supererogatory Sunnah, on the other hand, leads to spiritual reward while neglecting it is not
blameworthy. There is a third variety of Sunnah known as Sunnah al-zawa id, which mainly refers to
the acts and conduct performed by the Prophet as a human being, such as his style of dress and choice
of food, etc., whose omission is neither abominable nor blameworthy.
[18. Abu 'Id, Mabahith, p.71; Khudari, Usul, p.46.]
Mandub often occurs in the Qur'an in the form of a command which is then accompanied by indications
to suggest that the command is only intended to convey a recommendation. An example of this is the
Qur'anic command which requires that giving and taking of period loans must be set down in writing
(al-Baqarah, 2:282). But the subsequent portion of the same passage provides that `if any of you
deposits something with another, then let the trustee [faithfully] discharge his trust'. This passage
implies that if the creditor trusts the debtor, they may forego the requirement of documentation.
Another example of a command which only denotes a recommendation is the Qur'anic provision
regarding slaves, where the text provides, `and if any of your slaves seek their release from you in
writing, set them free [fa-katibuhum] if you know any good in them' (al-Nur, 24:3). The last portion of
this text indicates an element of choice which renders the command therein mandub. But in the absence
of such accompanying evidence in the text itself, the Qur'anic command is sometimes evaluated into
mandub by reference to the general principles of the Shari'ah.
Sometimes the mandub is conveyed in persuasive language rather than as a command per se. An
example of this is the Hadith which provides: `Whoever makes an ablution for the Friday prayers, it is
good, but if he takes a bath, it is better -[afdal].
[19. Tabrizi, Mishkat, I, 168, Hadith no. 540.]
A question arises in this connection as to whether the mandub remains a mandub once it has been
started, or becomes obligatory of continuation until it is completed. The Hanafis have held that once the
mandub is commenced, it turns into an obligation and must be completed. For example, when a person
starts a supererogatory fast, according to this view, it is obligatory that he complete it, and failure to do
so renders him liable to the duty of belated performance (qada'). But according to the Shafi'is, whose
view here is generally preferred, the mandub is never turned into wajib and always remains as mandub,
thereby leaving the person who has started it with the choice of discontinuing it whenever he wishes.
There is thus no duty of belated performance (qada') on account of failure to complete a mandub.
Ghazali, Mustasfa, I, 48; Abu 'Id, Mabahith, pp. 72-74; Qasim, Usul, p. 322.]
I.3 Haram (Forbidden)
According to the majority of ulema, haram (also known as mahzur) is a binding demand of the lawgiver
in respect of abandoning something, which may be founded in a definitive or a speculative proof.
Principles of Islamic Jurisprudence ~ Kamali 284
[20.Committing the haram is punishable and omitting it is rewarded. But according to the Hanafis, haram is
a binding demand to abandon something which is established in definitive proof; if the demand is
founded in speculative evidence, it constitutes a makruh tahrimi, but not haram. The former resembles
the latter in that committing both is punished and omitting them is rewarded. But the two differ from
one another insofar as the willful denial of the haram leads to infidelity, which is not the case with
regard to makruh tahrimi.
[21. Qasim, Usul, p. 225; Aghnides, Muhammedan Theories, p. 89; Abdur Rahim, Jurisprudence, p. 198.]
The textual evidence for haram occurs in a variety of forms, which may be summarised as follows:
Firstly, the text may dearly use the word haram or any of its derivatives. For example, the Qur'anic text
which provides, 'forbidden to you [hurrimat 'alaykum] are the dead carcass, blood and pork' (alMa'idah,
5:3); and `God permitted sale but prohibited [harrama]
usury (al-Baqarah, 2:275). Similarly,
the
Hadith which provides, 'everything belonging to a Muslim is forbidden [haram]
to his fellow
Muslims:
his blood, his property and his honour'.
[22. Muslim, Sahih Muslim, p. 473, Hadith no. 1775.]
Secondly, haram may be conveyed in other prohibitory terms which require the avoidance of a certain
form of conduct. For example, there is the Qur'anic text which provides, 'slay not [la taqtulu] the life
that God has made sacrosanct, save in the course of justice' (al-Ma'idah, 5:90); and 'devour not [la ta'
kulu] one another's property in defiance of the law' (al-Baqarah, 2:188).
Thirdly, haram may be communicated in the form of a command to avoid a certain form of conduct.
For example: there is the Qur'anic text which provides that wine-drinking and gambling are works of
the devil and then orders the believers to 'avoid it (al-Ma'idah, 5:90).
Fourthly, haram may be communicated through expressions such as 'it is not permissible' or 'it is
unlawful' in a context which is indicative of total prohibition. For example, the Qur'anic text which
proclaims that `it is not permissible for you [la yahillu lakum] to inherit women against their will' (alNisa',
4:19), or the Hadith which provides 'it is unlawful [la
yahillu]
for a Muslim to take the property
of
another Muslim without his consent'.
[23. Bayhaqi, al-Sunan al-Kubra, III, 10.]
Fifthly, haram is also identified by the enactment of a punishment for a certain form of conduct. There
are many instances of this in the Qur'an and Sunnah. The hudud penalties are the most obvious
examples of this variety of haram. As is implied by its name, the hadd penalty is specific in reference to
both the quantity of punishment and the type of conduct which it penalises. Alternatively, the text
which communicates tahrim may only consist of an emphatic condemnation of a certain act without
specifying a penalty for it as such. Thus the Qur'an prohibits devouring the property of orphans by
denouncing it in the following terms: 'Those who eat up the property of orphans swallow fire into their
own bodies; they will soon be enduring a blazing fire' (al-Nisa', 4:10).
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Haram is divided into two types: (a) haram li-dhatih or `that which is forbidden for its own sake', such
as theft, murder, adultery, marrying a close relative and performing salah without an ablution, all of
which are forbidden for their inherent enormity; and (b) haram li-ghayrih, or 'that which is forbidden
because of something else'. An act may be originally lawful but has been made unlawful owing to the
presence of certain circumstances. For example: a marriage which is contracted for the sole purpose of
tahlil, that is, in order to legalise another intended marriage, performing salah in stolen clothes, and
making an offer of betrothal to a woman who is already betrothed to another man. In each of these
examples, the act involved is originally lawful but has become haram owing to the attending
circumstances. A consequence of this distinction between the two varieties of haram is that haram lidhatih,
such as marriage to one's sister or the sale of dead carcasses, is null and void ab
initio (batil),
whereas
violating a prohibition which is imposed owing to an extraneous factor is fasid
(irregular) but
not
batil,
and as such may fulfill its intended legal purpose. A marriage which is contracted for the
purpose
of tahlil
is clearly forbidden, but it validly takes place nevertheless. Similarly, a contract of sale
which
is concluded at the time of the Friday prayer is haram
li-ghayrih and
is forbidden. But according
to
the majority of ulema the sale takes place nevertheless; with the exception of the Hanbalis and
Zahiris,
who regard such a sale as batil.
[24. Khallaf, 'Ilm, p. 113; Abu Zahrah, Usul, p. 34; Abu 'Id, Mabahith, p. 70ff.]
Another consequence of this distinction is that haram li-dhatih is not permissible save in cases of dire
necessity (darurah) of a kind which threatens the safety of the 'five principles' of life, religion, intellect,
lineage and property. In this way, uttering a word of infidelity, or drinking wine, is only permitted when
it saves life. Haram li-ghayrih, on the other hand, is permissible not only in cases of absolute necessity
but also when it prevents hardship. Thus a physician is permitted to look at the private parts of a patient
even in the case of illnesses which do not constitute an immediate threat to life.
Usul, p. 226 ff.]
[25. Abu Zahrah, Usul, p. 35; Qasim,
Another criterion for distinguishing the two varieties of haram that some ulema have mentioned is that
haram li-ghayrih consists of an act which leads to haram li-dhatih. In this way, looking at the private
parts of another person is forbidden because it can lead to zina, which is haram by itself. Similarly,
marrying two sisters simultaneously is haram because it leads to the severance of ties of kinship
(qat`al-arham), which is haram by itself.
I.4 Makruh (Abominable)
[26. Abu Zahrah, Usul, p.34.]
Makruh is a demand of the Lawgiver which requires the mukallaf to avoid something, but not in strictly
prohibitory terms. Makruh is the opposite of mandub, which means that neglecting the mandub amounts
to makruh. Since makruh does not constitute a binding law, we merely say that omitting something
Principles of Islamic Jurisprudence ~
Kamali 286
which is makruh is preferable to committing it. The perpetrator of something makruh is not liable to
punishment, and according to the majority of ulema, he does not incur moral blame either. The Hanafis
are in agreement with the majority view in respect of only one of the two varieties of makruh, namely
makruh tanzihi, but not in regard to makruh tahrimi. The latter, according to the Hanafis, entails moral
blame but no punishment. The ulema are all in agreement that anyone who avoids the makruh merits
praise and gains closeness to God.
[27. Khallaf, 'Ilm, p. 114; Abu Zahrah, Usul, p.36.]
The textual authority for makruh may consist of a reference to something which is specifically
identified as makruh, or may be so identified by words that may convey an equivalent meaning. There
is a Hadith, for example, in which the Prophet discouraged any prayers at midday until the decline of
the sun, with the exception of Friday. The actual word used in the Hadith is that the Prophet disliked
[kariha al-nabi) prayers at that particular time.
[28. Tabrizi, Mishkat, I, 330, Hadith no. 1047.]
An equivalent term to makruh occurs, for example, in the Hadith which reads: 'The most abominable of
permissible things [abghad al-halal] in the sight of God is divorce.'
Mubahith, p. 80.]
[29. Tabrizi, Mishkat, II, 978, Hadith no. 3280; Abu 'Id,
Makruh may also be conveyed in the form of a prohibition but in language that indicates only
reprehensibility. An example of this is the Qur'anic text which provides, in an address directed to the
believers, 'Ask not about things which, if made clear to you, would trouble you, but if you ask about
them when the Qur'an is being revealed, then they will be explained to you' (al-Ma'idah, 5:101). An
example of this style of communication in the Hadith is as follows: 'Leave that of which you are
doubtful in favour of that which you do not doubt [. . .]'
[30. Tabrizi, Mishkat, II, 845, Hadith no. 2773.]
Makruh is the lowest degree of prohibition (tahrim), and in this sense is used as a convenient category
for matters which fall in the gray areas between halal and haram, that is, matters which are definitely
discouraged but where the evidence to establish them as haram is less than certain.
[31. Qasim, Usul, p. 225.]
As already noted, the Hanafis have divided makruh into the two types of makruh tanzihi and makruh
tahrimi. The former is considered abominable for purposes of keeping pure such as avoiding raw onion
and garlic just before going to congregational prayers, or neglecting salat al-nafl, that is, supererogatory
prayers preceding, for example, the salat al-zuhr (early afternoon prayers). This kind of makruh is
nearer to mubah than to haram. Its commission is not punished but its omission is rewarded. The
Hanafi description of makruh tanzihi is the same as that which the majority of ulema have given to
makruh in general. The majority of ulema have characterised the value of makruh to be that 'committing
it is not punishable but omitting it is praiseworthy'. Makruh tahrimi, or 'abominable to the degree of
prohibition' is, on the other hand, nearer to haram. An act is haram when its prohibition is decreed in
definitive terms, otherwise it is makruh tahrimi. An example of makruh tahrimi is the wearing of gold
jewellry and silk garments for men, which are forbidden by an Ahad (solitary) Hadith. While referring
Principles of Islamic Jurisprudence ~
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to these two items, the Hadith provides: 'These are forbidden [haram] to the men of my community but
are lawful [halal] to their women.'
[32. Abu Dawud, Sunan, III, 1133, Hadith no 4046.]
Similarly, it is makruh tahrimi for a person to offer to buy something for which another person has
already made an offer. There is a Hadith which forbids this kind of purchase in the same way as it
forbids making an offer of engagement to a woman who is already betrothed to another man.
Sunan, II, 556, Hadith no. 2075]
Since both of the foregoing ahadith are Ahad whose authenticity is not devoid of
doubt, the prohibition therein is reduced from haram to makruh tahrimi.
The difference between the Hanafis and the majority of ulema relates to the nature of the evidence on
which the makruh is founded. When a prohibition is conveyed in an imperative demand of the
Lawgiver but there is some doubt over its authenticity or meaning, the majority of ulema classify it as
haram, whereas the Hanafis classify it as makruh tahrimi. The Hanafi position in regard to the division
of makruh into these two types is essentially similar to their approach in regard to drawing a distinction
between fard and wajib.
I.5 Mubah (Permissible)
[34. Abu 'Id, Mabahith, pp, 80-82; Khallaf, 'Ilm, p. 116; Aghnides, Muhammedan Theories, p. 89.]
Mubah (also referred to as halal and ja'iz) is defined as communication from the Lawgiver concerning
the conduct of the mukallaf which gives him the option to do or not to do something. The Lawgiver's
communication may be in the form of a clear nass such as the Qur'anic text which provides, in a
reference to foodstuffs, that `this day all things good and pure have been made lawful (uhilla) to you
[...]' (al-Ma'idah, 5:6). Alternatively the text may state that the mukallaf will not incur a sin, blame or
liability if he wishes to act in a certain way. Concerning the permissibility of betrothal, for example, the
Qur'an provides, `there is no blame on you [la junaha `alaykum] if you make an offer of betrothal to a
woman [. . .]' (al-Baqarah, 2:235). Similarly, committing a sinful act out of sheer necessity is
permissible on the authority of the Qur'an, which provides, `If someone is compelled by necessity
without willful disobedience or transgression, then he is guiltless [fala ithma `alayh]' (al-Baqarah,
2:173).
[35. Ghazali, Mustasfa, I, 42; Khallaf, 'Ilm, p. 115; Abdur Rahim, Jurisprudence, p. 198.]
Sometimes a command to the Qur'an may only amount to permissibility when the nature of the conduct
in question or other relevant evidence indicates that such is the case. An example of this is the text
which orders worshippers to `scatter in the earth' once they have completed the Friday prayers (alJumu`ah,
62:10). Although the believers have been ordered to `scatter in the earth', the nature of this
command
and the type of activity to which it relates suggest that it conveys permissibility only.
Principles of Islamic Jurisprudence ~ Kamali 288
[33. Abu Dawud,In the event where the law provides no ruling to specify the value of a certain form of conduct, then
according to the doctrine of istishab al-asl (presumption of continuity), permissibility (ibahah) remains
the original state which is presumed to continue. The authority for this presumption is found in the
Qur'anic text which provides, in an address to mankind, that God Almighty `has created everything in
the earth for your benefit' (al-Baqarah, 2:29). By implication, it is understood that the benefit in
question cannot materialise unless `everything in the earth' is made mubah for mankind to use and to
utilise in the first place.
Mubah has been divided into three types. The first is mubah which does not entail any harm to the
individual whether he acts upon it or not, such as eating, hunting or walking in the fresh air. The second
type of mubah is that whose commission does not harm the individual although it is essentially
forbidden. Included in this category are the prohibited acts which the Lawgiver has made permissible
on account of necessity, such as uttering words of unbelief raider duress, or eating the flesh of a dead
carcass to save one's life. The third variety of mubah is not really mubah per se; it is included under
mubah for lack of a better alternative. This category of mubah consists of things which were practiced
at one time but were then prohibited with the proviso that those who indulged in them before the
prohibition are exonerated. The Qur'an thus prohibits marriage with certain relatives, and the text then
continues to make an exception for such marriages that might have occurred in the past (al-Nisa', 4:22).
Similarly, wine-drinking was not prohibited until the Prophets migration to Madinah, and fell under the
category of mubah until the revelation of the ayah in sura al-Ma'idah (5:90) which imposed a total ban
on it.
[36. Abu 'Id, Mabahith, pp. 84-88.]
It would be incorrect, as al-Ghazali explains, to apply the term 'mubah' to the acts of a child, an insane
person, or an animal, nor would it be correct to call the acts of God mubah. Acts and events which took
place prior to the advent of Islam are not to be called mubah either. 'As far as we are concerned, our
position regarding them is one of abandonment [tark]', which obviously means that such activities are
not to be evaluated at all. Mubah proper, al-Ghazali adds, is established in the express permission of
Almighty God which renders the commission or omission of an act permissible either in religious terms
or in respect of a possible benefit or harm that may accrue from it in this world.
[37. Ghazali, Mustasfa, I, 42.]
The ulema of usul definitely consider mubah to be a hukm shar'i, although including it under al-hukm
al-taklifi is on the basis of mere probability as there is basically no liability [taklif] in mubah as one of
the five varieties of defining law. The Hanafis have only differed with the majority with regard to the
sub-divisions of wajib and makruh as already explained, but not with regard to mubah.
Bearing in mind the two sub-divisions of wajib and makruh that the Hanafis have added to al-hukm altaklifi,
the Hanafis thus classify the latter into seven types, whereas the majority divide it into five
varieties
only.
Principles of Islamic Jurisprudence ~
Kamali 289
II. Declaratory Law (al-Hukm al-Wad'i)
'Declaratory law' is defined as communication from the Lawgiver which enacts something into a cause
(sabab), a condition (shart) or a hindrance (mani`) to something else. This may be illustrated by
reference to the Qur'anic text regarding the punishment of adultery, which enacts the act of adultery
itself as the cause of its punishment (al-Baqarah, 2:24). An example of the declaratory law which
consists of a condition is the Qur'anic' text on the pilgrimage of hajj: 'Pilgrimage is a duty owed to God
by people who can manage to make the journey' (Al-Imran 3:97). Both of the foregoing texts, in fact,
consist of a defining law and a declaratory law side by side. The defining law in the first text is the
ruling that the adulterer must be punished with a hundred lashes, and in the second text it is the duty of
the hajj pilgrimage itself. The declaratory law in the first text is the cause, which is the act of adultery the
affect being the punishment, and in the second, it is the condition which must be present if the law
of
the text is to be implemented. The second of the two texts thus enacts the ability of the individual to
make
the journey into a condition for performing the pilgrimage. A more explicit example of a
declaratory
law is the Hadith which provides that 'there is no nikah
without two witnesses'.
Sunan, II, 557, Hadith no. 2079.]
The presence of two witnesses is thus rendered a condition for a valid marriage. And lastly, an example
of a declaratory law consisting of a hindrance is the Hadith which provides that 'there shall be no
bequest to an heir',
[39. Abu Dawud, Sunan, II, 808; Hadith no. 2864.]
which obviously enacts the tie of kinship between
the testator and the legatee into a hindrance to bequest. Similarly, the Hadith which lays down the rule
that 'the killer shall not inherit', renders killing a hindrance to inheritance.
II, 913, Hadith no. 2735.]
Principles of Islamic Jurisprudence ~ Kamali 290
[38. Abu Dawud,
[40. Shafi`i, Risalah, p. 80; Ibn Majah, Sunan,
To execute the defining law is normally within the capacity of the mukallaf. The demands, for example,
addressed to the mukallaf concerning prayers and zakah are both within his means. Declaratory law
may, on the other hand, be within or beyond the capacity of the mukallaf. For instance, the arrival of a
particular time of day which is the cause (sabab) of salah is beyond the means and capacity of the
worshipper.
[41. Khallaf, 'Ilm, p. 102; Abu 'Id, Mabahith, p. 60.]
The function of declaratory law is explanatory in relation to defining law, in that the former explains the
component elements of the latter. Declaratory law thus informs us whether certain facts or event, are the
cause, condition or hindrance in relationship to defining law. It is, for example, by means of declaratory
law that we know offer and acceptance in a contract of sale to be the cause of the buyer's ownership,
that divorce causes the extinction of marital rights and obligations, and that the death of a person is the
cause of the right of the heir to his inheritance. Similarly, it is by means of a declaratory law that weknow intellectual maturity to be the condition of voluntary disposition of property in gift (hibah) and
charitable endowment (waqf).
[42. Abdur Rahim, Jurisprudence. pp. 61-62.]
The basic notion of dividing the rules of Shari'ah into taklifi and wad'i is also applicable to modern
western law. When we read, in the Rent Act for example, a clause which requires the tenant to pay the
rent in accordance with the tenancy contract, it is a hukm taklifi which consists of a command.
Similarly, when there is a clause which requires the tenant not to use the premises for commercial
purposes, it is a demand consisting of a prohibition. And if there be a clause to the effect that the tenant
may sublet the property, it is an option which the tenant may or may not wish to exercise. Needless to
say, any aspect of such provisions may be subjected to certain conditions or hindrances as the
contracting parties may wish to stipulate.
[43. Cf. Khallaf, 'Ilm, p. 104.]
As noted above, declaratory law is divided into five varieties. The first three of these, namely cause,
condition and hindrance, have already been discussed to some extent. Two other varieties which are
added to these are the `azimah (strict law) as opposed to rukhsah (concessionary law), and valid (sahih)
as opposed to invalid (batil). To include the first three under al-hukm al-wad'i is obvious from the very
definition of the latter. But classifying the last two divisions, that is, azimah-rukhsah and sahih-batil,
under al-hukm al-wad'i may need a brief explanation. It is well to point out in this connection that
almost every concession that the Lawgiver has granted to the individual is based on certain causes
which must be present if the concession is to be utilised. The Lawgiver, for example, enacts traveling,
illness or removal of hardship into the cause of a concession in regard to, say, fasting or salah. In
classifying sahih and batil as sub-divisions of declaratory law, it will be further noted that a hukm is
valid when the conditions of its validity are fulfilled, and is invalid if these conditions are not met. In
short, since the last two divisions are basically concerned with causes and conditions, they are included
under the class of declaratory law.
[44. Qasim, Usul, p. 228; Abu `Id, Mabahith, p. 105.]
We shall now proceed to discuss each of the five varieties of al-hukm al-wad'i separately.
II.1 Cause (Sabab)
A sabab is defined as an attribute which is evident and constant [wasf zahir wa-mundabat] and which
the Lawgiver has identified as the indicator of a hukm in such a way that its presence necessitates the
presence of the hukm and its absence means that the hukm is also absent. A sabab may be an act which
is within the power of the mukallaf, such as murder and theft in their status as the causes of retaliation
(qisas) and a hadd penalty respectively. Alternatively, the sabab may be beyond the control of the
mukallaf such as minority being the cause of guardianship over the person and property of a minor.
Principles of Islamic Jurisprudence ~ Kamali 291
blameworthy. There is a third variety of Sunnah known as Sunnah al-zawa id, which mainly refers to
the acts and conduct performed by the Prophet as a human being, such as his style of dress and choice
of food, etc., whose omission is neither abominable nor blameworthy.
[18. Abu 'Id, Mabahith, p.71; Khudari, Usul, p.46.]
Mandub often occurs in the Qur'an in the form of a command which is then accompanied by indications
to suggest that the command is only intended to convey a recommendation. An example of this is the
Qur'anic command which requires that giving and taking of period loans must be set down in writing
(al-Baqarah, 2:282). But the subsequent portion of the same passage provides that `if any of you
deposits something with another, then let the trustee [faithfully] discharge his trust'. This passage
implies that if the creditor trusts the debtor, they may forego the requirement of documentation.
Another example of a command which only denotes a recommendation is the Qur'anic provision
regarding slaves, where the text provides, `and if any of your slaves seek their release from you in
writing, set them free [fa-katibuhum] if you know any good in them' (al-Nur, 24:3). The last portion of
this text indicates an element of choice which renders the command therein mandub. But in the absence
of such accompanying evidence in the text itself, the Qur'anic command is sometimes evaluated into
mandub by reference to the general principles of the Shari'ah.
Sometimes the mandub is conveyed in persuasive language rather than as a command per se. An
example of this is the Hadith which provides: `Whoever makes an ablution for the Friday prayers, it is
good, but if he takes a bath, it is better -[afdal].
[19. Tabrizi, Mishkat, I, 168, Hadith no. 540.]
A question arises in this connection as to whether the mandub remains a mandub once it has been
started, or becomes obligatory of continuation until it is completed. The Hanafis have held that once the
mandub is commenced, it turns into an obligation and must be completed. For example, when a person
starts a supererogatory fast, according to this view, it is obligatory that he complete it, and failure to do
so renders him liable to the duty of belated performance (qada'). But according to the Shafi'is, whose
view here is generally preferred, the mandub is never turned into wajib and always remains as mandub,
thereby leaving the person who has started it with the choice of discontinuing it whenever he wishes.
There is thus no duty of belated performance (qada') on account of failure to complete a mandub.
Ghazali, Mustasfa, I, 48; Abu 'Id, Mabahith, pp. 72-74; Qasim, Usul, p. 322.]
I.3 Haram (Forbidden)
According to the majority of ulema, haram (also known as mahzur) is a binding demand of the lawgiver
in respect of abandoning something, which may be founded in a definitive or a speculative proof.
Principles of Islamic Jurisprudence ~ Kamali 284
[20.Committing the haram is punishable and omitting it is rewarded. But according to the Hanafis, haram is
a binding demand to abandon something which is established in definitive proof; if the demand is
founded in speculative evidence, it constitutes a makruh tahrimi, but not haram. The former resembles
the latter in that committing both is punished and omitting them is rewarded. But the two differ from
one another insofar as the willful denial of the haram leads to infidelity, which is not the case with
regard to makruh tahrimi.
[21. Qasim, Usul, p. 225; Aghnides, Muhammedan Theories, p. 89; Abdur Rahim, Jurisprudence, p. 198.]
The textual evidence for haram occurs in a variety of forms, which may be summarised as follows:
Firstly, the text may dearly use the word haram or any of its derivatives. For example, the Qur'anic text
which provides, 'forbidden to you [hurrimat 'alaykum] are the dead carcass, blood and pork' (alMa'idah,
5:3); and `God permitted sale but prohibited [harrama]
usury (al-Baqarah, 2:275). Similarly,
the
Hadith which provides, 'everything belonging to a Muslim is forbidden [haram]
to his fellow
Muslims:
his blood, his property and his honour'.
[22. Muslim, Sahih Muslim, p. 473, Hadith no. 1775.]
Secondly, haram may be conveyed in other prohibitory terms which require the avoidance of a certain
form of conduct. For example, there is the Qur'anic text which provides, 'slay not [la taqtulu] the life
that God has made sacrosanct, save in the course of justice' (al-Ma'idah, 5:90); and 'devour not [la ta'
kulu] one another's property in defiance of the law' (al-Baqarah, 2:188).
Thirdly, haram may be communicated in the form of a command to avoid a certain form of conduct.
For example: there is the Qur'anic text which provides that wine-drinking and gambling are works of
the devil and then orders the believers to 'avoid it (al-Ma'idah, 5:90).
Fourthly, haram may be communicated through expressions such as 'it is not permissible' or 'it is
unlawful' in a context which is indicative of total prohibition. For example, the Qur'anic text which
proclaims that `it is not permissible for you [la yahillu lakum] to inherit women against their will' (alNisa',
4:19), or the Hadith which provides 'it is unlawful [la
yahillu]
for a Muslim to take the property
of
another Muslim without his consent'.
[23. Bayhaqi, al-Sunan al-Kubra, III, 10.]
Fifthly, haram is also identified by the enactment of a punishment for a certain form of conduct. There
are many instances of this in the Qur'an and Sunnah. The hudud penalties are the most obvious
examples of this variety of haram. As is implied by its name, the hadd penalty is specific in reference to
both the quantity of punishment and the type of conduct which it penalises. Alternatively, the text
which communicates tahrim may only consist of an emphatic condemnation of a certain act without
specifying a penalty for it as such. Thus the Qur'an prohibits devouring the property of orphans by
denouncing it in the following terms: 'Those who eat up the property of orphans swallow fire into their
own bodies; they will soon be enduring a blazing fire' (al-Nisa', 4:10).
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Kamali 285
Haram is divided into two types: (a) haram li-dhatih or `that which is forbidden for its own sake', such
as theft, murder, adultery, marrying a close relative and performing salah without an ablution, all of
which are forbidden for their inherent enormity; and (b) haram li-ghayrih, or 'that which is forbidden
because of something else'. An act may be originally lawful but has been made unlawful owing to the
presence of certain circumstances. For example: a marriage which is contracted for the sole purpose of
tahlil, that is, in order to legalise another intended marriage, performing salah in stolen clothes, and
making an offer of betrothal to a woman who is already betrothed to another man. In each of these
examples, the act involved is originally lawful but has become haram owing to the attending
circumstances. A consequence of this distinction between the two varieties of haram is that haram lidhatih,
such as marriage to one's sister or the sale of dead carcasses, is null and void ab
initio (batil),
whereas
violating a prohibition which is imposed owing to an extraneous factor is fasid
(irregular) but
not
batil,
and as such may fulfill its intended legal purpose. A marriage which is contracted for the
purpose
of tahlil
is clearly forbidden, but it validly takes place nevertheless. Similarly, a contract of sale
which
is concluded at the time of the Friday prayer is haram
li-ghayrih and
is forbidden. But according
to
the majority of ulema the sale takes place nevertheless; with the exception of the Hanbalis and
Zahiris,
who regard such a sale as batil.
[24. Khallaf, 'Ilm, p. 113; Abu Zahrah, Usul, p. 34; Abu 'Id, Mabahith, p. 70ff.]
Another consequence of this distinction is that haram li-dhatih is not permissible save in cases of dire
necessity (darurah) of a kind which threatens the safety of the 'five principles' of life, religion, intellect,
lineage and property. In this way, uttering a word of infidelity, or drinking wine, is only permitted when
it saves life. Haram li-ghayrih, on the other hand, is permissible not only in cases of absolute necessity
but also when it prevents hardship. Thus a physician is permitted to look at the private parts of a patient
even in the case of illnesses which do not constitute an immediate threat to life.
Usul, p. 226 ff.]
[25. Abu Zahrah, Usul, p. 35; Qasim,
Another criterion for distinguishing the two varieties of haram that some ulema have mentioned is that
haram li-ghayrih consists of an act which leads to haram li-dhatih. In this way, looking at the private
parts of another person is forbidden because it can lead to zina, which is haram by itself. Similarly,
marrying two sisters simultaneously is haram because it leads to the severance of ties of kinship
(qat`al-arham), which is haram by itself.
I.4 Makruh (Abominable)
[26. Abu Zahrah, Usul, p.34.]
Makruh is a demand of the Lawgiver which requires the mukallaf to avoid something, but not in strictly
prohibitory terms. Makruh is the opposite of mandub, which means that neglecting the mandub amounts
to makruh. Since makruh does not constitute a binding law, we merely say that omitting something
Principles of Islamic Jurisprudence ~
Kamali 286
which is makruh is preferable to committing it. The perpetrator of something makruh is not liable to
punishment, and according to the majority of ulema, he does not incur moral blame either. The Hanafis
are in agreement with the majority view in respect of only one of the two varieties of makruh, namely
makruh tanzihi, but not in regard to makruh tahrimi. The latter, according to the Hanafis, entails moral
blame but no punishment. The ulema are all in agreement that anyone who avoids the makruh merits
praise and gains closeness to God.
[27. Khallaf, 'Ilm, p. 114; Abu Zahrah, Usul, p.36.]
The textual authority for makruh may consist of a reference to something which is specifically
identified as makruh, or may be so identified by words that may convey an equivalent meaning. There
is a Hadith, for example, in which the Prophet discouraged any prayers at midday until the decline of
the sun, with the exception of Friday. The actual word used in the Hadith is that the Prophet disliked
[kariha al-nabi) prayers at that particular time.
[28. Tabrizi, Mishkat, I, 330, Hadith no. 1047.]
An equivalent term to makruh occurs, for example, in the Hadith which reads: 'The most abominable of
permissible things [abghad al-halal] in the sight of God is divorce.'
Mubahith, p. 80.]
[29. Tabrizi, Mishkat, II, 978, Hadith no. 3280; Abu 'Id,
Makruh may also be conveyed in the form of a prohibition but in language that indicates only
reprehensibility. An example of this is the Qur'anic text which provides, in an address directed to the
believers, 'Ask not about things which, if made clear to you, would trouble you, but if you ask about
them when the Qur'an is being revealed, then they will be explained to you' (al-Ma'idah, 5:101). An
example of this style of communication in the Hadith is as follows: 'Leave that of which you are
doubtful in favour of that which you do not doubt [. . .]'
[30. Tabrizi, Mishkat, II, 845, Hadith no. 2773.]
Makruh is the lowest degree of prohibition (tahrim), and in this sense is used as a convenient category
for matters which fall in the gray areas between halal and haram, that is, matters which are definitely
discouraged but where the evidence to establish them as haram is less than certain.
[31. Qasim, Usul, p. 225.]
As already noted, the Hanafis have divided makruh into the two types of makruh tanzihi and makruh
tahrimi. The former is considered abominable for purposes of keeping pure such as avoiding raw onion
and garlic just before going to congregational prayers, or neglecting salat al-nafl, that is, supererogatory
prayers preceding, for example, the salat al-zuhr (early afternoon prayers). This kind of makruh is
nearer to mubah than to haram. Its commission is not punished but its omission is rewarded. The
Hanafi description of makruh tanzihi is the same as that which the majority of ulema have given to
makruh in general. The majority of ulema have characterised the value of makruh to be that 'committing
it is not punishable but omitting it is praiseworthy'. Makruh tahrimi, or 'abominable to the degree of
prohibition' is, on the other hand, nearer to haram. An act is haram when its prohibition is decreed in
definitive terms, otherwise it is makruh tahrimi. An example of makruh tahrimi is the wearing of gold
jewellry and silk garments for men, which are forbidden by an Ahad (solitary) Hadith. While referring
Principles of Islamic Jurisprudence ~
Kamali 287
to these two items, the Hadith provides: 'These are forbidden [haram] to the men of my community but
are lawful [halal] to their women.'
[32. Abu Dawud, Sunan, III, 1133, Hadith no 4046.]
Similarly, it is makruh tahrimi for a person to offer to buy something for which another person has
already made an offer. There is a Hadith which forbids this kind of purchase in the same way as it
forbids making an offer of engagement to a woman who is already betrothed to another man.
Sunan, II, 556, Hadith no. 2075]
Since both of the foregoing ahadith are Ahad whose authenticity is not devoid of
doubt, the prohibition therein is reduced from haram to makruh tahrimi.
The difference between the Hanafis and the majority of ulema relates to the nature of the evidence on
which the makruh is founded. When a prohibition is conveyed in an imperative demand of the
Lawgiver but there is some doubt over its authenticity or meaning, the majority of ulema classify it as
haram, whereas the Hanafis classify it as makruh tahrimi. The Hanafi position in regard to the division
of makruh into these two types is essentially similar to their approach in regard to drawing a distinction
between fard and wajib.
I.5 Mubah (Permissible)
[34. Abu 'Id, Mabahith, pp, 80-82; Khallaf, 'Ilm, p. 116; Aghnides, Muhammedan Theories, p. 89.]
Mubah (also referred to as halal and ja'iz) is defined as communication from the Lawgiver concerning
the conduct of the mukallaf which gives him the option to do or not to do something. The Lawgiver's
communication may be in the form of a clear nass such as the Qur'anic text which provides, in a
reference to foodstuffs, that `this day all things good and pure have been made lawful (uhilla) to you
[...]' (al-Ma'idah, 5:6). Alternatively the text may state that the mukallaf will not incur a sin, blame or
liability if he wishes to act in a certain way. Concerning the permissibility of betrothal, for example, the
Qur'an provides, `there is no blame on you [la junaha `alaykum] if you make an offer of betrothal to a
woman [. . .]' (al-Baqarah, 2:235). Similarly, committing a sinful act out of sheer necessity is
permissible on the authority of the Qur'an, which provides, `If someone is compelled by necessity
without willful disobedience or transgression, then he is guiltless [fala ithma `alayh]' (al-Baqarah,
2:173).
[35. Ghazali, Mustasfa, I, 42; Khallaf, 'Ilm, p. 115; Abdur Rahim, Jurisprudence, p. 198.]
Sometimes a command to the Qur'an may only amount to permissibility when the nature of the conduct
in question or other relevant evidence indicates that such is the case. An example of this is the text
which orders worshippers to `scatter in the earth' once they have completed the Friday prayers (alJumu`ah,
62:10). Although the believers have been ordered to `scatter in the earth', the nature of this
command
and the type of activity to which it relates suggest that it conveys permissibility only.
Principles of Islamic Jurisprudence ~ Kamali 288
[33. Abu Dawud,In the event where the law provides no ruling to specify the value of a certain form of conduct, then
according to the doctrine of istishab al-asl (presumption of continuity), permissibility (ibahah) remains
the original state which is presumed to continue. The authority for this presumption is found in the
Qur'anic text which provides, in an address to mankind, that God Almighty `has created everything in
the earth for your benefit' (al-Baqarah, 2:29). By implication, it is understood that the benefit in
question cannot materialise unless `everything in the earth' is made mubah for mankind to use and to
utilise in the first place.
Mubah has been divided into three types. The first is mubah which does not entail any harm to the
individual whether he acts upon it or not, such as eating, hunting or walking in the fresh air. The second
type of mubah is that whose commission does not harm the individual although it is essentially
forbidden. Included in this category are the prohibited acts which the Lawgiver has made permissible
on account of necessity, such as uttering words of unbelief raider duress, or eating the flesh of a dead
carcass to save one's life. The third variety of mubah is not really mubah per se; it is included under
mubah for lack of a better alternative. This category of mubah consists of things which were practiced
at one time but were then prohibited with the proviso that those who indulged in them before the
prohibition are exonerated. The Qur'an thus prohibits marriage with certain relatives, and the text then
continues to make an exception for such marriages that might have occurred in the past (al-Nisa', 4:22).
Similarly, wine-drinking was not prohibited until the Prophets migration to Madinah, and fell under the
category of mubah until the revelation of the ayah in sura al-Ma'idah (5:90) which imposed a total ban
on it.
[36. Abu 'Id, Mabahith, pp. 84-88.]
It would be incorrect, as al-Ghazali explains, to apply the term 'mubah' to the acts of a child, an insane
person, or an animal, nor would it be correct to call the acts of God mubah. Acts and events which took
place prior to the advent of Islam are not to be called mubah either. 'As far as we are concerned, our
position regarding them is one of abandonment [tark]', which obviously means that such activities are
not to be evaluated at all. Mubah proper, al-Ghazali adds, is established in the express permission of
Almighty God which renders the commission or omission of an act permissible either in religious terms
or in respect of a possible benefit or harm that may accrue from it in this world.
[37. Ghazali, Mustasfa, I, 42.]
The ulema of usul definitely consider mubah to be a hukm shar'i, although including it under al-hukm
al-taklifi is on the basis of mere probability as there is basically no liability [taklif] in mubah as one of
the five varieties of defining law. The Hanafis have only differed with the majority with regard to the
sub-divisions of wajib and makruh as already explained, but not with regard to mubah.
Bearing in mind the two sub-divisions of wajib and makruh that the Hanafis have added to al-hukm altaklifi,
the Hanafis thus classify the latter into seven types, whereas the majority divide it into five
varieties
only.
Principles of Islamic Jurisprudence ~
Kamali 289
II. Declaratory Law (al-Hukm al-Wad'i)
'Declaratory law' is defined as communication from the Lawgiver which enacts something into a cause
(sabab), a condition (shart) or a hindrance (mani`) to something else. This may be illustrated by
reference to the Qur'anic text regarding the punishment of adultery, which enacts the act of adultery
itself as the cause of its punishment (al-Baqarah, 2:24). An example of the declaratory law which
consists of a condition is the Qur'anic' text on the pilgrimage of hajj: 'Pilgrimage is a duty owed to God
by people who can manage to make the journey' (Al-Imran 3:97). Both of the foregoing texts, in fact,
consist of a defining law and a declaratory law side by side. The defining law in the first text is the
ruling that the adulterer must be punished with a hundred lashes, and in the second text it is the duty of
the hajj pilgrimage itself. The declaratory law in the first text is the cause, which is the act of adultery the
affect being the punishment, and in the second, it is the condition which must be present if the law
of
the text is to be implemented. The second of the two texts thus enacts the ability of the individual to
make
the journey into a condition for performing the pilgrimage. A more explicit example of a
declaratory
law is the Hadith which provides that 'there is no nikah
without two witnesses'.
Sunan, II, 557, Hadith no. 2079.]
The presence of two witnesses is thus rendered a condition for a valid marriage. And lastly, an example
of a declaratory law consisting of a hindrance is the Hadith which provides that 'there shall be no
bequest to an heir',
[39. Abu Dawud, Sunan, II, 808; Hadith no. 2864.]
which obviously enacts the tie of kinship between
the testator and the legatee into a hindrance to bequest. Similarly, the Hadith which lays down the rule
that 'the killer shall not inherit', renders killing a hindrance to inheritance.
II, 913, Hadith no. 2735.]
Principles of Islamic Jurisprudence ~ Kamali 290
[38. Abu Dawud,
[40. Shafi`i, Risalah, p. 80; Ibn Majah, Sunan,
To execute the defining law is normally within the capacity of the mukallaf. The demands, for example,
addressed to the mukallaf concerning prayers and zakah are both within his means. Declaratory law
may, on the other hand, be within or beyond the capacity of the mukallaf. For instance, the arrival of a
particular time of day which is the cause (sabab) of salah is beyond the means and capacity of the
worshipper.
[41. Khallaf, 'Ilm, p. 102; Abu 'Id, Mabahith, p. 60.]
The function of declaratory law is explanatory in relation to defining law, in that the former explains the
component elements of the latter. Declaratory law thus informs us whether certain facts or event, are the
cause, condition or hindrance in relationship to defining law. It is, for example, by means of declaratory
law that we know offer and acceptance in a contract of sale to be the cause of the buyer's ownership,
that divorce causes the extinction of marital rights and obligations, and that the death of a person is the
cause of the right of the heir to his inheritance. Similarly, it is by means of a declaratory law that weknow intellectual maturity to be the condition of voluntary disposition of property in gift (hibah) and
charitable endowment (waqf).
[42. Abdur Rahim, Jurisprudence. pp. 61-62.]
The basic notion of dividing the rules of Shari'ah into taklifi and wad'i is also applicable to modern
western law. When we read, in the Rent Act for example, a clause which requires the tenant to pay the
rent in accordance with the tenancy contract, it is a hukm taklifi which consists of a command.
Similarly, when there is a clause which requires the tenant not to use the premises for commercial
purposes, it is a demand consisting of a prohibition. And if there be a clause to the effect that the tenant
may sublet the property, it is an option which the tenant may or may not wish to exercise. Needless to
say, any aspect of such provisions may be subjected to certain conditions or hindrances as the
contracting parties may wish to stipulate.
[43. Cf. Khallaf, 'Ilm, p. 104.]
As noted above, declaratory law is divided into five varieties. The first three of these, namely cause,
condition and hindrance, have already been discussed to some extent. Two other varieties which are
added to these are the `azimah (strict law) as opposed to rukhsah (concessionary law), and valid (sahih)
as opposed to invalid (batil). To include the first three under al-hukm al-wad'i is obvious from the very
definition of the latter. But classifying the last two divisions, that is, azimah-rukhsah and sahih-batil,
under al-hukm al-wad'i may need a brief explanation. It is well to point out in this connection that
almost every concession that the Lawgiver has granted to the individual is based on certain causes
which must be present if the concession is to be utilised. The Lawgiver, for example, enacts traveling,
illness or removal of hardship into the cause of a concession in regard to, say, fasting or salah. In
classifying sahih and batil as sub-divisions of declaratory law, it will be further noted that a hukm is
valid when the conditions of its validity are fulfilled, and is invalid if these conditions are not met. In
short, since the last two divisions are basically concerned with causes and conditions, they are included
under the class of declaratory law.
[44. Qasim, Usul, p. 228; Abu `Id, Mabahith, p. 105.]
We shall now proceed to discuss each of the five varieties of al-hukm al-wad'i separately.
II.1 Cause (Sabab)
A sabab is defined as an attribute which is evident and constant [wasf zahir wa-mundabat] and which
the Lawgiver has identified as the indicator of a hukm in such a way that its presence necessitates the
presence of the hukm and its absence means that the hukm is also absent. A sabab may be an act which
is within the power of the mukallaf, such as murder and theft in their status as the causes of retaliation
(qisas) and a hadd penalty respectively. Alternatively, the sabab may be beyond the control of the
mukallaf such as minority being the cause of guardianship over the person and property of a minor.
Principles of Islamic Jurisprudence ~ Kamali 291
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