owner. Some Hanafis do not consider the benefits arising from the use of a thing as mal, The use of land, or of a house, or of an animal are ex- amples that explain this case. The majority (jumhur) consider the use of benefits as mal.
(c) That the transaction must be in a‘ydn (substance of things) and not in the revenue or profit derived from them, Any as- signment of profits arising from a sharikah or mudarabah will not be affected by this condition.
96 The Act and the Subject
Besides transactions, any admission or acknowledgement of debts by the person suffering from marad al-mawt (death-illness) may also invoke the rights of creditors and heirs. Al-Shafi'l is of the opin- jon that acknowledgement by a person suffering from death-illness is valid and is not affected by the rights of the creditors or the heirs. ‘The reason he assigns is that a person approaching death would nor- mally tell the truth, even if he is a habitual liar. The Hanafis, on the other hand, make a distinction between two cases:
(a) Acknowledgement of debt in favor of an heir: An acknowledge- ment in favor of an heir can have legal effects if the rest of the heirs permit it. This is due to the apprehension that one heir may have been preferred over the others.
(b) Acknowledgement of debt in favor of a stranger: An acknowl- edgement favoring a stranger is valid. These debts are called duytin al-marag and are to be paid after all other debts, called debts of health, have been satisfied.
The Malikis distinguish between cases where an allegation of a “bond of affection” can be made, that is, where a possibility of undue influence is likely. For example in the case of a wife, close relative, or friend, The basis is the bond existing between them and not the blood relationship. Ibn Rushd has the following to say, when he invokes the principle of maslahah to explain the issue:
‘The rejection of the permiasibility of marriage with the inten- tion of the inclusion of an additional heir is an analogy based upon maglahah, which is not permitted according to the ma- jority of the fugaha”. Taking interests into account in a genus” that is remote from the genus that is desired for the establish- ment of the hukm according to (the principle of) maplahah led some jurists to the conclusion that upholding mch an opinion amounts to legislating additional law, and the adoption of such ‘an analogy dilutes the principle of submission to the shari'ah, neither adding to it nor detracting from it. Yet, reluctance to pay attention to maslahah might cause the people to be pushed, because of a lack of precedents in this genus, toward injustice. Such interests should be brought to the scholars of the hikmah (philosophy) of the law, the learned who will not be accused of judging by it, especially nowadays when the qualified per- sons think that the adoption of the letter of the law (apparent
“Here genus refers to the genera of underlying causes.
‘Tuonigs of Istamic Law ST
meaning) leads to injustice. The proper methodology of the learned echolar inthis shoeld be to enansine the ersSence in
ras letps: Herp heed eoydberlpstirenptorifieclact do upon the strength of his skill, for it is not possible to lay down fixed limits for the service. This (situation) is usually faced in the profession of medicine and also in various other professions."
Acquired causes of defective capacity
Acquired causes are those that are created by Man or in which human will and choice are the basic factors. Muslim jurists list seven such causes; ignorance, intoxication, jest, safeh (folly), journey (safar), mistake, and coercion. We will discuss some of the important causes, noting their effects on the capacity for acquisition and on the capacity for execution.
Intoxication. Drunkenness is a state caused in a human being due to the use of an intoxicant, which temporarily suspends the proper functioning of the mental faculty.
Intoxication does not cause a change in the capacity for acquisi- thon, as its basis is the attribute of being a human. Thus, a drunken person possesses a dhimmah with a complete capacity for acquisition, and he is held liable for destruction of life and property, and also for all obligations, for maintenance, and even for zakat. All these duties and obligations require the existence of the capacity for acquisition alone, and intoxication does not negate it.
‘The basis for the capacity for execution, on the other hand, is ‘agl and discretion; these are negated in the case of the drunken person by the state of drunkenness. The khitéb is not addressed to the drunken person, because he does not comprehend it, The state of such a person is worse than that of one who is asleep, for the latter can be awakened; it is worse than that of an idiot, who may understand parts of the speech addressed to him.
Rushd, Bidéyat al- Mustahid, i, 35.
98 The Act and the Subject
‘The jurists agree unanimously that the thitdb is not directed toward the intoxicated person if such intoxication has been caused by the legal use of intoxicants. For example, the person who has consumed liquor without knowing what it is or when he has done so under coercion or under duress to save his life. In such cases, the hukm for this person will be the same as that of the person under a spell of fainting.
Muslim jurists disagree about the person who is intoxicated when ‘uch intoxication is caused by prohibited means. The Hanafis and some other jurists do not consider such a cause to have any effect on the capacity for execution and on the understanding of the khitdb, ‘Thus, the ‘ibdddt are established against such a person and he will be held liable for delayed performance (gada’), along with the ac- companying sin. Any transaction or acknowledgement he makes is valid and enforceable against him. He acquires criminal liability for acts committed in such a state, though he can retract his confession made in this state regarding a case of hudéd, as these are pure rights of Allah. The argument provided by the Hanafis is that intoxication is a crime and as such cannot be an excuse for waiving punishments. Further, one reason why intoxication has been prohibited ir that it leads to other khaba ‘ith. Moreover, if the acts of the drunken por- son are to be exempted from liability, it will become a means for the commission of otfenses, and for evading Uability. Relying on the verse, “O ye believers, approach not prayer when you are intoxicated, until you know what you say,”"! they maintain that it is obvious that the khitdd is addressed to the drunken person and he is expected to understand the meaning and import of the verse even whea he ° taxicated, If this is not the interpretation, it would amount to saying to a person under a spell of madness, “Do not commit such an act when you are insane.” It is for this reason that the drunken person is held lable for his acts,
Some jurists are of the opinion that an intoxicated person has no capacity for execution, because his ‘ag! is completely impaired by the state of intoxication, They maintain that the Lawgiver has aleady provided a penalty for the offense of intoxication and holding him liable for his transactions as well, that is, those undertaken in such a state, would amount to punishing him twice for the same offense, & kind of double jeopardy. They argue that the verse about avoiding prayers in an intoxicated state is actually addressed to a sober person
“Qur'ta 4:43
Tueonses oF Istamic Law 99
telling him to avoid becoming intoxicated before the time of prayer, an act over which he has control, as compared to the person subject to fits of madness over which he has no control.
Modern jurists try to prefer the second opinion as it may be closer to some forms of Western law. It must be noted, however, that coneriaene aie 18 x Pome Mt Beltetis a, gd 3 ay Dots po fs the law.
Jest. When a person uses words without intending to convey either their primary or their secondary meanings, that is, their denotations of their connotations, he is said to speak in jest (haz/), Such a person may, for instance, use words employed for the contract of marriage, ‘but does not intend the hukm (effect) of such a contract.
Speaking in jest has no effect on the capacity for acquisition; rights as well as obligations will, therefore, be acquired, The basis of insdnfyah required for this kind of capacity is not altered by jokes.
Hast ot jest cannot negate the capacity for execution either, be- cause such a person has not lost his intellect or discretion, Contracts, on the other hand, require consent and willingness to give rise to legal effects. The person speaking in jest does bring about the apparent form (gighah) of the contract, but has not given his consent in real- ity. The Hanafis, therefore, consider the transactions of such a person as invalid, except transactions like marriage, divorce, manumission, rujd' (retraction), and the like. This is based on the tradition that says, “Three things intended seriously are taken seriously, and if in. tended in jest are also taken seriously; marriage, divorce, and the freeing of a slave.” Some jurists do not maintain this exemption, and treat all statements made jn jost as being ineffective. The Shifi'is maintain that statements made in jest are to be considered valid at all times, because the person has brought about the cause—the sighah (form)—and rust, therefore, bear the consequences.
Folly (Safah). This defect concerns financial transactions, that is, transactions undertaken carelessly and in » manner that a prudent person is likely to avoid. The result is foolish waste and squandering of property.
The tendency in a person to waste his property affects neither his capacity for acquisition nor his capacity for execution. The effect of safah is that a person, who has attained puberty, is subjected to interdiction (hajr) till such time that he mends his ways. This view is upheld by the majority, It is based upon the necessity (darwrah) of
100 The Act and the Subject
preserving his wealth, because preservation of wealth is an acknowl- edged purpose of the law. Aba Hanifah maintains that interdiction can last only till the age of twenty-five, after which the property of the individual is to be delivered to him, because at this age the individual is to be preferred over property.
Coercion and duress (ferah). [krah is a situation in which one is forced to do something without his willingness. It has no effect either on the capacity for acquisition or the capacity for execution, because this state does not affect life or reason and discretion. It does, however, negate free consent and willingness.
Effect on free will. The jurists disagree about the extent to which ikrah can affect free will, The views of these jurists may be classified into two opinions:
1. The first opinion maintains that ikrah is an obstacle in the way of taklif (creation of an obligation). Thus, the khifdb is not directed toward a person under coercion or under duress, because this person is prevented from understanding the khifab. Among those who hold this opinion are Shafi'l jurists, who maintain that free will is a condition of taklif. Ikrah, according to the Shafi'ls, arises under a threat of death, hurt, perpetual confinement, and the like. It does not arise for causes of a lesser gravity, like a threat to property. Jkrdh, defined this way, is in their view, divided into two kinds:
a. Justified coercion. This is like the order of a gadf directing a debtor to pay his debts to his creditors, or his command to a man to divorce his wife after the passage of the period of ié", a8 required by Shafi") law. This kind of ikrah does not affect the free will of a person, as the duty is imposed by the Lawgiver, Thus, any transaction in property un- dertaken under coercion for paying off creditors shall not be declared void, Unjustified coercion. Coercion without justification is again of two types. The first type is where acts commit- ted are legally permissible under coercion, Such acts, if committed through words or deeds, have no legal effect and are considered void. If these acts can be attributed to a third person, then, they are attributed to the person coercing or threatening another. For example, compensa- tion for property destroyed through coercion shall be paid by the person who coerces the other. The second type are
oa
Tweortes or Istamic Law 101
acts that are legally prohibited, like murder, rape, etc. In such cases the person coerced shall be fully liable along with the person who coerced him.
2, The second opinion is held by the Hanafis, who divide ikrah
into three types:
a. First is coercion that negates free will or choice. This is
coercion under threat of death or loss of limb.
'b. The second type is coercion that negates consent, but makes free will irregular or fasid. This is brought about by confinement for a Jong period or by beating and torture that does not lead to loss of life or limb,
. The third type is thrah that does not negate consent nor does it make free will fasid. The example is confinement of close relatives, Some Hanafi jurists do not accept this third category, and link it with one of the categories above, depending upon the nature of the threat to dear ones.
°
Effect of coercion on legal capacity. The Hanafix maintain that the condition of taklif is the existence of the right to choose and not its validity (sihhah). Irregular or fasid free will, they say, is sufficient for the existence of faklif. In all the above cases of ikrah, free will is not invalid (batil) though it may be irregular. Taklif, therefore, may accompany ikrah.
‘To facilitate the understanding of the act, for which coercion is taking place, the Hanafis divide it into three types:
1. Transactions, These are divided into two kinds, on the basis of the effect of ikrdh:
‘&. First are transactions that do not accept rescission, and do not depend upon consent, for example, divorce, manu- mission, marriage, retraction of divorce, zihdr, ia’, ‘afw (forgiveness) in intentional murder, and oath (yamin.) All these transactions are valid under coercion, because they amount to a termination (isgaf) ot relinquishment of a right; and relinquishment cannot be reverted, because these transactions are not dependent on consent.
b. Second are transactions that accept rescission or revoca- tion and depend upon consent. These are like sale, mort- gage, hire, and other commutative contracts. These con- tracts accept rescission and depend upon the existence of
02 The Act and the Subject
free consent. The hukm of such contracts concluded’ un- der coercion is that they are irregular (fasid.) They can be ratified by the coerced party, after coercion has ceased to exist, in which case they are declared as valid (sahih).
2. Admissions and confessions. All admissions and confessions, in order to be valid, must be accompanied by free will,
3. Acts in general. Acts, for this purpase, are divided into two kinds by the Hanafi jurists.
a. First is the case when the coerced is a mere instrument in the hands of another, like a person picking up another and throwing him upon another thereby causing death, or hurt, or causing damage to property. If A causes B to fire at a bush knowing that C is hiding behind it, thus, causing the death of C, then, A shall be guilty of murder, while B will be an instrument in his hand. Other cases can be imagined, In such cases the act is attributed not to the instrument, but to one who caused him to move,
'b. Second is the case when the coerced cannot become an instrument in the hands of another, for example, in the commission of zind or eating of food. In such a case, the person coerced is fully aware of his actions. Here the per- son coerced is guilty of 2ind or for compensating property consumed. In the case of drinking of khamr, however, hadd is waived on grounds of shubhah.
The study of all the four elements of the hukm shar't is now com: plete, and we may move to the examination of the union of primary and secondary rules where the interdependence and interaction of the four elements will be seen.
Chapter 7
The Union of Primary and Secondary Rules
In a previous chapter wo have tried to understand the meaning of figh and of uy! al-figh.! We have analyzed and understood each of the four elements of the hukm shar’é.? It was stated that the law comes into action when all these elements interact. How these elements come together and facilitate the operation of the law may be explained both in terms of Islamic law as well as in terms of positive law. For the explanation of the interaction in law we may recall mentioning the picture of a legal system presented by H.L.A. Hart. It would be instructive to examine some of Hart's ideas in a little more detail. Hart maintains that a society that is run by primary obligation.
creating rules alone is no more than a primitive society. Some addi- tional conditions must be satisfied. These he explains by examining the defects of a primitive organization. The first defect is that when a doubt arises as to what the rules are, and there is no procedure for settling this by reference to an authoritative text or to an official, an uncertainty is created about the rules, This implies that certain rules are required that help remove this uncertainty. The second defect he calls the static nature of the laws, because there is no procedure for deliberately adapting these rules to changing circumstances, “The only mode of change in the rules known to such a society will be the slow process of growth, whereby courses of conduct once thought optional become first habitual or usual, and then obligatory, and the
'See chapter 3, *See chapters 4, 5, and 6,
104 The Union of Primary and Secondary Rules
converse process of decay, when deviations once severely dealt with are first tolerated and then pass unnoticed.”® This shows that some other rules are required that help eliminate the old rules and intro- duce new ones, The third defect of this simple form of social life is the inefficiency of the diffuse social pressure by which the rules are maintained. Disputes will always occur as to whether a rule has actually been violated, If there is no machinery to authoritatively ascertain this violation the system will become inefficient.*
Hart says that “[t)he remedy for all of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules which are rules of a different kind, The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world.”* ‘The remedy for the defect of uncertainty is the introduction of what Hart calls the “rule of recognition.” This rule helps identify all valid taw.® Islamic law has its own rule of recognition, and we will discuss is in the final part of the book at some length. The second defect, that Is, the static naturé of the law is removed by introducing “rules of change.”? Does Islamic law have rules of change? If so, what part of the law is subject to change? As has been indicated earlier, and will be explained in detail in the following chapter, Islamic law has an inner core that is not subject to change. This part of the law has been derived directly from the texts and, therefore, cannot be changed by any other primary or secondary rule. This immutable part, however, constitutes only five per cent or less of the entire legal system. The other part is flexible and revolves around this fixed part seeking its direction, bearings, and principles from the inner core. This flexible part changes with each change in circumstances. Islamic law provides a detailed methodology for effecting this change. The third defect requires for its removal a machinery for identifying viglations, This, of course, is provided by Islamic law. The operation of secondary rules of