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AL-AKM AL-HAMSAH: THE FIVE VALUES

Author(s): KEMAL FARUKI


Source: Islamic Studies, Vol. 5, No. 1 (MARCH 1966), pp. 43-98
Published by: Islamic Research Institute, International Islamic University, Islamabad
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AL-AHKAM AL-KHAMSAH
:
THE FIVE VALUES
KEMAL FARUKI
I. INTRODUCTION1
1. The Term
Defined
The term aUahk?m
al-fehamsah
or
"the five values1* refers to the
system
of
classifying
all human acts and
relationships according
to
their ethical value in order to ascertain the
degree
of their
goodness
or badness in the
light
of Islamic norms.
The
system
in its basic classical form has a scale of five classes
but in its
more
fully developed range,
as
developed by
different
thinkers and
schools, comprises
sub-divisions of each class and
attaches different shades of
emphasis
to each
category.
We shall
return to these finer
gradations later,
but for the time
being
set out
the classical five-fold division of acts
which are
"obligatory11
whose
performance
is rewarded and whose omission is
punished
;
acts
which
are "recommended11 whose
performance
is rewarded but
whose omission is not
punished
;
acts which are
"permitted"
or
whose ethical content is
"indifferent",
for which there is neither
reward
nor
punishment
for their
performance
or
omission ; acts
which
are "disliked" whose omission is rewarded but whose com
mission is not
punished; and, finally,
acts which are
"prohibited11,
whose omission is rewarded and whose commission is
punished ;
this value
or
hukm
being
the moral value attached
by
reference
back
to the Shan ah of Islam,
2. The Islamic Basis
of
the
Concept
The very word Islam
implies
submission or
obedience
(to
the
commands of
God)
and a
Muslim is one
who has so
submitted
or
become obedient and the
Qur'an repeatedly emphasizes
that this
obedience should be to God Alone and cannot be shared with other
purported
masters.
Consequently,
before
taking any
action
a
Muslim is
required
to ascertain whether
any value is attached to
the
act,
positively
or
negatively,
in terms of Islamic norms. This
imperative,
it should be
noticed,
cuts across all lines of demarcation
between the
purely religious
or
spiritual
or
individual,
on
the
one
hand,
and the secular or
temporal
or
collective
on
the other.
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44 KEMAL FARUKI
This
all-embracing
nature of Islamic
injunctions rests, however,
on
the fundamental
proposition
that the basic condition in which
God has
permitted
man to exist is
ib?hah,
the
permission
or
liberty
(to
do
an
act).
This is the
prior presumption affecting any
act
which is
only displaced by
definite evidence from SharVah to the
contrary.
This definite evidence
may
be either towards
discourag
ing
or
prohibiting
the act
altogether
with
punishment possibly
for
infringements
of this and rewards for
obedience,
or on the other
hand this definite evidence may
be towards
recommending
or
commanding
the
performance
of
an
act,
with rewards for its
performance and
possibly punishments
for its
non-performance.
The reason
why
the basic
assumption
of ib?hah is liable to be
displaced
has been
explained
as
being
due to the fact that
man
by
his nature
often seeks what is either harmful for his fellowmen
or
even
for himself due to
ignorance, greed,
laziness
or
neglect.
It is
to
prevent such harm that the condition of ib?hah is circumscribed
by
limits
(hud?d)
and the test of where these limits should be
placed
is
considerations of the benefit of
man whether
singly
or in
society.
Hence all SharVah values
are set out for their beneficial
quality
as
prescribed by God,
the
All-knowing
for man with his
limited
intelligence
and
knowledge.2
These ahk?m are to be
found, primarily,
in the
Qur'an
and be
sides
being
confirmed in the Sunnah of the
Prophet
the Sunnah
alone
sets out other ahk?m of human acts. Certain
ahk?m, however,
while referred to in the
Qur'an
and
Sunnah,
are
susceptible
of
different
significances
and to resolve these
questions
the
ijtih?d
or
disciplined
exertion of those
accepted
as
competent
is
brought
into
play,
which
ijtih?d,
when it coalesces into
a consensus or
ijma
of
ijtih?d,
sets out
the ahk?m
on those
questions
on which difference
of
judgment
has existed. In
yet
another situation the hukm
applicable
to an act is not referred
to
directly
in SharVah and the
necessary SharVah value to be attached
can
only
be established
inferentially by resorting
to
ascertaining (again by ijtih?d)
the
analogical
link
(^as), identifying
in the process
the effective
cause
?illah)
which links the act evaluated in SharVah and the new
act
which is
sought
to be covered
by
the same SharVah hukm.
We
have, therefore,
the clear ahk?m of the
Qur'an,
the clear
ahk?m from
Sunnah,
the ahk?m established
by ijm?K
on
unclear
questions discussed in the
Qur'an
and
Sunnah,
and
finally
the
SharVah ahk?m
applicable
to new situations which are extended
to
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AL'AHKAM AL-KHAMSAH 45
these
new situations
by qiy?s
from the ahk?m set out
by
the
Qur'?n,
Sunnah and
Ijma\
This
is,
in
effect,
the
thought-process
for
ascertaining
Islamic
values
as
it is
recognised
in the structure of classical Islamic
thought,
but before this
process
was thus
systematized,
the
process
was
nevertheless
taking place
and before the classification of values
was set out in its five-fold
system
(with
its
sub-divisions)
values
were
being
attached to acts from Islamic
principles.
The words
or
phrases
used in classical
thought
or in the earlier formative
period
for the hukm for any particular
act will be found to
vary
from
age
to
age
and from thinker to thinker. This will be examined in
succeeding parts
of this discussion. What is desirable in this is to
keep
an
open
mind on whether the differences in
phraseology
are
due to a
development
in the
meaning
of the word
or a
change
in
the value attached to an act.
II. THE
QUR'?N
AND THE FIVE VALUES
The
prior
value that the
Qur'?n
teaches is belief in One God
and
a
tremendous
proportion
of the Book is devoted to an
elabora
tion of the
implications
of this
belief,
first with
regard
to the nature
of God and second the nature of His
creation, particularly
man
and, thirdly,
the
necessary relationship
between the Creator and
His creation that flows from this.
Unless man is suffused
completely
with a ceaseless and all
pervading
awareness of
God,
and both His
unique
and reflectable
attributes,
he is not
likely
to be
receptive
to
understanding
the
quality
of the values set out in the
Qur
an.
The first
verses of the first main
s?rah, al-Baqarah,
deal with
these values in
highly
condensed
form, beginning
with values
pertaining
to belief and then the actions that must flow from these
beliefs. These values are set out for those who have
accepted
the
covenant with God that is
implied
in the
Kalimah, namely, bearing
witness that there is but One God and that Muhammad is His
Messenger
and the elaboration of this covenant that is contained
in the
opening s?rah, al-F?tihaht wherein,
after
bearing
witness
that all
praise
is due to God
Alone,
the Rabb of the
worlds,
the
Beneficent and the Merciful and Master of the
Day
of
Judgment,
the believer in his covenant asks God
to
guide
him on
the
right
path,
the
path
of the
upright,
and
not on the
path
of those who
go
astray
and earn
God's wrath.
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46 KEMAL FARUKI
The invocation in the F?tihah is
a
group
invocation
asking
God to
guide
"us" and "we" ask to be
guided
on to the
path
of
"those" who are on the
right path.
Yet the values that
are
required
of those on the
right
course which are
contained in the third
verse
of the first s?rah after the F?tihah
are values which call for
very
personal
beliefs and acts on the
part
of the
individual, namely,
belief in the
Unseen, maintaining prayer, spending
out of God's
sustenance
(to them),
belief in
previous revelations,
belief in the
revelation
to the
Prophet
Muhammad and
certainty
about the
Hereafter. This
question
of the distinction
between,
and the
correlation
of,
these two facets of man's relation with
God,
the
totality
of believers and the
fragment
of the
single believer,
the
community
and the
individual,
will be considered
again
later
as it
affects our
understanding
of the nature of the
ahk?m,
or
values,
of
SharVah. What is to be
emphasized
at this
point
is that the
Qur'?nic teachings
are addressed to the individual believer
reading
the Book and call for certain beliefs and acts from
him*
the indivi
dual. These beliefs and actions have
community significance
and
imperatives,
and disobedience to these Shan ah values
by
the
individual does call
frequently
for actions of various
types by
the
collective
group against
the
erring individua!,
the
procedure
for
which is also indicated in the
Qur'an.
But these
are
inescapably
subsidiary
to
the
consequences
incurred
by
obedience and disobe
dience which are
earned
by
the individual believers which
are
meted
out in the Hereafter.
Hence,
belief in the
Hereafter,
with its
Day
of
Judgment,
is
given
tremendous
prominence throughout
the
Qur'an.
It is first mentioned in the fourth line of s?rah al-F?tihdh
and then comes
again eight
verses
later in the fourth
verse of s?rah
al-Baqarah,
and then in the
eighth
verse and thereafter reference to
this Hereafter and its
Day
of
Judgment
come with
unceasing
frequency
and
emphasis throughout
the
Quran.
The first
point
to be noticed about the five values in the
context of the
Qur'an
is that there is no exact or
literal reference
to
"five values" as
such to be found therein. What in fact exists in
the
Qur'an
are
references which
support
the basic
presumption
of
ihahah,
or
permission, regarding any
act or
relationship
and there
after
specific
references to
specific
acts and
relationships
which are
stated to be
good
or
bad. In both the
good
and the
bad,
there are
degrees
of
goodness
and badness attached to
them,
far wider in
range
than the five-fold
category,
with shades of
emphasis
that the
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AL-AHK?M AL-KHAMSAH 47
simple
five-fold
category
cannot
convey and, additionally,
the value
attached to an act
by
the
Qur'?n
is
frequently qualified by
reference to the circumstances
surrounding
it. The commission of
certain acts which are
disapproved
of or
prohibited
in
very strong
terms
by
the
Qur'an
are
permitted,
even
enjoined,
in certain
circumstances
and, conversely,
certain acts and
relationships
which
are
strongly
commanded
or
recommended, are,
in
specific
circum
stances,
merely permitted
and sometimes
even disliked
or
prohibited.
Thus,
it is often
impossible
to determine the
Qur'anic
value to
be attached to an act or
relationship
without reference to the
circumstances and to
attempt
to allot
a
precise, rigid, unchangeable
value to an act in isolation would be to do serious
damage
to our
understanding
of the
Qur'anic
value attached thereto. This*
influence of circumstances often finds
expression
in its effect on
the
individual's
feelings
and motives so that what makes
an act
good
or
bad
may
often lie in the inner intention behind the outward act.
Further,
the
Quranic
incentive for
a
believer
performing good
acts and
avoiding
bad ones and the
Qur'anic
threats for
a
person
who
performs
bad acts and avoids
good
ones is
primarily
a
complex
of rewards and
punishments
which will take
place
on
the
Day
of
Judgment
and in the Hereafter. At that
point,
the fine scales of
God's
justice
will be
fully
able to take into account
every
atom of
good
and
evil, leaving nothing out,
whether it concerns
the
externality
of acts or the inner motives and
feelings
that went
into
it,
and
fully capable
of
correlating
the fine
gradations
of values set
out
by
God in the
Qur'?n
to the
gradations
of values to
be attached
to the acts of the believer.
This does not mean
that God's rewards and
punishments
begin
only
in the Hereafter.
They begin
in this world and the
worldly
consequence
of
a
good
act is
good
and the
worldly consequence of
a
bad act is bad. This
Qur'anic
assertion sometimes
appears
to
be
contrary
to our
experience
and it is sometimes held that bad acts
appear
to
bring positive
benefits here and that
good
acts
appear
to
have no
advantage
in this world.
It would be
highly
undesirable
to
minimise the
predominant
place
of the
reckoning
that takes
place
in the
Hereafter,
but it is
intimately
related to this world and the
consequences
of
good
and
bad acts while
finding
its final
reckoning
in the Hereafter neverthe
less
begin
to take effect here.3
One factor which obscures our
appreciation
of the
worldly
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48 KEMAL FARUKI
consequences
of
good
and bad acts is the
importance
we
attach to
serial time. A bad act is
performed by
an individual and we fail to
see the
unfolding
of its evil effects
upon
the individual concerned
immediately.
Another factor
intimately
connected with this is
that
we see
only
the external effects without
being
aware of the
effects
internally
upon
the individual concerned. To
perform
a
good
act
immediately
results in an
internally
beneficial result
upon
the individual and to
perform
a bad act
immediately
occasions
an
undesirable and undesired adverse effect upon
the individual
within himself in terms of his character. In course of time that
internal benefit
or
damage
will express
itself
externally
forali to see.
The execution of God's
Justice
here
begins
at
once,
in this
world,
and culminates in a final
reckoning
in the Hereafter.
The fact that this ultimate
accountability
in terms of both
reward and
punishment
is to
God,
is not difficult to
appreciate and,
additionally,
it is understandable that the reward here for
good
acts
is
essentially by God,
to the extent that reward takes
place
in this
world. It is on the
punishment
for bad
acts,
in this
world,
that
care
has to be taken to
distinguish
between the
punishments
that
are
meted out
by
God Himself and the
punishments
which should
be meted out
by
others for bad acts and
relationships
of individuals.
These
punishments
to be meted out
by
other and
worldly agencies,
in deference" to the
Qur'anic injunctions
to that
effect,
are a
tangible expression
of the
imperatives
of
joint
action called for
from the
Community by
God and
precisely
because of
this, they
are
given
considerable
prominence
in
evaluating
the nature of
Shanah values. Yet there
are
grave dangers
in this. An excessive
concern with the bad acts which call for
community
action can lead
to the
impression
that Islam is
solely
concerned with a series of
negatives
and with
punishments
and this in turn can lead to a
downgrading, relatively,
of the
importance
of the
good
acts for
which no
precise
or visible
worldly
reward is within human
control,
jointly
or otherwise. This in itself
can
seriously damage
one's
understanding
of Shan ah values. God's love of
a
good
act is far
greater
in
intensity
than His dislike of
a bad one. While the
punishment promised by
God for an
evil
act is
only equal
to the
deed,
the reward
promised by
Him for
a
good
act is stated
as
being
ten times
greater
in
intensity,
in relation to the
goodness
of the act
itself as,
for
example,
in the
Qur'?n,
VI
:
160.
In
considering, therefore,
the
Qur'anic
basis for
a
system
of
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AL-AHKAM AL-KHAMSAH 49
categorizing
acts into
a
five-fold
scale,
what is
important
is to
keep
constantly
in
mind,
the
importance
of the results of a?cts not
merely
in this world but in the Hereafter and to insist on the
equal,
if not
prior, importance
of
achieving
the
good
acts as
compared
to
restraining by
word
or deed the commission of the bad ones. To
understand these
Qur'?nic
values in this correct
perspective
and
succeed, thereby,
in
evoking
in
believers, singly
or
collectively,
the
necessary impulse
to obedience towards the
good
ones as
well
as
avoidance of the bad
ones,
in
a manner in
which the external is
an
expression
of the internal and not a
covering
which hides
a
conflicting
internal
reality,
great
care is
clearly required
in
any
aspect
which
might
affect this
perspective
and
relationship.
Care is
required
in
determining
the
principle
on
which enforce
ment of these values
by
a
worldly agency
is
justified
or
commanded,
and
where,
on
the
contrary,
the enforcement is reserved
by God,
either in this world
or in the Hereafter. It is
easy
for the
Community
to
punish
a
transgression
but not
easy
for the Com
munity
to reward a
good
act,
but this does not mean nor
should it
come to mean
that the
prevention
of evil is more
important than
the commission of
good,
nor does the
difficulty
of
rewarding
mean
that the creation of conditions conducive to the
performance of
good
acts should be
neglected
or
thought
to be achieved
merely by
the
prevention
of evil ones.
Goodness is more than
merely
the
abstention from evil
; it is
positive
in
quality.
Further,
the
assignment
of a value to an act within the five-fold
system,
should not be
dependent
on the extent to which this act
can
be enforced or
prevented by Community
action. The fact that
the
Community
cannot
prevent
the commission of
a
certain bad act
does not mean
that it is
merely
"disliked"
as
compared
to
another
act which is
categorized
as
"prohibited" merely
because it is within
the
power
of the
Community
to
prevent
its commission or
punish
those who commit it.4 The five-fold
system has, therefore,
a
scale
of values which must remain unaffected
by
the
ability
of
worldly
agencies
to enforce or
prevent, particularly
when this five-fold
system
is derived from the
Qur'?n,
which is concerned with the
ultimate,
intrinsic
goodness
or badness of an act
;
an
absolute
evaluation which will
meet its absolute and final
accounting
in due
course.
With the
foregoing
considerations in
mind,
we now turn to
examine the manner in which the
Qur'?n
invests
any
act with
a
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50 KE M AL FARUKI
definite
quality.
The
starting point
is the basic
presumption
of ih?hah
or
permission
to do an act which is set out in VII :
32
(and
also
e.g.
in
XVI
:
116)
as a
question
as to who has forbidden the adornment of
God and the
good provisions,
and the
general permission
contained
in V : 4 that all
good things
are
made lawful.
From
being merely permissible
or
allowed,
an act
may move,
through
a
Qur'anic injunction,
to
being positively enjoined
(either
with
punishment
or without
punishment
for
neglect
of
it).
This is
achieved
by
various
ways.
Thus the word 'amr
(command)
makes
an act
positive
as in IV
:
58 where there is the command to make
over trusts to those
worthy
of them and to
judge justly
if one
judges
between
men.
Kutiba
(prescribed)
is used in the same
way for
making
an act
positively
necessary
as in II : 183 on the
subject
of
fasting
or in
II
:
178 in the
matter of retaliation in
cases of murder.
/a
(upon)
also has
a
similar connotation
as in III :
97 where
pilgrimage
is described
as a
duty "upon"
men.
On other occasions
to make
an act
positive,
the
Qur'an
uses
the
imperative
mood
as
in II :
43 where the
imperative
of "establish"
?aq?m?)
is used with
regard
to
worship,
the
poor-rate
and
bowing
down with those who bow down. Yet the use
of the
imperative
does not
by
itself
necessarily imply
that an act is
good
or that there
is an
obligatory
command behind it as in V : 2 where the
imperative
of "to hunt" is used
regarding
the
question
of
hunting
after
having
left the sacred
precincts
and taken off
pilgrim garb.
Yet another
quality
of
using
the
imperative
exists in the
imperative
of "to eat"
used in VI :
142. At other
times,
the
imperative
is used with
conditions attached
immediately after,
which indicate that the
positive
act
enjoined
is
subject
to the fulfilment of the conditions
such
as, "And such of
your
slaves as
seek
a
writing (of emancipa
tion),
write it for them if
ye
are aware of
aught
of
good
in them"
(XXIV
:
33).
On other
occasions,
an act is described
as
"kkayr (better)"
such as
the
remitting
of a
debt
as
alms
(in
II :
280)
or
offering
something
in
charity
before
consulting
the
Messenger (LVIII
:
12)
or
asking permission
and
saluting
inmates of houses before
entering
them.
Kbayr
is also used for
setting aright
the affairs of
orphans
in II
:
220.
Of a
less intense
quality
of
approval
are
phrases
such as
"no
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?L-AHKAM AL-KHAMSAH 51
blame on
you" (l? jun?ha 'alaykum)
and similar
phrases
as
"laysa
harajun"
and
"laysa jun?hun1
the first
used,
for
example,
in
connection with
speaking indirectly
to a
widow
proposing marriage
(II
:
235),
and the latter two
regarding
the
blind, lame,
sick and one
self
eating
at the houses of relatives or those
houses,
whereof one
possesses
the
key
or the houses of friends and of
eating separately
or
together (XXIV
:
61).
The
phrase
"no sin shall be
upon him"
(l? ithma
%alayh%)
is
used,
for
example,
in connection with
properly
advising
a testator
regarding bequests (II
:
182).
In
turning
from the
positive injunctions
to the
negative
ones
the same
range
of admonitions occur. In
strong terms,
certain foods
are
prohibited (har?rn)
in V :
3 and where
lewdness,
abomination
and wickedness
are
forbidden, nahy
is used in XVI :
90. L?
yahillu
(is
not
lawful)
is used in IV
:
19 for
inheriting
the women
(of
deceased
kinsmen).
The admonition of dhar
(forsake)
is used in the
verse
calling
upon believers
to "forsake" the outward sin and the
inward
(VI
:
120).
Another two
(V
:
90-1)
verses call
upon
the
believer to abstain
(ijtanib?)
from
strong drink, games
of
chance,
idols and
divining by arrows,
the
immediately following
verse
giving
the reason for
calling
for this abstention.
Another manner in which
negative
values are
put
down is
by
the
negative
of an
imperative
such as in III : 130 where believers
are
called
upon
"not to devour"
usury. Yet another manner is
by
the
phrase
that there is "no
good" (l? khayra) e.g.
in most secret
counsels
(IV
:
114).
Two
questions
arise from these values which are
assigned by
the
Qur'an.
The
first,
whether
they
can be reconciled in a
rigid
five-fold classification in terms of the
importance
attached to
obeying
or
avoiding acts,
without
doing damage
to the
very hukm
or value attached
by
Shartah. On the other
hand,
the five-fold
classification of
obligatory, recommended, permitted
or
indifferent,
disliked and
prohibited
has certain definite
advantages
in its
clarity
and
simplicity
in
enabling
a
believer to know the value attached to
any
act.
Perhaps
such
a
five-fold division is
desirable as
long
as the
shades of
emphasis
attached to each is not
obliterated
by any
attempt
to
forcibly
make an act conform in all
respects with one
of the five
categories
and it is
appreciated that this value is liable
to alter with certain
changes
in
circumstances.
Thus,
the
eating
of
a
forbidden food is
prohibited
normally
but can move to
being
permitted
or even more
than
permitted
to
recommended or even
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52 KEMAL FARUKI
obligatory
if it was
the
only
food left or available in order to save
a
human life.
Prayer
at stated times is
obligatory
but in the face
of
a
threat to the
safety
of the
Community by
an actual outside
enemy attack, prayer
at such
a
stated time
may
be disliked or even
prohibited,
if
by
its
performance by
the
group
at one time their
safety
was
gravely endangered.
The second
question
that arises is not to allow the
question
of
the
permissibility
or
feasibility
of
punishment
or reward
by
a
worldly
agency
to influence the assessment of the value
assigned
to
an act
by
the
Qur'an.
The fact that the inward sin referred to in
VI :
12 is not
capable
of ascertainment
by society
and
even if
ascertainable
might
not be
capable
of social
punishment,
does not
make an
inward sin less
reprehensible
as
compared
to a
transgres
sion which is
capable
of social
punishment.
There is
a Divine
justice
which takes these matters into full account in this world and
in the Hereafter and ensures that the
punishment
and reward
is
fully
commensurate with the bad
or
good
act.
This is a matter of the
greatest importance,
because
a
study
of
the Book will show that the
overwhelming proportion
of its
exhortations
are addressed to the individual believer exhorting him,
individually,
to certain
acts and away
from certain
acts and with
the
primary emphasis
with
regard
to
sanctions, being placed
on the
system of
Divine
rewards and
punishments.
For instance,
in terms
of
belief,
the two most serious offences
are
nif?q (hypocrisy)
and
shirk
(idolatry
or
pluralism),
yet
the
punishments
for them
are
essentially punishments by
God.
Thus, hypocrisy
is dealt with in the
early part
of the second s?rah
(vv. 8-20),
but the
worldly punish
ment is in the way
God leads them into
increasing
error and
increases the disease in their hearts and
they
are
promised
a
double
punishment
in Hell
(XLVIII
: 6 and IX
:
101).
With
regard
to those
guilty
of
shirk,
God
says, "Surely
God
forgives
not that
a
partner
should be set
up
with
Him,
and for
gives
all besides that to whom He
pleases.
And whoever sets
up
a
partner
with
God,
he devises indeed
a
great
sin"
(IV
:
48).
The
same is
repeated
in IV
:
116.
Indeed,
for both
hypocrisy
and
polytheism,
to ascertain the extent and seriousness of the deviation
away from monotheism
and
uprightness
in terms of faith is
essentially
a
question
which God Alone can
decide.
We have referred
to the fact that the
greater proportion
of
values set out in the
Qur'?n
refers
to
personal
values addressed to
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AL-AHKAM AL-KHAMSAH 53
the individual believer and that the ultimate sanction in terms of
punishment (as well,
of
course,
of
reward)
is
God's,
primarily
in
the Hereafter
and, also,
in this world.
Thus,
in III :
180, referring
to
niggardliness,
the
Qur'?n
states
"they
shall have a
collar of their
niggardliness
on their necks
on the Resurrection
Day".
Later in
IV : 37 such
people
are described
as
proud,
boastful and disbelievers
for whom God has
prepared
"an
abasing
chastisement". The same
"painful
chastisement" is announced for them in IX
:
34 and
a
description
of the nature of this
punishment
in the Hereafter is
given
in the
following
verse. In XLVII
: 38 such
people
are
described
as
being niggardly "against
their
own soul".
Conversely,
those who
are
generous, spending
out of what God
has
given
them are
described in II : 195
as the
people
God loves. In
II :
261,
the
parable
of those who
spend
in the
way
of
God is
described as
that of
a
grain "growing
seven
ears,
in
every
ear a
hundred
grains.
And He
multiplies (further)
for whom He
pleases.
And God is
Ample-giving, Knowing."
To
spend
thus is described
in II :
272
as
being
for the
spender's
own
good
and in II :
274
a
reward
with God is
promised
for such
persons.
In III
:
92 it is stated that
righteousness
cannot be attained until one
spends
out of what one
loves.
The
position regarding prayer
is similar. Both
prayer
and
spending
are
linked
together
with the
greatest
possible
frequency
throughout
the
Qur'?n.
In s?rah
al-Baqarah,
it
appears first
(followed by spending)
in the second verse. In II :
43
onwards,
after
describing neglect
of
prayer
as
neglect
of one's soul and that
prayer is, along
with
patience,
a means of
assistance,
the same
is
repeated
in 11:153. In XI
:
114, prayers
at stated times are
described
as
good
deeds which "take
away"
evil deeds.
Indeed,
in
XVII : 79
prayer beyond
what is encumbent is described
as a
way
in
which God may
possibly
raise to
great
eminence. In XXIV
:
56
prayer
is described
as one of the means
by
which
mercy might
be
shown to a
person.
In XXIX
:
45
prayer
is
^gain
described as a
means
of
keeping
away
from
indecency
and evil and remembrance
of God is described
as the
greatest
force. In
LXII
:
9, hastening
to the
Friday congregational prayer
is described
as
being
"better
for
you,
if
you
know".
These
two, prayer
and
spending
in the
way
of
God,
are
the
most
frequently
mentioned acts
enjoined upon
a
Muslim
throughout
the
Qur
an
and yet
it is not from the
Qur'?n
that any
authority
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54 KEMAL FARUKI
can be
directly
raised for
a
worldly
agent enforcing compliance
with them.
From the
foregoing
it
might
seem
that Islam was
purely
a
personal religion
and
yet
this is
very
far indeed from the truth.
We have referred
already
to the
group
nature of the invocations
contained in the
opening
s?rah and even on
these two matters
just
discussed of
worship
and
spending
out of what God has
given,
the
consequences
of the human responses
to these are social in nature.
Prayer helps
the commission of
good
deeds towards others and
spending obviously
benefits others
immediately.
It
might
be held
that the touchstone of the
goodness
or
badness of
an act is in the
way
it reflects our attitude and actions towards others and
many
acts are
incapable
of
being obeyed,
whether
positive
or
negative
in
nature, except
in relation to others :
justice?to someone, generosity
?to someone
; kindness?to someone, and
similarly
with the
negative acts, envy?of someone,
cruelty?to
someone and
so on.
The act finds its decisive
expression
in a
social context.
Further,
the
Qur'an
makes
frequent
references to
the
ac
countability
of
peoples
as a
group. Simultaneously
with
stating
that
every
soul will come to God on the
Day
of
Judgment "solitary"
as when it was
created,
the
Qur
an states
(at
XLV
:
28)
that at the
Hour one will
see
"every community kneeling
down.
Every
community
will be called to its record. This
day
you
are
requited
for what
you
did."
The same idea of the reward and
punishment
of collective
groups
is set out in the histories of earlier
Prophets
which
are
contained in s?rahs Seven
(The Battlements),
Eleven
(H?d),
Fifteen
(The
Rock), Twenty-six (The Poets), Twenty-seven (The
Bee)
and
Twenty-nine (The
Spider).
Yet
i$ describing
the
punishment
of those
peoples
and towns which
wronged
them
selves,
the
Qur'an
still takes care to mention that those were saved
who were
righteous within these collective
groups,
which were
punished
or
perished.
This
question
of the
group imperatives
which
are
called for
to ensure
compliance
with these SharYah ahk?m
requires
the
greatest
care.
There
are,
broadly speaking,
three
categories
of
acts
; those which have obvious social
implications,
those which
concern more than one
human
being
directly
and those which are
personal
in
nature,
when considered in their immediate
significance.
Thus,
theft is a matter
which has
general
social
implications,
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AL-AHKAM AL-KHAMSAH
55
marriage
and divorce affect
more
than
one
human
being
and
envy
concerns
only
one
human
being.
Of
course,
theft in another sense
is
personal
insofar
as one
considers the
thief,
it concerns more
than
one
human
being
insofar as one
considers the
person stolen from as
well and those
financially dependent
on
him.
Marriage
is
personal
to the extent that
a
sound
marriage
benefits the
person
undertaking
this
step
and
one in disobedience to the values laid down in the
Qur'?m
will
adversely
affect the disobedient one and it is also of
general
social
significance
in
establishing
the
point
at which
society
can
regard
a
marriage
as
valid or not for the
many social matters
for which this
question
becomes of immediate and
practical
significance. Envy,
while
being primarily personal,
affects more
than one,
the envied
as much as the envier when it
begins
to
poison
their relations and
can have social
implications
when it is the
motive behind certain forms of social unrest.
The
Qur'?n clearly contemplates
some form of social
organiza
tion for its Divine purposes
and
urges
believers to
group
themselves
together
in
a
number of
places. Thus,
in III :
103
they
are
urged
to
"hold fast
by
the
rope (covenant)
of God all
together
and be not
disunited" and their
unity
is described as God's favour which saved
them from the brink of fire. The
very
next verse
(III
:
104)
states
that there should be "a
party among you
who invite to
good
and
forbid the
wrong" though
whether this
conveys
more than the
exhortatory
and includes the sense of action to enforce these
objects
without
qualification
is not clear from the fact that
hypocrites
are described in IX : 67
as
doing exactly
the
opposite,
namely enjoining
evil and
prohibiting good. Again
in V :
8,
there is the exhortation to
guide
with
justice
and do
justice.
Clearly good
in IX
: 67
on
the
part
of a believer cannot be
prohibited
in the
sense of
being actually prevented
but
only
in the sense of
urging.
Believers
are
described in this manner of
enjoining good
and
prohibiting
evil in IX : 71 and IX
: 112 and
again
in XXII : 41. In
IV
:
85,
those who "intercede" ina
good
causeare
promised
"a share
of it" and
conversely
those who "intercede" in
an evil
cause are
promised
"a
portion
of it". In IV
:
115 he who is hostile
to the
Messenger
after
guidance
has become manifest to him and follows
"other than the
way
of the believers" is assured that he will be
"made to enter
Hell". The collective
manner in which
a
people
are
responsible
for their
own condition is set out in VIII
:
53 and
again
in XIII: 11 where it is stated that God
never
changes
the condition
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56 KEMAL FARUKI
of "a
people"
until
"they" change
"their" own
condition. In
XVIII
:
28,
the believer is
urged
to
"keep
with those who call on
their Lord
morning
and
evening desiring
His
goodwill,
and let not
thine
eyes pass
from
them, desiring
the beauties of this world's
life."
The
singleness
of the
Community
is asserted in XXI
'
92
as
follows
:
"And
surely
this
your
community
is one
community
and I
am
your
Lord,
so serve Me." That each
community
has its acts of devotion
"appointed"
for it is stated in XXII
:
34 and XXII
:
67. In XXIV
:
55,
God
promises
those who believe and do
good
that He will make them
succeed
(the present rulers)
in the earth and that He will
surely
"establish" for them their
religion. Finally,
in XLIX
:
10,
believers
are
described as
being
"brethren".
Consequently
it is not difficult
to understand that the
Community requires
some forms of collective
organization
particularly
for those matters set out in the
Qur'?n
which have
a
collective
significance,
for
urging
the
doing
of what is
right
and
against
the
doing
of what is
wrong.
That an
authority
or
authorities is
contemplated
is shown in IV
:
59,
where believers are
commanded to
obey
God and His
Messenger
and "those in
authority
from
among you."
As
long
as
the
Messenger
was
alive,
it was clear
enough
that this meant obedience to the
Messenger
and
authority clearly
emanated from the
Messenger
for
anyone
else. As to how the
Messenger
should deal with the
Community,
III :
159 states :
"Thus it is
by
God's mercy that thou art
gentle
to
them. And hadst thou been
rough,
hard-hearted,
they
would
certainly
have
dispersed
from around thee. So
pardon
them and
ask
protection
for
them,
and consult them in matters. But when
thou hast
determined, put thy
trust in God.
Surely
God loves
those who trust Him."
The
question
of how those in
authority
are to be ascertained
subsequently
is
partly
dealt with in the verse
immediately
succeed
ing
IV
:
58
given above, namely
:
"Surely
God commands
you
to make
over trusts to those
worthy
of
them,
and that when
you judge
with
people you judge
with
justice."
As to how such
people
are to be
determined, particularly
when
any
differences exist on the matter
XLII
:
38
lays
down that the "affairs" of believers should be de
cided
"by
counsel
among
themselves".
The
existence, therefore,
of an
authority
or
authorities,
for
the
Community
in its collective tasks is
clearly contemplated
and
certain collective duties
clearly require group organization.
Thus
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AL-ABKAM AL-KHAMSAH 57
in II :
43-4,
there is the
injunction
to "bow down with those who
bow down" and in LXII : 9 there is the command to hasten to the
call for
congregational Friday prayer.
Then with
regard
to the
question
of the
poor-rate
or
zak?h,
the existence of
an
organized
body charged
with its
management
is
clearly contemplated by
IX :60
where the
purposes
for which this
money may
be
employed
include
those
"employed
to administer it".
A third
matter for which
a
group organization
is con
templated
is for
military purposes
of self-defence and the
just war,
such
as a war
for the relief of
oppression
or
against
those with
whom there is no
treaty
or
who have broken their
treaties. The
rules of how Muslims should
arrange
their collective affairs in
such matters are set out in
a
number of
places, yet
even on
such
a
crucial
matter of
survival,
the element of
compulsion by
the
group
against
the reluctant
or aberrant individual is not to be found.
Indeed,
it is stated
(at
IX
:
47)
to be
a
mercy
from God that the
faint-hearted
are
prevented by
God from
joining
the believers in
battle
as such
persons
if
compelled
to
join
in battle would have
added
"naught
but trouble".
A fourth
matter on which
group organization
is
required
and
for which
a
precision
in
understanding
the nature of SharVah hukm
becomes immediately
vital is the
question
of
settling disputes
whether between Muslims
or between Muslims and non-Muslims
or
between those non-Muslims who seek the assistance of Muslim
justice.
For these
questions,
the
Qur'anic
rules about those in
authority being worthy
of the trusts
reposed
in them
apply
to the
judge
as
well and the
principles
on
which the
judges
should decide
as contained in IV
:
105,
IV
:
135 and VI
: 152 are
values which
require
a
group understanding.
In
addition,
there are certain offences for which the
Qur'an
commands
punishments
to be carried out here without
waiting
for
the
punishment
of God with His ultimate
penalties
on the
Day
of
Judgment, though
such Divine
punishments
may
still
additionally
take
place,
of course. Thus action is commanded
against
the
thief,
the adulterer,
the slanderer. A certain form of
group
action is also
contemplated against
the murderer. Such action is
clearly obligatory
but the
exact nature of the action to be taken is
dependent
on
certain circumstances amongst which
are
the
question
of
repentance,
evidence of
a
desire
to
reform,
the
willingness
of the
injured party
or his survivors
to
accept
other than retaliation,
in
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58 KEMAL FARUKI
kind.
Other matters on
which the
Qur'?n
calls for definite action
concern the
orphan,
infant and
imbecile,
and their
protection,
and
for
a
number of matters
which
are
definitely
of a
family
nature
such as
marriage, divorce,
inheritance. To a certain extent it is
arguable
that what the
Qur'?n contemplates
are bilateral arrange
ments or
multilateral arrangements
between the
parties
immediately
concerned on the basis of the
Qur'?nic
rules,
but whether the
arrangements should be such
or should be
regulated by
the
Community
in
general
is determinable by
reference back
to follow
ing
the
example
of the
Prophet
and the
verse cited earlier XLII
:
38
of
deciding
such matters
by
consultation.
The
Qur'?nic
values then for all other
matters are,
at first
glance, primarily personal
in
significance.
The
extent to which
they
become
socially
enforceable
or
preventable
is
not to be found
from the
Qur'?n specifically
for each matter but
rests on the
socially-oriented
verses set out above in
general
terms and
must
always
be read in
conjunction
with the other
verses set out before
them on
the
importance
of God
s
justice
in this world and the
Day
of
Judgment.
To obtain indications of how the distinction is to be drawn
after
a
value has been extracted for
an act from Shartah
as to the
extent it moves from
being
a
purely
moral exhortation resting
on
the
hope
of Divine reward and fear of Divine
punishment
to
being
an
enforceable value or
rule
by
the
Community,
we now turn to
a
consideration of how these values
were understood
by
the Messen
ger
of God.
III. THE FIVE VALUES
AND SUNNAH
We have observed that the
Qur'?n
invests
acts
with certain
values,
primarily
in
a
personal
sense to the individual believer. At
the same
time,
it
lays emphasis
on the
question
of
group
responsibility
and indicates how the
group
should settle
differences,
how the
group
should
set
up
authorities
to administer
community
affairs and indicates certain
matters
on
which,
without
doubt, group
action or
multi-lateral action,
in this
world,
is called for from
believers. A
great
deal of what these values call for in concrete
and detailed terms is inevitably
left unsaid and has to be
inferred or is
implied
or
requires exemplification.
This is the
context in which Muslims
are called upon
to
obey
the
Prophet
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AL-AHKAM AL-KHAMSAH
59
(IV
:
64,
IV :
69,
XXIV
:
62) ;
in which he is described
as
bringing
men
from darkness to
light (LXV: 11) ; in which he is stated to have
a
greater
claim on believers than themselves
(XXXIII
:
6);
in which he
is to be consulted
(LVIII
:
12);
in which he is described
as
coming
to
settle differences amongst
nations
and,
a
ftrtiori, amongst
the
Muslims themselves
(II
:
213);
and this is the context in which he
is described
as an
excellent
example (XXXIII
:
21).
For those fortunate
to live
during
the
Prophet's time,
these
imperatives
were easier to
obey.
Whenever any
doubt
or
flicker
of a
doubt
arose in the heart or mind of
a
believer in those
times,
he could
go
to the
Prophet
for
guidance who,
in the context
of
the
situation, gave
his advice. The advice
having
been
given,
obedience
immediately resulted, although
even in the
Prophet's
presence,
consultation and discussion took
place and,
in
fact,
was
enjoined by
the
Qur'?n (III
:
159). Yet,
for the
rare cases when
there
were
people
who turned
away
from the
Prophet's advice,
the
Qur
an
constantly
reminds the
Prophet
that he is but a warner
(VI
:
50),
to
forgive
his enemies
(XV
:
85),
to be steadfast in
preach
ing (XLII
:
15),
and that
guidance
of
even those the
Prophet
loved
was
entirely
a matter of God's decision
(XXVIII
:
56).
For those Muslims who come after the era of the
Prophet,
these value
judgments
about acts
acquire
a more
complicated
significance.
For
one
thing,
no
worldly authority
after the
Prophet
could
hope
to obtain the same
degree
of
obedience, willing
or
otherwise. Further,
differences which in the
Prophet's
time were
speedily
settled
by
reference to the
Prophet,
could no
longer
be
referred to such
a
final
worldly adjudication.
In these
changed
circumstances such differences
are an invaluable aid in ascer
taining
truth.
Obviously,
where ten
opinions
exist on a matter
it would be fatal
to eliminate nine
opinions
in favour of the
tenth without any certainty
that the tenth is correct.
Indeed,
the truth often
emerges
as an
amalgam
of the ten
opinions
and until that
synthesis
takes
place (which might
then
only
be re
lative
to the conditions
extant at the
time)
the differences have to
be allowed
an
interplay
in the cause of
understanding
the truth.
The
point
at which these differences
acquire
acute
urgency
is
where the values concerned have
group significance
and
group
effects, ceasing
to
merely
concern an
individual,
the
point
at
which
pure morality
and law meet. This
question
of
personal
and
group
value classification has
already
been raised before and will come
up
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60 KEMAL FARUKl
again
with
increasing frequency, for,
the entire
significance
of the
system
of value classification whether into
a five-fold division
or
more or less than five
depends
upon it. The immediate
point
at
which this
question
of differences arises is on the
authenticity
of
our
knowledge
of the
Prophet's
Sunnah itself.
The immediate
sources of our
knowledge
are
the standard Hadith
compilations
of
the second and third centuries after the
Prophet's
death.
Clearly,
however,
these have to be harmonized with such information
as
we
derive from
biographies
both of the
Messenger
and of his
Companions
; from histories of the times ; and
an
understanding
of
the
sociological
conditions which existed at that time. An
alleged
Hadith which is in flat contradiction to all the evidence about the
sociological
conditions which existed is
necessarily
suspect.
Hadith
is
only
a
portion, then,
of the means of
ascertaining
the
example
of
the
Prophet.
Even in Hadith
itself,
differences arise as to whether
a
certain Hadith is authentic
or not and even where two Hadith
s
are
generally accepted
as
authentic, they may
be in such
striking
contrast to
each other that either
one of the two is
necessarily
false or
they
are
related to certain
differing
circumstances in such
a
way
that their value
can
only
be understood
once the circum
stances are
known. These circumstances are not
always
known
from
any
source
let alone from the
Hadiths concerned themselves.
Even more
serious
are
alleged
Hadith which contradict the
Qur'an
itself. The
punishment prescribed
for fornication in the
Qur'an
and the
punishment alleged
to have been
prescribed by
the
Prophet
are so
different as to occasion serious doubts as to the authen
ticity
of the Hadiths
concerned, regardless
of their
frequency
or
strength
according
to the chain of narrators or
otherwise.
Finally,
the
very
fact that these Hadith
compilations
came
into
existence,
and their
compilers lived,
two centuries after the events
they
seek
to
record makes it almost certain that
interpolations
have
crept
in. An
equivalent
time-interval in the case of the Bible
(of
almost
equal length)
is the main
evidence that the Bible cannot be
regarded
as
absolutely
authentic. The Hadith doctors did
use
methods of
sifting spurious
material on the basis of certain rules
of
external criticism but not internal criticism and the
presence
of
the criterion of the
Qur'?n, doubtless, helped
in
minimizing
the
extent of
interpolation. Nevertheless,
the continued existence of
spurious
material in Hadith
compilations
cannot be
doubted,
even
when
judged against
the criterion of the
Qur'an, apart
from
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AL-AHKAM AL-KHAMSAH 61
historical and internal criticism.
Bearing
the
foregoing
considerations in
mind,
the
development
of the
system
of value-classification from the
Qur'an,
as
contained
in Sunnah and
as recorded in Hadith
can be considered. The first
point
to be noticed is that the
Prophet,
in
commenting
upon any
matter,
laid the
greatest
stress
upon
the rewards and
punishments
that
are with
God,
often to the total exclusion of
any
reference
to
a
punishment
(let
alone
reward)
in this
world,
either at his
own
hands
or otherwise.
This is noticeable
on the matter of the first essential of
Islam,
namely,
faith. From the numerous
Hadiths
on
the
matter,
it can be
said that the ultimate
punishment
is to dwell in Hell for ever
for a
breach of the main essential of
faith, namely,
not to associate
aught
with God and that for other
breaches, forgiveness
and the
promise
of Paradise is
possible,
in due
course, after
repentance
and
chastisement.
What is characteristic of Hadith is the manner
in which it
shows how abroad and
simple proposition
like faith has
many
ramifications and that
many
of the most
everyday
acts or omissions
to act are
part
of faith. A
representative example
of this is the
following
Hadith found in both Bukh?r? and Muslim on the
authority
of Ab?
Hurayrah
:
"The
Messenger
of God
said,
'He does
not
truly
believe in
God,
he does not believe in
God,
he does not
believe in God1.
He
(Abu Hurayrah) questioned, 'Who,
O
Prophet
of God V The
Prophet replied,
'He whose
neighbour
is not safe
from his
injuries'."5
On
worship,
not
merely
is the
essentiality
of
worship repeated
at
greater length
in
Hadith,
but its
modes,
its kinds and the
relative
importance
or value attached
to these different kinds is set
out.
Worship
is
constantly
mentioned in the
Qur'an
until there
can be no doubt that it is
morally obligatory.
A certain amount
about the direction of
prayer,
the times of
prayer,
the
preparations
for
prayer
and mode of
performing
prayer
can be found in the
Qur'?n
but the full details
come from Hadith and
by
this th?
manner in which
a
morally obligatory
value is
to be
obeyed
is
indicated.
Similarly
with
spending
out of the wealth which God
has
pro
vided,
both in terms
of zak?h and otherwise. Yet
even on
this
matter, which has
group significance
in
a
very
direct
way,
the
Hadith in
commanding
Muslims to
pay
zak?h refer to the
punish
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62 KEMAL FARUKI
ment in the Hereafter for the disobedient and to the fact that with
holding
zak?h from one's
property
in
worldly
terms
destroys
the
remainder of the
property by
the
operation
of God's laws.6
Only
in the time of Abu Bakr is there
any
account of forcible collection
of zak?h.7
The
point
this illustrates
is that
Hadith,
like the
Qur'?n,
with its
emphasis
on Divine reward and
punishment
in
these three matters which
are the most
important?faith,
prayer
and
spending
out of God's
provision
toman?is
pre-eminently setting
out a moral code of conduct and
a moral
system
of
values,
whose
connection
(and,
of course,
direct influence on)
the
legal
codes
that
are
necessary
for
community-life
has still to be
defined.
The Hadith contain references to action in this world in
family
and
community matters,
but there is no
way
of
ascertaining
from
the Hadith themselves
as to whether the
Prophet
took action
on
his own or
gave
advice after it was
sought
and thereafter if the
advice was acted
upon without
any
further
enforcing agency being
necessary.
Where commercial transactions
are concerned the
Hadith
are
remarkably
similar in
recording
that the
Prophet pro
hibited certain kinds of
transactions, usually
without
going
into
the
question
of whether
they
were
regarded,
in
legal terminology,
as
cognizable
or
non-cognizable.8 Again,
the
punishments
for
infringements,
where both
parties
have no
need to seek
group
assistance,
are
normally
set out as
being punishments
on the
Day
of
Judgment.
In terms of
recognition by
the
Community,
the
qualities
of
f?sid (invalid)
and b?til
(void
ab
initi?)
are
employed
but,
without further
evidence, they
can
only
be
regarded
as
coming
into
operation
once the incidents of
a
transaction
require
the
assistance of
community agencies.
This is
important
to note because the Hadith value
given
to
a
commercial transaction remains identical with the value
assigned
to a
personal act, frequently
without further elaboration. For
instance,
in both Bukh?ri and
Muslim,
on the
authority
of
Hudhayfah,9
it is related that the
Prophet "prohibited" drinking
from
gold
and silver
cups
or
eating
off
gold
or
silver
plates,
the
wearing
of silk and coloured silk clothes and
sitting
on
objects
made from silk. In similar
language,
there are Hadiths
prohibiting
certain
types
of commercial transactions such
as the sale of a
known
quantity
for an unknown
quantity
or
price, applicable
to
fruits,
corn or
grass.
The word
"prohibited"
as
used in such
Hadiths for the act of
sitting
on a silk cushion
and,
at the same
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AL-AHKAM AL-KHAMSAH
63
time,
for
indulging
in
speculation
or
profiteering
in commercial tran
sactions, obviously
carries different
degrees
of moral
reprobation
particularly
when this is correlated to
the
question
of
legal
measures
and the nature of the inducement or
deterrent,
if
any,
to
be
applied
to the
question by
the
Community.
Even the same act
acquires
different moral values in
different
circumstances.
Thus,
even on
such
a matter as
theft, although
always prohibited,
the
degree
of moral
reprobation
attached to
it varies
according
to whether the thief is
a
slave or
not,
accord
ing
to the Hadith found in Abu
D?'?d,
Nasa1! and Ibn
M?jah
on
the
authority
of Abu
Hurayrah
that such
a slave should be sold
for 20 dirhams10
or
the Hadith in Ibn
M?jah
on
the
authority
of
'Abd Allah b. Safw?n and in D?rimi
on the
authority
of Ibn
'Abbas11 where a
complaint
of theft was
lodged by
Safw?n b.
Umayyah against
a man
before the
Prophet and, thereafter,
the
complainant
stated that he did not wish the
punishment
for theft
to be levied
against
the thief and would rather consider the stolen
articles
as
given
in
charity.
The
Prophet
then
reproached
the
complainant
for not
having
informed the thief
accordingly
before
bringing
a
complaint.
This is the basis for the rule found in certain
schools that the owner of the stolen
property
can remit the
punishment
for theft. This same influence of circumstances
on
the
value attached to an act can be found in the remittance of the
punishment
for theft
by
'Umar ibn al-Khatt?b
during
a
time
of famine.
Through
the enormous amount of Hadith
literature,
there are
two
dominating
characteristics discernible. The first that the re
wards and
punishments
of the
Day
of
Judgment
are the dominant
elements to
bring
about obedience
to the values of Islam
and,
secondly,
that
a
tremendous
importance
is attached
to acts which
are almost
purely
moral in
quality
and, rarely,
if
ever,
capable
of
being
subsumed under
an enforceable worldly legal system,
how
ever much these moral acts must affect the
legal system.
This is
typically
shown in the ah?dith
on
'adab> abuse, anger,
disdain,
flattery, gratefulness, honesty,
salutation and
speech, envy,
for
giveness, hospitality, haughtiness, humility, hypocrisy,
incantations
and
magic, intention,
the
k?hin, knowledge,
the
use
of
a
kunyah,
laughing, weeping, lying,
use of
lights,
earning
one's
livelihood,
use
of
medicines, modesty,
monasticism,
covetousness, mourning,
muni
ficence, music,
treatment of
neighbours,
use of
onions, painting (by
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64 KEMAL FARUKI
women), patience, passion, peacemaking, perfumes, poetry, praise,
quarrelling, recluses, saluting
and
salutation, scorpions
and
serpents,
putting
cn of
shoes, visiting
the
sick, speech
and
silence, spitting,
tattooing, toilet,
use of the
toothbrush, planting
of
trees,
use
of
certain kinds of
vessels,
and
weeping.
With
regard
to those which
carry
an
enforceable, worldly
legal imperative,
two factors have to be
clearly kept
in mind. The
first that
no clear
picture
of the ahk?m from Hadith will be
possible
until considerable research has
separated
out the
spurious
Hadith
from the
genuine
ones
and, secondly,
when the
genuine
ones
have
been
clearly
identified and there
are
still contradictions between
one
compilation
and another or even within one
compilation,
the
only
way
of
reconciling
these
apparent
contradictions is to relate
the Hadith to
specific
circumstances. These are not often found
in the bare recitals that have
come down
to us
and, again,
consider
able research must be made before the Hadith can
be reconciled
according
to the different circumstances that occasioned them.
Meanwhile the
question
remains
as to the immediate basis of
understanding
Hadith in order to ascertain the values attached in
Sunnah to acts or
relationships.
It can
safely
be laid down
as a
rule that
any
Hadith which
attempts
to override
a
Qur'?nic
rule
must be
regarded
as
spurious
and
inapplicable
and that where social
relationships
are
concerned the bare minimum
legally
enforceable
rules should not violate the minimum laid down in the covenants.
These
are
basically
four in number and nature. The first
pledge
of
'Aqabah
on
the
subject
of what Muslims bound themselves to inter
se, namely,
to eschew the
worship
of
idols, stealing, adultery,
infan
ticide,
slander and disobedience and that rewards and
punishments
are with God ; the second
pledge
of
'Aqabah regarding
the
question
of
fighting
for the sake of the cause of
Islam,
in defence and for the
protection
of the
Prophet, subject
to the observance of
any
treaties
that may
have been made ;
thirdly,
the covenant of Medinah between
the
Muslims,
the Medinese and the
Jews,
which
regulates
the basis
of Muslim
relationships
with non-Muslim
groups
both within the
area of the Islamic state and without ; and, finally,
the
undertaking
obtained from the
assembly
at
Mecca,
on the occasion of the last
pilgrimage
of the
Prophet,
in which the
Prophet
laid down the
essential rules of
conduct, namely,
the
inviolability
of lives and
property,
the mutual
rights
of husband and
wife,
faithfulness
to
trusts and the avoidance of
sins,
the
prohibition
of
usury,
the
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AL-AHKAM AL-KHAMSAH 65
prohibition
of
blood-vengeance, good
treatment for slaves and the
brotherhood that must exist between Muslims in which
nothing
was
lawfully gained
which was not
given freely
and
a
warning
against committing injustices.
IV. EARLY DEVELOPMENT OF THE FIVE VALUES
(a)
The Orthodox
Caliphate
From the death of the
Prophet (11/632)
until the end of the
Orthodox
Caliphate (40/661),
the ascertainment of Shartah values
rested
primarily
on
the
caliphs themselves, guided
as
they
were
by
the
assembly
of elders
and, indeed,
at times
by
the assembled
congregation
of
Muslims, To
a
great extent,
no
need was seen
for
any
elaboration of the
Prophet's practice.
In
Medinah, particularly,
the circumstances remained
unchanged
and it was
only
with the
absorption
of
Iraq, Syria,
Palestine and
Egypt
that new
problems
called for solution. These were to a
large
extent dealt with on
an
ad hoc basis
and, from the time of 'Umar b.
al-Khaft?b,
the
newly
formed
system
of
judges
dealt with such
cases
that came to
them for decision.
The earliest
legal
thinker of whom
we
have
any
knowledge
is
Hamm?d
(d. 120/738),
whose
period
of
activity may, therefore,
be
said to have
begun
about half
a
century
after the end of the
Orthodox
Caliphate.
Prior to
that time are the
caliphs
on one
hand and the
judges
on the
other,
whose decisions were the raw
material for later
systematization.
The
caliphs themselves, however,
left certain decisions for
posterity
which
provide
some
evidence of the
atmosphere
which
prevailed
at that time and which
may
be said to a
large
extent
to
reflect the attitude of the
Prophet
himself to such
questions.
What is
equally
of interest is the
legal interpretations put upon
such decisions
by
later scholars. The so-called wars of riddah
waged by
Abu
Bakr,
for
example,
can
be
clearly
shown
historically
to have been
wars not
against apostates
but
against
those who
treacherously
broke their
covenants, yet
later
legal
scholars
by
failing
to
distinguish
between
apostasy
and
treachery
in this were
obliged
to derive
legal
values
regarding
the
worldly punishment
for
apostasy
which are at variance with the clear statements of the
Qur'ln upon
this matter.
The
period
of the
Caliph
'Umar
gives
two
examples
in
particular
of how circumstances were considered to
justify
a
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66 KEMAL FARUKI
departure
from
previous practice. Thus,
the
punishment
for theft
was
mitigated during
a
period
of famine
by
'Umar and the
triple
divorce
was considered to be
binding
and irrevocable when
pronounced
at one
session.
Clearly
'Umar did not
forget
at
any
time the
higher
moral
principle
behind a
Shan ah value and was
concerned with
seeing
that the law was
subservient to that moral
universal.
A
superficial
evaluation of 'Umar Y
changes might
hold
that he
departed
from the
example
of the
Prophet.
This
obviously
was
just
not true. 'Umar
was
in fact
following
the fundamental
example
of the
Prophet
which
governed
the
application
of SharVah
values, namely,
that the
legal
rule to be enforced
may vary from
case to case or as a
result of
a
change
in circumstances if this
was
necessary
to ensure
that the moral
norm was
dominant and
controlled the
legal
rule.
From the time of 'Uthm?n
comes another event of
importance
in
seeking
to ascertain Shan ah
values, namely
the recension of
the
Qur'?n.
The fact that
discrepancies
were
making
themselves
apparent
in
readings
of the
Qur'?n
and that a real fear existed
that if unchecked there would be
conflicting
versions of the
Qur'?n rightly
led to the
ordering
of an authorised recension
of the Book which has remained
unchanged
and
unchallenged
in
authenticity by
the
great
mass of the Muslim
Community
to this
day.
Yet this event illustrates how the same
divergencies
in the
accounts and narrations of the
Prophet's
Sunnah must have been
taking place
as
well. The
Qur'?n being readily memorisable,
in a
fixed order and
a recension
having
been made within
twenty
odd
years
of the death of the
Prophet,
the risk of variations
was
averted. But in the
case of
Had?th,
it is
not,
in its
entirety
capable
of
being memorised, owing
to its
length
and the fact
that there is no
agreed
order about it. In
addition,
about two
hundred years
elapse
between the time of the
Prophet
and the
reducing
of his Sunnah into written
compilations.
We are
consequently obliged
to check
on the
veracity
of
any
Had?th
by
reference to that which is not
subject
to
doubt, namely,
the
Qur'?n.
To do the
reverse, would be to
judge
what is certain
by
what is not
certain.
This,
of
course,
has
important implications
in
evaluating
any
Shan ah value which is based
on an
alleged
Had?th and fails to
find
support
in the
Qur'?n
even
indirectly
or
by analogy
or is at
variance with the
Qur'?n.12
Finally,
from both 'Umar and later from 'All the
organization
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AL-?HKAM AL-KHAMSAH 67
of
judicial
administration and the establishment of
a
regular
police
force and
prisons
for the first
time,
introduced new
methods
of social control and
punishment
for those ahk?m for which
worldly
punishment
or
control
were
prescribed. Again, here,
can
be
observed the
importance
of
placing prior emphasis, by
the orthodox
caliphs,
on the moral universale and
regarding
the
legal
incidents
arising
from
them,
where
applicable,
as
being
subservient to
achieving
the moral
object.
The nature of the control exercised
or the
punishment
invoked
was variable with
varying
circumstances
or
changes
in social
organization,
if it was
necessary
to better
implement
the moral
enduring principles
on
which the law
was based.
(fc)
The Earliest
Legal
Thinkers
0)
Al-Awza?. As
mentioned,
the earliest
legal
thinker of
whom we have
any knowledge
is Hamm?d
(d. 120/738),
followed
by
Ibn Abi
Layl? (d. 148/765)
and Aba Han?fah
(d. 150/767).
The
teachings
of Abo Hanifah
are contained in the
writings
of his two
disciples,
Aba Yasuf Ya
qab (d. 182/798)
and Muhammad b. al
Hasan
al-Shaybani (d. 189/805).
But before
considering them,
reference should be made to al-Awz?'? whose
Syrian
school has
been extinct for many
centuries. He died in
157/774
and
none
of the school's final
writings
are now available ;
our
knowledge
thereof
being only possible
through
the references found in the
writings
of others. Aba
Y?suf,
in his al-Radd 'ala
Siyar
al-Awzai
discusses al-Awza'i's
use of values which at that stage were,
obviously,
not in the
systematized
form we find later. The
early
scholars
were
concerned with
examining generally
whether any
act
was beautiful or
ugly, good
or
bad,
liked
or disliked but in
describing any
act
by
such
phrases
or
words, they
were
primarily
evaluating
its moral
quality.
It had little
or no connection with
legal enforceability by
the
Community
or whether reward
or
punishment
was
likely
to result whether in this world
or the next.
As far as this world was
concerned, punishment primarily
rested
either
on the ruler of the
day
or on the
judges appointed by him,
who
might
be influenced
by
the evaluations of the
legal
scholars but
who
were neither
particularly systematic
nor uniform in their
legal
decisions. The
legal system
which was
beginning
to
emerge
from
the moral universale
was itself in an
embryonic
state.
This is illustrated in Ab? Y?suf's
quotation
of al-Awz?'i
on
the
selling
of female
prisoners
of war. "The Muslims did not
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68
KE M AL FARUKI
consider
any harm
(basa)
in
selling
female
prisoners
of war.
They disapproved
of
(yakrah?na)
the
selling
of
captives except
when
they
are
exchanged
for Muslim
prisoners."13
The
phrases
"no harm" and
"disapproved"
were
clearly
of
a
moral
quality
and did not
possess any legal imperative.
The same
attitude
is
brought
out
(at p. 68) when
al-Awz?'i is
quoted
:
"If
a
slave
fights alongside
his
master,
his
protection ?am?n)
is
permitted
(jaiz).
'Umar had
permitted
it
(aj?zahu).
He did not take into
consideration whether he
fought
or
not."14
In another
place al?Awz?'i
uses
the word hal?l
(lawful)
(at p. 70)
as
follows: "If an imam
(political leader)
declares
(in war) 'whatever
a man
receives, belongs
to him* and
a
man,
(for
instance)
received
a
slave-girl,
he can have sexual intercourse
with her in
enemy territory.
This is lawful
(hal?l)
from God
because the Muslims
practised
this with the female
prisoners
they
had
received in the battle of Banu
'l-Mustaliq,
in the
company
of
the
Prophet
before
they
returned to Muslim
territory."15
Al-Awz?'i, however, appears
to have been
emphatic
and strict
in his evaluations and the
prevailing
attitude was
clearly
inimical
to
such
dogmatism
as can
be seen from Abu Yusuf s
criticism of
the use of the terms hal?l
(lawful)
and har?m
(forbidden)
as
follows
:
"What
a
great (i.e. presumptuous)
statement of al-Awz?'i
is,
'This is lawful
(hal?l)
from God*. I found
my
teachers
to
have disliked the
practice
of
saying
in their
decisions,
'This
is
lawful
(halai)1
and'This is forbidden
(har?mT except
that which
is
mentioned
expressly
in the
Qur'an
without any commentary
(taf sir);*1*
Awareness of God's
ability
to
judge
and reward and
punish
was
ever-present with the earlier
generations
and the
thought
that
the
Community
or
individual thinkers should
attempt
to
arrogate
to
themselves such tasks of
judging
acts when no
authority
or
community-necessity
existed for
doing
so was
repugnant
to them.
They
feared for themselves in
attempting
to do so. This is
brought
out in Ab? Y?suf
s
quoting (at
the same
place)
the observations
of
Rabi' b.
Khaytham,
an
eminent successor :
"One should
not
say
that 'God made it lawful
(hal?l)
or liked
it,
then God would
say
to
such a
person that He did not make it lawful nor
did he like it.
Similarly,
one
should not
say
that 'God made it forbidden
(har?mY
for then God would say
that he told a lie and that He did not
make it unlawful nor
did He forbid it."17 Ab? Y?suf then refers
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?L-AHKAM AL-KHAMSAH 69
to Ibrahim al-Nakha'fs
reported description
of his
companions
that,
whenever
they gave
some
legal opinion, "they
used to
say,
'This is
disapproved (makr?hY
and There is no
harm in it
(l?
basa bihiy."
If
we
say,
'This is lawful
(hal?iy
and 'This is
forbidden
(har?m)'
what
a
great (i.e. presumptuous)
statement
it would be.18
Nevertheless,
Aba Yusuf and other
Iraqians
use the
words
"har?m" and "hal?l" which makes the criticism
against
al-Awz?'i
for their
use a matter of considerable interest. The
strength
of
Aba Yasuf's condemnation
of al-Awz?'i
on this makes it
unlikely
that Abu Yasuf would
have used the
very
same words in the same
sense or
implications
of al-Awz?'i.
What
appears
to have been
the
gravemen
of Abu Yasuf's charge against al-Awz?'i
was not the
mere use of
phrases
indicating permissibility
or
non-permissibility
which
are
clearly
unavoidable
in
any attempt
to extract
values,
moral
or
legal,
for Muslims,
but the fact that al-Awza'i in
evaluating
acts
emphatically
invoked the
authority
of God for his
views when nothing
in the Word of God was so set out on the
matter in
question.
Whenever Aba Y?suf
uses such
emphatic
language regarding
an act and invokes the
authority
of God it was
only
where there
was
Qur'?nic authority
for
doing
so.
This difference
between
the
Iraqians
and al-Awz?'i is
brought
out
by
Aba Y?suf
in
setting
out the
conflicting
views of Aba
Hanifah
and al-Awz?'i
on the
question
of the
purchase
of
a
slave-girl
in enemy territory
and the
purchaser having
intercourse
with her while still there. While Abu Hanifah expresses
his view
without asserting dogmatically
that his view was the command of
God,
al-Awz?'i
does not hesitate
to claim that his view had the
sanction of
God,
thus: Aba Hanifah
said,'If
two
persons
come
out of the army and obtain
a
slave-girl
and while the
army
is still
in the
enemy's territory,
one of them
buys
the share of the
other,
it is not
permissible
and the
purchaser
should
not have intercourse
with her." Aba Yasuf then
sets down al-Awz?'f
s
reasoning
on the
same
question
and
on Abu Hanifah's views : "One should not make
unlawful what has been made lawful
by God,
because the
purchaser
had the sanction of God
(ahalla)
for
cohabiting
with her. This had
been the
practice during
the
Prophet's
time and after him. In the
battle of
Khaybar,
the Muslims went to the
Prophet,
while
?afiyah
was
standing
besides
him,
and asked ;
Prophet
of All?h ! would
you sell the
daughter
of
Huyy (Safiyah)
?' He
replied,
'She has
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70 KEMAL FARUKI
become your
sister'. Therefore the Muslims returned
. . .
."19
A
revealing
illustration is
given by
Aba Y?suf of the fact that
the
early
scholars in
using
these
words,
which later
came to have
a
fixed
meaning,
did not
regard
them in
any
fixed sense as
follows,
"Aba Hanifah
was once
asked whether a
Muslim could
purchase
the land of
jizyah.
He
replied,
It is
permissible
O'?'iz).
Al-Awz?'i
said,
'The leaders of the Muslims used to forbid
(yanhawna)
this
practice
and had been
writing
on it. Their 'ulama
disapproved
of
it
(yakrahu)'."20
Al-Awz?'i here uses
first the word "forbid" and
follows it with the word
"disapproved"
for the same value attached
to this act*
Finally,
in
comparing
the
approach
of Aba Hanifah and
al-Awz?'i,
the
following
in Aba Y?suf illustrates how Aba
Hanifah,
and the
Iraqians generally,
dealt more
realistically
with the
problems facing
Muslims in their relations with non-Muslims while
al-Awz?'i,
and the
Syrian school,
failed to do so.
Perhaps
the
later contrast in the fate of the two schools
may
largely
be
explained by
this difference in
approach
; both
early
schools
being
concerned with non-Muslim societies in
a
real and
urgent
manner
in
new situations
beyond
Medinah
: "Aba Hanifah
said,
If a
Muslim
enters
enemy territory
with
protection
and sells
a
dirham for
two,
there is no harm in such
a transaction
(lam yakun
hi dh?lika
ba'sun).
. . ..
Al-Awz?'i said,
Rib? is forbidden
(har?m)
for him in
enemy
territory (ard al-harb)
as well
as in other
(i.e. non-enemy) territory,
because the
Prophet
remitted the rib? of the
people
of
j?hil?yah (the
days
of
ignorance)
which remained due after Islam.
First,
he
remitted the rib? of al-'Abb?s b. 'Abd al-Muttalib. How, then,
can a
Muslim
regard taking
rib?
as halal
among people
whose blood and
property
have been made har?m on him
by
God ? A Muslim used
to
carry
out this transaction with
an
unbeliever
during
the lifetime
of the
Prophet
but he did not consider it lawful
(lam yastahill?)"11
(it)
M?lik b. Anas
(d. 179/795).
A
period
of about twenty
years separates
al-Awza'f
s
death from that of M?lik.
In a
way,
the milieu of Medinah was
very
much the milieu of the
Prophet
and
the cautious
manner in which M?lik
expresses
his views
on
problems, put
to
him, may
well have been more in
keeping
with the
Prophet's
own
approach.
For
instance,
in the
following,
M?lik
confines himself
to
phrases
such
as
"no harm"
or
"it is
disap
proved"
: "M?lik
was asked about
a man
who had several wives
and
slavegirls
as
to whether he could have intercourse with all
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AL-AHKAM AL-KHAMSAH 71
before
taking
a
bath. He
replied,
'There is no harm
(l? basa)
if
a
man has intercourse with his two
slave-girls
before
taking bath.
As
regards
free
woman,
it is
disapproved (yukrahu)
for
a man to
have intercourse with the free woman
(his wife)
on the
day (turn)
of another wife
(who
is free
too). But,
if he has intercourse with
the
slave-girl,
then with the next
slave-girl,
while he is
impure
(junub),
there is no harm
(l? basa)
in
doing
so."22
In another
place
Malik
conveys
the more
precise
sense
which
comes in later
thought by
means of two
sentences, the latter
qualifying
the
first,
"Malik
was asked about a man who
performed
tayammum (cleaning
with sand
or
dirt),
whether he could lead
those
persons
who
performed
wadu
(regular
ablutions with
water).
He
said,
'It is more liked
by
me
(ahabbu ilayya)
that another man
may lead. If he
leads,
I do not think there is
any
harm
(ba s)\"23
The
very
fact that to
convey
his
sense
precisely
he used such
qualifying
words shows that the words
as used
by
the
early
scholars
carried no more
significance
than
we
attach to them now. One
Cannot, therefore,
deduce when an
early
thinker uses
"disliked"
that he meant
"forbidden"
or that when he used "liked" that he
meant
"obligatory".
Malik
uses
the
sense of
"necessary"
when
discussing
matters
of
group significance
or when the
ruling
comes
unmistakably
from
the
Qur'?n,
thus: "Malik was asked about
people
who assembled at
some
place
and wanted to
say their
prayers
in
congregation
(jama
ah). They
wished to call
only 'iq?mah
and not
'adh?n.
(Is
it
permissible
?).
Malik
replied,
"This is sufficient for them.
'Adh?n
is necessary (yajibu)
in those
j?mi% mosques where
they
congregate
for
prayer."24
And
again,
"Malik
says,
'If an
im?m
arrives at a
place
where
Friday prayer
is
obligatory (tajibu)
while
the im?m is on a
journey
and he recites the sermon and leads
the
Friday prayer,
the inhabitants of that
place
and
others, too,
may say
their
Friday prayer
with him."25
Malik is more
emphatic
when
evaluating
matters of
group
significance
which derive
unmistakably
from the
Qur'?n directly
or as elaborated
by
the
Prophet.
He mentions the need for
coercive action which does not
appear
for the
previous cases,
as
in,
"M?lik
said,
'It is
agreed
with us that whoever refuses to
pay
the
dues of God
(faridah
min
fara
id
Allah)
and Muslims could not
take them from
him, jih?d
is
(obligatory)
on them until
they
take
them from him.'
"26
Discussing
Zak?t
al-Fitr>
M?lik holds it
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72 KEMAL FARUKI
necessary
(yajibu)
on nomads and settled
people
alike because the
Prophet
"made Zak?t al-Fitr of Ramadan
obligatory (faradah)
on
all
people,
free or
slave,
male or
female,
from
amongst
Muslims."27
Yet, generally,
Malik's
manner
of
evaluating
acts is marked
with caution and with shades of
emphasis
devoid of
any
authori
tarian
dogmatism.
Even when
using
the
description
"forbidden" it
is,
as in the
following,
in the sense
of almost
a
logical sequel,
"what
is forbidden
(yahrumu)
for a
mutakif (one living
in
seclusion)
to
do with his wife
by day,
is also forbidden
by night."28
The
cautious
manner in which he
praises
a
practice
is shown in the
following, "Yahy? reports
that he heard Malik say, did not hear
any
of the learned
people
or
jurists
and one who is
followed,
to have
forbidden
keeping
fasts on
Friday. Friday
fasts are
good (
a5a
)."29
Another way
in which Malik
gently
expresses the view which he
finds
unexceptionable
is
as in the
following,
"I have heard some of
the learned
people
to have liked
(yastahibbu) calling talbiyah
after
each
prayer
and while
ascending
to
high
levels of
ground."30
Or
as
in,
"Malik said,
such
cases I like
(yastahibbu)
that an
animal
should be
sacrificed,
because 'Abd Allah b. 'Abb?s is
reported
to
have
said,
'Whoever forgets anything
while
performing hajj%
he
should sacrifice
an
animal.'
"31
Indeed,
where not
invoking
the
authority
of the
Qur'?n
or
the
Prophet directly
but
by implication
or
comparison,
Malik
expresses
the same
caution,
as in this
description
of the value
attached to a transaction similar to
rib?%
"It is
agreed
with
us
that if a man
borrows
a sum of money
for
a
fixed
time,
and the
creditor
leaves
a
part
of that sum,
then the debtor pays
the
debt immediately,
this
practice
is
disapproved (makr?h).
This is
because this
case is
parallel, according
to
us,
to
the case when
the
payment
falls due but the creditor extends time and the debtor
increases the sum due on him. This is
exactly
rib? ; there is no
doubt in it."32 In
this,
a matter
apparently analogous
to rib? which
the
Qur'?n
declares har?m is described
as makr?h
or
disapproved.
This is
partly
because in normal usage
of words
(as
distinct from
their later
developed
technical
sense in the classification of
Shartah ahk?m)
to do what is forbidden is
obviously disapproved
and also because Malik is
expressing
his view
as a result of
reasoning
on a transaction which is
sought
to be connected with
a
Qur'?nic
value but is not identical with it.
This indicates the need for
great
care in
trying
to attach
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AL-AHKAM AL-KHAMSAH 73
to Malik's
use
of words
a
meaning
which the words
only
came to
acquire
later. This is
applicable,
for
instance, in,
"Malik
said,
'Sacrifice
(on 4?d)
is sunnah and not
w?jib (obligatory).
I do
not
like that
a man
who is able to bear its cost leaves
(neglects)
it.'
"33
Malik here
distinguishes
between what is
obligatory
and
what is sunnah.
Clearly however,
sunnah here is more
likely
to
mean
"the custom or
way
of the
Community"
rather than the
Prophetic Sunnah,
because much of what is the Sunnah of the
Prophet
would be
regarded
as
obligatory by
Malik
or
later
generations.
(in)
Ah?
Y?suf (d. 182/798) of K?fah.
The
same
cautious
use
of values is to be found in Abu
Y?suf,
who will be
found to describe
things
as
having
la ha'sa
(no harm)
as in
the
following
: "If
a
Muslim is in the
enemy's territory
and
has no animal for
riding
and the
Muslims, too, have no extra
animal
except
the animals of
ghanimah
(i.e. booty)
and the man
cannot walk on
foot,
in this situation it is not lawful
(l? yahillu)
for the Muslims to leave him behind ; there is
no harm
(l? basa)
if be rides the animal of
ghan?mah."u
This
was a case
where, clearly,
a
definite choice had
to be
immediately
made
between two courses of
action,
either to leave the
man
behind or
allow him to ride
upon
a
?hanimah
animal and Ab? Y?suf is
emphatic
in his
preference,
but even in such
a case he
expresses
himself in moderate terms.
The
same
moderate evaluation
can be seen in his use of "dis
approval"
in :
"The
prisoners
of war, including
man,
woman and
child,
should not
be sold to the
enemy,
because
they
came over to
Islamic
territory (d?r al-Isl?m).
I
disapprove
of
(akrahu)
their
return to
enemy
territory."35
On the other
hand,
a more
emphatic
note is discernible when
commenting upon
that which is
clearly
referred to in the
Qur'?n
and Hadith when
agreeing
with al-Awz?'i
on
the
prohibition
of
rib? in the
territory
of the
enemy
when Ab? Y?suf says
: "This is
not lawful
(l? yahillu)
and not
permissible (l? yaj?zu).
The
traditions mentioned
by
al-Awz?'i have reached us. Ab? Hanifah
made it lawful on the basis of
a
tradition
reported
on the
authority
of Makh?l from the
Prophet
which states :
'There is no rib?
among
ahi al-harb\"*?
One of Ab? Y?suf's
infrequent
uses of har?m comes, typically,
when
repeating
what is laid down in the
Qur'?n
as he understands
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74 KEMAL FARUKI
it,
thus
:
"God did not make lawful
(lam yuhill) except marrying
four women. What goes beyond
that is forbidden
(har?m),
according
to the Divine Book.
Thus, marriage
with the fifth
one,
with
mother,
and with
sister,
are
all
equally
forbidden
(/tar?m)."37
(iv)
Muhammad b. al-Hasan
al-Shayb?n? (d. 189/804).
The
tone of
al-Shayb?nfs
observations is
similarly
couched in such
phrases
as "no harm" or "no
good"
or
"good"
or
"I dislike" and
only
on
pronouncements
derivable
directly
from the
Qur'an
do the
terms
"obligatory"
or "forbidden"
appear
and even then not with
the
frequency
one
might
have
supposed.
Thus he says
that there is no harm
(l? ba'sa)
in the transaction
of sal?m
(pre-paid
sale)
if
part
of the transaction takes
place
at the
expiry
of the
stipulated period.38
On the other hand he
expresses
the view that there is
no
good (l?
khayra)
in
respect
of
things
which
are neither measured
nor
weighed
because of variations in
size, except
in the
case of walnuts and
eggs provided they
are
numbered,
when there is no harm
(l? basa)?9
Where later
scholars used the terms
"permissible"
or
"forbidden", al-Shayb?n?
used the terms
(with
their
distinctly
different connotations)
of
l? ba'sa
(no harm)
and l?
ghavra (no good).
In another
place,
where
helpless
infants are
involved, although al-Shayb?n?
uses
the
phrase
"I
disapproved" (akrahtu),
he
clearly
indicates
something
more
than mere
disapproval
in terms of social action
by urging
that
political
authorities should force
(in
Islamic
territory)
a man to
sell two infant
slaves,
when
they
are
brothers, together,
and not
separate them,
where the sale is
by
a
non-Muslim
(who
has
purchas
ed them in non-Muslim
territory)
to a
Muslim later.40
The
phrase "obligatory"
appears
when
dealing
with
prayer
accompanied by prostrations
upon
the recital of certain
specific
Qur'?nic verses.41
In another
place discussing
the
procedure
in
prayer,
al-Shay
b?n? writes :
"To call
people
for
fajr prayer by saying
"come to
prayer"
and "come to success" twice between 'adh?n and
\qamah
is
good
(hasan)
but in all other
prayers
it is
disapproved (kuriha)"*2
The
procedure preferred by al-Shayb?n?
is the same as in later
classical
categorization,
but where later classification made the
distinction of
"permissible"
and
"prohibited", al-Shayb?n?
describes
them as
"good"
and
"disapproved"
which
brings up
once more the
question of whether he intended
to use
"disapproved"
in the sense
of
"prohibited"
or whether later scholars have made
"prohibited"
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AL-AHKAM AL-KHAMSAH 75
what
al-Shayb?ni
was content to describe
as
"disapproved".43
This is
again apparent
in his
describing
the
Friday
bath
as
better
(afdal)
and not
iv?jtb (obligatory)
in reference tp
an act
which some
Prophetic
traditions describe
as
obligatory (w?jib),
which he does not take
literally. Similarly,
the
taking
of a
bath
on
Id he describes
as
hasan
(good).44 Then,
in the same work he
describes
as'
disappr?ved (yakrahu) drinking
from silver and
gold
containers.45
Basing
his value
upon
the
Qur'?nic
verse
IX
:
28, however,
al-Shayb?ni
in
al-Siyar
a?-Kab?r,
describes the
entry
of
a
.non
Muslim in the
Masjid
al-Har?m as
"not
permissible"
[la
yahillu)^
In
summary,
therefore,
it can
be seen that in
early terminology,
the most
frequent phrases
are
l?
basa,
l?
khayra, yaj?zu,
l?
yaj?zu,
hal?l,
makr?h,
with
har?m, l??j?b
and mustahabb
being
less
frequent,
particularly
the
latter." The term mub?h
(indifferent, permitted,
not
prohibited)
is not to be found at
all.47 To hold that this is
because
"disliked" meant
"prohibited"
or "liked" meant
"obliga^
tory1'
in an
effort to
reconcile later evaluations with those
found,
in these
early
writers and
thinkers,
is a
theory
which
might
do
serious
damage
to
understanding
what
exactly
these
early
scholars
had in mind. One:
thing,
in
any case,
is certain. There
was no
precise
scale of values
carrying
definite
communicy implications
inherent in their use
of these terms and to
understand their
valuations
nothing
short of
a
full examination in their
proper
context will suffice.
(v)
Muhammad b. Idrls
al-Shafii (d. 204/820)..
It is with
al-Shafi'i that Islamic law
began
to
develop
its
systematization with
regard
to
principles,
their limits and their
application.
This
systematization also became
apparent
in the
value-classification
attached to acts. In
place
of the more
cautious
evaluations
of the
earlier
jurists, al-Sh?fi'i in his desire to
systematize and make
precise
and as a means of reconciliation between what some
regarded
as
arbitrary opinion
on
the one
side and what others
regarded
as'rigid
custom on the
other, provided
a set of rules for
the
employment
of
ijuhdd but made these rules
strict,
We
find, therefore,
the use
of a
stronger
imperative
orv
pro
hibitory
tone
consistent with his view that all answers were to be
found in
detail in the
Quran
and
Sunnah and
by
a
circumscribed
use
of
Qiy?s.
This desire to
give
a
precise value to an act is
apparent in his
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76 KEMAL FARUKI
introduction of the term
mub?h
(permitted,
indifferent)
and
relating
its
significance
to
circumstances,48
"Someone may
ask ; what sort
of mub?h is
prohibited
but this
prohibition
is different from har?m
(prohibition proper)
?" Al-Shafi'i
replied
:
It is like the
Prophet's
order of
prohibition against wearing
a
single
robe
by
a
person
who
folds it on one side
leaving
uncovered a certain
private
area of his
body,
or
when he asked
a
boy
to eat what was
placed
in front of
him and not from the
top
of the dish ; he is
reported
to have
prohibited?although
it is not
certain?eating
two dates
together,
exposing
the inside of the date
(prior
to
eating),
and
halting
on
the road for rest.* Since the
wearing
of a
single robe,~the eating
of
food
(as much as one
desires),
and
(walking on)
the earth
(which
belongs
to
God,
and all men are
equally
entitled to use
it)
are all
mub?h
(permitted, indifferent) acts,
the
Prophet's
order of
prohibi
tion refers to
particular
acts which
are
different from those he
permitted. For the
(Prophet's)
order of
prohibition (is limited)
only
to
the
wearing
of the robe if it were folded in such
a
way that it leaves uncovered
a
certain
part?the private
parts?but if the
private parts
were covered
by
the
cloth,
the
prohibition
against uncovering
the
private parts
should not include
the
wearing
of a
single robe,
since one can wear it without
uncover
ing
the
private parts.
(Similarly)
the
Prophet's
orders
against
the
(boy's) eating
of the food from the
top
of the
dish,
which is
permissible,
are
merely
orders of
etiquette,
for it is
more
appropriate
on
behalf of the host to
observe them while
eating
with his table
companion,
instead of
eating voraciously. (The Prophet)
pro
hibited
eating
from the
top
of the dish because God's
blessing
descends on the
top
and it should continue
descending
on it. He
permits
(yubihu) eating
from the
top
once he has eaten from the
sides. If one
is
permitted
to walk
along
a
road,
he does
so because
it is
permissible (.mub?h)
in
principle,
since
nobody
owns
it,
to
forbid others from
passing
; but the
Prophet prohibited halting
for
a
certain
specific
reason for he
said,
"It is the shelter of insects
and a
passage
for
snakes',
not because
halting
is forbidden
(muharram).
He also
prohibited halting
on the road if the road
were narrow and
crowded,
for if one halts
(for rest)
one
would
encroach
upon
others'
right
of
passing."
Al-Sh?fi'i then
proceeds
to
give precision
and
attempts
to
systematize
the distinction between the two kinds of acts in the
following
*
"Someone may
ask
:
'What is the difference between
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al-ahk?m al-khamsah 77
this
prohibition
and the other
(har?m proper)?1
Al-Shafu
replied
:
One
must know that the
Prophet prohibited
the acts which I
explained (har?m proper)
and he who acts
contrary
to
them,
despite
his awareness of
them,
would be
regarded
as
disobedient
and should ask for God's
forgiveness
and never
repeat
them
again/
He
may
ask
: 'Such
a man is disobedient and
you
have
already
called the man who violates the
marriage
and sale contracts
(har?m
proper)
disobedient in this
(your) book,
on what
grounds
have
you
distinguished
between the two ?' Al-Sh?fu replied
: made
no
distinction between the two in
respect
of
obedience,
since I
have
regarded
both as
disobedients, although
certain acts of dis
obedience
may
be
greater
than others.'
He
may
ask
:
'On what
ground
have
you
not
regarded
as
disobedient the man who wears
a
single
robe ;
eats from the
top
of the dish and halts on
the
road,
while
you regarded
as disobedient
(harramta)
the man
who violates
the
marriage
and sale
(contracts).'
Al-Shafu
replied
:
'The first
has been ordered to
obey
a
command of mub?h
(indifferent)
which is lawful
(hal?l)
for
him,
so I
permitted (ahlaltu)
what was
permissible
(hal?l)
and
prohibited
him from what was
forbidden
(har?mi.
What is forbidden
(har?m)
for him is other than what is
permissible
(fyal?l).
His disobedience in mub?h
(indifferent)
acts
would not render it unlawful
(har?m)
in all circumstances ; but it
prohibited
him from
committing
an act of disobedience.' He asked
:
'For
example
?' Al-Sh?fu
replied
: man
having
a
wife and
a
slave-girl
is
prohibited
from intercourse with them whenever
they
are
menstruating
or
fasting;
if he
did,
the intercourse would be
unlawful, (lam
yahill) only
under this condition.
However,
neither is forbidden in other circumstances for
they
are in
principle
permissible (mub?h)
and lawful
(hal?l).'
Al-Sh?fu said
:
"One's
own
property
is forbidden
(muharram)
in
principle
to be taken
by
another, except
in a
lawful manner
(yahillu)
which
permits (ubiha)
another to do
so. Intercourse with
women is forbidden to men
except by marriage
or
ownership.
So if one makes
a
marriage
contract with
a
forbidden woman or enters into a
sale transaction
concerning
forbidden
goods,
such contracts would be
invalid,
for
what is forbidden cannot become lawful
by
an
unlawful act. The act
which is in
principle
forbidden (asl tahrimihi)
remains so
unless
there
is a
specific
text in the
Qur'?n
or a
Sunnah of the
Prophet
or
Ijma
or the like
(which
makes it lawful)."49
The
foregoing
illustrates the
manner
by
which
al-Sh?fi'i
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78 KEMAL FARUKI
endeavoured to introduce
greater precision
into the
use of the
terms used for
describing
acts and
relationships
and correlate them
in a
system. Al-Shlfu
s
thinking
is
important
in
stressing
the
desirability
of
being
more
precise
and in
systematizing
but not in
the extent of
acceptability
or
accuracy
of either his
attempt
at
precision
or the
logical consistency
or
validity
of the
system he
proposed.
The test of whether
an
act,
in his
system,
should be
regarded
as
har?m
or mubah is
only partially
consistent and the
difficulties become
multiplied
when the
question
of social sanctions
against infringements
arises. Al-Sh?f?'i
himself,
in the
foregoing
when
discussing
disobedience
regarding
acts which
are har?m
proper only
advocates
repentance
on the
part
of the disobedient
but
clearly
there
are
certain acts which are
prohibited
for which
society
must erect deterrent and
punitive
rules in addition to the
need for
repentance,
and
indeed, regardless
of whether there is
subsequent repentance by
the disobedient
or not.
The
attempt
to make
a
distinction
on the
grounds
that certain
acts are
intrinsically
forbidden but
permitted
under certain
circumstances and vice versa could
prove
to be no more than
a
matter of the
way language
is used. Is intercourse with
a woman
fundamentally permitted
but forbidden when no
marriage ceremony
has taken
place
or the woman is within the
prohibited degrees
or
is intercourse
fundamentally prohibited
except
when
marriage
has
taken
place
and the
parties
are not within the
prohibited degrees?
Is
halting
on the side of the road
fundamentally permitted, except
in certain
circumstances,
or
fundamentally prohibited, except
in
certain circumstances ? Answers to such
questions
may prove
to
merely beg
the
question originally sought
to be answered and be
circular,
and fail to
bring
these acts into the two
categories sought
to be
distinguished
of muhah and har?m.
Another
example
of al-Sh?fi'f
s manner of
allocating
a
greater
degree
of
preciseness
to the use of these values comes in his
discussion of
w?jib
with
regard
to ablutions before the
Friday
prayer. Discussing
the use of the word
w?jib occurring
in the
Hadith,
he
says
that it
conveys
two
possible meanings. First,
it
means
obviously w?jib proper
that is there is no
purity (tah?rah)
for
Friday prayer except by
a
bath,
as in the case of the
purity
of
jUnub. Secondly,
it means
w?jib fi -ikktiy?r (optional
or recom
mended),
that
is, Friday
bath is
required
for cleanliness and
good
morality,
and not for the
validity
of
Friday prayer.
He treats
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AL-AHKAM AL-KHAMSAH 79
Friday
bath
as
w?jib fi
-ikhtiy?r (optional
or
recommended)
arguing
that 'Uthm?n
once
said his
Friday
prayer
without
taking
a
bath
although
reminded
by
Omar and neither
thought
it
forbidden,
and both were
fully
aware
of the
Prophet's
orders in this
connection.50
Again,
on
har?m,
al-Sh?fi'i divides it into
two
kinds,
har?m
proper
and har?m tanzlhan which he illustrates
by stating
of the
former the
example
of riba
(fadl)
and the latter
by
a
Prophetic
tradition that one should not betroth
a woman
already being sought
by
another Muslim brother. He observes that which head the
prohibition
falls under
depends
on indication
(dal?lah).01
V. THE CLASSICAL VIEW OF THE FIVE VALUES
During
the centuries
immediately
after al-Shafi'i,
the
process,
essentially
initiated
by him,
of
systematizing
and
making precise
the
Short ah values continued. The
question
of the nature of
mub?h,
a
term
which
appears
to have been first used
by al-Sh?fi'i,
illustrates
this
development continuing
and the differences between schools
finding expression.
Thus,
the Sh?fi?te
jurist
al-?midi
(d.
631/1233)
defines the
concept
of ib?hah
as
follows
: "The Muslims
are
agreed
that
ib?hah is one
of the Shartah commands
(al-ahk?m
al-shartyah),
but some Mu'tazilah
are
opposed
to it.
They argue
that mub?h is
nothing
but the
negation
of
haraj (blame)
from
doing
or not
doing
the action. This was
already
established before the
coming
of
Shartah,
and it continued afterwards.
We
(i.e. al-?midi)
do not
deny
that
negation
of
haraj (blame)
is not
legal
freedom
(ib?hah
shariyaK).
The
(ib?hah shar'tyah) is,
in
fact,
the
pronouncement
of
the
Law-giver
of an
option
in
doing
or not
doing
an act. This was
not found before the existence of Shan ah. The difference between
the two is obvious.''52
A later definition of this same
concept
is
given by
the Hanafite
Ibn '?bidin (d. 1252/1836),
as
follows
: "The author of the Sharh
s?l al-Bazdaw? observes that the
majority
of our
jurists (a^h?b=
masters)
and most of the Sh?fi'?tes hold that the
things (ashya)
which
are
liable
to be
permitted
or forbidden by
Shar
are
permitted
Cala al-ib?haK)
before the
coming
of Shar,
as il?hah
(permission)
is substantial
(<3sZ=essential nature)
in respect
of
things. Therefore,
the man to whom Shar' did not reach is
permitted
to eat whatever
he desires. To
this,
Muhammad b.
al-Hasan
al-Shaybani
refers
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80 KEMAL FARUKl
when he discusses forbidden
things.
He
says
:
'Eating
of a
dead
animal
(maytah)
and
drinking
wine
are not
forbidden but
by
prohibition (nahy).' Thus, al-Shayb?ni
made ibahah
original (asl)
and hurmah accidental
by prohibition.
This is the view of
al-Jubb??,
Abu H?shim and the Z?hiri school. Some of
our
jurists
(Hanafis)
and some of the Sh?fi'?
legists
hold the view that
things
are
essentially prohibited Cala
hazar).
The Ash'aris and the
Ahl al-Hadith in
general
are of the
opinion
that
things
are
sub
stantially suspended Cala -waqf). According
to
them,
if the Shar
did not reach
a man he should wait
(yatawaqqafu)
and may
not eat
anything
? If he
eats,
his act will not be
given any
value of
permission
or
prohibition. Explaining
this statement 'Abd
al-Q?dir al-Baghd?di
says
that it means that the man will be neither rewarded
nor
punished.
Ab? Mansar, too, tends to have held this view."53
The
foregoing gives
some idea of the elusive
quality
of the
term
mub?h and how
through
the centuries differences remained
about its
application,
Yet the
implications
of the view one takes
of this term,
or the basic condition of man,
is
obviously
of far
reaching importance.
Is this condition
one of
liberty, except
where
there is a
specific
indication to the
contrary
or is this basic
condition
one of
prohibition,
unless it is
displaced
with
a
specific
permission
? Is
a
believer
prohibited
from
eating
a
water-melon
until he can find
a
specific
Shan ah indication
permitting
it and
the
manner of its
eating
or is one
permitted
to eat a
water-melon
(and anyway
one
chooses)
unless and until one
finds
a
specific
SharVah indication
limiting
or
prohibiting
one from
doing
so ?
On the five values themselves,
the
century
after al-Sh?fi'i
was doubtless
one of
great speculative activity
because
a cen
tury
and
a
half later
al-Jass?s (d. 370/980),
uses these terms in
his discussions
virtually
in the sense
that
they
came to be
classically
fixed.
Discussing
verse IV
:
25
(regarding marriage
and the
payment
of
dowries)
he writes
:
"This
verse indicates that
conjunction
of
w?jib
with nadb
(i.e. obligatory
with recommended)
is
permitted,
because
marriage (nik?h)
is nadb
(recommended)
and not
fard
(obligatory),
while
payment
of the amount of dower is
w?jib.
The
conjunction
of nadb with
w?jib
is also
permitted.
For
example,
verse XVI
:
90.
Surely
Allah
enjoins justice
and the
doing
of
good
(to others)
and the
giving
to the
kindred,
and He forbids
indecency
and evil and rebellion. He admonishes you
that
you may be
mindful. 'Adi
(justice)
is
w?jib
while ihs?n (the
doing
of
good)
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AL-AHKAM AL-KHAMSAH 81
is nad?."54
His discussion above of the value to be attached to
justice
and
the
doing
of
good, appears
to be more a matter of
attaching
his
subjective
values to
the
Qur'?nic
discussion of
them,
rather than
a
justifiable
deduction that their Shanah values are
different,
for
which the verse on its
own
gives
no such distinction.
Later, discussing
the
Qur'?nic
verse IV
:
25, al-Jass?s
writes
:
"The
phrase
'this is for him
among you
who fears
falling
into evil'
is a
condition for mand?b
ilayh,
that
is,
to
abstain from
marrying
a
slave-girl
and to restrict himself to
marrying
a free woman,
so that
his children may
not be slaves. But if he fears
falling
into evil
?anat)
and cannot
prevent
himself from the forbidden
(mahz?r),
in
this situation
marrying
a
slave-girl
is
permitted (mub?h),
neither
in
doing
nor in
abstaining." Commenting
on the
phrase
'and that
you
abstain is better for
you'
he
remarks,
"In this verse
God
pointed
to nadb and
ikhtiy?r (choice),
i.e. not to
marry
a
slave-girl
at all."
Al-Jass?s
in further
support
of his
interpretation
of this verse
quotes
several traditions of the
Prophet indicating disapproval
{karahaK)
of
marriage
with
a
slave-girl.55
His
use of
mub?h, however,
is not
consistent as, after
using
it to
describe the value to be attached
to a
marriage
with
a
slave-girl,
in the
deprecating
manner shown
above,
he uses it later in a sense
which is in
striking
contrast,
when in
commenting upon
verse
V
:
87,
he
says
that it is
argued
on the basis of this verse
that
triple
divorce is forbidden
(tahrim)
because it makes
a
permitted (mub?h
i.e. woman) forbidden
(tahrim)^
The
increasing precision being
attached
to these
words, shows
itself in the fact
that,
like al-Sh?fi'i before
him, al-Jass?sr
in
discussing
III
: 104 states that
enjoining
what is
good
and
forbidding
what is bad may be
obligatory
on
all
or
may be fard al-kif?yah
like
jih?d,
funeral
prayer, burying
of the
dead,
etc.57
This is
apparent
also in his discussion
on
XXIV
:
32 and shows
incidentally
how
Ijma
was
already being
held
to be the decisive
test of the
meaning
of
a
verse,
when he states that this verse
indicates the
obligatoriness ?ij?b)
of the
marriage
of the
single
person
but that the
Ijma
or consensus of the
past generations
(salaf)
and of the
jurists
of various towns show that the verse in
question
"does not mean"
Ij?b
but
merely approval (istihh?b).5*
Although,
for
example,
in
commenting upon
verse V
:
42
regarding
the
taking
of bribes
(suht), al-Jass?s
describes it as
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82 KEMAL FARUKI
muharram
(unlawful, forbidden),
he uses
the words muhz?r much
more
frequently
as,
indeed,
do most of the scholars of the
period
under discussion.
The five-fold division is set out
by
Abu
'l-Husayn
Muhammad
b. 'Ali b.
al-Tayyib (d.
436/1044)
a
Mu'tazilite,
at the
beginning
of
the fifth century,
which is one
of the earliest references to these
values in
a
five-fold
categorization
:
"If it is asked what the ahk?m
mean
here,
it would be
said, 'They
are
divided into
(1)
an action
being good (hasan)% permitted (mub?h), (2)
recommended
(mand?b
ilayh), (3) obligatory (w?jib), (4)
evil
(qabih)%
forbidden
(mahz?r)
and
(5) disapproved (makr?h)\"59
About
half-a-century later,
we
find the first addition to the
value
categories
of these values
with, primarily,
a
legal significance
of the
validity
or
invalidity
of
an act in terms of law in the
writings
of Imam
al-Haramayn
Aba -Ma'?li 'Abd al-Mllik
al-Juwaynl
(d. 478/1085),
when he adds valid
(sahih)
and void
(f?sid)
as
follows: "The values
(ahk?m)
are seven:
obligatory (w?jib),
recommended
(mand?b),
indifferent
(mub?h)%
forbidden
(mahz?r),
disapproved (makr?h),
valid
(sahih)
and void
(f?sid)"*0
The identical seven-fold list is also to be found in the work of
a
contemporary
of the Imam
al-Haramayn,
Aba
Ish?q
Ibrahim
b. 'Ali al-Sh?r?z?
(d. 476/1083)
in his al-Luma
ft
Usui
al-Fiqh*1
Finally,
the almost settled
manner
in which these ahk?m
were
regarded by
the end of the fifth
century
A.H.
may
be
seen from the
fact that the identical list of the five-fold
category appears
in
al-Mustasf?
of Aba Hamid Muhammad b. Muhammad al-Ghaz?li
(d. 505/1111)
when he writes
: "The kinds of the values instituted
for the acts of those who have
legal capacity (mukallafin)
are five
:
obligatory (iv?jib),
forbidden
(mahz?r),
indifferent
(mub?h),
recommended
(mand?b),
and
disapproved (makr?h)"*2
The five values
were in course of time more and more
precisely
defined
and,
of
course,
in the
attempt
to
give greater precision,
differ
ences
between schools and between individual thinkers became
appa
rent, often on
finer shades of
meaning
between them. But
generally,
the
accepted significance
of these values is contained in the
writings
of
al-?midi
to which we have had occasion to refer earlier.
Thus,
he
defines
w?jib
as
follows
?
"Wuj?b
shart
means
the
pronouncement
of the
Law-giver,
the
pronouncement
of which causes
legal
blame
in any condition."63
He
goes
on to observe that
:
There is no
difference between
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AL-AHKAM AL-KHAMSAH 83
fard and
w?jtb according
to
the
Sh?fi?yah.
But the
Hanafiyah
make
a
distinction between them
on
the basis of
certainty (qat*)
and
uncertainty (zarm).64
He defines mand?b
(recommended)
as
follows :
"Mand?b is an action recommended
by
the Shariah
without
giving any
blame
on its abandonment.1'65 On
mub?h,
he
writes
:
"It is the action for which the
Law-giver gives liberty
of
doing
or not
doing, carrying
no reward
or
punishment."66
For har?m and
makr?h%
the
following
definition from the con
temporary
Egyptian
Muhammad Abu Zahrah set out the finished
classical form :
"Har?m is an action
prohibited by
the
Law-giver
categorically
and
positively, irrespective
of the fact that the
authority (dalil)
which makes that action har?m is decisive
(qat'i)
or
uncertain, conjectural
(zanni).
The
Hanafiyah stipulated
for an
action
being
har?m that it should have been established
by
the
decisive
authority (dalil qat'i)
. . .
that is
why
the
prohibition
which
is established
by
uncertain
authority (dalli zanni)
is called makr?h
(kar?hah tahrim) by
them."67 The same writer defines makr?h
as
follows
:
"Makr?h, according
to the
jurists,
is an
action whose
abstinence is
required by
the
Law-giver,
but not so
positively
as
categorical prohibition (har?m)."**
Examples of
Further
Sub-division
The five-fold division has been divided into finer
gradations.
We have
already
mentioned above the Hanafi division of
obligatory
into
fard and
w?jib, depending
on the
certainty
or otherwise of
the
authority
from which the command is obtained and the
same
distinction exists in makr?h.
Obligatory
acts are
further classified in four other ways.
First, according
to whether there is a
fixed time
(muwaqqat)
such
as
for
prayer, fasting,
etc. or no
fixed
time,
such as for
kaff?rah
(atonement). Secondly,
those which are
obligatory
on each
individual
?ayn)
such
as
prayer, zak?h etc. and those which
are
obligatory
on a
sufficiency
of the
Community
but not
all,
but if no
one were to
perform them,
then all would be sinful
(kif?yah)%
as,
for
example,
funeral
prayer,
return of
sal?m, jih?d,
etc.
Thirdly,
those
obligatory
acts whose
particulars
as
regards quality, quantity,
number,
etc. have been
specified by
Shariah such
as
five
prayers,
the amounts of
zak?h,
etc.
(mahd?d)
and those whose details have
not been
specified,
such
as
charity
(ghayr mahd?d). Finally,
those
leaving
no
option
as to the manner
in which the
injunction
is to be
performed
and which is in itself
?ayn)
desired
(muayyan),
such
as
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84 KEMAL FARUKI
sal?h, hajj,
etc. and those with
an
option
as to the manner of
performing them,
such as
kaff?rah
or atonement for
breaking
an
oath. The
Qur'?n prescribes
three forms :
feeding
ten
indigents
or
clothing
them or the manumission of
a
slave ; the
kaff?rah. being
obligatory
but the form thereof
being optional.
On recommended acts
(mand?b),
five
categories
are
distinguish
ed, (0
sunnah
(normal practice)
which has been further sub
divided into hud? and zaidah
(legal
and
manners),
and into
mu'akkadah
(emphasized)
and
ghayr
muakkadah
(non-emphasized),
(it) nafl
or
n?filah (optional), (in)
mustahabb
(liked), (iv)
ihs?n
(goodly),
and
(v)
tatawwu
(choice).
On forbidden
ihar?m)
a
distinction is made between
(1)
har?m
lidh?tihi
(forbidden intrinsically)
; those acts which involve
personal
harm and
are
detrimental
to the "five fundamental
necessities"
(daruriy?t khamsah), namely protection
of
body,
of
one's
progeny
and
posterity (nasi), property,
reason
?aql)
and
religion,
such as
adultery, theft,
etc. On the other side
are those
acts which
are
har?m
lighayrihi
because
they
lead to forbidden
acts
proper,
such
as
looking
at a
strange woman, riba
-fadl,
or
doing
any
business after 'adh?n for
Friday prayers
has been called.
As mentioned in
makr?h%
there is the Hanafi distinction of
those
virtually prohibited
but
on
the basis of
zann or
individual
surmise of isolated traditions
(akhb?r ah?d)
or isolated
Qiy?s
(analogical deduction),
such as
eating
off
gold
or silver
plates,
which
is
opposed
to
w?jib,
while har?m
proper
is
opposed
to
fard.
The
other
category
of disliked acts
(opposed
on the other side of the
scale
by sunnah)
are makr?h
tanz?han,
which are
disapproved
but
for which no
punishment
is
prescribed.
Mubah
(indifferent)
is sometimes considered
equivalent
to
halal
(lawful)
or
j?'iz (permitted), though
it is clear that it has
come a
long way
in technical meaning
from the time it was
first
used in
respect
oi ahkam
by
al-Sh?fi'i.
The
Hanafiyah regard
mubah
as
being applicable
in three
circumstances
:
(0
where choice has been
expressly
mentioned
in the
Qur
an or
Sunnah, (it)
where, although permission
is not
expressly
set
out,
there
are
phrases implying
no
objection
such as
l?
haraj (no blame)
or
l?bdsa (no harm),
and
(Hi) where no
mention of
doing
or not
doing
is available.
Later classical
law has
the distinction between the moral and
legal aspects
more
clearly
coming
into view with the distinctions
for
positive
law known as
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AL-AHKAM AL-KHAMSAH 85
the ahk?m
wai??yah, (positive law) namely (i)
sabab
(cause)
as
time is the sabab for
prayer and,
therefore
prayer (sal?h)
is neither
obligatory
nor
valid until the
proper
time has
arrived, (it)
shart
(condition),
as wadu
(ablution)
is
a
condition
or
prerequisite
for
the
validity
of
prayer,
and
(tit)
mam
(preventive
or
disqualifica
tion)
as
murder is mani
(preventive)
for
giving
the share from
the inheritance of the murdered
to the
murderer,
if
they
are
relatives of each other.
In
addition,
an
important
form of classification
relating
to the
legality
of an act
is, firstly,
sihhah
(validity)
and
secondly, fas?d
or
butl?n
(invalidity).69
Differences Between Schools
on
Value
Classification
The hukm attached to
specific
acts
varies,
frequently,
from
school to school. Sometimes, being
a difference of
degree,
i.e.
from recommended to
obligatory
or disliked
to
prohibited
but
on
other occasions the difference is of
sharp
contrast. The
following
table
gives
some idea of those variations
:
(a)
'Ib?d?t (1) Nzyah (intention)
before
performing
wadu
(ablution).
Three schools
(Shafi'i,
M?liki and
Hanbali)
hold that it is
w?jib (obligatory)
while the Hanafi
regard
it
as
sunnah (recom
mended).70
(2)
Recitation of s?rat al-F?tihah
in
prayer,
whether individual
or
congregational,
is
obligatory
to three of the Sunni schools but in
the Hanafi,
this is so
only
for the im?m and is
disapproved
(makr?K)
for the followers
(muqtadi).
Without this
recitation,
prayer
is still valid for the Hanafi but invalid
according
to the
other three Sunni schools.71
(3)
Zak?h
on ornaments of
women is
obligatory
according
to
the Hanafis but not taxable
according
to the other three.
(4)
If
a man eats or drinks in
forget
fulness
during
a
Ramadan
fast,
his fast is not broken
according
to three schools but is broken
according
to the M?likis and atonement is necessary
for him.
(5)
The use of
perfume
on the
body
while
wearing
ihr?m for
hajj
is recommended
by
three schools but,
in contrast,
is
disapproved
by Malik,
if the
fragrance
remains
on the
body.72
(M
Mu?mal?t
(6)
With
regard
to whether the
permission
of
a wait is
necessary
for the
marriage
of
a
woman,
the Hanafis hold
that it is not for an adult woman ; the M?lik?s
maintain that it is
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86 KEMAL FARUKI
not necessary unless the woman comes from
a
noble
family
; while
according
to the Shafi'i and the
Hanbali,
no
marriage
is valid with
out the waits
permission.73
(7)
On the evidence
required
in cases
concerning property
(amwal),
the Hanafis maintain that unless there are two men
or one man and two
women, the evidence is not
valid,
while accord
ing
to the other three
schools,
one male witness and the oath of the
plaintiff
are
sufficient.74
(8)
The sale of the milk of
a woman is forbidden
according
to
the Hanafis
but, again
in considerable
contrast,
is
permissible
according
to the Sh?fi'is.75
(9) Again
in contrast, while the Hanafis
permit
the evidence
of dhimmis for
dhimmts,
the M?lik? and Sh?fi'is
prohibit
this.76
(10)
'Irxah
sales,
which in effect
were used as
devices for
evading
the
prohibition against
riba ;
were
permissible according
to the
Sh?fi'is but forbidden
according
to the
Hanafis,
M?likis and
Hanbalis. An
example
of such
a
sale is where a man
buys
a
slave
girl
for one thousand dirhams
on immediate
payment
or on
credit.
He takes formal
possession
of the
girl
and then resells the
girl
back
to the
original
seller for five hundred dirhams before
making
payment
of the
one thousand. This second sale is invalid
according
to the Hanafis but valid
according
to the
Sh?fi'is.77
(11) Again
in
strong contrast,
are the values attached to the
fixation of market
prices,
which is
permitted by
the M?likis but
forbidden
by
the Hanafis and Sh?fi'is.78
Ce) 'Uq?b?t (12)
If an
insane
person draws
a
sword on
another
person
and that other
person
kills the insane
person
intentionally,
the
murderer, according
to the
Hanafis,
should
pay diyah (blood
wit)
but this
blood-money
is not
payable according
to
al-Sh?fi'i.79
(13)
In the matter of retaliation
(qis?s),
the Hanafis hold that a
free
man can be killed in retaliation for a
free man as
well as a
slave but
according
to the other three Sunni
schools,
no
free man
can be killed for
a
slave.
Similarly,
while the Hanafis maintain
that
a Muslim can be killed in retaliation for
a
dhimm?,
the
Sh?fi'is and the Hanbalis maintain that
a
Muslim cannot
be so
killed.80
(14)
On the matter of
kaff?rah
in cases of intentional
murder,
while the Hanafis maintain that there is none
possible,
the
Sh?fi'ites
maintain that it is essential.81
(15)
Where a
person forces another to kill a
third,
the one who
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AL-AHK?M AL-KHAMSAH 87
forced
(mukrih)
should be killed in retaliation
according
to the Ha
nafis but not the one who was
forced. The M?likis and Hanbalis
hold that the
person
who
actually
killed is liable to
retaliation and,
finally,
the Sh?fi'?s maintain that both
are
liable for retaliation.82
(16)
On law?tah
(sodomy),
three schools
equate
this with
adultery
and
prescribe
the hadd
punishment
and
evidentiary
requirements
of
adultery
to
sodomy,
but the Hanafis hold that the
punishment is tdzir
(discretionary)
and
only
two witnesses
are
required.83
The
foregoing
will
give
some
idea of the variations in the
value classifications
developed by
the different schools, extending
as
they
do over
Hb?d?t,
mu?mal?t and
%uq?b?t
and
touching
matters
of the most serious moral
import
as well
as trivial. What
finally
requires
to be noticed in this connection is that it is more
than
differences in
cjegree
of value attached but sometimes the views of
the different schools stand in
complete
contrast.84
Punishments
for
Disobedience to Ahk?m
The differences between schools and the differences in the
meaning
and nature of the ahk?m which have been described
earlier are not unauthorised
by
Islamic
theory
with its
recognition
of
ikhtil?f, although
a
comparison
of the earlier and classical
developments
will show that the differences were
perhaps
more
sharp
in later times and in more
striking
contrast,
even contradic
tion?
than those which existed in the
early
centuries. This was
accentuated
by
the fact that the earlier thinkers
were less
dogmatic
and more cautious in
attaching
values of an extreme nature to acts
and, possibly,
were more aware of the
reality
of the Hereafter with
its inevitable rewards and
punishments
and were,
consequently,
content,
when asked
to indicate for believers the
preferable
course
of action for
them,
to talk in moderate terms,
more
confident
that these would be sufficient
to make them
adopt
or
desist from a
course of
action,
with their
great
awareness of the Hereafter.
There
is,
besides these
changes
in classical
times,
a more
striking change
and that is with
regard
to
punishments
as an
index of the hukm or value attached to an act.
Thus,
although
two acts were both
regarded
as
obligatory,
in classical times
a
sharp
contrast can
often be seen in the nature of the
punishment
a
violation incurred. The effect of acts
carrying
identical values
being subject
to
punishments
of different
degrees
of
severity,
was,
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88 KEMAL FARUKI
inevitably,
to blur the moral
quality
of the
acts concerned
particularly
when
no consistent
principle appears
to have been
the basis of these distinctions in
punishments.
The other factor which gave rise, possibly,
to these anomalies
was
the definition of the distinction between the
rights
of God and
the
rights
of man which will be
more
fully
examined later.
The differences in
punishment
can be
seen in the
pillars
or
ark?n of
Islam, faith, worship, poor-rate, fasting
and the
pilgrimage.
Thus,
with
regard
to faith
(zm?n),
this
is,
of course, obligatory
for
a
Muslim. For non-Muslims,
it is also
obligatory
but the
punish
ment for not
possessing
it,
was
regarded
as
being
reserved for the
next world. Where
a Muslim
moves from faith
to unbelief (i.e.
apostasy),
death
was the
punishment prescribed
for the Muslim
man and
imprisonment
for the Muslim
woman.
On the next
rukn,
sal?h
(worship),
also classified
as
obligatory,
the classical HanafI view for
neglecting it,
is
imprisonment,
while
the Maiiki and Shafu view is that the violator be asked to
repent,
failing
which he
was to be killed. In addition,
it was held that
there will be
punishment
in the
next world
as well.85
Coming
to the
poor-rate (zak?h)% equally obligatory
and
presumably possessing
the
same SharVah
hukrn,
the
only punish
ment laid down
by
the classical view in this world is the taztr
or
"discretionary" punishment,
which
at first
appearance
would
seem
to be for lesser offences.
On
fasting (saivm), again
taztr is
prescribed by
the classical
system
with the addition that the violator be
put
in
prison
until
he
repents. Again, punishment
in the
next world
was considered
to
be also the
consequence.86
On
hajj,
the situation
was identical with that for zak?h.
A contrast is
again
observable
on
the
questions
of
drinking
intoxicants (shurb al-khamr)
and
qim?r
and maysir
(gambling).
Both
are
regarded
as
being
forbidden
by
SharVah (where
they
are discussed
together)
but while for shurb
al-khamr,
the
punish
ment
prescribed
is
flogging
of 80
lashes,
for
gambling
there is
only
the taztr or
discretionary punishment
of the
q?dt.87
On those
acts for which
prescribed punishments
were
held to
be
found in the
Qur
an, such
as
qadhf (imputations
of
unchastity),
sartqah (theft),
zin?
(illicit
intercourse), qat% al-tariq (brigandage)
and
qatl (murder),
the
punishments
follow the
meanings
under
stood from SharVah.
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AL-AHKAM AL-KHAMSAH 89
For the other acts, those which fall into the three middle
categories
of mand?b
(recommended),
mub?h
(permitted
or
indifferent),
and makr?h
(disliked),
no
punishments
are,
obviously,
provided.
But for those
acts which come into the
categories
of
w?jib (obligatory)
or har?m
(forbidden), theoretically,
classical
law held that all
infringements
of the
obligatory
or
prohibitive
act
made the
wrong-doer subject
to
punishment
in this world. This
was an inevitable consequence
of
regarding
the
Community
as
representing
God
on
earth and hence
empowered
to enforce with
out further distinction all the
huq?q
All?h
(rights
of
God).
The
full
implications
of this will be considered in the next
section,
but
for the
moment what has to be noted is that every offence found
to be such
by
the classi Bcations of al-ah??m
al-kjiamsah
became
liable for
worldly punishment by worldly agencies.
No
punishments being directly
set out in SharVah for these
offences, they
did not attract the hadd
penalties. Indeed,
in the
case of a
few,
like nik?h
(marriage)
which was held
by
some to fall
into the
"obligatory"
and not "recommended"
category,
no
punishment
was even
theoretically provided for,
and the same
was the
case for the
prohibition,
e.g.
of
eating
food
over
which the
name of God had
not been invoked and had not been
ritually
slaughtered.
In the case of those acts which led to
legal
effects and inci
dents,
where
an
obligatory
or
prohibitive
command
was
violated,
the act was held to be not valid. Thus
a
nuptial gift (sid?q)
was
held to be
w?jib (obligatory)
and failure
to fulfil this rendered the
marriage
invalid.
Similarly,
with the
performance
of forbidden
acts,
such
as
the 'mah
already
referred to,
which makes such
a
sale invalid
according
to all Sunni schools
except
the Shafute.
For
wrongful
acts or omissions
to act which
are not
capable
of
being
made invalid (and
indeed for
some which are,
as
well)
classical law
regarded
it
as essential that, theoretically
at
least,
they
were all
capable
of
being punished
here in this world
by
society
when
they
were held to violate the
rights
of God
(Huq?q
Allah).
Clearly,
however,
many of God's
rights
concern
inward
thoughts
and
depend largely
on the intention behind acts and the
difficulties
of
a
worldly agency trying
to enforce them became
apparent.
If it
pertained
to a matter of faith or
belief,
the
tendency
was to
enlarge
the
area of
things
that had to be
accepted
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90 KEMAL FA RU Kl
to
qualify
a
person
as
being regarded
as a
believer and if he
openly rejected any aspect,
often less
significant,
he was
regarded
as
being
an
unbeliever and liable to the
punishments
for violation
of ?m?n and for irtid?d
(apostasy)
set out earlier. For other less
tangible violations,
classical law
was forced
increasingly
to
emphasize
the outward manifestations and
disregard
the
niyah
or
intention behind an act. But even then this did not
prove
sufficient and
increasingly
all such acts came
under the
ubiquitous
classification of offences which invoked
tazir,
i.e.
discretionary
punishment by
the
q?di. Indeed, barring
the hadd
offences,
all
other
violating
acts or
refusal to act came under tdzlr.
This had two
important
effects which should be noticed. The
first
was
that,
in the ahk?m classification,
all
obligatory
or
pro
hibited acts are
obviously
not of the
same
degree
of moral serious
ness.
Yet,
one of the most definite ways
in which
people
tend to
judge
the moral seriousness of
an act or omission to act lies in the
punishment
which it attracts. But
by bringing
all such violations
under the
category
of acts
involving
xdzir the effect
was
inevitably
to
blur the
degrees
of seriousness attached to different acts,
all
equally prohibited
or
equally mandatory.
The second effect
was ironical. The whole effort of the
jurists
of the
past, by
the rules
they
elaborated for
understanding
the
Qur'?n,
for
testing Had?th,
for
applying analogical rules,
for
testing
the
acceptability
of
ijtih?d
and even those
claiming
to
exercise
it,
for
eliminating
the
zann or
fallible, subjective
views of
individuals in the
Ijma
or consensus of
accepted disciplined judg
ment,
were
in fact
largely negated by
the fact that when the ahh?m
so
understood were
enforced, they
all became
subject (barring
the
few hud?d offences)
to the
highly
individual "discretion"
(tdzlr)
of
individual
judges
whose
very
hona
fides
were at times
questioned
when the
temporal power appointing
them was
regarded by
many
or most as
being
un-Islamic.
The
elaborate, painstaking
structure of ahk?m
categorization
built
up
from Shan ah in
pursuance
of
understanding
the all
embracing
nature of the Islamic ethos for all human acts and
relationships
became
largely
vitiated or,
at the
very least, greatly
confused
by
the hesitation
implicit
in the convenient word
xdzir,
as
being
the nearest to a
definitive
punishment
that could be set
out for
a
wide
variety
of
offences, personal
and
social, grave
and
minor,
deliberate
or
accidental,
all of which tended to be
regarded,
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AL-AHK?M AL-KHAMSAH 91
in any case,
as less
important
than the offences for which hadd
punishments applied.
A
person stealing
clothes
or
firewood in
winter
or one
piece
of
jewellery (virtually regardless
of
motive,
or
circumstances)
became
regarded
as
morally
far more
reprehensible
(because
this attracted
a
hadd
punishment)
than
a
person
who
systematically
on a
large
scale and for
many years indulged
in
bribery (rishwah), neglect
of
orphans, embezzlement
(k]iiyanah)t
or
various forms of
oppression
or
injustice
all of which were
only
liable to tdz?r.
VI.
THE FIVE VALUES IN TERMS OF MORALITY AND LAW
The
process
of
giving
an
Islamic value to all human acts and
relationships begins,
as
has been seen, with the
Qur
an. The
all-embracing
Islamic
system
aims at
identifying,
and
emphasizing
the
importance
of,
the moral
quality
of
any human act or
relationship.
The
Qur'?n
in
pursuance
of this moral evaluation
emphasizes
the
importance
of the individual and the role of
conscience in
securing compliance
with this
value-system,
and
without the
prior
sincere obedience of the individual believer any
attempt
at
organizing
the
Community along
Islamic lines is bound
to
prove
infructuous.
Hence,
the chief incentives to
compliance
which the
Qur'?n
reiterates
are the rewards and
punishments
which are meted out
by God,
in this world to an
extent,
and in full measure on the
Day
of
Judgment,
to the individual human
being.
Yet,
as we have
seen
in
discussing
these ahk?m in relation to
the
Qur'?n,88
these values
frequently
also find
expression
in
a
social
dimension,
and even the rewards and
punishments
of God
are stated
to be awarded
community-wise.
In
a broad and ultimate sense, whether a value is
personal
or
social in
significance,
it involves
a
right
of God. It is His
right
that
we
should remember Him much and
give
thanks to Him for
the
good things
with which
we are
provided
and it is also His
right
that we should turn aside from
open and secret indecencies
or
oppression
of our fellowmen or
dishonesty
in our social and
mercantile
dealings.
Yet the distinction between what values concern
purely
the
rights
of God and those which also
concern the
rights
of human
beings
as
well becomes of immediate
importance
when human
beings
endeavour to
arrange
their mutual
affairs,
as
enjoined by
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92
KEMAL FARUKI
the
Qur'?n, by
consultation
amongst
themselves. There
can be
little doubt that the
Qur'?n envisages
a
society
which is stable and
run
by predictable
and
non-arbitrary
rules and that it is
opposed
to
anarchy.
Certain
principles are, therefore, necessary
to determine
the distinction between a
pure
right
of God and
a
right
of man
(which
is
also,
of course a
right
of
God)
and at the
same time
lay
down the basis
on
which these
rights
are enforced.
It would seem
that the
basis,
in line with the ideas of
equit
ability
that are
contained in the
Qur'?n,
would be that
rights
of
God would be enforced
by
God and violations
punished
by
Him,
certainly
on
the
Day
of
Judgment (if
not in this world)
and that
rights
of man would be enforced and violations
punished by
man,
whether on an
individual basis
(by retaliation)
or
by
the
Community
on behalf of the individual members. To
a
large
extent,
such
a
concept
of the differences between the
pure rights
of God and
the
rights
of man and of
enforcing
them
appears
to have been the
guiding principle
in
early thought. Certainly,
the
only places
where the
Qur
an calls for definitive
enforcing
action
by
the
Community
are on those matters which
clearly
involve the
rights
of man
whether
singly
or in
community
:
whether it be
theft,
brigandage, open
indecency
or slander. Even
as
late
as
al-Sh?fi'i,
when
discussing
har?m
proper,
he
gives
as
the
proper
course for
one
who violates the ahk?m of har?m that the believer should
sincerely repent
and never
repeat
the forbidden act
again.89
We
also had occasion to note that the
place
at which Malik discusses
the need for the
Community "forcing" compliance
was on a matter
which
clearly
affected the
Community
as a
whole, namely
the
refusal to
pay zak?h.90
Yet in late classical
thought
the distinction between the
rights
of God
(huq?q All?h) and the
rights
of man
(huquq al-ib?d)
was,
in an
important way,
almost the reverse of this
: a
right
of
man
was
held to
be
one
concerning
individuals to be enforced
by
the
individual whose
right
was
adversely
affected
by
another's act in
violation of the
ahk?m,
while
a
right
of God
was
regarded
as a
right
of the
Community
which it was the
duty
of the
Community
to
enforce and secure
compliance
to. The
Community
was seen as
representing
God
on earth and
theoretically capable
of
punishing
all
infringements
of God's
rights.91
The result of
placing
the
Community
in this
perilously
exalted
position
was to force classical thinkers to
regard
every
act as
being
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AL-AHK?M AL-KHAMSAH 93
capable
of
community compliance,
whether it be the acts so
personal
that
only
the
All-knowing
God could
effectively
mete
out
justice
or
other acts which had social
implications
on
which
the
Community
could
properly
and
genuinely
take action. The
scale of values set out in the
Qur an,
originally
and
basically
moral in
quality,
became
increasingly
overwhelmed
by
a
legal
scale
applied
to acts for which law
was not
designed.
In
attempting
to
make
virtually
the whole
range
of acts conform to the
five-fold
scale and be
subject
to
worldly enforcing agencies,
violations of
any value were
conveniently
held to be
subject
to tdzir or
discre
tionary punishment by
the
qadt
and in the process
the fine
range
of moral values attached to acts became obliterated under this
omnibus term of tdztr. For other acts
which,
viewed in a moral
sense,
were
definitely obligatory,
such
as
spending
out of one's
wealth for the
poor, kindness, patience,
faithfulness
to one's trusts
or
avoiding open
and secret
indecencies,
the classical
system
was
obliged
to
relegate
most of them
to the
category
of mand?b or
recommended, owing
to the
impossibility
of
applying
the sanctions
which the
community
would have been
obliged
to invoke once
they
were classified
as
w?jib
or
obligatory.
The moral values of Islam far from
controlling
the
legal system
had, instead,
become
submerged by
the desire to make
every value
conform to a
legally
enforceable rule.
The second factor which
appears
to have distorted the under
standing
of Islamic
values, particularly
with
regard
to
criminal
offences,
has been the
interpretation
of
hadd,
in classical
theory
and
practice,
as
being
the "fixed"
punishments
unalterable once the
offence was
proved
to have been committed. To
begin with,
these
punishments
are not described
as
hud?d in the
Qur'?n
itself. The
primary meaning
of hadd of
being
the "extreme limit"
beyond
which
one should not
proceed
was not
applied
to these
punishments
set out. The difference in effect
was
profound. By regarding
hadd
as
"fixed", any theft,
for
example,
however small the amount92 or,
however
great
the
temptation
or the
extenuating circumstances,
attracted in the classical view the
penalty
of
amputation whereas,
if
regarded
in the more usual
sense of hadd
as
being
the
"limit",
the
punishment
for theft would have been
capable
of more accurate
ly meeting
the facts of a
particular
case,
with the
protection
that
in no case
could the "limit" of
amputation
be
exceeded, regardless
of how heinous the theft in a
particular
case was or how
primitive
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94 KE MAL FARUKI
the
society.
Because of the nature of the classical view of
hadd,
judges
were
extremely
loth to
apply
the "fixed"
punishment
and
the
evidentiary
tests where hadd offences
were concerned were deli
berately
made mere
and more
exacting
so
that as
many
as
possible
could
escape
the extreme
penalty. Indeed,
it came to be
regarded
as
desirable that the
q?di
indicate to one accused of
an
offence
attracting
a hadd
punishment
the various ways
in which he could
avoid suffering
the extreme
penalty and,
in
effect,
be
acquitted.
The natural hesitation
at
applying
the hadd
punishment
when
it
was
regarded
as the "fixed" and not the "maximum limit" also
had the effect of
preventing any
extension of these values and their
punishments
to offences which otherwise were in
pari
materia.
Thus the offences of
embezzlement, corruption
and fraud which
are
closely
related to theft
(in
its basic
meaning, sariqah
means to
take
by
stealth)
were not
brought
within the same
category (which
would have attracted the hadd
punishment)
but left in the
vague,
indeterminate
region
of tdztr. This, also,
significantly
affected the
inconsistent value-judgments
on such acts and contributed to
widening
the
gulf
between the true Islamic moral value of an act
and the value it came to
possess
as a
result of its
position
in the
penal
scale of classical law.
The
increasing necessity
of
distinguishing
between the moral
and the
legal
and the immoral and the
illegal
led to
the later
development
of the values of sahth
(valid)
and
f?sid
(void)
but
these never
approached
a
full
development comparable
to al-ahk?m
al-Qhamsah.
Clearly,
if the
predominant
moral
quality (which
must
be
appreciated
of
any
act or
relationship
before it is
sought
to invest it
with
legal implications)
is to be reasserted then the whole scale of
the Five Values
requires reunderstanding first,
in
purely
moral
terms in which the
obligatory
or
the recommended
quality
of an
act is not
compromised by
considerations of
practical legal
enforce
ability. Second,
these moral values must thereafter serve as the
framework for the
legal system
that follows.
Third,
in under
standing
the distinction between those acts which can
be enforced
by society
and those which
cannot, the correct
relationship
between
huq?q
Allah and
huq?q
al"lib?d
requires
restatement.
Fourth,
consideration is
required
of whether the hud?d All?h
means
"fixed"
punishments prescribed by
God or
the "limits"
prescribed by
God
beyond
which no
punishment
can
go.
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AL-AHKAM AL-KHAMSAH 95
Once these
questions
are
resolved,
the Five Values
or al-ahk<xm
al-khamsah
can
effectively
serve their real
purpose
of
providing
the
moral evaluation of all human acts and
relationships
on
the basis
of Islam's
all-embracing nature,
which
complex
of moral evaluations
can
then
supervise
and
effectively
control the Islamic
legal
rules
which follow
a
system
of rules which understands the
Qur'?nic
distinctions between what is
personal
and what is social and what
may
be
punished
here and what can
only
be
punished by God,
whether here or on
the
Day
of
Judgment.
NOTES
1. At the outset the author would like to
express
his
great
indebtedness to
Mawlana Ahmad Hassan of the Islamic Research Institute for his research
work in connection with this
study.
2.
See, for
example,
the article on "Law and
Society" by
David de Santillana in
The
Legacy of
Islam
(London, 1931)
at
p.
288.
The different views on the
original
or essential nature of
things (whether
positively permitted,
indifferent
or
prohibited)
before
a
specific
Divine
command thereon is known are summarised in Ibn
'Sbid?n,
Radd al-Muht?r
*ala al-Durr
al-Muhhtar,
Cairo,
n.d , III : 25.
See also
Sayf
al-D?n Abu -Hasan 4Ali
al-Amidi,
al-lhkam
fi
Usui al-Ahkam,
Cairo 1914. I : 176.
3. See as
examples
V :
100,
XI
; 114,
XIV : 25-6 ; XVI :
128,
XXIX :
41,
XXX : 41 and XLII : 30.
4. See
p. 39, pp.
45-9 and
pp. 50-1, below.
5. 'Abd All?h Muhammad Wal? al-D?n al-Tabriz?, Mishk?t al-Mas?b?h,
ed.
by
Mawl?n? Fadlul Kar?m entitled aURad?th,
Dacca
1960,
1
: 197.
Cf.
Arabic
text, Delhi, Mujtaba'? Press, 1310 A.H.,
412.
6.
IWd..II:47.
7. Ibid..
II: 46.
8. Thus, Hadiths are
frequently
couched in
language
where the narrator states
that he heard the
Prophet say that such and such
good
deed will
bring
Paradise nearer or that such and such bad deed will take the
perpetrator
to
Hell. In other Hadtth the
authority reports
the
Prophet's reply
to a
question
asked of him or what he himself observed the
Prophet doing.
On Hadtth
concerning
certain offences which are
personal
in nature the first confession
by
the
wrongdoer
is followed
by
a
report
that the
Prophet
turned aside
and
only
after a
repetition
of the confession
a
number of times did the
Prophet
cease
turning
aside and order
punishment, frequently accompanied
by
evidence that what the
Prophet sought
was
repentance
on the
part
of the
wrongdoer.
See also the Hadith cited
by
al-Sb?fi'i in his Kitab
al-Umm,
Cairo,
1324 A.H. VI : 124.
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96 KEMAL FARUKI
9. Mishk?t
aUMascLbih, op. cit., VI : 109.
10.
Ibid.,
XXV : 133.
11.
Ibid.,
XXV : 127.
12. An
apparent
contradiction between the
Qur'?n
and a Sunnah which is
accepted
as true can
only, obviously, strengthen
the
validating
function of
Ijm?'.
13. Abu YGsuf,
al-Radd 'ala
Siyar al-Awz?'i, Cairo, n.d.,
61-2.
14. Ibid.,
68.
15. Ibid.,
70.
16.
Ibid.,
72-3.
17.
Ibid.,
72-3.
18. Ibid.,
72-3.
19.
Ibid , 79.
20. Ibid.,
94.
21. Ibid.,
96-7.
22. Mslik
b, Anas, al~Muwatta\ Cairo, 1951,
1 : 53.
23. Ibid., 55.
24.
Ibid.,
71.
25.
Ibid.,
107.
26.
Ibid.,
269.
27.
Ibid.,
283.
28. Ibid.,
318.
29.
Ibid.,
311.
30. Ibid.,
334.
31.
Ibid.,
397.
32.
Jfcd..
III :
673,
33.
Ibid.,
487.
34. Abu YOsuf, op. cit., 15.
35.
Ibid.,
62.
36.
Ibid.,
97.
37.
J&iU,
105.
38.
Al-Shayb?n?,
Kit?b al-Asl, Cairo, 1954,
3.
39.
Ibid.,
7.
40.
Ibid., 235,
41.
Al-Shayban?,
aUJ?m?
al-Sagh?r, Lucknow. 1291, A.H.,
16.
42.
Ibid.,
10.
43.
Ibid.,
10.
44.
Al-Shayb?n?, al-Muwatta', Deoband, n.d., 72-3 and 76.
45. At
p.
375.
46. Vol. I. p.
134 of 1957 Cairo ed.
47. The word ib?hah
(in
its literal sense of
"permission")
however is found in
al-Shayb?n?'s al-Siyar
al-Kabir.
48.
Al-Sh?fi'?, al-Ris?lah, Cairo, 1321, A.H., 48-9,
49.
Ibid.. 48-9.
50.
Ibid, 43,
51. Ibid.. 265-6.
52. Al-Smid?, op. cit.,
I : 176.
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AL-AHKAM AL-KHAMSAH
97
53. Ibn 'Sbid?n,
op. cit., III
: 251.
54. Ahkam
al-Qur'?n,
Istanbul,
1335 A.H.. II : 169-70.
55. Ibid , 169-70.
56. Ibid.,
452.
57. Ibid., 29.
58. Ibid.,
319.
59. Kit?b al Mu'tamad
fi
Usui
al-Fiqh,
ed. Muhammad Hamid Ullah, Damascus,
1964,
1:8.
60. Al-Waraqah ft
Usui
al-Fiqh
in
Majm?m'
ut??n
Us?liyah (Maktabah
Hashm?
yah),
Damascus, n.d.,
28.
61.
Makkah, n.d.,
19.
62. Ed. Cairo, 1937, 1: 42.
63. op. cit., 138.
64. Ibid.,
140.
65.
Ibid.,
170.
66.
Ibid.,
176.
67. Usui
al-Fiqh, Cairo,
.
d.,
41.
68. Ibid.,
44.
69. On the
foregoing
see
al-Sh?tib?, al-Muw?faq?t
; al-?mid?, op. cit., Muhammad
al-Khudar?,
Usui
al-Fiqh
; and Muhammad Abu Zahrah, op,
cit.
70.
Al-Margh?n?n?,
al-Hid?yah, Deoband, n.d., 1: 6 and also Ibn Rushd, Bid?yat
al-Mujtahid,
Cairo,
1329 I : 6.
71.
Al-Margh?n?n?,
op, cit., 1:100-1, and 'Abd Allah Muhammad b. 'Abd al
Rahm?n, Rahmat al-Ummah
fi lkjitil?f al-Aimmah, Cairo, 1300 A.H., I: 17
72.
Al-Margh?n?n?,
op. cit.,
I : 175 and 'Abd Allah Muhammad
b,
'Abd al
Rahm?n, op. cit., 43.
73.
Al-Margh?n?n?,
op. cit., II : 293-4 and 'Abd Allah Muhammad b. 'Abd al
Rahm?n, op. cit., 183-4.
74. Ibn
Qud?mah, al-Mughn?,
Cairo, 1367 A.H., IX : 149-50.
75.
Al-Margh?n?n?, op. cit., III : 55.
76. Ibid.,
III : 163.
77. Ibid.,
III : 57 and 'Abd Allah Muhammad b. 'Abd al-Rahm?n, op. cit., 73.
78. Abd Allah Muhammad b. 'Abd al-Rahm?n, op. cit.,
73.
79.
Al-Margh?n?n?, op. cit.,
IV :
568.
80. Ibid.,
IV : 562.
81. Ibid.,
IV : 560.
82. 'Abd All?h Muhammad b. 'Abd al-Rahm?n, op.cit.,
128.
83.
Ibid.,
140-1.
84. Most of the
foregoing examples
can be found in the work of 'Abd Allah
Muhammad b. 'Abd al-Rahm?n
already
cited.
85. 'Abd al-Rahm?n
Mubarakp?r?'s commentary
on Jami' al-Tirmidhi entitled
Tuhfat al-Ahwadhi, Delhi, 1352
A.H., III : 360.
86. Ibn 'Abidin, op. c?t.. Ill : 187.
87. See also
generally
for these and the
following
: Abu
Yusuf,
Kit?b
al-Kharaj
;
Ibn '?bid?n, op.cit., al-Margh?n?n?, op. cit., Ihn
Qud?mah, op. cit.,
and Ibn
Rushd, op.
cit.
88. At
pp. 3-16,
above.
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98 KEMAL FARUKI
89.
See
p.
35, above.
90. PP.
29, above.
91. The exhortations to Muslims to
"enjoin" good
and "forbid" evil must be read
in
conformity
with the
Qur'?n's
statements on the
necessary
separation
of
acts
punishable
or rewardable here and in the Hereafter and the constant
emphasis
on the absence of
compulsion
in matters of
religion.
92. A later minimum limit of 10 dirhams
according
to the
'Ir?qis
was
placed
on
the value of
property
stolen and
?
d?nSr
according
to the Medinese and
the Shafi'ites. Some
'IrSq? jurists, however, held the view that the minimum
should be five dirhams.
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