perpetrator is liable for damages. This ruling draws support from the principle, already referred to, that
preventing an evil takes priority over securing a benefit.
[11. Abu Zahrah, Usul, p. 230; Badran, Usul, p. 243.]
2) The second type of means is that which is most likely (i.e. on the basis of al-zann al ghalib) to lead
to evil and is rarely, if ever, expected to lead to a benefit. An example of this would be selling weapons
during warfare or selling grapes to a wine maker. Although al-Shatibi has noted that these transactions
are invalid according to the consensus (ijma`) of the ulema, both Abu Zahrah and Badran have noted
that it is only the Maliki and Hanbali ulema who have considered these transactions to be forbidden
(haram), as they are most likely to lead to evil notwithstanding the absence of certain knowledge that
this will always be the case. In their opinion, a dominant probability or zann is generally accepted as a
valid basis for the ahkam of Shari'ah. Consequently when there is a strong likelihood that means would
lead to an evil, the means may be declared forbidden on the basis of this probability alone.
Usul, p. 231; Badran, Usul, p. 244.]
3) The third of the four types of means under discussion is that which frequently leads to evil, but in
which there is no certainty, nor even a dominant probability, that this will always be the case. An
example of this would be a sale which is used as a means to procuring usury (riba). These types of
sales, generally known as buyu' al-ajal (deferred sales), in which either the delivery of the object of
sale, or the payment of its price, is deferred to a later date, would all tend to fall under this category of
means. If, for example, A sells a garment for ten rials to B with the price being payable in six months'
time, and A then buys the same garment from B for eight rials with the price being payable
immediately, this transaction in effect amounts to a loan of eight rials to B on which he pays an interest
of two rials after six months. There is a dominant probability that this sale would lead to riba although
there is an element of uncertainty that it may not, which is why the ulema have disagreed as to the
validity or otherwise of this type of transaction. Imam Malik and Ahmad b. Hanbal have held that the
means which are likely to lead to usury are unlawful (haram) and must be obstructed. They have
acknowledged the possibility that a deferred sale may not actually lead to riba; they also take
cognizance of the basic norm in regard to sale, which is legality, and yet they have ruled, on grounds of
caution (ihtiyat), that sales which are likely to lead to riba are unlawful. The mere possibility that riba
may not actually materialise is of no account, and although sale is generally lawful, this basic legality is
of no consequence if it is expected to procure an evil. Furthermore, to prevent the latter must be given
priority over any possible benefit that the sale in question might entail.
The Imams Abu Hanifah and al-Shafi'i have, on the other hand, ruled that unless it definitely leads to
evil, the basic legality of sale must be held to prevail. Sale is basically lawful in all of it varieties,
deferred or otherwise, and in the absence of either positive knowledge ('ilm) or of a dominant zann that
a sale would lead to riba, a mere frequency of occurrence should not be allowed to override the original
legality of sale. The preferred view, however, is that of the Maliki and Hanbali schools, for there is
evidence in the Sunnah to the effect that original permissibility may be overruled in the face of a
Principles of Islamic Jurisprudence ~ Kamali 273
[12. Abu Zahrah,likelihood (or customary practice), even without definite evidence, that it might open the way to evil.
Shatibi, Muwafaqat, IV, 200; Badran, Usul, p. 244; Abu Zahrah, Usul, p. 232.]
The ulema have similarly differed over the validity or otherwise of a marriage that is concluded with
the intention of merely satisfying one's sexual desire without a life-long commitment. Imam Malik
considers this to be invalid (batil), as acts, according to this view, are to be judged by the intention
behind them, and since the norm in marriage is permanence, the absence of an intention to that effect
vitiates the nikah. The main thrust of this view is to prevent the likely abuse to which the marriage in
question is likely to lead. Imam Shafi`i has on the other hand held that the nikah is valid so long as there
is nothing in the contract to vitiate it. The Shari'ah, according to this view, cannot operate on the hidden
intentions of people but only on tangible facts that are susceptible to proof. Whether the nikah in this
case is a means to abuse is a matter for the conscience of the individual, and not the positive application
of the law.
[14. Isma'il, Adillah, p. 175.]
The difference here is one of perspective. Whereas the Shafi'i and Hanafi
view is based on the apparent validity of a contract, the Maliki and Hanbali view takes into
consideration the objective of a contract and the necessary caution that must be taken in order to
prevent an evil.
[15. Abu Zahrah, Usul, p. 231.]
The ulema are, on the other hand, all in agreement on the
prohibition of illicit privacy (khalwah) which is founded in the likelihood, though not amounting to
positive proof, that it might lead to adultery.
[16. Badran, Usul, p. 245.]
Another, similar instance in which the jurists have invoked the principle of sadd al-dhara'i` is the
ruling, disputed by some, that close relatives may neither act as witnesses nor as judges in each other's
disputes. Likewise, a judge may not adjudicate a dispute on the basis of his personal knowledge of facts
without the formal presentation of evidence, lest it lead to prejudice in favour or against one of the
parties. The principle involved here is that such activities might constitute the means to an evil end,
namely miscarriage of justice, and are therefore to be avoided. The Hanafis on the other hand maintain,
particularly in reference to adjudication on the basis of personal knowledge, that it is lawful. Some
ulema have also held the view that testimony by a relative may in fact facilitate justice and may not lead
to evil, especially if relations testify against each other, which is why the ulema of various schools have
allowed the testimony of father or son, or of spouses, against one another, but not in favour.
p. 186; Badran, Usul, p. 244; Isma'il, Adillah, p. 211.]
The jurists have thus disagreed over the application of sadd aldhara'i`
to particular issues and the extent to which it may be validly applied to different situations.
4) The last of the four varieties of means are those which are rarely expected to lead to evil and are
most likely to lead to a benefit. An example of this would be to dig a water well in a place which is not
likely to cause injury or harm to anyone, or speaking a word of truth to a tyrannical ruler or growing
certain varieties of fruits, such as grapes, on one's own property. In all of these, as in many other
matters, there is a possibility that a mafsadah might be caused as a result. In the case of growing grapes,
for example, it is possible that the fruit may be fermented into wine, but a mere possibility of this kind
is overlooked in view of the stronger likelihood of the benefit that it would otherwise achieve. The
Principles of Islamic Jurisprudence ~ Kamali 274
[13.
[17. Shalabi, Fiqh,ulema are generally in agreement on the permissibility of this type of means. The basic norm in regard
to acts and transactions that would fall under this category of means is permissibility, and no one may
be prevented from attempting them on account of the mere possibility that they may lead to a mafsadah.
On a similar note, no-one may be prevented from giving testimony in judicial disputes, nor may anyone
be obstructed from telling the truth to a tyrannical ruler because of a mere possibility that this might
give rise to a mafsadah.
[18. Shatibi, Muwafaqat, II, 249; Badran, Usul, p. 245; Abu Zahrah, Usul, p. 230.]
The foregoing discussion of sadd al-dhara'i` has primarily been concerned with means which led to an
unlawful end. There was, in other words, no attempt to change the haram into halal: whenever there
was a likelihood that a lawful means led to an unlawful end, the means itself became unlawful. But the
application of sadd al-dhara'i' also covers the eventuality where a haram may be turned into halal or
mubah if this is likely to present a greater evil. A lesser evil is, in other words, tolerated in order to
prevent a greater one. To give an example: it is permissible to seek the release of Muslim prisoners of
war in exchange for the payment of a monetary ransom. To give money to the warring enemy is
basically unlawful as it adds strength to the enemy, which is generally harmful. But it is permitted here
as it achieves the freedom of Muslim prisoners, which would in turn add to the strength of the Muslim
forces. This ruling is based in the principle of sadd al-dhara'i', and consists of opening, rather than
blocking, the means to the desired benefit. On a similar note, it is permissible for the Muslim
community to pay the enemy so as to prevent the latter from inflicting harm on the Muslims, but only
when the Muslim community is otherwise powerless to defend itself. Furthermore, the ulema have
generally held that giving bribes is permissible if it is the only way to prevent oppression, and the
victim is otherwise unable to defend himself. To this the Hanbali and Maliki jurists have added the
proviso that giving bribes is only permissible as a means of defending one's proven rights but not if the
right in question is disputed.
[19. Abu Zahrah, Usul, p. 232.]
Notwithstanding the essential validity of sadd al-dhara'i' as a principle of Shari'ah, over-reliance on it
is not recommended. The ulema have cautioned that an excessive use of this principle may render the
lawful (mubah) or even the praiseworthy (mandub) and the obligatory (wajib) unlawful, which should
not be encouraged. An example of this would be when an upright person refuses to take custody of the
property of the orphan, or of waqf property, for the pious motive of avoiding the possibility of incurring
a sin. A refusal of this nature would seem to over-emphasise the significance of the means that might
lead to evil. With regard to the guardianship of the property of orphans, the Qur'an offers some
guidance in that it permits mixing their property with that of the guardian as a matter of trust, a
conclusion which is drawn from the text where we read in a reference to the orphans: 'If you mix their
affairs with years, they are your brethren, but God knows the wrong-doer from the upright' (al-Baqarah,
2:220).
While discussing the ulema's caution against over-reliance on sadd al-dhara'i`, Abu Zahrah quotes the
renowned Maliki jurist Ibn al-'Arabi, to the effect that the application of this principle should be
Principles of Islamic Jurisprudence ~
Kamali 275
regulated so as to ensure propriety and moderation in its use. Abu Zahrah then concurs with Ibn al`Arabi
to the effect that if an evil is to be prevented by blocking the means towards it, one must
ascertain
that the evil in question is mansus
`alayh,
that is, one which has been ruled upon as such in the
Qur'an
or the Sunnah.
Similarly, when a benefit is to be facilitated by opening the means towards it, the
propriety
of the benefit must be sustainable by analogy to a halal
mansus (that
which has been declared
lawful
in the nass).
But Abu Zahrah is careful to add that these conditions remain in the nature of an
opinion
and are not required in the accepted Maliki exposition of this doctrine`
[20. Abu Zahrah, Usul, p. 233.]
And finally, with regard to the guardianship of property and trust in the foregoing example, it is
suggested that the harm which is likely to arise from refusal by an upright person to undertake it is
likely to be greater than that which might arise from undertaking it. If the orphans were to be neglected
for fear of opening the means to misuse of trust, or if no-one gave testimony for fear of indulging in
lying, then surely this would itself become a means to greater evil and should therefore be avoided.
We might end our discussion of sadd al-dhara'i` by distinguishing the means from the preliminary
(muqaddimah), although the two can at times coincide and overlap. Briefly, a 'preliminary' consists of
something which is necessary for obtaining the result that it contemplates, in the sense that the latter
cannot materialise without the former. For instance, ablution (wudu') is a preliminary to salah and the
latter cannot be performed without the former. But a means to something does not stand in the same
relationship to its end. Although the means is normally expected to lead to the end it contemplates, the
latter may also be obtained through some other means. The end, in other words, is not exclusively
dependent on the means. To give an example: traveling in order to commit a theft is a preliminary to the
theft that it contemplates but not a means to it. Traveling which might consist of riding a train in a
certain direction is basically neutral and cannot, on an objective basis, be said to constitute a means to
theft. But tahlil, that is, an intervening marriage concluded in order to legalise remarriage between a
divorced couple, is a means to the proposed marriage but not a preliminary to it, as the latter is not
exclusively dependent on tahlil and can, for example, follow a normal intervening marriage. Similarly,
seductive overtures between members of the opposite sexes are a means, but not a preliminary, to
adultery, as the latter can materialise even without such overtures. Sexual overtures can only constitute
a preliminary to zina when they actually lead to it.
The other difference to note between the means and the preliminary for our purposes, is, as already
indicated, that the former is usually evaluated and declared unlawful on an objective basis even without
the realisation of its expected end. The preliminary to an act, on the other hand, is of little value without
the actual occurrence of the act of which it becomes a part. The relationship between preliminary and its
result is subjective in the sense that it can only be evaluated in the light of the completed or the intended
result. Walking in the direction of a mosque to perform the Friday prayers, for example, can only
acquire the value of the wajib if it actually leads to the performance of the prayers, not otherwise.
Badran, Usul, pp. 245-246; Isma'il, Adillah, p. 171.]
Principles of Islamic Jurisprudence ~ Kamali 276
[21. Cf.Chapter Seventeen: Hukm Shar`i (Law or Value of Shari'ah)
The ulema of usul define hukm shar`i as a locution or communication from the Lawgiver concerning
the conduct of the mukallaf (person in full possession of his faculties) which consists of a demand, an
option or an enactment A demand (talab, or iqtida') is usually communicated in the form of either a
command or a prohibition. The former demands that the mukallaf do something, whereas the latter
requires him to avoid doing something. A demand may either be binding, which leaves the mukallaf
with no choice but to conform, or may not be binding. When a demand to do or not to do something is
established by definitive proof (dalil qat'i) it is referred to as wajib or haram respectively. Such is the
majority view, but according to the Hanafi jurists, if the text which conveys such a demand is not
definitive in its meaning (dalalah) or authenticity (thubut), it is wajib, but if it is definitive in both
respects, it is fard. As for the demand to avoid doing something, the Hanafis maintain that if it is based
on definitive proof in terms of both meaning and authenticity, it is haram, otherwise it is makruh
tahrimi. When a demand is not utterly emphatic and leaves the individual with an element of choice it is
known as mandub (recommended). The option (takhyir), on the other hand, is a variety of hukm shar'i
which leaves the individual at liberty either to do or to avoid doing something. A hukm of this kind is
commonly known as mubah (permissible). An enactment, or wad`, is neither a demand nor an option,
but an objective exposition of the law which enacts something as a cause (sabab) or a condition (shart)
of obtaining something else; or it may be conveyed in the form of a hindrance (mani`) that might
operates an obstacle against obtaining it.
[1. Ghazali, Mustasfa, I, 42; Shawkani, Irshad, p. 6; Khallaf, `Ilm, p. 100.]
To give some examples, the Qur'anic command which addresses the believers to `fulfill your contracts'
(al-Ma'idah, 5:1) is a speech of the Lawgiver addressed to the mukallaf which consists of a particular
demand. A demand addressed to the mukallaf which conveys a prohibition may be illustrated by
reference to the Qur'anic text which provides: 'O you believers, let not some people ridicule others, for
it is possible that the latter are better than the former [ ...]' (al-Hujurat, 49:11). To illustrate a hukm
which conveys an option, we refer to the Qur'anic text which permits the believers to 'hunt when you
have come out of the state of ihram' (sacred state entered into for the purpose of performing the hajj
pilgrimage) (al -Ma'idah, 5:2). Another Qur'anic text which consists of an option occurs in sura alBaqarah
(2:229) which provides: `If you fear that they [i.e. the spouses] would be unable to observe the
limits
set by God, then there would be no sin on them if she gives a consideration for her freedom.' The
married
couple are thus given the choice to incur a divorce by mutual consent, known as khul',
if they
so
wish, but they are under no obligation if they do not. Another form of option which occurs to the
Qur'an
may be illustrated with reference to the expiation (kaffarah)
of erroneous killing. The perpetrator
has
here been given the choice either to set a slave free, or feed sixty destitute, or fast for two
consecutive
months (al-Nisa', 4:92). The following Hadith also conveys a hukm
in which the individual
Principles of Islamic Jurisprudence ~
Kamali 278
is given a choice. The Hadith reads: 'If any of you sees something evil, he should set it right by his
hand; If he is unable to do so, then by his tongue; and if he is unable to do even that, then within his
heart- but this is the weakest form of faith.'
[2. Muslim, Sahih Muslim, p.16, Hadith no.34.]
Here the choice is given according to the ability of the mukallaf and the circumstances which might
influence his decision. Lastly, to illustrate a hukm which consists of an enactment (wad') we may refer
to the Hadith which provides that 'the killer does not inherit'.
2735.]
[3. Shafi'i, Risalah, p. 80; Ibn Majah, Sunan, II, 913, Hadith no.
This is a speech of the Lawgiver concerning the conduct of the mukallaf which is neither a demand nor
an option but an objective ruling of the law that envisages a certain eventuality.
The ulema of usul have differed with the fuqaha' in regard to the identification of hukm shar`i. To refer
back to the first example where we quoted the Qur'an concerning the fulfillment of contracts; according
to the ulema of usul, the text itself, that is, the demand which is conveyed in the text, represents the
hukm shar'i. However, according to the fuqaha', it is the effect of that demand, namely the obligation
(wujub) that it conveys which embodies the hukm shar`i. To give another example, the Qur'anic
prohibition which provides in an address to the believers: 'Do not approach adultery' (al-Isra', 17:32), is
itself the embodiment of the hukm shar`i, according to the ulema of usul. But according to the fuqaha, it
is the effect of the demand in this ayah, namely the prohibition (tahrim) which represents the hukm
shari. Similarly, the Qur'anic text in respect of the permissibility of hunting which we earlier quoted is
itself the embodiment of the hukm shar`i according to the ulema of usul, but it is the effect of that text,
namely the permissibility (ibahah) which is the hukm according to the fuqaha'. Having explained this
difference of perspective between the ulema of usul and the fuqaha', it will be noted, however, that it is
of no practical consequence concerning the rulings of the Shari'ah, in that the two aspects of hukm that
they highlight are to all intents and purposes concurrent.
[4. Khallaf, `Ilm, 100; Khudari, Usul, p. 18; Abu 'Id, Mabahith, p.58.]
Hukm shar'i is divided into the two main varieties of al-hukm al-taklifi (defining law) and al-hukm alwad'i
(declaratory law). The former consists of a demand or an option, whereas the latter consists of an enactment only. `Defining Law' is a fitting description of al-hukm al-taklifi, as it mainly defines the extent of man's liberty of action. Al-hukm al-wad'i is rendered 'declaratory law', as this type of hukm mainly declares the legal relationship between the cause (sabab) and its effect (musabbab) or between the condition (shart)and its object (mashrut) [5. Cf. Abdur Rahim, Jurisprudence, p. 193, for the use of English terminology.]
.
Defining law may thus be described as a locution or communication from the Lawgiver which demands
the mukallaf to do something or forbids him from doing something, or gives him an option between the
two. This type of hukm occurs in the well-known five categories of wajib (obligatory), mandub
(recommended), haram (forbidden), makruh (abominable) and mubah (permissible). Declaratory law is
also subdivided into the five categories of sabab (cause), shart (condition), mani' (hindrance), `azimah
Principles of Islamic Jurisprudence ~
Kamali 279
(strict law) as opposed to rukhsah (concessionary law), and sahih (valid) as opposed to batil (null and
void).
[6. Khallaf, `Ilm, p. 101; Qasim, Usul, p. 213.]
I. Defining Law (al-hukm al-Taklifi )
We shall discuss the defining law and its various sub-divisions first.
As stated above, `defining law' is a locution or communication from the Lawgiver addressed to the
mukallaf which consists of a demand or of an option; it occurs in the five varieties of wajib, mandub,
haram, makruh and mubah. We shall discuss each of these separately, as follows.
I.1 The Obligatory (Wajib, Fard)
For the majority of ulema, wajib and fard are synonymous, and both convey an imperative and binding
demand of the Lawgiver addressed to the mukallaf in respect of doing something. Acting upon
something wajib leads to reward, while omitting it leads to punishment in this world or in the hereafter.
The Hanafis have, however, drawn a distinction between wajib and fard. An act is thus obligatory in the
first degree, that is, fard, when the command to do it is conveyed in a clear and definitive text of the
Qur'an or Sunnah. But if the command to do something is established in a speculative (zanni) authority,
such as an Ahad Hadith, the act would be obligatory in the second degree (wajib). The obligatory
commands to perform the salah, the hajj, and to obey one's parents are thus classified under fard, as
they are each established in a definitive text of the Quran. But the obligation to recite sura al-Fatihah in
salah, or to perform salat al-witr, that is, the three units of prayers which conclude the late evening
prayers (salat al-'isha'), are on the other hand classified under wajib, as they are both established in the
authority of Hadith whose authenticity is not completely free of doubt. A Muslim is bound to do acts
which are obligatory either in the first or in the second degree; if he does them, he secures reward and
spiritual merit, but if he willfully neglects them, he makes himself liable to punishment. The difference
between the two classes of obligations, according to the vast majority of the jurists, including the
Hanafis, is that the person who refuses to believe in the binding nature of a command which is
established by definitive proof becomes an unbeliever, but not if he disputes the authority of an
obligatory command of the second degree, although he becomes a transgressor. Thus to neglect one's
obligation to support one's wife, children and poor parents amounts to a sin but not to infidelity.
Mabahith, p. 63; Qasim, Usul, p. 216; Abdur Rahim, Jurisprudence, p. 197.]
Principles of Islamic Jurisprudence ~ Kamali 280
[7. Abu 'Id,Another consequence of the distinction between fard and wajib is that when the former is neglected in
an act required by the Shari'ah, the act as a whole becomes null and void (batil). If. for example, a
person leaves out the bowing (ruku`) or prostration (sajdah) in obligatory prayers, the whole of the
prayer becomes null and void. But if he leaves out the recitation of al-Fatihah, the salah is basically
valid, albeit deficient. This is the Hanafi view, but according to the majority the salah is null and void
in both cases. However, the difference between the Hanafis and the majority in this respect is regarded
as one of form rather than substance, in that the consequences of their disagreement are on the whole
negligible.
[8. Abu Zahrah, Usul, pp. 23-24; Abu `Id, Mabahith, p. 63.]
Al-Ghazali is representative of the majority opinion,
including that of the Shafi'is, when he writes: `As far as we are concerned, there is no difference
between fard and wajib; the two terms are synonymous. According to the Hanafis, fard is based on
definitive authority but wajib is founded in speculative proof. Once again, we do not deny the division
of wajib into definitive and speculative (maqtu' wa-maznun) and there is no objection to the rise of
different expressions once their meaning is clear.'
[9. Ghazali, Mustasfa, I. 42.]
Wajib is sub-divided into at least three varieties, the first of which is the division of wajib into personal
('ayni) and collective (kafa'i). Wajib `ayni is addressed to every individual sui juris and cannot, in
principle, be performed for or on behalf of another person. Examples of wajib (or fard) 'ayni are salah,
hajj, zakah, fulfillment of contract and obedience to one's parents. Wajib kafa'i consists of obligations
that are addressed to the community as a whole. If only some members of the community perform
them, the law is satisfied and the rest of the community is absolved of it. For example, the duty to
participate in jihad (holy struggle), funeral prayers, the hisbah, (promotion of good and prevention of
evil), building hospitals, extinguishing fires, giving testimony and serving as a judge, etc., are all
collective obligations of the community, and are thus wajib (or fard) kafa'i. Thus when a person dies
leaving no property to meet the cost of his burial, it is the wajib kafa'i of the community to provide it
and to give him a decent burial. Only some members of the community may actually contribute toward
the costs, but the duty is nevertheless discharged from the whole of the community. The merit (thawab),
however, only attaches to those who have actually taken part in discharging the wajib kafa'i duty.
The collective obligation sometimes changes into a personal obligation. This is, for example, the case
with regard to jihad, which is a wajib kafa'i, although when the enemy attacks and besieges a locality it
becomes the personal duty of every resident to defend it. Similarly, when there is only one mujtahid in a
city, it becomes his personal duty to carry out ijtihad.
[10. Khallaf, 'Ilm, p. 109; Qasim, Usul, p.218; Abu 'Id, Mabahith, p.69.]
Wajib is also divided into wajib muwaqqat, that is, wajib which is contingent on a time-limit and wajib
mutlaq, that is, 'absolute wajib', which is free of such a limitation. Fasting and the obligatory salah are
examples of contingent wajib, as they must each be observed within specified time limits. But
performing the hajj or the payment of an expiation (kaffarah) are not subject to such restrictions and are
therefore absolute wajib. Provided that one performs the hajj once during one's lifetime and pays the
kaffarah at any time before one dies, the duty is discharged.
[11. The Mu'tazilah have held the view that a flexibility of this kind
Principles of Islamic Jurisprudence ~
Kamali 281
negates the whole concept of wujub, as in their view wajib precludes the element of choice altogether. But the majority of ulema refute this by saying that there is
no necessary contradiction in dividing the wajib into wajib muwaqqat and wajib mutlaq. For details see Ghazali, Mustasfa, I, 43-44.]
Furthermore, the
absolute wajib is called absolute because there is no time-limit on its performance and it may be
fulfilled every time whenever the occasion arises. This is, for example, the case regarding one's duty to
obey one's parents, or the obligation to carry out hisbah, namely, to promote good and to prevent of evil
as and when the occasion arises.
A consequence of this division is that wajib muwaqqat materialises only when the time is due for it; it
may neither be hastened nor delayed, but within the given time limits the mukallaf has a measure of
flexibility. Furthermore, to fulfill a contingent wajib it is necessary that the mukallaf have the intention
(niyyah) specifically to discharge it.
[12. Khudari, Usul, p.33; Khallaf, `Ilm, p. 108.]
Lastly, the wajib is divided into quantified wajib (wajib muhaddad) and unquantified wajib (wajib
ghayr muhaddad). An example of the former is salah, zakah, payment of the price (thaman) by the
purchaser in a sale transaction, and payment of rent in accordance with the terms of a tenancy
agreement, all of which are quantified. Similarly, enforcement of the prescribed penalties (hudud) falls
under the rubric of wajib muhaddad in the sense that the hadd penalties are all specified in terms of
quantity. The unquantified wajib may be illustrated by reference to one's duty to support one's close
relatives, charity to the poor, feeding the hungry, paying a dower, (mahr) to one's wife, the length of
standing (qiyam), bowing and prostration in salah, wiping the head in ablution (wudu') and quantifying
the ta'zir penalties for offences which are punishable but in regard to which the Lawgiver has not
quantified the punishment. (It is for the judge to quantify the punishment in light of the individual
circumstances of the offender and the offence.) Consequently, the mukallaf, be it the individual
believer, the qadi or the imam, enjoys the flexibility to determine the quantitative aspect of the
unquantified wajib himself.
[13. Ghazali, Mustasfa, I, 47; Khallaf, 'Ilm, p. 110; Abu Zahrah, Usul, p. 35; Khudari, Usul, p. 42.]
A consequence of this division is that if the quantified wajib is not discharged within the given timelimit,
it constitutes a liability on the person (dhimmah)
of the individual, as in the case of unpaid zakah
or
an unpaid debt. Failure to discharge a wajib
ghayr muhaddad,
on the other hand, does not result in a
personal
liability.
A question arises with regard to the value of the excessive portion in the supererogation of quantified
wajib. The question is whether an over-fulfillment of this type becomes a part of the wajib itself. There
are two main views on this, one of which maintains that excessive performance in quantified wajib also
becomes a part of the wajib. But the preferred view is that any addition to the minimal requirement
becomes mandub only. For no punishment can be imposed for a failure to perform anything in addition
to the minimum required.
[14. Ghazali, Mustasfa, I, 47.]
Principles of Islamic Jurisprudence ~ It would be inaccurate to say that a means to a wajib is also a wajib, or that a necessary ingredient of
wajib is also wajib in every case. For such a view would tend to ignore the personal capacity of the
mukallaf especially if the latter is unable to do what is required to be done: in the event, for example,
when the Friday congregational prayer cannot be held for lack of a large number of people in a locality.
It would be more accurate to say that when the means to wajib consist of an act which is within the
capacity of the mukallaf then that act is also wajib.
[15. Ghazali, Mustasfa,, I, 46; Abu Zahrah, Usul, p. 23.]
The distinction between wajib and mandub is, broadly speaking, based on the idea that ignoring the
wajib entails punishment (`iqab) while ignoring the mandub does not. The distinction between haram
and makruh is based on a similar criterion: if doing something is punishable, it is haram, otherwise it is
makruh. This is generally correct, but one must add the proviso that punishment is not a necessary
requirement of a binding obligation, or wujub. In addition, as Imam Ghazali points out, the element of
punishment, whether in this world or in the hereafter, is not a certainty. Whereas in its positive sense
the wajib is normally enforceable in this world and might also lead to a tangible advantage or reward,
the spiritual punishment for its neglect is, however, awaited and postponed to the hereafter. Hence the
invocation of punishment is not a necessary requirement of wajib. When God Almighty renders an act
obligatory upon people without mentioning a punishment for its omission, the act which is so demanded
is still wajib.
[16. Ghazali, Mustasfa, I, 42.]
I.2 Mandub (Recommended)
Mandub denotes a demand of the Lawgiver which asks the mukallaf to do something which is,
however, not binding on the latter. To comply with the demand earns the mukallaf spiritual reward
(thawab) but no punishment is inflicted for failure to perform. Creating a charitable endowment (waqf),
for example, giving alms to the poor, fasting on days outside Ramadan, attending the sick, etc., are
duties of this kind. Mandub is variously known as Sunnah, mustahabb and nafl, which are all here
synonymous and covered by the same definition.
p.197.]
[17. Ghazali, Mustasfa, I, 42; Khallaf, `Ilm, p. 112; Abdur Rahim, Jurisprudence,
If it is an act which the Prophet has done at one time but omitted at other times, it is called Sunnah.
There are two types of Sunnah, namely Sunnah mu'akkadah (the emphatic Sunnah, also known as
Sunnah al-huda), and Sunnah ghayr mu'akkadah, or supererogatory Sunnah. The call to congregational
prayers (i.e. the adhan), attending congregational prayers, and gargling as a part of the ablution (wudu')
are examples of the former, whereas non-obligatory charity, and supererogatory prayers preceding the
obligatory salah in early and late afternoon (i.e. zuhr, and 'asr) are examples of supererogatory Sunnah.
Performing the emphatic Sunnah leads to spiritual reward from Almighty God while its neglect is
merely blameworthy but not punishable. However, if the entire population of a locality agree to
abandon the emphatic Sunnah, they are to be fought for contempt of the Sunnah. To perform the
Principles of Islamic Jurisprudence ~ Kamali 283
Kamali 282
preventing an evil takes priority over securing a benefit.
[11. Abu Zahrah, Usul, p. 230; Badran, Usul, p. 243.]
2) The second type of means is that which is most likely (i.e. on the basis of al-zann al ghalib) to lead
to evil and is rarely, if ever, expected to lead to a benefit. An example of this would be selling weapons
during warfare or selling grapes to a wine maker. Although al-Shatibi has noted that these transactions
are invalid according to the consensus (ijma`) of the ulema, both Abu Zahrah and Badran have noted
that it is only the Maliki and Hanbali ulema who have considered these transactions to be forbidden
(haram), as they are most likely to lead to evil notwithstanding the absence of certain knowledge that
this will always be the case. In their opinion, a dominant probability or zann is generally accepted as a
valid basis for the ahkam of Shari'ah. Consequently when there is a strong likelihood that means would
lead to an evil, the means may be declared forbidden on the basis of this probability alone.
Usul, p. 231; Badran, Usul, p. 244.]
3) The third of the four types of means under discussion is that which frequently leads to evil, but in
which there is no certainty, nor even a dominant probability, that this will always be the case. An
example of this would be a sale which is used as a means to procuring usury (riba). These types of
sales, generally known as buyu' al-ajal (deferred sales), in which either the delivery of the object of
sale, or the payment of its price, is deferred to a later date, would all tend to fall under this category of
means. If, for example, A sells a garment for ten rials to B with the price being payable in six months'
time, and A then buys the same garment from B for eight rials with the price being payable
immediately, this transaction in effect amounts to a loan of eight rials to B on which he pays an interest
of two rials after six months. There is a dominant probability that this sale would lead to riba although
there is an element of uncertainty that it may not, which is why the ulema have disagreed as to the
validity or otherwise of this type of transaction. Imam Malik and Ahmad b. Hanbal have held that the
means which are likely to lead to usury are unlawful (haram) and must be obstructed. They have
acknowledged the possibility that a deferred sale may not actually lead to riba; they also take
cognizance of the basic norm in regard to sale, which is legality, and yet they have ruled, on grounds of
caution (ihtiyat), that sales which are likely to lead to riba are unlawful. The mere possibility that riba
may not actually materialise is of no account, and although sale is generally lawful, this basic legality is
of no consequence if it is expected to procure an evil. Furthermore, to prevent the latter must be given
priority over any possible benefit that the sale in question might entail.
The Imams Abu Hanifah and al-Shafi'i have, on the other hand, ruled that unless it definitely leads to
evil, the basic legality of sale must be held to prevail. Sale is basically lawful in all of it varieties,
deferred or otherwise, and in the absence of either positive knowledge ('ilm) or of a dominant zann that
a sale would lead to riba, a mere frequency of occurrence should not be allowed to override the original
legality of sale. The preferred view, however, is that of the Maliki and Hanbali schools, for there is
evidence in the Sunnah to the effect that original permissibility may be overruled in the face of a
Principles of Islamic Jurisprudence ~ Kamali 273
[12. Abu Zahrah,likelihood (or customary practice), even without definite evidence, that it might open the way to evil.
Shatibi, Muwafaqat, IV, 200; Badran, Usul, p. 244; Abu Zahrah, Usul, p. 232.]
The ulema have similarly differed over the validity or otherwise of a marriage that is concluded with
the intention of merely satisfying one's sexual desire without a life-long commitment. Imam Malik
considers this to be invalid (batil), as acts, according to this view, are to be judged by the intention
behind them, and since the norm in marriage is permanence, the absence of an intention to that effect
vitiates the nikah. The main thrust of this view is to prevent the likely abuse to which the marriage in
question is likely to lead. Imam Shafi`i has on the other hand held that the nikah is valid so long as there
is nothing in the contract to vitiate it. The Shari'ah, according to this view, cannot operate on the hidden
intentions of people but only on tangible facts that are susceptible to proof. Whether the nikah in this
case is a means to abuse is a matter for the conscience of the individual, and not the positive application
of the law.
[14. Isma'il, Adillah, p. 175.]
The difference here is one of perspective. Whereas the Shafi'i and Hanafi
view is based on the apparent validity of a contract, the Maliki and Hanbali view takes into
consideration the objective of a contract and the necessary caution that must be taken in order to
prevent an evil.
[15. Abu Zahrah, Usul, p. 231.]
The ulema are, on the other hand, all in agreement on the
prohibition of illicit privacy (khalwah) which is founded in the likelihood, though not amounting to
positive proof, that it might lead to adultery.
[16. Badran, Usul, p. 245.]
Another, similar instance in which the jurists have invoked the principle of sadd al-dhara'i` is the
ruling, disputed by some, that close relatives may neither act as witnesses nor as judges in each other's
disputes. Likewise, a judge may not adjudicate a dispute on the basis of his personal knowledge of facts
without the formal presentation of evidence, lest it lead to prejudice in favour or against one of the
parties. The principle involved here is that such activities might constitute the means to an evil end,
namely miscarriage of justice, and are therefore to be avoided. The Hanafis on the other hand maintain,
particularly in reference to adjudication on the basis of personal knowledge, that it is lawful. Some
ulema have also held the view that testimony by a relative may in fact facilitate justice and may not lead
to evil, especially if relations testify against each other, which is why the ulema of various schools have
allowed the testimony of father or son, or of spouses, against one another, but not in favour.
p. 186; Badran, Usul, p. 244; Isma'il, Adillah, p. 211.]
The jurists have thus disagreed over the application of sadd aldhara'i`
to particular issues and the extent to which it may be validly applied to different situations.
4) The last of the four varieties of means are those which are rarely expected to lead to evil and are
most likely to lead to a benefit. An example of this would be to dig a water well in a place which is not
likely to cause injury or harm to anyone, or speaking a word of truth to a tyrannical ruler or growing
certain varieties of fruits, such as grapes, on one's own property. In all of these, as in many other
matters, there is a possibility that a mafsadah might be caused as a result. In the case of growing grapes,
for example, it is possible that the fruit may be fermented into wine, but a mere possibility of this kind
is overlooked in view of the stronger likelihood of the benefit that it would otherwise achieve. The
Principles of Islamic Jurisprudence ~ Kamali 274
[13.
[17. Shalabi, Fiqh,ulema are generally in agreement on the permissibility of this type of means. The basic norm in regard
to acts and transactions that would fall under this category of means is permissibility, and no one may
be prevented from attempting them on account of the mere possibility that they may lead to a mafsadah.
On a similar note, no-one may be prevented from giving testimony in judicial disputes, nor may anyone
be obstructed from telling the truth to a tyrannical ruler because of a mere possibility that this might
give rise to a mafsadah.
[18. Shatibi, Muwafaqat, II, 249; Badran, Usul, p. 245; Abu Zahrah, Usul, p. 230.]
The foregoing discussion of sadd al-dhara'i` has primarily been concerned with means which led to an
unlawful end. There was, in other words, no attempt to change the haram into halal: whenever there
was a likelihood that a lawful means led to an unlawful end, the means itself became unlawful. But the
application of sadd al-dhara'i' also covers the eventuality where a haram may be turned into halal or
mubah if this is likely to present a greater evil. A lesser evil is, in other words, tolerated in order to
prevent a greater one. To give an example: it is permissible to seek the release of Muslim prisoners of
war in exchange for the payment of a monetary ransom. To give money to the warring enemy is
basically unlawful as it adds strength to the enemy, which is generally harmful. But it is permitted here
as it achieves the freedom of Muslim prisoners, which would in turn add to the strength of the Muslim
forces. This ruling is based in the principle of sadd al-dhara'i', and consists of opening, rather than
blocking, the means to the desired benefit. On a similar note, it is permissible for the Muslim
community to pay the enemy so as to prevent the latter from inflicting harm on the Muslims, but only
when the Muslim community is otherwise powerless to defend itself. Furthermore, the ulema have
generally held that giving bribes is permissible if it is the only way to prevent oppression, and the
victim is otherwise unable to defend himself. To this the Hanbali and Maliki jurists have added the
proviso that giving bribes is only permissible as a means of defending one's proven rights but not if the
right in question is disputed.
[19. Abu Zahrah, Usul, p. 232.]
Notwithstanding the essential validity of sadd al-dhara'i' as a principle of Shari'ah, over-reliance on it
is not recommended. The ulema have cautioned that an excessive use of this principle may render the
lawful (mubah) or even the praiseworthy (mandub) and the obligatory (wajib) unlawful, which should
not be encouraged. An example of this would be when an upright person refuses to take custody of the
property of the orphan, or of waqf property, for the pious motive of avoiding the possibility of incurring
a sin. A refusal of this nature would seem to over-emphasise the significance of the means that might
lead to evil. With regard to the guardianship of the property of orphans, the Qur'an offers some
guidance in that it permits mixing their property with that of the guardian as a matter of trust, a
conclusion which is drawn from the text where we read in a reference to the orphans: 'If you mix their
affairs with years, they are your brethren, but God knows the wrong-doer from the upright' (al-Baqarah,
2:220).
While discussing the ulema's caution against over-reliance on sadd al-dhara'i`, Abu Zahrah quotes the
renowned Maliki jurist Ibn al-'Arabi, to the effect that the application of this principle should be
Principles of Islamic Jurisprudence ~
Kamali 275
regulated so as to ensure propriety and moderation in its use. Abu Zahrah then concurs with Ibn al`Arabi
to the effect that if an evil is to be prevented by blocking the means towards it, one must
ascertain
that the evil in question is mansus
`alayh,
that is, one which has been ruled upon as such in the
Qur'an
or the Sunnah.
Similarly, when a benefit is to be facilitated by opening the means towards it, the
propriety
of the benefit must be sustainable by analogy to a halal
mansus (that
which has been declared
lawful
in the nass).
But Abu Zahrah is careful to add that these conditions remain in the nature of an
opinion
and are not required in the accepted Maliki exposition of this doctrine`
[20. Abu Zahrah, Usul, p. 233.]
And finally, with regard to the guardianship of property and trust in the foregoing example, it is
suggested that the harm which is likely to arise from refusal by an upright person to undertake it is
likely to be greater than that which might arise from undertaking it. If the orphans were to be neglected
for fear of opening the means to misuse of trust, or if no-one gave testimony for fear of indulging in
lying, then surely this would itself become a means to greater evil and should therefore be avoided.
We might end our discussion of sadd al-dhara'i` by distinguishing the means from the preliminary
(muqaddimah), although the two can at times coincide and overlap. Briefly, a 'preliminary' consists of
something which is necessary for obtaining the result that it contemplates, in the sense that the latter
cannot materialise without the former. For instance, ablution (wudu') is a preliminary to salah and the
latter cannot be performed without the former. But a means to something does not stand in the same
relationship to its end. Although the means is normally expected to lead to the end it contemplates, the
latter may also be obtained through some other means. The end, in other words, is not exclusively
dependent on the means. To give an example: traveling in order to commit a theft is a preliminary to the
theft that it contemplates but not a means to it. Traveling which might consist of riding a train in a
certain direction is basically neutral and cannot, on an objective basis, be said to constitute a means to
theft. But tahlil, that is, an intervening marriage concluded in order to legalise remarriage between a
divorced couple, is a means to the proposed marriage but not a preliminary to it, as the latter is not
exclusively dependent on tahlil and can, for example, follow a normal intervening marriage. Similarly,
seductive overtures between members of the opposite sexes are a means, but not a preliminary, to
adultery, as the latter can materialise even without such overtures. Sexual overtures can only constitute
a preliminary to zina when they actually lead to it.
The other difference to note between the means and the preliminary for our purposes, is, as already
indicated, that the former is usually evaluated and declared unlawful on an objective basis even without
the realisation of its expected end. The preliminary to an act, on the other hand, is of little value without
the actual occurrence of the act of which it becomes a part. The relationship between preliminary and its
result is subjective in the sense that it can only be evaluated in the light of the completed or the intended
result. Walking in the direction of a mosque to perform the Friday prayers, for example, can only
acquire the value of the wajib if it actually leads to the performance of the prayers, not otherwise.
Badran, Usul, pp. 245-246; Isma'il, Adillah, p. 171.]
Principles of Islamic Jurisprudence ~ Kamali 276
[21. Cf.Chapter Seventeen: Hukm Shar`i (Law or Value of Shari'ah)
The ulema of usul define hukm shar`i as a locution or communication from the Lawgiver concerning
the conduct of the mukallaf (person in full possession of his faculties) which consists of a demand, an
option or an enactment A demand (talab, or iqtida') is usually communicated in the form of either a
command or a prohibition. The former demands that the mukallaf do something, whereas the latter
requires him to avoid doing something. A demand may either be binding, which leaves the mukallaf
with no choice but to conform, or may not be binding. When a demand to do or not to do something is
established by definitive proof (dalil qat'i) it is referred to as wajib or haram respectively. Such is the
majority view, but according to the Hanafi jurists, if the text which conveys such a demand is not
definitive in its meaning (dalalah) or authenticity (thubut), it is wajib, but if it is definitive in both
respects, it is fard. As for the demand to avoid doing something, the Hanafis maintain that if it is based
on definitive proof in terms of both meaning and authenticity, it is haram, otherwise it is makruh
tahrimi. When a demand is not utterly emphatic and leaves the individual with an element of choice it is
known as mandub (recommended). The option (takhyir), on the other hand, is a variety of hukm shar'i
which leaves the individual at liberty either to do or to avoid doing something. A hukm of this kind is
commonly known as mubah (permissible). An enactment, or wad`, is neither a demand nor an option,
but an objective exposition of the law which enacts something as a cause (sabab) or a condition (shart)
of obtaining something else; or it may be conveyed in the form of a hindrance (mani`) that might
operates an obstacle against obtaining it.
[1. Ghazali, Mustasfa, I, 42; Shawkani, Irshad, p. 6; Khallaf, `Ilm, p. 100.]
To give some examples, the Qur'anic command which addresses the believers to `fulfill your contracts'
(al-Ma'idah, 5:1) is a speech of the Lawgiver addressed to the mukallaf which consists of a particular
demand. A demand addressed to the mukallaf which conveys a prohibition may be illustrated by
reference to the Qur'anic text which provides: 'O you believers, let not some people ridicule others, for
it is possible that the latter are better than the former [ ...]' (al-Hujurat, 49:11). To illustrate a hukm
which conveys an option, we refer to the Qur'anic text which permits the believers to 'hunt when you
have come out of the state of ihram' (sacred state entered into for the purpose of performing the hajj
pilgrimage) (al -Ma'idah, 5:2). Another Qur'anic text which consists of an option occurs in sura alBaqarah
(2:229) which provides: `If you fear that they [i.e. the spouses] would be unable to observe the
limits
set by God, then there would be no sin on them if she gives a consideration for her freedom.' The
married
couple are thus given the choice to incur a divorce by mutual consent, known as khul',
if they
so
wish, but they are under no obligation if they do not. Another form of option which occurs to the
Qur'an
may be illustrated with reference to the expiation (kaffarah)
of erroneous killing. The perpetrator
has
here been given the choice either to set a slave free, or feed sixty destitute, or fast for two
consecutive
months (al-Nisa', 4:92). The following Hadith also conveys a hukm
in which the individual
Principles of Islamic Jurisprudence ~
Kamali 278
is given a choice. The Hadith reads: 'If any of you sees something evil, he should set it right by his
hand; If he is unable to do so, then by his tongue; and if he is unable to do even that, then within his
heart- but this is the weakest form of faith.'
[2. Muslim, Sahih Muslim, p.16, Hadith no.34.]
Here the choice is given according to the ability of the mukallaf and the circumstances which might
influence his decision. Lastly, to illustrate a hukm which consists of an enactment (wad') we may refer
to the Hadith which provides that 'the killer does not inherit'.
2735.]
[3. Shafi'i, Risalah, p. 80; Ibn Majah, Sunan, II, 913, Hadith no.
This is a speech of the Lawgiver concerning the conduct of the mukallaf which is neither a demand nor
an option but an objective ruling of the law that envisages a certain eventuality.
The ulema of usul have differed with the fuqaha' in regard to the identification of hukm shar`i. To refer
back to the first example where we quoted the Qur'an concerning the fulfillment of contracts; according
to the ulema of usul, the text itself, that is, the demand which is conveyed in the text, represents the
hukm shar'i. However, according to the fuqaha', it is the effect of that demand, namely the obligation
(wujub) that it conveys which embodies the hukm shar`i. To give another example, the Qur'anic
prohibition which provides in an address to the believers: 'Do not approach adultery' (al-Isra', 17:32), is
itself the embodiment of the hukm shar`i, according to the ulema of usul. But according to the fuqaha, it
is the effect of the demand in this ayah, namely the prohibition (tahrim) which represents the hukm
shari. Similarly, the Qur'anic text in respect of the permissibility of hunting which we earlier quoted is
itself the embodiment of the hukm shar`i according to the ulema of usul, but it is the effect of that text,
namely the permissibility (ibahah) which is the hukm according to the fuqaha'. Having explained this
difference of perspective between the ulema of usul and the fuqaha', it will be noted, however, that it is
of no practical consequence concerning the rulings of the Shari'ah, in that the two aspects of hukm that
they highlight are to all intents and purposes concurrent.
[4. Khallaf, `Ilm, 100; Khudari, Usul, p. 18; Abu 'Id, Mabahith, p.58.]
Hukm shar'i is divided into the two main varieties of al-hukm al-taklifi (defining law) and al-hukm alwad'i
(declaratory law). The former consists of a demand or an option, whereas the latter consists of an enactment only. `Defining Law' is a fitting description of al-hukm al-taklifi, as it mainly defines the extent of man's liberty of action. Al-hukm al-wad'i is rendered 'declaratory law', as this type of hukm mainly declares the legal relationship between the cause (sabab) and its effect (musabbab) or between the condition (shart)and its object (mashrut) [5. Cf. Abdur Rahim, Jurisprudence, p. 193, for the use of English terminology.]
.
Defining law may thus be described as a locution or communication from the Lawgiver which demands
the mukallaf to do something or forbids him from doing something, or gives him an option between the
two. This type of hukm occurs in the well-known five categories of wajib (obligatory), mandub
(recommended), haram (forbidden), makruh (abominable) and mubah (permissible). Declaratory law is
also subdivided into the five categories of sabab (cause), shart (condition), mani' (hindrance), `azimah
Principles of Islamic Jurisprudence ~
Kamali 279
(strict law) as opposed to rukhsah (concessionary law), and sahih (valid) as opposed to batil (null and
void).
[6. Khallaf, `Ilm, p. 101; Qasim, Usul, p. 213.]
I. Defining Law (al-hukm al-Taklifi )
We shall discuss the defining law and its various sub-divisions first.
As stated above, `defining law' is a locution or communication from the Lawgiver addressed to the
mukallaf which consists of a demand or of an option; it occurs in the five varieties of wajib, mandub,
haram, makruh and mubah. We shall discuss each of these separately, as follows.
I.1 The Obligatory (Wajib, Fard)
For the majority of ulema, wajib and fard are synonymous, and both convey an imperative and binding
demand of the Lawgiver addressed to the mukallaf in respect of doing something. Acting upon
something wajib leads to reward, while omitting it leads to punishment in this world or in the hereafter.
The Hanafis have, however, drawn a distinction between wajib and fard. An act is thus obligatory in the
first degree, that is, fard, when the command to do it is conveyed in a clear and definitive text of the
Qur'an or Sunnah. But if the command to do something is established in a speculative (zanni) authority,
such as an Ahad Hadith, the act would be obligatory in the second degree (wajib). The obligatory
commands to perform the salah, the hajj, and to obey one's parents are thus classified under fard, as
they are each established in a definitive text of the Quran. But the obligation to recite sura al-Fatihah in
salah, or to perform salat al-witr, that is, the three units of prayers which conclude the late evening
prayers (salat al-'isha'), are on the other hand classified under wajib, as they are both established in the
authority of Hadith whose authenticity is not completely free of doubt. A Muslim is bound to do acts
which are obligatory either in the first or in the second degree; if he does them, he secures reward and
spiritual merit, but if he willfully neglects them, he makes himself liable to punishment. The difference
between the two classes of obligations, according to the vast majority of the jurists, including the
Hanafis, is that the person who refuses to believe in the binding nature of a command which is
established by definitive proof becomes an unbeliever, but not if he disputes the authority of an
obligatory command of the second degree, although he becomes a transgressor. Thus to neglect one's
obligation to support one's wife, children and poor parents amounts to a sin but not to infidelity.
Mabahith, p. 63; Qasim, Usul, p. 216; Abdur Rahim, Jurisprudence, p. 197.]
Principles of Islamic Jurisprudence ~ Kamali 280
[7. Abu 'Id,Another consequence of the distinction between fard and wajib is that when the former is neglected in
an act required by the Shari'ah, the act as a whole becomes null and void (batil). If. for example, a
person leaves out the bowing (ruku`) or prostration (sajdah) in obligatory prayers, the whole of the
prayer becomes null and void. But if he leaves out the recitation of al-Fatihah, the salah is basically
valid, albeit deficient. This is the Hanafi view, but according to the majority the salah is null and void
in both cases. However, the difference between the Hanafis and the majority in this respect is regarded
as one of form rather than substance, in that the consequences of their disagreement are on the whole
negligible.
[8. Abu Zahrah, Usul, pp. 23-24; Abu `Id, Mabahith, p. 63.]
Al-Ghazali is representative of the majority opinion,
including that of the Shafi'is, when he writes: `As far as we are concerned, there is no difference
between fard and wajib; the two terms are synonymous. According to the Hanafis, fard is based on
definitive authority but wajib is founded in speculative proof. Once again, we do not deny the division
of wajib into definitive and speculative (maqtu' wa-maznun) and there is no objection to the rise of
different expressions once their meaning is clear.'
[9. Ghazali, Mustasfa, I. 42.]
Wajib is sub-divided into at least three varieties, the first of which is the division of wajib into personal
('ayni) and collective (kafa'i). Wajib `ayni is addressed to every individual sui juris and cannot, in
principle, be performed for or on behalf of another person. Examples of wajib (or fard) 'ayni are salah,
hajj, zakah, fulfillment of contract and obedience to one's parents. Wajib kafa'i consists of obligations
that are addressed to the community as a whole. If only some members of the community perform
them, the law is satisfied and the rest of the community is absolved of it. For example, the duty to
participate in jihad (holy struggle), funeral prayers, the hisbah, (promotion of good and prevention of
evil), building hospitals, extinguishing fires, giving testimony and serving as a judge, etc., are all
collective obligations of the community, and are thus wajib (or fard) kafa'i. Thus when a person dies
leaving no property to meet the cost of his burial, it is the wajib kafa'i of the community to provide it
and to give him a decent burial. Only some members of the community may actually contribute toward
the costs, but the duty is nevertheless discharged from the whole of the community. The merit (thawab),
however, only attaches to those who have actually taken part in discharging the wajib kafa'i duty.
The collective obligation sometimes changes into a personal obligation. This is, for example, the case
with regard to jihad, which is a wajib kafa'i, although when the enemy attacks and besieges a locality it
becomes the personal duty of every resident to defend it. Similarly, when there is only one mujtahid in a
city, it becomes his personal duty to carry out ijtihad.
[10. Khallaf, 'Ilm, p. 109; Qasim, Usul, p.218; Abu 'Id, Mabahith, p.69.]
Wajib is also divided into wajib muwaqqat, that is, wajib which is contingent on a time-limit and wajib
mutlaq, that is, 'absolute wajib', which is free of such a limitation. Fasting and the obligatory salah are
examples of contingent wajib, as they must each be observed within specified time limits. But
performing the hajj or the payment of an expiation (kaffarah) are not subject to such restrictions and are
therefore absolute wajib. Provided that one performs the hajj once during one's lifetime and pays the
kaffarah at any time before one dies, the duty is discharged.
[11. The Mu'tazilah have held the view that a flexibility of this kind
Principles of Islamic Jurisprudence ~
Kamali 281
negates the whole concept of wujub, as in their view wajib precludes the element of choice altogether. But the majority of ulema refute this by saying that there is
no necessary contradiction in dividing the wajib into wajib muwaqqat and wajib mutlaq. For details see Ghazali, Mustasfa, I, 43-44.]
Furthermore, the
absolute wajib is called absolute because there is no time-limit on its performance and it may be
fulfilled every time whenever the occasion arises. This is, for example, the case regarding one's duty to
obey one's parents, or the obligation to carry out hisbah, namely, to promote good and to prevent of evil
as and when the occasion arises.
A consequence of this division is that wajib muwaqqat materialises only when the time is due for it; it
may neither be hastened nor delayed, but within the given time limits the mukallaf has a measure of
flexibility. Furthermore, to fulfill a contingent wajib it is necessary that the mukallaf have the intention
(niyyah) specifically to discharge it.
[12. Khudari, Usul, p.33; Khallaf, `Ilm, p. 108.]
Lastly, the wajib is divided into quantified wajib (wajib muhaddad) and unquantified wajib (wajib
ghayr muhaddad). An example of the former is salah, zakah, payment of the price (thaman) by the
purchaser in a sale transaction, and payment of rent in accordance with the terms of a tenancy
agreement, all of which are quantified. Similarly, enforcement of the prescribed penalties (hudud) falls
under the rubric of wajib muhaddad in the sense that the hadd penalties are all specified in terms of
quantity. The unquantified wajib may be illustrated by reference to one's duty to support one's close
relatives, charity to the poor, feeding the hungry, paying a dower, (mahr) to one's wife, the length of
standing (qiyam), bowing and prostration in salah, wiping the head in ablution (wudu') and quantifying
the ta'zir penalties for offences which are punishable but in regard to which the Lawgiver has not
quantified the punishment. (It is for the judge to quantify the punishment in light of the individual
circumstances of the offender and the offence.) Consequently, the mukallaf, be it the individual
believer, the qadi or the imam, enjoys the flexibility to determine the quantitative aspect of the
unquantified wajib himself.
[13. Ghazali, Mustasfa, I, 47; Khallaf, 'Ilm, p. 110; Abu Zahrah, Usul, p. 35; Khudari, Usul, p. 42.]
A consequence of this division is that if the quantified wajib is not discharged within the given timelimit,
it constitutes a liability on the person (dhimmah)
of the individual, as in the case of unpaid zakah
or
an unpaid debt. Failure to discharge a wajib
ghayr muhaddad,
on the other hand, does not result in a
personal
liability.
A question arises with regard to the value of the excessive portion in the supererogation of quantified
wajib. The question is whether an over-fulfillment of this type becomes a part of the wajib itself. There
are two main views on this, one of which maintains that excessive performance in quantified wajib also
becomes a part of the wajib. But the preferred view is that any addition to the minimal requirement
becomes mandub only. For no punishment can be imposed for a failure to perform anything in addition
to the minimum required.
[14. Ghazali, Mustasfa, I, 47.]
Principles of Islamic Jurisprudence ~ It would be inaccurate to say that a means to a wajib is also a wajib, or that a necessary ingredient of
wajib is also wajib in every case. For such a view would tend to ignore the personal capacity of the
mukallaf especially if the latter is unable to do what is required to be done: in the event, for example,
when the Friday congregational prayer cannot be held for lack of a large number of people in a locality.
It would be more accurate to say that when the means to wajib consist of an act which is within the
capacity of the mukallaf then that act is also wajib.
[15. Ghazali, Mustasfa,, I, 46; Abu Zahrah, Usul, p. 23.]
The distinction between wajib and mandub is, broadly speaking, based on the idea that ignoring the
wajib entails punishment (`iqab) while ignoring the mandub does not. The distinction between haram
and makruh is based on a similar criterion: if doing something is punishable, it is haram, otherwise it is
makruh. This is generally correct, but one must add the proviso that punishment is not a necessary
requirement of a binding obligation, or wujub. In addition, as Imam Ghazali points out, the element of
punishment, whether in this world or in the hereafter, is not a certainty. Whereas in its positive sense
the wajib is normally enforceable in this world and might also lead to a tangible advantage or reward,
the spiritual punishment for its neglect is, however, awaited and postponed to the hereafter. Hence the
invocation of punishment is not a necessary requirement of wajib. When God Almighty renders an act
obligatory upon people without mentioning a punishment for its omission, the act which is so demanded
is still wajib.
[16. Ghazali, Mustasfa, I, 42.]
I.2 Mandub (Recommended)
Mandub denotes a demand of the Lawgiver which asks the mukallaf to do something which is,
however, not binding on the latter. To comply with the demand earns the mukallaf spiritual reward
(thawab) but no punishment is inflicted for failure to perform. Creating a charitable endowment (waqf),
for example, giving alms to the poor, fasting on days outside Ramadan, attending the sick, etc., are
duties of this kind. Mandub is variously known as Sunnah, mustahabb and nafl, which are all here
synonymous and covered by the same definition.
p.197.]
[17. Ghazali, Mustasfa, I, 42; Khallaf, `Ilm, p. 112; Abdur Rahim, Jurisprudence,
If it is an act which the Prophet has done at one time but omitted at other times, it is called Sunnah.
There are two types of Sunnah, namely Sunnah mu'akkadah (the emphatic Sunnah, also known as
Sunnah al-huda), and Sunnah ghayr mu'akkadah, or supererogatory Sunnah. The call to congregational
prayers (i.e. the adhan), attending congregational prayers, and gargling as a part of the ablution (wudu')
are examples of the former, whereas non-obligatory charity, and supererogatory prayers preceding the
obligatory salah in early and late afternoon (i.e. zuhr, and 'asr) are examples of supererogatory Sunnah.
Performing the emphatic Sunnah leads to spiritual reward from Almighty God while its neglect is
merely blameworthy but not punishable. However, if the entire population of a locality agree to
abandon the emphatic Sunnah, they are to be fought for contempt of the Sunnah. To perform the
Principles of Islamic Jurisprudence ~ Kamali 283
Kamali 282
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