This document provides an analysis of the Islamic concept of "al-ahkam al-khamsah" or the five values/rulings in Islamic jurisprudence. It discusses how the Quran establishes a framework of classifying all human acts on a scale of five categories - obligatory, recommended, permitted, disliked, and prohibited. The document outlines the Islamic basis for this framework and how the different rulings are derived from the Quran, Hadith, scholarly consensus (ijma), and analogy (qiyas). It then examines specific passages from the Quran that illustrate how it sets forth these five values for human acts and relationships.
This document provides an analysis of the Islamic concept of "al-ahkam al-khamsah" or the five values/rulings in Islamic jurisprudence. It discusses how the Quran establishes a framework of classifying all human acts on a scale of five categories - obligatory, recommended, permitted, disliked, and prohibited. The document outlines the Islamic basis for this framework and how the different rulings are derived from the Quran, Hadith, scholarly consensus (ijma), and analogy (qiyas). It then examines specific passages from the Quran that illustrate how it sets forth these five values for human acts and relationships.
This document provides an analysis of the Islamic concept of "al-ahkam al-khamsah" or the five values/rulings in Islamic jurisprudence. It discusses how the Quran establishes a framework of classifying all human acts on a scale of five categories - obligatory, recommended, permitted, disliked, and prohibited. The document outlines the Islamic basis for this framework and how the different rulings are derived from the Quran, Hadith, scholarly consensus (ijma), and analogy (qiyas). It then examines specific passages from the Quran that illustrate how it sets forth these five values for human acts and relationships.
Source: Islamic Studies, Vol. 5, No. 1 (MARCH 1966), pp. 43-98 Published by: Islamic Research Institute, International Islamic University, Islamabad Stable URL: http://www.jstor.org/stable/20832827 . Accessed: 08/10/2014 14:55 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . Islamic Research Institute, International Islamic University, Islamabad is collaborating with JSTOR to digitize, preserve and extend access to Islamic Studies. http://www.jstor.org This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH : THE FIVE VALUES KEMAL FARUKI I. INTRODUCTION1 1. The Term Defined The term aUahk?m al-fehamsah or "the five values1* refers to the system of classifying all human acts and relationships according to their ethical value in order to ascertain the degree of their goodness or badness in the light of Islamic norms. The system in its basic classical form has a scale of five classes but in its more fully developed range, as developed by different thinkers and schools, comprises sub-divisions of each class and attaches different shades of emphasis to each category. We shall return to these finer gradations later, but for the time being set out the classical five-fold division of acts which are "obligatory11 whose performance is rewarded and whose omission is punished ; acts which are "recommended11 whose performance is rewarded but whose omission is not punished ; acts which are "permitted" or whose ethical content is "indifferent", for which there is neither reward nor punishment for their performance or omission ; acts which are "disliked" whose omission is rewarded but whose com mission is not punished; and, finally, acts which are "prohibited11, whose omission is rewarded and whose commission is punished ; this value or hukm being the moral value attached by reference back to the Shan ah of Islam, 2. The Islamic Basis of the Concept The very word Islam implies submission or obedience (to the commands of God) and a Muslim is one who has so submitted or become obedient and the Qur'an repeatedly emphasizes that this obedience should be to God Alone and cannot be shared with other purported masters. Consequently, before taking any action a Muslim is required to ascertain whether any value is attached to the act, positively or negatively, in terms of Islamic norms. This imperative, it should be noticed, cuts across all lines of demarcation between the purely religious or spiritual or individual, on the one hand, and the secular or temporal or collective on the other. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 44 KEMAL FARUKI This all-embracing nature of Islamic injunctions rests, however, on the fundamental proposition that the basic condition in which God has permitted man to exist is ib?hah, the permission or liberty (to do an act). This is the prior presumption affecting any act which is only displaced by definite evidence from SharVah to the contrary. This definite evidence may be either towards discourag ing or prohibiting the act altogether with punishment possibly for infringements of this and rewards for obedience, or on the other hand this definite evidence may be towards recommending or commanding the performance of an act, with rewards for its performance and possibly punishments for its non-performance. The reason why the basic assumption of ib?hah is liable to be displaced has been explained as being due to the fact that man by his nature often seeks what is either harmful for his fellowmen or even for himself due to ignorance, greed, laziness or neglect. It is to prevent such harm that the condition of ib?hah is circumscribed by limits (hud?d) and the test of where these limits should be placed is considerations of the benefit of man whether singly or in society. Hence all SharVah values are set out for their beneficial quality as prescribed by God, the All-knowing for man with his limited intelligence and knowledge.2 These ahk?m are to be found, primarily, in the Qur'an and be sides being confirmed in the Sunnah of the Prophet the Sunnah alone sets out other ahk?m of human acts. Certain ahk?m, however, while referred to in the Qur'an and Sunnah, are susceptible of different significances and to resolve these questions the ijtih?d or disciplined exertion of those accepted as competent is brought into play, which ijtih?d, when it coalesces into a consensus or ijma of ijtih?d, sets out the ahk?m on those questions on which difference of judgment has existed. In yet another situation the hukm applicable to an act is not referred to directly in SharVah and the necessary SharVah value to be attached can only be established inferentially by resorting to ascertaining (again by ijtih?d) the analogical link (^as), identifying in the process the effective cause ?illah) which links the act evaluated in SharVah and the new act which is sought to be covered by the same SharVah hukm. We have, therefore, the clear ahk?m of the Qur'an, the clear ahk?m from Sunnah, the ahk?m established by ijm?K on unclear questions discussed in the Qur'an and Sunnah, and finally the SharVah ahk?m applicable to new situations which are extended to This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL'AHKAM AL-KHAMSAH 45 these new situations by qiy?s from the ahk?m set out by the Qur'?n, Sunnah and Ijma\ This is, in effect, the thought-process for ascertaining Islamic values as it is recognised in the structure of classical Islamic thought, but before this process was thus systematized, the process was nevertheless taking place and before the classification of values was set out in its five-fold system (with its sub-divisions) values were being attached to acts from Islamic principles. The words or phrases used in classical thought or in the earlier formative period for the hukm for any particular act will be found to vary from age to age and from thinker to thinker. This will be examined in succeeding parts of this discussion. What is desirable in this is to keep an open mind on whether the differences in phraseology are due to a development in the meaning of the word or a change in the value attached to an act. II. THE QUR'?N AND THE FIVE VALUES The prior value that the Qur'?n teaches is belief in One God and a tremendous proportion of the Book is devoted to an elabora tion of the implications of this belief, first with regard to the nature of God and second the nature of His creation, particularly man and, thirdly, the necessary relationship between the Creator and His creation that flows from this. Unless man is suffused completely with a ceaseless and all pervading awareness of God, and both His unique and reflectable attributes, he is not likely to be receptive to understanding the quality of the values set out in the Qur an. The first verses of the first main s?rah, al-Baqarah, deal with these values in highly condensed form, beginning with values pertaining to belief and then the actions that must flow from these beliefs. These values are set out for those who have accepted the covenant with God that is implied in the Kalimah, namely, bearing witness that there is but One God and that Muhammad is His Messenger and the elaboration of this covenant that is contained in the opening s?rah, al-F?tihaht wherein, after bearing witness that all praise is due to God Alone, the Rabb of the worlds, the Beneficent and the Merciful and Master of the Day of Judgment, the believer in his covenant asks God to guide him on the right path, the path of the upright, and not on the path of those who go astray and earn God's wrath. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 46 KEMAL FARUKI The invocation in the F?tihah is a group invocation asking God to guide "us" and "we" ask to be guided on to the path of "those" who are on the right path. Yet the values that are required of those on the right course which are contained in the third verse of the first s?rah after the F?tihah are values which call for very personal beliefs and acts on the part of the individual, namely, belief in the Unseen, maintaining prayer, spending out of God's sustenance (to them), belief in previous revelations, belief in the revelation to the Prophet Muhammad and certainty about the Hereafter. This question of the distinction between, and the correlation of, these two facets of man's relation with God, the totality of believers and the fragment of the single believer, the community and the individual, will be considered again later as it affects our understanding of the nature of the ahk?m, or values, of SharVah. What is to be emphasized at this point is that the Qur'?nic teachings are addressed to the individual believer reading the Book and call for certain beliefs and acts from him* the indivi dual. These beliefs and actions have community significance and imperatives, and disobedience to these Shan ah values by the individual does call frequently for actions of various types by the collective group against the erring individua!, the procedure for which is also indicated in the Qur'an. But these are inescapably subsidiary to the consequences incurred by obedience and disobe dience which are earned by the individual believers which are meted out in the Hereafter. Hence, belief in the Hereafter, with its Day of Judgment, is given tremendous prominence throughout the Qur'an. It is first mentioned in the fourth line of s?rah al-F?tihdh and then comes again eight verses later in the fourth verse of s?rah al-Baqarah, and then in the eighth verse and thereafter reference to this Hereafter and its Day of Judgment come with unceasing frequency and emphasis throughout the Quran. The first point to be noticed about the five values in the context of the Qur'an is that there is no exact or literal reference to "five values" as such to be found therein. What in fact exists in the Qur'an are references which support the basic presumption of ihahah, or permission, regarding any act or relationship and there after specific references to specific acts and relationships which are stated to be good or bad. In both the good and the bad, there are degrees of goodness and badness attached to them, far wider in range than the five-fold category, with shades of emphasis that the This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHK?M AL-KHAMSAH 47 simple five-fold category cannot convey and, additionally, the value attached to an act by the Qur'?n is frequently qualified by reference to the circumstances surrounding it. The commission of certain acts which are disapproved of or prohibited in very strong terms by the Qur'an are permitted, even enjoined, in certain circumstances and, conversely, certain acts and relationships which are strongly commanded or recommended, are, in specific circum stances, merely permitted and sometimes even disliked or prohibited. Thus, it is often impossible to determine the Qur'anic value to be attached to an act or relationship without reference to the circumstances and to attempt to allot a precise, rigid, unchangeable value to an act in isolation would be to do serious damage to our understanding of the Qur'anic value attached thereto. This* influence of circumstances often finds expression in its effect on the individual's feelings and motives so that what makes an act good or bad may often lie in the inner intention behind the outward act. Further, the Quranic incentive for a believer performing good acts and avoiding bad ones and the Qur'anic threats for a person who performs bad acts and avoids good ones is primarily a complex of rewards and punishments which will take place on the Day of Judgment and in the Hereafter. At that point, the fine scales of God's justice will be fully able to take into account every atom of good and evil, leaving nothing out, whether it concerns the externality of acts or the inner motives and feelings that went into it, and fully capable of correlating the fine gradations of values set out by God in the Qur'?n to the gradations of values to be attached to the acts of the believer. This does not mean that God's rewards and punishments begin only in the Hereafter. They begin in this world and the worldly consequence of a good act is good and the worldly consequence of a bad act is bad. This Qur'anic assertion sometimes appears to be contrary to our experience and it is sometimes held that bad acts appear to bring positive benefits here and that good acts appear to have no advantage in this world. It would be highly undesirable to minimise the predominant place of the reckoning that takes place in the Hereafter, but it is intimately related to this world and the consequences of good and bad acts while finding its final reckoning in the Hereafter neverthe less begin to take effect here.3 One factor which obscures our appreciation of the worldly This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 48 KEMAL FARUKI consequences of good and bad acts is the importance we attach to serial time. A bad act is performed by an individual and we fail to see the unfolding of its evil effects upon the individual concerned immediately. Another factor intimately connected with this is that we see only the external effects without being aware of the effects internally upon the individual concerned. To perform a good act immediately results in an internally beneficial result upon the individual and to perform a bad act immediately occasions an undesirable and undesired adverse effect upon the individual within himself in terms of his character. In course of time that internal benefit or damage will express itself externally forali to see. The execution of God's Justice here begins at once, in this world, and culminates in a final reckoning in the Hereafter. The fact that this ultimate accountability in terms of both reward and punishment is to God, is not difficult to appreciate and, additionally, it is understandable that the reward here for good acts is essentially by God, to the extent that reward takes place in this world. It is on the punishment for bad acts, in this world, that care has to be taken to distinguish between the punishments that are meted out by God Himself and the punishments which should be meted out by others for bad acts and relationships of individuals. These punishments to be meted out by other and worldly agencies, in deference" to the Qur'anic injunctions to that effect, are a tangible expression of the imperatives of joint action called for from the Community by God and precisely because of this, they are given considerable prominence in evaluating the nature of Shanah values. Yet there are grave dangers in this. An excessive concern with the bad acts which call for community action can lead to the impression that Islam is solely concerned with a series of negatives and with punishments and this in turn can lead to a downgrading, relatively, of the importance of the good acts for which no precise or visible worldly reward is within human control, jointly or otherwise. This in itself can seriously damage one's understanding of Shan ah values. God's love of a good act is far greater in intensity than His dislike of a bad one. While the punishment promised by God for an evil act is only equal to the deed, the reward promised by Him for a good act is stated as being ten times greater in intensity, in relation to the goodness of the act itself as, for example, in the Qur'?n, VI : 160. In considering, therefore, the Qur'anic basis for a system of This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 49 categorizing acts into a five-fold scale, what is important is to keep constantly in mind, the importance of the results of a?cts not merely in this world but in the Hereafter and to insist on the equal, if not prior, importance of achieving the good acts as compared to restraining by word or deed the commission of the bad ones. To understand these Qur'?nic values in this correct perspective and succeed, thereby, in evoking in believers, singly or collectively, the necessary impulse to obedience towards the good ones as well as avoidance of the bad ones, in a manner in which the external is an expression of the internal and not a covering which hides a conflicting internal reality, great care is clearly required in any aspect which might affect this perspective and relationship. Care is required in determining the principle on which enforce ment of these values by a worldly agency is justified or commanded, and where, on the contrary, the enforcement is reserved by God, either in this world or in the Hereafter. It is easy for the Community to punish a transgression but not easy for the Com munity to reward a good act, but this does not mean nor should it come to mean that the prevention of evil is more important than the commission of good, nor does the difficulty of rewarding mean that the creation of conditions conducive to the performance of good acts should be neglected or thought to be achieved merely by the prevention of evil ones. Goodness is more than merely the abstention from evil ; it is positive in quality. Further, the assignment of a value to an act within the five-fold system, should not be dependent on the extent to which this act can be enforced or prevented by Community action. The fact that the Community cannot prevent the commission of a certain bad act does not mean that it is merely "disliked" as compared to another act which is categorized as "prohibited" merely because it is within the power of the Community to prevent its commission or punish those who commit it.4 The five-fold system has, therefore, a scale of values which must remain unaffected by the ability of worldly agencies to enforce or prevent, particularly when this five-fold system is derived from the Qur'?n, which is concerned with the ultimate, intrinsic goodness or badness of an act ; an absolute evaluation which will meet its absolute and final accounting in due course. With the foregoing considerations in mind, we now turn to examine the manner in which the Qur'?n invests any act with a This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 50 KE M AL FARUKI definite quality. The starting point is the basic presumption of ih?hah or permission to do an act which is set out in VII : 32 (and also e.g. in XVI : 116) as a question as to who has forbidden the adornment of God and the good provisions, and the general permission contained in V : 4 that all good things are made lawful. From being merely permissible or allowed, an act may move, through a Qur'anic injunction, to being positively enjoined (either with punishment or without punishment for neglect of it). This is achieved by various ways. Thus the word 'amr (command) makes an act positive as in IV : 58 where there is the command to make over trusts to those worthy of them and to judge justly if one judges between men. Kutiba (prescribed) is used in the same way for making an act positively necessary as in II : 183 on the subject of fasting or in II : 178 in the matter of retaliation in cases of murder. /a (upon) also has a similar connotation as in III : 97 where pilgrimage is described as a duty "upon" men. On other occasions to make an act positive, the Qur'an uses the imperative mood as in II : 43 where the imperative of "establish" ?aq?m?) is used with regard to worship, the poor-rate and bowing down with those who bow down. Yet the use of the imperative does not by itself necessarily imply that an act is good or that there is an obligatory command behind it as in V : 2 where the imperative of "to hunt" is used regarding the question of hunting after having left the sacred precincts and taken off pilgrim garb. Yet another quality of using the imperative exists in the imperative of "to eat" used in VI : 142. At other times, the imperative is used with conditions attached immediately after, which indicate that the positive act enjoined is subject to the fulfilment of the conditions such as, "And such of your slaves as seek a writing (of emancipa tion), write it for them if ye are aware of aught of good in them" (XXIV : 33). On other occasions, an act is described as "kkayr (better)" such as the remitting of a debt as alms (in II : 280) or offering something in charity before consulting the Messenger (LVIII : 12) or asking permission and saluting inmates of houses before entering them. Kbayr is also used for setting aright the affairs of orphans in II : 220. Of a less intense quality of approval are phrases such as "no This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions ?L-AHKAM AL-KHAMSAH 51 blame on you" (l? jun?ha 'alaykum) and similar phrases as "laysa harajun" and "laysa jun?hun1 the first used, for example, in connection with speaking indirectly to a widow proposing marriage (II : 235), and the latter two regarding the blind, lame, sick and one self eating at the houses of relatives or those houses, whereof one possesses the key or the houses of friends and of eating separately or together (XXIV : 61). The phrase "no sin shall be upon him" (l? ithma %alayh%) is used, for example, in connection with properly advising a testator regarding bequests (II : 182). In turning from the positive injunctions to the negative ones the same range of admonitions occur. In strong terms, certain foods are prohibited (har?rn) in V : 3 and where lewdness, abomination and wickedness are forbidden, nahy is used in XVI : 90. L? yahillu (is not lawful) is used in IV : 19 for inheriting the women (of deceased kinsmen). The admonition of dhar (forsake) is used in the verse calling upon believers to "forsake" the outward sin and the inward (VI : 120). Another two (V : 90-1) verses call upon the believer to abstain (ijtanib?) from strong drink, games of chance, idols and divining by arrows, the immediately following verse giving the reason for calling for this abstention. Another manner in which negative values are put down is by the negative of an imperative such as in III : 130 where believers are called upon "not to devour" usury. Yet another manner is by the phrase that there is "no good" (l? khayra) e.g. in most secret counsels (IV : 114). Two questions arise from these values which are assigned by the Qur'an. The first, whether they can be reconciled in a rigid five-fold classification in terms of the importance attached to obeying or avoiding acts, without doing damage to the very hukm or value attached by Shartah. On the other hand, the five-fold classification of obligatory, recommended, permitted or indifferent, disliked and prohibited has certain definite advantages in its clarity and simplicity in enabling a believer to know the value attached to any act. Perhaps such a five-fold division is desirable as long as the shades of emphasis attached to each is not obliterated by any attempt to forcibly make an act conform in all respects with one of the five categories and it is appreciated that this value is liable to alter with certain changes in circumstances. Thus, the eating of a forbidden food is prohibited normally but can move to being permitted or even more than permitted to recommended or even This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 52 KEMAL FARUKI obligatory if it was the only food left or available in order to save a human life. Prayer at stated times is obligatory but in the face of a threat to the safety of the Community by an actual outside enemy attack, prayer at such a stated time may be disliked or even prohibited, if by its performance by the group at one time their safety was gravely endangered. The second question that arises is not to allow the question of the permissibility or feasibility of punishment or reward by a worldly agency to influence the assessment of the value assigned to an act by the Qur'an. The fact that the inward sin referred to in VI : 12 is not capable of ascertainment by society and even if ascertainable might not be capable of social punishment, does not make an inward sin less reprehensible as compared to a transgres sion which is capable of social punishment. There is a Divine justice which takes these matters into full account in this world and in the Hereafter and ensures that the punishment and reward is fully commensurate with the bad or good act. This is a matter of the greatest importance, because a study of the Book will show that the overwhelming proportion of its exhortations are addressed to the individual believer exhorting him, individually, to certain acts and away from certain acts and with the primary emphasis with regard to sanctions, being placed on the system of Divine rewards and punishments. For instance, in terms of belief, the two most serious offences are nif?q (hypocrisy) and shirk (idolatry or pluralism), yet the punishments for them are essentially punishments by God. Thus, hypocrisy is dealt with in the early part of the second s?rah (vv. 8-20), but the worldly punish ment is in the way God leads them into increasing error and increases the disease in their hearts and they are promised a double punishment in Hell (XLVIII : 6 and IX : 101). With regard to those guilty of shirk, God says, "Surely God forgives not that a partner should be set up with Him, and for gives all besides that to whom He pleases. And whoever sets up a partner with God, he devises indeed a great sin" (IV : 48). The same is repeated in IV : 116. Indeed, for both hypocrisy and polytheism, to ascertain the extent and seriousness of the deviation away from monotheism and uprightness in terms of faith is essentially a question which God Alone can decide. We have referred to the fact that the greater proportion of values set out in the Qur'?n refers to personal values addressed to This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 53 the individual believer and that the ultimate sanction in terms of punishment (as well, of course, of reward) is God's, primarily in the Hereafter and, also, in this world. Thus, in III : 180, referring to niggardliness, the Qur'?n states "they shall have a collar of their niggardliness on their necks on the Resurrection Day". Later in IV : 37 such people are described as proud, boastful and disbelievers for whom God has prepared "an abasing chastisement". The same "painful chastisement" is announced for them in IX : 34 and a description of the nature of this punishment in the Hereafter is given in the following verse. In XLVII : 38 such people are described as being niggardly "against their own soul". Conversely, those who are generous, spending out of what God has given them are described in II : 195 as the people God loves. In II : 261, the parable of those who spend in the way of God is described as that of a grain "growing seven ears, in every ear a hundred grains. And He multiplies (further) for whom He pleases. And God is Ample-giving, Knowing." To spend thus is described in II : 272 as being for the spender's own good and in II : 274 a reward with God is promised for such persons. In III : 92 it is stated that righteousness cannot be attained until one spends out of what one loves. The position regarding prayer is similar. Both prayer and spending are linked together with the greatest possible frequency throughout the Qur'?n. In s?rah al-Baqarah, it appears first (followed by spending) in the second verse. In II : 43 onwards, after describing neglect of prayer as neglect of one's soul and that prayer is, along with patience, a means of assistance, the same is repeated in 11:153. In XI : 114, prayers at stated times are described as good deeds which "take away" evil deeds. Indeed, in XVII : 79 prayer beyond what is encumbent is described as a way in which God may possibly raise to great eminence. In XXIV : 56 prayer is described as one of the means by which mercy might be shown to a person. In XXIX : 45 prayer is ^gain described as a means of keeping away from indecency and evil and remembrance of God is described as the greatest force. In LXII : 9, hastening to the Friday congregational prayer is described as being "better for you, if you know". These two, prayer and spending in the way of God, are the most frequently mentioned acts enjoined upon a Muslim throughout the Qur an and yet it is not from the Qur'?n that any authority This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 54 KEMAL FARUKI can be directly raised for a worldly agent enforcing compliance with them. From the foregoing it might seem that Islam was purely a personal religion and yet this is very far indeed from the truth. We have referred already to the group nature of the invocations contained in the opening s?rah and even on these two matters just discussed of worship and spending out of what God has given, the consequences of the human responses to these are social in nature. Prayer helps the commission of good deeds towards others and spending obviously benefits others immediately. It might be held that the touchstone of the goodness or badness of an act is in the way it reflects our attitude and actions towards others and many acts are incapable of being obeyed, whether positive or negative in nature, except in relation to others : justice?to someone, generosity ?to someone ; kindness?to someone, and similarly with the negative acts, envy?of someone, cruelty?to someone and so on. The act finds its decisive expression in a social context. Further, the Qur'an makes frequent references to the ac countability of peoples as a group. Simultaneously with stating that every soul will come to God on the Day of Judgment "solitary" as when it was created, the Qur an states (at XLV : 28) that at the Hour one will see "every community kneeling down. Every community will be called to its record. This day you are requited for what you did." The same idea of the reward and punishment of collective groups is set out in the histories of earlier Prophets which are contained in s?rahs Seven (The Battlements), Eleven (H?d), Fifteen (The Rock), Twenty-six (The Poets), Twenty-seven (The Bee) and Twenty-nine (The Spider). Yet i$ describing the punishment of those peoples and towns which wronged them selves, the Qur'an still takes care to mention that those were saved who were righteous within these collective groups, which were punished or perished. This question of the group imperatives which are called for to ensure compliance with these SharYah ahk?m requires the greatest care. There are, broadly speaking, three categories of acts ; those which have obvious social implications, those which concern more than one human being directly and those which are personal in nature, when considered in their immediate significance. Thus, theft is a matter which has general social implications, This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 55 marriage and divorce affect more than one human being and envy concerns only one human being. Of course, theft in another sense is personal insofar as one considers the thief, it concerns more than one human being insofar as one considers the person stolen from as well and those financially dependent on him. Marriage is personal to the extent that a sound marriage benefits the person undertaking this step and one in disobedience to the values laid down in the Qur'?m will adversely affect the disobedient one and it is also of general social significance in establishing the point at which society can regard a marriage as valid or not for the many social matters for which this question becomes of immediate and practical significance. Envy, while being primarily personal, affects more than one, the envied as much as the envier when it begins to poison their relations and can have social implications when it is the motive behind certain forms of social unrest. The Qur'?n clearly contemplates some form of social organiza tion for its Divine purposes and urges believers to group themselves together in a number of places. Thus, in III : 103 they are urged to "hold fast by the rope (covenant) of God all together and be not disunited" and their unity is described as God's favour which saved them from the brink of fire. The very next verse (III : 104) states that there should be "a party among you who invite to good and forbid the wrong" though whether this conveys more than the exhortatory and includes the sense of action to enforce these objects without qualification is not clear from the fact that hypocrites are described in IX : 67 as doing exactly the opposite, namely enjoining evil and prohibiting good. Again in V : 8, there is the exhortation to guide with justice and do justice. Clearly good in IX : 67 on the part of a believer cannot be prohibited in the sense of being actually prevented but only in the sense of urging. Believers are described in this manner of enjoining good and prohibiting evil in IX : 71 and IX : 112 and again in XXII : 41. In IV : 85, those who "intercede" ina good causeare promised "a share of it" and conversely those who "intercede" in an evil cause are promised "a portion of it". In IV : 115 he who is hostile to the Messenger after guidance has become manifest to him and follows "other than the way of the believers" is assured that he will be "made to enter Hell". The collective manner in which a people are responsible for their own condition is set out in VIII : 53 and again in XIII: 11 where it is stated that God never changes the condition This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 56 KEMAL FARUKI of "a people" until "they" change "their" own condition. In XVIII : 28, the believer is urged to "keep with those who call on their Lord morning and evening desiring His goodwill, and let not thine eyes pass from them, desiring the beauties of this world's life." The singleness of the Community is asserted in XXI ' 92 as follows : "And surely this your community is one community and I am your Lord, so serve Me." That each community has its acts of devotion "appointed" for it is stated in XXII : 34 and XXII : 67. In XXIV : 55, God promises those who believe and do good that He will make them succeed (the present rulers) in the earth and that He will surely "establish" for them their religion. Finally, in XLIX : 10, believers are described as being "brethren". Consequently it is not difficult to understand that the Community requires some forms of collective organization particularly for those matters set out in the Qur'?n which have a collective significance, for urging the doing of what is right and against the doing of what is wrong. That an authority or authorities is contemplated is shown in IV : 59, where believers are commanded to obey God and His Messenger and "those in authority from among you." As long as the Messenger was alive, it was clear enough that this meant obedience to the Messenger and authority clearly emanated from the Messenger for anyone else. As to how the Messenger should deal with the Community, III : 159 states : "Thus it is by God's mercy that thou art gentle to them. And hadst thou been rough, hard-hearted, they would certainly have dispersed from around thee. So pardon them and ask protection for them, and consult them in matters. But when thou hast determined, put thy trust in God. Surely God loves those who trust Him." The question of how those in authority are to be ascertained subsequently is partly dealt with in the verse immediately succeed ing IV : 58 given above, namely : "Surely God commands you to make over trusts to those worthy of them, and that when you judge with people you judge with justice." As to how such people are to be determined, particularly when any differences exist on the matter XLII : 38 lays down that the "affairs" of believers should be de cided "by counsel among themselves". The existence, therefore, of an authority or authorities, for the Community in its collective tasks is clearly contemplated and certain collective duties clearly require group organization. Thus This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-ABKAM AL-KHAMSAH 57 in II : 43-4, there is the injunction to "bow down with those who bow down" and in LXII : 9 there is the command to hasten to the call for congregational Friday prayer. Then with regard to the question of the poor-rate or zak?h, the existence of an organized body charged with its management is clearly contemplated by IX :60 where the purposes for which this money may be employed include those "employed to administer it". A third matter for which a group organization is con templated is for military purposes of self-defence and the just war, such as a war for the relief of oppression or against those with whom there is no treaty or who have broken their treaties. The rules of how Muslims should arrange their collective affairs in such matters are set out in a number of places, yet even on such a crucial matter of survival, the element of compulsion by the group against the reluctant or aberrant individual is not to be found. Indeed, it is stated (at IX : 47) to be a mercy from God that the faint-hearted are prevented by God from joining the believers in battle as such persons if compelled to join in battle would have added "naught but trouble". A fourth matter on which group organization is required and for which a precision in understanding the nature of SharVah hukm becomes immediately vital is the question of settling disputes whether between Muslims or between Muslims and non-Muslims or between those non-Muslims who seek the assistance of Muslim justice. For these questions, the Qur'anic rules about those in authority being worthy of the trusts reposed in them apply to the judge as well and the principles on which the judges should decide as contained in IV : 105, IV : 135 and VI : 152 are values which require a group understanding. In addition, there are certain offences for which the Qur'an commands punishments to be carried out here without waiting for the punishment of God with His ultimate penalties on the Day of Judgment, though such Divine punishments may still additionally take place, of course. Thus action is commanded against the thief, the adulterer, the slanderer. A certain form of group action is also contemplated against the murderer. Such action is clearly obligatory but the exact nature of the action to be taken is dependent on certain circumstances amongst which are the question of repentance, evidence of a desire to reform, the willingness of the injured party or his survivors to accept other than retaliation, in This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 58 KEMAL FARUKI kind. Other matters on which the Qur'?n calls for definite action concern the orphan, infant and imbecile, and their protection, and for a number of matters which are definitely of a family nature such as marriage, divorce, inheritance. To a certain extent it is arguable that what the Qur'?n contemplates are bilateral arrange ments or multilateral arrangements between the parties immediately concerned on the basis of the Qur'?nic rules, but whether the arrangements should be such or should be regulated by the Community in general is determinable by reference back to follow ing the example of the Prophet and the verse cited earlier XLII : 38 of deciding such matters by consultation. The Qur'?nic values then for all other matters are, at first glance, primarily personal in significance. The extent to which they become socially enforceable or preventable is not to be found from the Qur'?n specifically for each matter but rests on the socially-oriented verses set out above in general terms and must always be read in conjunction with the other verses set out before them on the importance of God s justice in this world and the Day of Judgment. To obtain indications of how the distinction is to be drawn after a value has been extracted for an act from Shartah as to the extent it moves from being a purely moral exhortation resting on the hope of Divine reward and fear of Divine punishment to being an enforceable value or rule by the Community, we now turn to a consideration of how these values were understood by the Messen ger of God. III. THE FIVE VALUES AND SUNNAH We have observed that the Qur'?n invests acts with certain values, primarily in a personal sense to the individual believer. At the same time, it lays emphasis on the question of group responsibility and indicates how the group should settle differences, how the group should set up authorities to administer community affairs and indicates certain matters on which, without doubt, group action or multi-lateral action, in this world, is called for from believers. A great deal of what these values call for in concrete and detailed terms is inevitably left unsaid and has to be inferred or is implied or requires exemplification. This is the context in which Muslims are called upon to obey the Prophet This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 59 (IV : 64, IV : 69, XXIV : 62) ; in which he is described as bringing men from darkness to light (LXV: 11) ; in which he is stated to have a greater claim on believers than themselves (XXXIII : 6); in which he is to be consulted (LVIII : 12); in which he is described as coming to settle differences amongst nations and, a ftrtiori, amongst the Muslims themselves (II : 213); and this is the context in which he is described as an excellent example (XXXIII : 21). For those fortunate to live during the Prophet's time, these imperatives were easier to obey. Whenever any doubt or flicker of a doubt arose in the heart or mind of a believer in those times, he could go to the Prophet for guidance who, in the context of the situation, gave his advice. The advice having been given, obedience immediately resulted, although even in the Prophet's presence, consultation and discussion took place and, in fact, was enjoined by the Qur'?n (III : 159). Yet, for the rare cases when there were people who turned away from the Prophet's advice, the Qur an constantly reminds the Prophet that he is but a warner (VI : 50), to forgive his enemies (XV : 85), to be steadfast in preach ing (XLII : 15), and that guidance of even those the Prophet loved was entirely a matter of God's decision (XXVIII : 56). For those Muslims who come after the era of the Prophet, these value judgments about acts acquire a more complicated significance. For one thing, no worldly authority after the Prophet could hope to obtain the same degree of obedience, willing or otherwise. Further, differences which in the Prophet's time were speedily settled by reference to the Prophet, could no longer be referred to such a final worldly adjudication. In these changed circumstances such differences are an invaluable aid in ascer taining truth. Obviously, where ten opinions exist on a matter it would be fatal to eliminate nine opinions in favour of the tenth without any certainty that the tenth is correct. Indeed, the truth often emerges as an amalgam of the ten opinions and until that synthesis takes place (which might then only be re lative to the conditions extant at the time) the differences have to be allowed an interplay in the cause of understanding the truth. The point at which these differences acquire acute urgency is where the values concerned have group significance and group effects, ceasing to merely concern an individual, the point at which pure morality and law meet. This question of personal and group value classification has already been raised before and will come up This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 60 KEMAL FARUKl again with increasing frequency, for, the entire significance of the system of value classification whether into a five-fold division or more or less than five depends upon it. The immediate point at which this question of differences arises is on the authenticity of our knowledge of the Prophet's Sunnah itself. The immediate sources of our knowledge are the standard Hadith compilations of the second and third centuries after the Prophet's death. Clearly, however, these have to be harmonized with such information as we derive from biographies both of the Messenger and of his Companions ; from histories of the times ; and an understanding of the sociological conditions which existed at that time. An alleged Hadith which is in flat contradiction to all the evidence about the sociological conditions which existed is necessarily suspect. Hadith is only a portion, then, of the means of ascertaining the example of the Prophet. Even in Hadith itself, differences arise as to whether a certain Hadith is authentic or not and even where two Hadith s are generally accepted as authentic, they may be in such striking contrast to each other that either one of the two is necessarily false or they are related to certain differing circumstances in such a way that their value can only be understood once the circum stances are known. These circumstances are not always known from any source let alone from the Hadiths concerned themselves. Even more serious are alleged Hadith which contradict the Qur'an itself. The punishment prescribed for fornication in the Qur'an and the punishment alleged to have been prescribed by the Prophet are so different as to occasion serious doubts as to the authen ticity of the Hadiths concerned, regardless of their frequency or strength according to the chain of narrators or otherwise. Finally, the very fact that these Hadith compilations came into existence, and their compilers lived, two centuries after the events they seek to record makes it almost certain that interpolations have crept in. An equivalent time-interval in the case of the Bible (of almost equal length) is the main evidence that the Bible cannot be regarded as absolutely authentic. The Hadith doctors did use methods of sifting spurious material on the basis of certain rules of external criticism but not internal criticism and the presence of the criterion of the Qur'?n, doubtless, helped in minimizing the extent of interpolation. Nevertheless, the continued existence of spurious material in Hadith compilations cannot be doubted, even when judged against the criterion of the Qur'an, apart from This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 61 historical and internal criticism. Bearing the foregoing considerations in mind, the development of the system of value-classification from the Qur'an, as contained in Sunnah and as recorded in Hadith can be considered. The first point to be noticed is that the Prophet, in commenting upon any matter, laid the greatest stress upon the rewards and punishments that are with God, often to the total exclusion of any reference to a punishment (let alone reward) in this world, either at his own hands or otherwise. This is noticeable on the matter of the first essential of Islam, namely, faith. From the numerous Hadiths on the matter, it can be said that the ultimate punishment is to dwell in Hell for ever for a breach of the main essential of faith, namely, not to associate aught with God and that for other breaches, forgiveness and the promise of Paradise is possible, in due course, after repentance and chastisement. What is characteristic of Hadith is the manner in which it shows how abroad and simple proposition like faith has many ramifications and that many of the most everyday acts or omissions to act are part of faith. A representative example of this is the following Hadith found in both Bukh?r? and Muslim on the authority of Ab? Hurayrah : "The Messenger of God said, 'He does not truly believe in God, he does not believe in God, he does not believe in God1. He (Abu Hurayrah) questioned, 'Who, O Prophet of God V The Prophet replied, 'He whose neighbour is not safe from his injuries'."5 On worship, not merely is the essentiality of worship repeated at greater length in Hadith, but its modes, its kinds and the relative importance or value attached to these different kinds is set out. Worship is constantly mentioned in the Qur'an until there can be no doubt that it is morally obligatory. A certain amount about the direction of prayer, the times of prayer, the preparations for prayer and mode of performing prayer can be found in the Qur'?n but the full details come from Hadith and by this th? manner in which a morally obligatory value is to be obeyed is indicated. Similarly with spending out of the wealth which God has pro vided, both in terms of zak?h and otherwise. Yet even on this matter, which has group significance in a very direct way, the Hadith in commanding Muslims to pay zak?h refer to the punish This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 62 KEMAL FARUKI ment in the Hereafter for the disobedient and to the fact that with holding zak?h from one's property in worldly terms destroys the remainder of the property by the operation of God's laws.6 Only in the time of Abu Bakr is there any account of forcible collection of zak?h.7 The point this illustrates is that Hadith, like the Qur'?n, with its emphasis on Divine reward and punishment in these three matters which are the most important?faith, prayer and spending out of God's provision toman?is pre-eminently setting out a moral code of conduct and a moral system of values, whose connection (and, of course, direct influence on) the legal codes that are necessary for community-life has still to be defined. The Hadith contain references to action in this world in family and community matters, but there is no way of ascertaining from the Hadith themselves as to whether the Prophet took action on his own or gave advice after it was sought and thereafter if the advice was acted upon without any further enforcing agency being necessary. Where commercial transactions are concerned the Hadith are remarkably similar in recording that the Prophet pro hibited certain kinds of transactions, usually without going into the question of whether they were regarded, in legal terminology, as cognizable or non-cognizable.8 Again, the punishments for infringements, where both parties have no need to seek group assistance, are normally set out as being punishments on the Day of Judgment. In terms of recognition by the Community, the qualities of f?sid (invalid) and b?til (void ab initi?) are employed but, without further evidence, they can only be regarded as coming into operation once the incidents of a transaction require the assistance of community agencies. This is important to note because the Hadith value given to a commercial transaction remains identical with the value assigned to a personal act, frequently without further elaboration. For instance, in both Bukh?ri and Muslim, on the authority of Hudhayfah,9 it is related that the Prophet "prohibited" drinking from gold and silver cups or eating off gold or silver plates, the wearing of silk and coloured silk clothes and sitting on objects made from silk. In similar language, there are Hadiths prohibiting certain types of commercial transactions such as the sale of a known quantity for an unknown quantity or price, applicable to fruits, corn or grass. The word "prohibited" as used in such Hadiths for the act of sitting on a silk cushion and, at the same This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 63 time, for indulging in speculation or profiteering in commercial tran sactions, obviously carries different degrees of moral reprobation particularly when this is correlated to the question of legal measures and the nature of the inducement or deterrent, if any, to be applied to the question by the Community. Even the same act acquires different moral values in different circumstances. Thus, even on such a matter as theft, although always prohibited, the degree of moral reprobation attached to it varies according to whether the thief is a slave or not, accord ing to the Hadith found in Abu D?'?d, Nasa1! and Ibn M?jah on the authority of Abu Hurayrah that such a slave should be sold for 20 dirhams10 or the Hadith in Ibn M?jah on the authority of 'Abd Allah b. Safw?n and in D?rimi on the authority of Ibn 'Abbas11 where a complaint of theft was lodged by Safw?n b. Umayyah against a man before the Prophet and, thereafter, the complainant stated that he did not wish the punishment for theft to be levied against the thief and would rather consider the stolen articles as given in charity. The Prophet then reproached the complainant for not having informed the thief accordingly before bringing a complaint. This is the basis for the rule found in certain schools that the owner of the stolen property can remit the punishment for theft. This same influence of circumstances on the value attached to an act can be found in the remittance of the punishment for theft by 'Umar ibn al-Khatt?b during a time of famine. Through the enormous amount of Hadith literature, there are two dominating characteristics discernible. The first that the re wards and punishments of the Day of Judgment are the dominant elements to bring about obedience to the values of Islam and, secondly, that a tremendous importance is attached to acts which are almost purely moral in quality and, rarely, if ever, capable of being subsumed under an enforceable worldly legal system, how ever much these moral acts must affect the legal system. This is typically shown in the ah?dith on 'adab> abuse, anger, disdain, flattery, gratefulness, honesty, salutation and speech, envy, for giveness, hospitality, haughtiness, humility, hypocrisy, incantations and magic, intention, the k?hin, knowledge, the use of a kunyah, laughing, weeping, lying, use of lights, earning one's livelihood, use of medicines, modesty, monasticism, covetousness, mourning, muni ficence, music, treatment of neighbours, use of onions, painting (by This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 64 KEMAL FARUKI women), patience, passion, peacemaking, perfumes, poetry, praise, quarrelling, recluses, saluting and salutation, scorpions and serpents, putting cn of shoes, visiting the sick, speech and silence, spitting, tattooing, toilet, use of the toothbrush, planting of trees, use of certain kinds of vessels, and weeping. With regard to those which carry an enforceable, worldly legal imperative, two factors have to be clearly kept in mind. The first that no clear picture of the ahk?m from Hadith will be possible until considerable research has separated out the spurious Hadith from the genuine ones and, secondly, when the genuine ones have been clearly identified and there are still contradictions between one compilation and another or even within one compilation, the only way of reconciling these apparent contradictions is to relate the Hadith to specific circumstances. These are not often found in the bare recitals that have come down to us and, again, consider able research must be made before the Hadith can be reconciled according to the different circumstances that occasioned them. Meanwhile the question remains as to the immediate basis of understanding Hadith in order to ascertain the values attached in Sunnah to acts or relationships. It can safely be laid down as a rule that any Hadith which attempts to override a Qur'?nic rule must be regarded as spurious and inapplicable and that where social relationships are concerned the bare minimum legally enforceable rules should not violate the minimum laid down in the covenants. These are basically four in number and nature. The first pledge of 'Aqabah on the subject of what Muslims bound themselves to inter se, namely, to eschew the worship of idols, stealing, adultery, infan ticide, slander and disobedience and that rewards and punishments are with God ; the second pledge of 'Aqabah regarding the question of fighting for the sake of the cause of Islam, in defence and for the protection of the Prophet, subject to the observance of any treaties that may have been made ; thirdly, the covenant of Medinah between the Muslims, the Medinese and the Jews, which regulates the basis of Muslim relationships with non-Muslim groups both within the area of the Islamic state and without ; and, finally, the undertaking obtained from the assembly at Mecca, on the occasion of the last pilgrimage of the Prophet, in which the Prophet laid down the essential rules of conduct, namely, the inviolability of lives and property, the mutual rights of husband and wife, faithfulness to trusts and the avoidance of sins, the prohibition of usury, the This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 65 prohibition of blood-vengeance, good treatment for slaves and the brotherhood that must exist between Muslims in which nothing was lawfully gained which was not given freely and a warning against committing injustices. IV. EARLY DEVELOPMENT OF THE FIVE VALUES (a) The Orthodox Caliphate From the death of the Prophet (11/632) until the end of the Orthodox Caliphate (40/661), the ascertainment of Shartah values rested primarily on the caliphs themselves, guided as they were by the assembly of elders and, indeed, at times by the assembled congregation of Muslims, To a great extent, no need was seen for any elaboration of the Prophet's practice. In Medinah, particularly, the circumstances remained unchanged and it was only with the absorption of Iraq, Syria, Palestine and Egypt that new problems called for solution. These were to a large extent dealt with on an ad hoc basis and, from the time of 'Umar b. al-Khaft?b, the newly formed system of judges dealt with such cases that came to them for decision. The earliest legal thinker of whom we have any knowledge is Hamm?d (d. 120/738), whose period of activity may, therefore, be said to have begun about half a century after the end of the Orthodox Caliphate. Prior to that time are the caliphs on one hand and the judges on the other, whose decisions were the raw material for later systematization. The caliphs themselves, however, left certain decisions for posterity which provide some evidence of the atmosphere which prevailed at that time and which may be said to a large extent to reflect the attitude of the Prophet himself to such questions. What is equally of interest is the legal interpretations put upon such decisions by later scholars. The so-called wars of riddah waged by Abu Bakr, for example, can be clearly shown historically to have been wars not against apostates but against those who treacherously broke their covenants, yet later legal scholars by failing to distinguish between apostasy and treachery in this were obliged to derive legal values regarding the worldly punishment for apostasy which are at variance with the clear statements of the Qur'ln upon this matter. The period of the Caliph 'Umar gives two examples in particular of how circumstances were considered to justify a This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 66 KEMAL FARUKI departure from previous practice. Thus, the punishment for theft was mitigated during a period of famine by 'Umar and the triple divorce was considered to be binding and irrevocable when pronounced at one session. Clearly 'Umar did not forget at any time the higher moral principle behind a Shan ah value and was concerned with seeing that the law was subservient to that moral universal. A superficial evaluation of 'Umar Y changes might hold that he departed from the example of the Prophet. This obviously was just not true. 'Umar was in fact following the fundamental example of the Prophet which governed the application of SharVah values, namely, that the legal rule to be enforced may vary from case to case or as a result of a change in circumstances if this was necessary to ensure that the moral norm was dominant and controlled the legal rule. From the time of 'Uthm?n comes another event of importance in seeking to ascertain Shan ah values, namely the recension of the Qur'?n. The fact that discrepancies were making themselves apparent in readings of the Qur'?n and that a real fear existed that if unchecked there would be conflicting versions of the Qur'?n rightly led to the ordering of an authorised recension of the Book which has remained unchanged and unchallenged in authenticity by the great mass of the Muslim Community to this day. Yet this event illustrates how the same divergencies in the accounts and narrations of the Prophet's Sunnah must have been taking place as well. The Qur'?n being readily memorisable, in a fixed order and a recension having been made within twenty odd years of the death of the Prophet, the risk of variations was averted. But in the case of Had?th, it is not, in its entirety capable of being memorised, owing to its length and the fact that there is no agreed order about it. In addition, about two hundred years elapse between the time of the Prophet and the reducing of his Sunnah into written compilations. We are consequently obliged to check on the veracity of any Had?th by reference to that which is not subject to doubt, namely, the Qur'?n. To do the reverse, would be to judge what is certain by what is not certain. This, of course, has important implications in evaluating any Shan ah value which is based on an alleged Had?th and fails to find support in the Qur'?n even indirectly or by analogy or is at variance with the Qur'?n.12 Finally, from both 'Umar and later from 'All the organization This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-?HKAM AL-KHAMSAH 67 of judicial administration and the establishment of a regular police force and prisons for the first time, introduced new methods of social control and punishment for those ahk?m for which worldly punishment or control were prescribed. Again, here, can be observed the importance of placing prior emphasis, by the orthodox caliphs, on the moral universale and regarding the legal incidents arising from them, where applicable, as being subservient to achieving the moral object. The nature of the control exercised or the punishment invoked was variable with varying circumstances or changes in social organization, if it was necessary to better implement the moral enduring principles on which the law was based. (fc) The Earliest Legal Thinkers 0) Al-Awza?. As mentioned, the earliest legal thinker of whom we have any knowledge is Hamm?d (d. 120/738), followed by Ibn Abi Layl? (d. 148/765) and Aba Han?fah (d. 150/767). The teachings of Abo Hanifah are contained in the writings of his two disciples, Aba Yasuf Ya qab (d. 182/798) and Muhammad b. al Hasan al-Shaybani (d. 189/805). But before considering them, reference should be made to al-Awz?'? whose Syrian school has been extinct for many centuries. He died in 157/774 and none of the school's final writings are now available ; our knowledge thereof being only possible through the references found in the writings of others. Aba Y?suf, in his al-Radd 'ala Siyar al-Awzai discusses al-Awza'i's use of values which at that stage were, obviously, not in the systematized form we find later. The early scholars were concerned with examining generally whether any act was beautiful or ugly, good or bad, liked or disliked but in describing any act by such phrases or words, they were primarily evaluating its moral quality. It had little or no connection with legal enforceability by the Community or whether reward or punishment was likely to result whether in this world or the next. As far as this world was concerned, punishment primarily rested either on the ruler of the day or on the judges appointed by him, who might be influenced by the evaluations of the legal scholars but who were neither particularly systematic nor uniform in their legal decisions. The legal system which was beginning to emerge from the moral universale was itself in an embryonic state. This is illustrated in Ab? Y?suf's quotation of al-Awz?'i on the selling of female prisoners of war. "The Muslims did not This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 68 KE M AL FARUKI consider any harm (basa) in selling female prisoners of war. They disapproved of (yakrah?na) the selling of captives except when they are exchanged for Muslim prisoners."13 The phrases "no harm" and "disapproved" were clearly of a moral quality and did not possess any legal imperative. The same attitude is brought out (at p. 68) when al-Awz?'i is quoted : "If a slave fights alongside his master, his protection ?am?n) is permitted (jaiz). 'Umar had permitted it (aj?zahu). He did not take into consideration whether he fought or not."14 In another place al?Awz?'i uses the word hal?l (lawful) (at p. 70) as follows: "If an imam (political leader) declares (in war) 'whatever a man receives, belongs to him* and a man, (for instance) received a slave-girl, he can have sexual intercourse with her in enemy territory. This is lawful (hal?l) from God because the Muslims practised this with the female prisoners they had received in the battle of Banu 'l-Mustaliq, in the company of the Prophet before they returned to Muslim territory."15 Al-Awz?'i, however, appears to have been emphatic and strict in his evaluations and the prevailing attitude was clearly inimical to such dogmatism as can be seen from Abu Yusuf s criticism of the use of the terms hal?l (lawful) and har?m (forbidden) as follows : "What a great (i.e. presumptuous) statement of al-Awz?'i is, 'This is lawful (hal?l) from God*. I found my teachers to have disliked the practice of saying in their decisions, 'This is lawful (halai)1 and'This is forbidden (har?mT except that which is mentioned expressly in the Qur'an without any commentary (taf sir);*1* Awareness of God's ability to judge and reward and punish was ever-present with the earlier generations and the thought that the Community or individual thinkers should attempt to arrogate to themselves such tasks of judging acts when no authority or community-necessity existed for doing so was repugnant to them. They feared for themselves in attempting to do so. This is brought out in Ab? Y?suf s quoting (at the same place) the observations of Rabi' b. Khaytham, an eminent successor : "One should not say that 'God made it lawful (hal?l) or liked it, then God would say to such a person that He did not make it lawful nor did he like it. Similarly, one should not say that 'God made it forbidden (har?mY for then God would say that he told a lie and that He did not make it unlawful nor did He forbid it."17 Ab? Y?suf then refers This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions ?L-AHKAM AL-KHAMSAH 69 to Ibrahim al-Nakha'fs reported description of his companions that, whenever they gave some legal opinion, "they used to say, 'This is disapproved (makr?hY and There is no harm in it (l? basa bihiy." If we say, 'This is lawful (hal?iy and 'This is forbidden (har?m)' what a great (i.e. presumptuous) statement it would be.18 Nevertheless, Aba Yusuf and other Iraqians use the words "har?m" and "hal?l" which makes the criticism against al-Awz?'i for their use a matter of considerable interest. The strength of Aba Yasuf's condemnation of al-Awz?'i on this makes it unlikely that Abu Yasuf would have used the very same words in the same sense or implications of al-Awz?'i. What appears to have been the gravemen of Abu Yasuf's charge against al-Awz?'i was not the mere use of phrases indicating permissibility or non-permissibility which are clearly unavoidable in any attempt to extract values, moral or legal, for Muslims, but the fact that al-Awza'i in evaluating acts emphatically invoked the authority of God for his views when nothing in the Word of God was so set out on the matter in question. Whenever Aba Y?suf uses such emphatic language regarding an act and invokes the authority of God it was only where there was Qur'?nic authority for doing so. This difference between the Iraqians and al-Awz?'i is brought out by Aba Y?suf in setting out the conflicting views of Aba Hanifah and al-Awz?'i on the question of the purchase of a slave-girl in enemy territory and the purchaser having intercourse with her while still there. While Abu Hanifah expresses his view without asserting dogmatically that his view was the command of God, al-Awz?'i does not hesitate to claim that his view had the sanction of God, thus: Aba Hanifah said,'If two persons come out of the army and obtain a slave-girl and while the army is still in the enemy's territory, one of them buys the share of the other, it is not permissible and the purchaser should not have intercourse with her." Aba Yasuf then sets down al-Awz?'f s reasoning on the same question and on Abu Hanifah's views : "One should not make unlawful what has been made lawful by God, because the purchaser had the sanction of God (ahalla) for cohabiting with her. This had been the practice during the Prophet's time and after him. In the battle of Khaybar, the Muslims went to the Prophet, while ?afiyah was standing besides him, and asked ; Prophet of All?h ! would you sell the daughter of Huyy (Safiyah) ?' He replied, 'She has This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 70 KEMAL FARUKI become your sister'. Therefore the Muslims returned . . . ."19 A revealing illustration is given by Aba Y?suf of the fact that the early scholars in using these words, which later came to have a fixed meaning, did not regard them in any fixed sense as follows, "Aba Hanifah was once asked whether a Muslim could purchase the land of jizyah. He replied, It is permissible O'?'iz). Al-Awz?'i said, 'The leaders of the Muslims used to forbid (yanhawna) this practice and had been writing on it. Their 'ulama disapproved of it (yakrahu)'."20 Al-Awz?'i here uses first the word "forbid" and follows it with the word "disapproved" for the same value attached to this act* Finally, in comparing the approach of Aba Hanifah and al-Awz?'i, the following in Aba Y?suf illustrates how Aba Hanifah, and the Iraqians generally, dealt more realistically with the problems facing Muslims in their relations with non-Muslims while al-Awz?'i, and the Syrian school, failed to do so. Perhaps the later contrast in the fate of the two schools may largely be explained by this difference in approach ; both early schools being concerned with non-Muslim societies in a real and urgent manner in new situations beyond Medinah : "Aba Hanifah said, If a Muslim enters enemy territory with protection and sells a dirham for two, there is no harm in such a transaction (lam yakun hi dh?lika ba'sun). . . .. Al-Awz?'i said, Rib? is forbidden (har?m) for him in enemy territory (ard al-harb) as well as in other (i.e. non-enemy) territory, because the Prophet remitted the rib? of the people of j?hil?yah (the days of ignorance) which remained due after Islam. First, he remitted the rib? of al-'Abb?s b. 'Abd al-Muttalib. How, then, can a Muslim regard taking rib? as halal among people whose blood and property have been made har?m on him by God ? A Muslim used to carry out this transaction with an unbeliever during the lifetime of the Prophet but he did not consider it lawful (lam yastahill?)"11 (it) M?lik b. Anas (d. 179/795). A period of about twenty years separates al-Awza'f s death from that of M?lik. In a way, the milieu of Medinah was very much the milieu of the Prophet and the cautious manner in which M?lik expresses his views on problems, put to him, may well have been more in keeping with the Prophet's own approach. For instance, in the following, M?lik confines himself to phrases such as "no harm" or "it is disap proved" : "M?lik was asked about a man who had several wives and slavegirls as to whether he could have intercourse with all This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 71 before taking a bath. He replied, 'There is no harm (l? basa) if a man has intercourse with his two slave-girls before taking bath. As regards free woman, it is disapproved (yukrahu) for a man to have intercourse with the free woman (his wife) on the day (turn) of another wife (who is free too). But, if he has intercourse with the slave-girl, then with the next slave-girl, while he is impure (junub), there is no harm (l? basa) in doing so."22 In another place Malik conveys the more precise sense which comes in later thought by means of two sentences, the latter qualifying the first, "Malik was asked about a man who performed tayammum (cleaning with sand or dirt), whether he could lead those persons who performed wadu (regular ablutions with water). He said, 'It is more liked by me (ahabbu ilayya) that another man may lead. If he leads, I do not think there is any harm (ba s)\"23 The very fact that to convey his sense precisely he used such qualifying words shows that the words as used by the early scholars carried no more significance than we attach to them now. One Cannot, therefore, deduce when an early thinker uses "disliked" that he meant "forbidden" or that when he used "liked" that he meant "obligatory". Malik uses the sense of "necessary" when discussing matters of group significance or when the ruling comes unmistakably from the Qur'?n, thus: "Malik was asked about people who assembled at some place and wanted to say their prayers in congregation (jama ah). They wished to call only 'iq?mah and not 'adh?n. (Is it permissible ?). Malik replied, "This is sufficient for them. 'Adh?n is necessary (yajibu) in those j?mi% mosques where they congregate for prayer."24 And again, "Malik says, 'If an im?m arrives at a place where Friday prayer is obligatory (tajibu) while the im?m is on a journey and he recites the sermon and leads the Friday prayer, the inhabitants of that place and others, too, may say their Friday prayer with him."25 Malik is more emphatic when evaluating matters of group significance which derive unmistakably from the Qur'?n directly or as elaborated by the Prophet. He mentions the need for coercive action which does not appear for the previous cases, as in, "M?lik said, 'It is agreed with us that whoever refuses to pay the dues of God (faridah min fara id Allah) and Muslims could not take them from him, jih?d is (obligatory) on them until they take them from him.' "26 Discussing Zak?t al-Fitr> M?lik holds it This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 72 KEMAL FARUKI necessary (yajibu) on nomads and settled people alike because the Prophet "made Zak?t al-Fitr of Ramadan obligatory (faradah) on all people, free or slave, male or female, from amongst Muslims."27 Yet, generally, Malik's manner of evaluating acts is marked with caution and with shades of emphasis devoid of any authori tarian dogmatism. Even when using the description "forbidden" it is, as in the following, in the sense of almost a logical sequel, "what is forbidden (yahrumu) for a mutakif (one living in seclusion) to do with his wife by day, is also forbidden by night."28 The cautious manner in which he praises a practice is shown in the following, "Yahy? reports that he heard Malik say, did not hear any of the learned people or jurists and one who is followed, to have forbidden keeping fasts on Friday. Friday fasts are good ( a5a )."29 Another way in which Malik gently expresses the view which he finds unexceptionable is as in the following, "I have heard some of the learned people to have liked (yastahibbu) calling talbiyah after each prayer and while ascending to high levels of ground."30 Or as in, "Malik said, such cases I like (yastahibbu) that an animal should be sacrificed, because 'Abd Allah b. 'Abb?s is reported to have said, 'Whoever forgets anything while performing hajj% he should sacrifice an animal.' "31 Indeed, where not invoking the authority of the Qur'?n or the Prophet directly but by implication or comparison, Malik expresses the same caution, as in this description of the value attached to a transaction similar to rib?% "It is agreed with us that if a man borrows a sum of money for a fixed time, and the creditor leaves a part of that sum, then the debtor pays the debt immediately, this practice is disapproved (makr?h). This is because this case is parallel, according to us, to the case when the payment falls due but the creditor extends time and the debtor increases the sum due on him. This is exactly rib? ; there is no doubt in it."32 In this, a matter apparently analogous to rib? which the Qur'?n declares har?m is described as makr?h or disapproved. This is partly because in normal usage of words (as distinct from their later developed technical sense in the classification of Shartah ahk?m) to do what is forbidden is obviously disapproved and also because Malik is expressing his view as a result of reasoning on a transaction which is sought to be connected with a Qur'?nic value but is not identical with it. This indicates the need for great care in trying to attach This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 73 to Malik's use of words a meaning which the words only came to acquire later. This is applicable, for instance, in, "Malik said, 'Sacrifice (on 4?d) is sunnah and not w?jib (obligatory). I do not like that a man who is able to bear its cost leaves (neglects) it.' "33 Malik here distinguishes between what is obligatory and what is sunnah. Clearly however, sunnah here is more likely to mean "the custom or way of the Community" rather than the Prophetic Sunnah, because much of what is the Sunnah of the Prophet would be regarded as obligatory by Malik or later generations. (in) Ah? Y?suf (d. 182/798) of K?fah. The same cautious use of values is to be found in Abu Y?suf, who will be found to describe things as having la ha'sa (no harm) as in the following : "If a Muslim is in the enemy's territory and has no animal for riding and the Muslims, too, have no extra animal except the animals of ghanimah (i.e. booty) and the man cannot walk on foot, in this situation it is not lawful (l? yahillu) for the Muslims to leave him behind ; there is no harm (l? basa) if be rides the animal of ghan?mah."u This was a case where, clearly, a definite choice had to be immediately made between two courses of action, either to leave the man behind or allow him to ride upon a ?hanimah animal and Ab? Y?suf is emphatic in his preference, but even in such a case he expresses himself in moderate terms. The same moderate evaluation can be seen in his use of "dis approval" in : "The prisoners of war, including man, woman and child, should not be sold to the enemy, because they came over to Islamic territory (d?r al-Isl?m). I disapprove of (akrahu) their return to enemy territory."35 On the other hand, a more emphatic note is discernible when commenting upon that which is clearly referred to in the Qur'?n and Hadith when agreeing with al-Awz?'i on the prohibition of rib? in the territory of the enemy when Ab? Y?suf says : "This is not lawful (l? yahillu) and not permissible (l? yaj?zu). The traditions mentioned by al-Awz?'i have reached us. Ab? Hanifah made it lawful on the basis of a tradition reported on the authority of Makh?l from the Prophet which states : 'There is no rib? among ahi al-harb\"*? One of Ab? Y?suf's infrequent uses of har?m comes, typically, when repeating what is laid down in the Qur'?n as he understands This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 74 KEMAL FARUKI it, thus : "God did not make lawful (lam yuhill) except marrying four women. What goes beyond that is forbidden (har?m), according to the Divine Book. Thus, marriage with the fifth one, with mother, and with sister, are all equally forbidden (/tar?m)."37 (iv) Muhammad b. al-Hasan al-Shayb?n? (d. 189/804). The tone of al-Shayb?nfs observations is similarly couched in such phrases as "no harm" or "no good" or "good" or "I dislike" and only on pronouncements derivable directly from the Qur'an do the terms "obligatory" or "forbidden" appear and even then not with the frequency one might have supposed. Thus he says that there is no harm (l? ba'sa) in the transaction of sal?m (pre-paid sale) if part of the transaction takes place at the expiry of the stipulated period.38 On the other hand he expresses the view that there is no good (l? khayra) in respect of things which are neither measured nor weighed because of variations in size, except in the case of walnuts and eggs provided they are numbered, when there is no harm (l? basa)?9 Where later scholars used the terms "permissible" or "forbidden", al-Shayb?n? used the terms (with their distinctly different connotations) of l? ba'sa (no harm) and l? ghavra (no good). In another place, where helpless infants are involved, although al-Shayb?n? uses the phrase "I disapproved" (akrahtu), he clearly indicates something more than mere disapproval in terms of social action by urging that political authorities should force (in Islamic territory) a man to sell two infant slaves, when they are brothers, together, and not separate them, where the sale is by a non-Muslim (who has purchas ed them in non-Muslim territory) to a Muslim later.40 The phrase "obligatory" appears when dealing with prayer accompanied by prostrations upon the recital of certain specific Qur'?nic verses.41 In another place discussing the procedure in prayer, al-Shay b?n? writes : "To call people for fajr prayer by saying "come to prayer" and "come to success" twice between 'adh?n and \qamah is good (hasan) but in all other prayers it is disapproved (kuriha)"*2 The procedure preferred by al-Shayb?n? is the same as in later classical categorization, but where later classification made the distinction of "permissible" and "prohibited", al-Shayb?n? describes them as "good" and "disapproved" which brings up once more the question of whether he intended to use "disapproved" in the sense of "prohibited" or whether later scholars have made "prohibited" This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 75 what al-Shayb?ni was content to describe as "disapproved".43 This is again apparent in his describing the Friday bath as better (afdal) and not iv?jtb (obligatory) in reference tp an act which some Prophetic traditions describe as obligatory (w?jib), which he does not take literally. Similarly, the taking of a bath on Id he describes as hasan (good).44 Then, in the same work he describes as' disappr?ved (yakrahu) drinking from silver and gold containers.45 Basing his value upon the Qur'?nic verse IX : 28, however, al-Shayb?ni in al-Siyar a?-Kab?r, describes the entry of a .non Muslim in the Masjid al-Har?m as "not permissible" [la yahillu)^ In summary, therefore, it can be seen that in early terminology, the most frequent phrases are l? basa, l? khayra, yaj?zu, l? yaj?zu, hal?l, makr?h, with har?m, l??j?b and mustahabb being less frequent, particularly the latter." The term mub?h (indifferent, permitted, not prohibited) is not to be found at all.47 To hold that this is because "disliked" meant "prohibited" or "liked" meant "obliga^ tory1' in an effort to reconcile later evaluations with those found, in these early writers and thinkers, is a theory which might do serious damage to understanding what exactly these early scholars had in mind. One: thing, in any case, is certain. There was no precise scale of values carrying definite communicy implications inherent in their use of these terms and to understand their valuations nothing short of a full examination in their proper context will suffice. (v) Muhammad b. Idrls al-Shafii (d. 204/820).. It is with al-Shafi'i that Islamic law began to develop its systematization with regard to principles, their limits and their application. This systematization also became apparent in the value-classification attached to acts. In place of the more cautious evaluations of the earlier jurists, al-Sh?fi'i in his desire to systematize and make precise and as a means of reconciliation between what some regarded as arbitrary opinion on the one side and what others regarded as'rigid custom on the other, provided a set of rules for the employment of ijuhdd but made these rules strict, We find, therefore, the use of a stronger imperative orv pro hibitory tone consistent with his view that all answers were to be found in detail in the Quran and Sunnah and by a circumscribed use of Qiy?s. This desire to give a precise value to an act is apparent in his This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 76 KEMAL FARUKI introduction of the term mub?h (permitted, indifferent) and relating its significance to circumstances,48 "Someone may ask ; what sort of mub?h is prohibited but this prohibition is different from har?m (prohibition proper) ?" Al-Shafi'i replied : It is like the Prophet's order of prohibition against wearing a single robe by a person who folds it on one side leaving uncovered a certain private area of his body, or when he asked a boy to eat what was placed in front of him and not from the top of the dish ; he is reported to have prohibited?although it is not certain?eating two dates together, exposing the inside of the date (prior to eating), and halting on the road for rest.* Since the wearing of a single robe,~the eating of food (as much as one desires), and (walking on) the earth (which belongs to God, and all men are equally entitled to use it) are all mub?h (permitted, indifferent) acts, the Prophet's order of prohibi tion refers to particular acts which are different from those he permitted. For the (Prophet's) order of prohibition (is limited) only to the wearing of the robe if it were folded in such a way that it leaves uncovered a certain part?the private parts?but if the private parts were covered by the cloth, the prohibition against uncovering the private parts should not include the wearing of a single robe, since one can wear it without uncover ing the private parts. (Similarly) the Prophet's orders against the (boy's) eating of the food from the top of the dish, which is permissible, are merely orders of etiquette, for it is more appropriate on behalf of the host to observe them while eating with his table companion, instead of eating voraciously. (The Prophet) pro hibited eating from the top of the dish because God's blessing descends on the top and it should continue descending on it. He permits (yubihu) eating from the top once he has eaten from the sides. If one is permitted to walk along a road, he does so because it is permissible (.mub?h) in principle, since nobody owns it, to forbid others from passing ; but the Prophet prohibited halting for a certain specific reason for he said, "It is the shelter of insects and a passage for snakes', not because halting is forbidden (muharram). He also prohibited halting on the road if the road were narrow and crowded, for if one halts (for rest) one would encroach upon others' right of passing." Al-Sh?fi'i then proceeds to give precision and attempts to systematize the distinction between the two kinds of acts in the following * "Someone may ask : 'What is the difference between This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions al-ahk?m al-khamsah 77 this prohibition and the other (har?m proper)?1 Al-Shafu replied : One must know that the Prophet prohibited the acts which I explained (har?m proper) and he who acts contrary to them, despite his awareness of them, would be regarded as disobedient and should ask for God's forgiveness and never repeat them again/ He may ask : 'Such a man is disobedient and you have already called the man who violates the marriage and sale contracts (har?m proper) disobedient in this (your) book, on what grounds have you distinguished between the two ?' Al-Sh?fu replied : made no distinction between the two in respect of obedience, since I have regarded both as disobedients, although certain acts of dis obedience may be greater than others.' He may ask : 'On what ground have you not regarded as disobedient the man who wears a single robe ; eats from the top of the dish and halts on the road, while you regarded as disobedient (harramta) the man who violates the marriage and sale (contracts).' Al-Shafu replied : 'The first has been ordered to obey a command of mub?h (indifferent) which is lawful (hal?l) for him, so I permitted (ahlaltu) what was permissible (hal?l) and prohibited him from what was forbidden (har?mi. What is forbidden (har?m) for him is other than what is permissible (fyal?l). His disobedience in mub?h (indifferent) acts would not render it unlawful (har?m) in all circumstances ; but it prohibited him from committing an act of disobedience.' He asked : 'For example ?' Al-Sh?fu replied : man having a wife and a slave-girl is prohibited from intercourse with them whenever they are menstruating or fasting; if he did, the intercourse would be unlawful, (lam yahill) only under this condition. However, neither is forbidden in other circumstances for they are in principle permissible (mub?h) and lawful (hal?l).' Al-Sh?fu said : "One's own property is forbidden (muharram) in principle to be taken by another, except in a lawful manner (yahillu) which permits (ubiha) another to do so. Intercourse with women is forbidden to men except by marriage or ownership. So if one makes a marriage contract with a forbidden woman or enters into a sale transaction concerning forbidden goods, such contracts would be invalid, for what is forbidden cannot become lawful by an unlawful act. The act which is in principle forbidden (asl tahrimihi) remains so unless there is a specific text in the Qur'?n or a Sunnah of the Prophet or Ijma or the like (which makes it lawful)."49 The foregoing illustrates the manner by which al-Sh?fi'i This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 78 KEMAL FARUKI endeavoured to introduce greater precision into the use of the terms used for describing acts and relationships and correlate them in a system. Al-Shlfu s thinking is important in stressing the desirability of being more precise and in systematizing but not in the extent of acceptability or accuracy of either his attempt at precision or the logical consistency or validity of the system he proposed. The test of whether an act, in his system, should be regarded as har?m or mubah is only partially consistent and the difficulties become multiplied when the question of social sanctions against infringements arises. Al-Sh?f?'i himself, in the foregoing when discussing disobedience regarding acts which are har?m proper only advocates repentance on the part of the disobedient but clearly there are certain acts which are prohibited for which society must erect deterrent and punitive rules in addition to the need for repentance, and indeed, regardless of whether there is subsequent repentance by the disobedient or not. The attempt to make a distinction on the grounds that certain acts are intrinsically forbidden but permitted under certain circumstances and vice versa could prove to be no more than a matter of the way language is used. Is intercourse with a woman fundamentally permitted but forbidden when no marriage ceremony has taken place or the woman is within the prohibited degrees or is intercourse fundamentally prohibited except when marriage has taken place and the parties are not within the prohibited degrees? Is halting on the side of the road fundamentally permitted, except in certain circumstances, or fundamentally prohibited, except in certain circumstances ? Answers to such questions may prove to merely beg the question originally sought to be answered and be circular, and fail to bring these acts into the two categories sought to be distinguished of muhah and har?m. Another example of al-Sh?fi'f s manner of allocating a greater degree of preciseness to the use of these values comes in his discussion of w?jib with regard to ablutions before the Friday prayer. Discussing the use of the word w?jib occurring in the Hadith, he says that it conveys two possible meanings. First, it means obviously w?jib proper that is there is no purity (tah?rah) for Friday prayer except by a bath, as in the case of the purity of jUnub. Secondly, it means w?jib fi -ikktiy?r (optional or recom mended), that is, Friday bath is required for cleanliness and good morality, and not for the validity of Friday prayer. He treats This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 79 Friday bath as w?jib fi -ikhtiy?r (optional or recommended) arguing that 'Uthm?n once said his Friday prayer without taking a bath although reminded by Omar and neither thought it forbidden, and both were fully aware of the Prophet's orders in this connection.50 Again, on har?m, al-Sh?fi'i divides it into two kinds, har?m proper and har?m tanzlhan which he illustrates by stating of the former the example of riba (fadl) and the latter by a Prophetic tradition that one should not betroth a woman already being sought by another Muslim brother. He observes that which head the prohibition falls under depends on indication (dal?lah).01 V. THE CLASSICAL VIEW OF THE FIVE VALUES During the centuries immediately after al-Shafi'i, the process, essentially initiated by him, of systematizing and making precise the Short ah values continued. The question of the nature of mub?h, a term which appears to have been first used by al-Sh?fi'i, illustrates this development continuing and the differences between schools finding expression. Thus, the Sh?fi?te jurist al-?midi (d. 631/1233) defines the concept of ib?hah as follows : "The Muslims are agreed that ib?hah is one of the Shartah commands (al-ahk?m al-shartyah), but some Mu'tazilah are opposed to it. They argue that mub?h is nothing but the negation of haraj (blame) from doing or not doing the action. This was already established before the coming of Shartah, and it continued afterwards. We (i.e. al-?midi) do not deny that negation of haraj (blame) is not legal freedom (ib?hah shariyaK). The (ib?hah shar'tyah) is, in fact, the pronouncement of the Law-giver of an option in doing or not doing an act. This was not found before the existence of Shan ah. The difference between the two is obvious.''52 A later definition of this same concept is given by the Hanafite Ibn '?bidin (d. 1252/1836), as follows : "The author of the Sharh s?l al-Bazdaw? observes that the majority of our jurists (a^h?b= masters) and most of the Sh?fi'?tes hold that the things (ashya) which are liable to be permitted or forbidden by Shar are permitted Cala al-ib?haK) before the coming of Shar, as il?hah (permission) is substantial (<3sZ=essential nature) in respect of things. Therefore, the man to whom Shar' did not reach is permitted to eat whatever he desires. To this, Muhammad b. al-Hasan al-Shaybani refers This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 80 KEMAL FARUKl when he discusses forbidden things. He says : 'Eating of a dead animal (maytah) and drinking wine are not forbidden but by prohibition (nahy).' Thus, al-Shayb?ni made ibahah original (asl) and hurmah accidental by prohibition. This is the view of al-Jubb??, Abu H?shim and the Z?hiri school. Some of our jurists (Hanafis) and some of the Sh?fi'? legists hold the view that things are essentially prohibited Cala hazar). The Ash'aris and the Ahl al-Hadith in general are of the opinion that things are sub stantially suspended Cala -waqf). According to them, if the Shar did not reach a man he should wait (yatawaqqafu) and may not eat anything ? If he eats, his act will not be given any value of permission or prohibition. Explaining this statement 'Abd al-Q?dir al-Baghd?di says that it means that the man will be neither rewarded nor punished. Ab? Mansar, too, tends to have held this view."53 The foregoing gives some idea of the elusive quality of the term mub?h and how through the centuries differences remained about its application, Yet the implications of the view one takes of this term, or the basic condition of man, is obviously of far reaching importance. Is this condition one of liberty, except where there is a specific indication to the contrary or is this basic condition one of prohibition, unless it is displaced with a specific permission ? Is a believer prohibited from eating a water-melon until he can find a specific Shan ah indication permitting it and the manner of its eating or is one permitted to eat a water-melon (and anyway one chooses) unless and until one finds a specific SharVah indication limiting or prohibiting one from doing so ? On the five values themselves, the century after al-Sh?fi'i was doubtless one of great speculative activity because a cen tury and a half later al-Jass?s (d. 370/980), uses these terms in his discussions virtually in the sense that they came to be classically fixed. Discussing verse IV : 25 (regarding marriage and the payment of dowries) he writes : "This verse indicates that conjunction of w?jib with nadb (i.e. obligatory with recommended) is permitted, because marriage (nik?h) is nadb (recommended) and not fard (obligatory), while payment of the amount of dower is w?jib. The conjunction of nadb with w?jib is also permitted. For example, verse XVI : 90. Surely Allah enjoins justice and the doing of good (to others) and the giving to the kindred, and He forbids indecency and evil and rebellion. He admonishes you that you may be mindful. 'Adi (justice) is w?jib while ihs?n (the doing of good) This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 81 is nad?."54 His discussion above of the value to be attached to justice and the doing of good, appears to be more a matter of attaching his subjective values to the Qur'?nic discussion of them, rather than a justifiable deduction that their Shanah values are different, for which the verse on its own gives no such distinction. Later, discussing the Qur'?nic verse IV : 25, al-Jass?s writes : "The phrase 'this is for him among you who fears falling into evil' is a condition for mand?b ilayh, that is, to abstain from marrying a slave-girl and to restrict himself to marrying a free woman, so that his children may not be slaves. But if he fears falling into evil ?anat) and cannot prevent himself from the forbidden (mahz?r), in this situation marrying a slave-girl is permitted (mub?h), neither in doing nor in abstaining." Commenting on the phrase 'and that you abstain is better for you' he remarks, "In this verse God pointed to nadb and ikhtiy?r (choice), i.e. not to marry a slave-girl at all." Al-Jass?s in further support of his interpretation of this verse quotes several traditions of the Prophet indicating disapproval {karahaK) of marriage with a slave-girl.55 His use of mub?h, however, is not consistent as, after using it to describe the value to be attached to a marriage with a slave-girl, in the deprecating manner shown above, he uses it later in a sense which is in striking contrast, when in commenting upon verse V : 87, he says that it is argued on the basis of this verse that triple divorce is forbidden (tahrim) because it makes a permitted (mub?h i.e. woman) forbidden (tahrim)^ The increasing precision being attached to these words, shows itself in the fact that, like al-Sh?fi'i before him, al-Jass?sr in discussing III : 104 states that enjoining what is good and forbidding what is bad may be obligatory on all or may be fard al-kif?yah like jih?d, funeral prayer, burying of the dead, etc.57 This is apparent also in his discussion on XXIV : 32 and shows incidentally how Ijma was already being held to be the decisive test of the meaning of a verse, when he states that this verse indicates the obligatoriness ?ij?b) of the marriage of the single person but that the Ijma or consensus of the past generations (salaf) and of the jurists of various towns show that the verse in question "does not mean" Ij?b but merely approval (istihh?b).5* Although, for example, in commenting upon verse V : 42 regarding the taking of bribes (suht), al-Jass?s describes it as This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 82 KEMAL FARUKI muharram (unlawful, forbidden), he uses the words muhz?r much more frequently as, indeed, do most of the scholars of the period under discussion. The five-fold division is set out by Abu 'l-Husayn Muhammad b. 'Ali b. al-Tayyib (d. 436/1044) a Mu'tazilite, at the beginning of the fifth century, which is one of the earliest references to these values in a five-fold categorization : "If it is asked what the ahk?m mean here, it would be said, 'They are divided into (1) an action being good (hasan)% permitted (mub?h), (2) recommended (mand?b ilayh), (3) obligatory (w?jib), (4) evil (qabih)% forbidden (mahz?r) and (5) disapproved (makr?h)\"59 About half-a-century later, we find the first addition to the value categories of these values with, primarily, a legal significance of the validity or invalidity of an act in terms of law in the writings of Imam al-Haramayn Aba -Ma'?li 'Abd al-Mllik al-Juwaynl (d. 478/1085), when he adds valid (sahih) and void (f?sid) as follows: "The values (ahk?m) are seven: obligatory (w?jib), recommended (mand?b), indifferent (mub?h)% forbidden (mahz?r), disapproved (makr?h), valid (sahih) and void (f?sid)"*0 The identical seven-fold list is also to be found in the work of a contemporary of the Imam al-Haramayn, Aba Ish?q Ibrahim b. 'Ali al-Sh?r?z? (d. 476/1083) in his al-Luma ft Usui al-Fiqh*1 Finally, the almost settled manner in which these ahk?m were regarded by the end of the fifth century A.H. may be seen from the fact that the identical list of the five-fold category appears in al-Mustasf? of Aba Hamid Muhammad b. Muhammad al-Ghaz?li (d. 505/1111) when he writes : "The kinds of the values instituted for the acts of those who have legal capacity (mukallafin) are five : obligatory (iv?jib), forbidden (mahz?r), indifferent (mub?h), recommended (mand?b), and disapproved (makr?h)"*2 The five values were in course of time more and more precisely defined and, of course, in the attempt to give greater precision, differ ences between schools and between individual thinkers became appa rent, often on finer shades of meaning between them. But generally, the accepted significance of these values is contained in the writings of al-?midi to which we have had occasion to refer earlier. Thus, he defines w?jib as follows ? "Wuj?b shart means the pronouncement of the Law-giver, the pronouncement of which causes legal blame in any condition."63 He goes on to observe that : There is no difference between This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 83 fard and w?jtb according to the Sh?fi?yah. But the Hanafiyah make a distinction between them on the basis of certainty (qat*) and uncertainty (zarm).64 He defines mand?b (recommended) as follows : "Mand?b is an action recommended by the Shariah without giving any blame on its abandonment.1'65 On mub?h, he writes : "It is the action for which the Law-giver gives liberty of doing or not doing, carrying no reward or punishment."66 For har?m and makr?h% the following definition from the con temporary Egyptian Muhammad Abu Zahrah set out the finished classical form : "Har?m is an action prohibited by the Law-giver categorically and positively, irrespective of the fact that the authority (dalil) which makes that action har?m is decisive (qat'i) or uncertain, conjectural (zanni). The Hanafiyah stipulated for an action being har?m that it should have been established by the decisive authority (dalil qat'i) . . . that is why the prohibition which is established by uncertain authority (dalli zanni) is called makr?h (kar?hah tahrim) by them."67 The same writer defines makr?h as follows : "Makr?h, according to the jurists, is an action whose abstinence is required by the Law-giver, but not so positively as categorical prohibition (har?m)."** Examples of Further Sub-division The five-fold division has been divided into finer gradations. We have already mentioned above the Hanafi division of obligatory into fard and w?jib, depending on the certainty or otherwise of the authority from which the command is obtained and the same distinction exists in makr?h. Obligatory acts are further classified in four other ways. First, according to whether there is a fixed time (muwaqqat) such as for prayer, fasting, etc. or no fixed time, such as for kaff?rah (atonement). Secondly, those which are obligatory on each individual ?ayn) such as prayer, zak?h etc. and those which are obligatory on a sufficiency of the Community but not all, but if no one were to perform them, then all would be sinful (kif?yah)% as, for example, funeral prayer, return of sal?m, jih?d, etc. Thirdly, those obligatory acts whose particulars as regards quality, quantity, number, etc. have been specified by Shariah such as five prayers, the amounts of zak?h, etc. (mahd?d) and those whose details have not been specified, such as charity (ghayr mahd?d). Finally, those leaving no option as to the manner in which the injunction is to be performed and which is in itself ?ayn) desired (muayyan), such as This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 84 KEMAL FARUKI sal?h, hajj, etc. and those with an option as to the manner of performing them, such as kaff?rah or atonement for breaking an oath. The Qur'?n prescribes three forms : feeding ten indigents or clothing them or the manumission of a slave ; the kaff?rah. being obligatory but the form thereof being optional. On recommended acts (mand?b), five categories are distinguish ed, (0 sunnah (normal practice) which has been further sub divided into hud? and zaidah (legal and manners), and into mu'akkadah (emphasized) and ghayr muakkadah (non-emphasized), (it) nafl or n?filah (optional), (in) mustahabb (liked), (iv) ihs?n (goodly), and (v) tatawwu (choice). On forbidden ihar?m) a distinction is made between (1) har?m lidh?tihi (forbidden intrinsically) ; those acts which involve personal harm and are detrimental to the "five fundamental necessities" (daruriy?t khamsah), namely protection of body, of one's progeny and posterity (nasi), property, reason ?aql) and religion, such as adultery, theft, etc. On the other side are those acts which are har?m lighayrihi because they lead to forbidden acts proper, such as looking at a strange woman, riba -fadl, or doing any business after 'adh?n for Friday prayers has been called. As mentioned in makr?h% there is the Hanafi distinction of those virtually prohibited but on the basis of zann or individual surmise of isolated traditions (akhb?r ah?d) or isolated Qiy?s (analogical deduction), such as eating off gold or silver plates, which is opposed to w?jib, while har?m proper is opposed to fard. The other category of disliked acts (opposed on the other side of the scale by sunnah) are makr?h tanz?han, which are disapproved but for which no punishment is prescribed. Mubah (indifferent) is sometimes considered equivalent to halal (lawful) or j?'iz (permitted), though it is clear that it has come a long way in technical meaning from the time it was first used in respect oi ahkam by al-Sh?fi'i. The Hanafiyah regard mubah as being applicable in three circumstances : (0 where choice has been expressly mentioned in the Qur an or Sunnah, (it) where, although permission is not expressly set out, there are phrases implying no objection such as l? haraj (no blame) or l?bdsa (no harm), and (Hi) where no mention of doing or not doing is available. Later classical law has the distinction between the moral and legal aspects more clearly coming into view with the distinctions for positive law known as This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 85 the ahk?m wai??yah, (positive law) namely (i) sabab (cause) as time is the sabab for prayer and, therefore prayer (sal?h) is neither obligatory nor valid until the proper time has arrived, (it) shart (condition), as wadu (ablution) is a condition or prerequisite for the validity of prayer, and (tit) mam (preventive or disqualifica tion) as murder is mani (preventive) for giving the share from the inheritance of the murdered to the murderer, if they are relatives of each other. In addition, an important form of classification relating to the legality of an act is, firstly, sihhah (validity) and secondly, fas?d or butl?n (invalidity).69 Differences Between Schools on Value Classification The hukm attached to specific acts varies, frequently, from school to school. Sometimes, being a difference of degree, i.e. from recommended to obligatory or disliked to prohibited but on other occasions the difference is of sharp contrast. The following table gives some idea of those variations : (a) 'Ib?d?t (1) Nzyah (intention) before performing wadu (ablution). Three schools (Shafi'i, M?liki and Hanbali) hold that it is w?jib (obligatory) while the Hanafi regard it as sunnah (recom mended).70 (2) Recitation of s?rat al-F?tihah in prayer, whether individual or congregational, is obligatory to three of the Sunni schools but in the Hanafi, this is so only for the im?m and is disapproved (makr?K) for the followers (muqtadi). Without this recitation, prayer is still valid for the Hanafi but invalid according to the other three Sunni schools.71 (3) Zak?h on ornaments of women is obligatory according to the Hanafis but not taxable according to the other three. (4) If a man eats or drinks in forget fulness during a Ramadan fast, his fast is not broken according to three schools but is broken according to the M?likis and atonement is necessary for him. (5) The use of perfume on the body while wearing ihr?m for hajj is recommended by three schools but, in contrast, is disapproved by Malik, if the fragrance remains on the body.72 (M Mu?mal?t (6) With regard to whether the permission of a wait is necessary for the marriage of a woman, the Hanafis hold that it is not for an adult woman ; the M?lik?s maintain that it is This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 86 KEMAL FARUKI not necessary unless the woman comes from a noble family ; while according to the Shafi'i and the Hanbali, no marriage is valid with out the waits permission.73 (7) On the evidence required in cases concerning property (amwal), the Hanafis maintain that unless there are two men or one man and two women, the evidence is not valid, while accord ing to the other three schools, one male witness and the oath of the plaintiff are sufficient.74 (8) The sale of the milk of a woman is forbidden according to the Hanafis but, again in considerable contrast, is permissible according to the Sh?fi'is.75 (9) Again in contrast, while the Hanafis permit the evidence of dhimmis for dhimmts, the M?lik? and Sh?fi'is prohibit this.76 (10) 'Irxah sales, which in effect were used as devices for evading the prohibition against riba ; were permissible according to the Sh?fi'is but forbidden according to the Hanafis, M?likis and Hanbalis. An example of such a sale is where a man buys a slave girl for one thousand dirhams on immediate payment or on credit. He takes formal possession of the girl and then resells the girl back to the original seller for five hundred dirhams before making payment of the one thousand. This second sale is invalid according to the Hanafis but valid according to the Sh?fi'is.77 (11) Again in strong contrast, are the values attached to the fixation of market prices, which is permitted by the M?likis but forbidden by the Hanafis and Sh?fi'is.78 Ce) 'Uq?b?t (12) If an insane person draws a sword on another person and that other person kills the insane person intentionally, the murderer, according to the Hanafis, should pay diyah (blood wit) but this blood-money is not payable according to al-Sh?fi'i.79 (13) In the matter of retaliation (qis?s), the Hanafis hold that a free man can be killed in retaliation for a free man as well as a slave but according to the other three Sunni schools, no free man can be killed for a slave. Similarly, while the Hanafis maintain that a Muslim can be killed in retaliation for a dhimm?, the Sh?fi'is and the Hanbalis maintain that a Muslim cannot be so killed.80 (14) On the matter of kaff?rah in cases of intentional murder, while the Hanafis maintain that there is none possible, the Sh?fi'ites maintain that it is essential.81 (15) Where a person forces another to kill a third, the one who This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHK?M AL-KHAMSAH 87 forced (mukrih) should be killed in retaliation according to the Ha nafis but not the one who was forced. The M?likis and Hanbalis hold that the person who actually killed is liable to retaliation and, finally, the Sh?fi'?s maintain that both are liable for retaliation.82 (16) On law?tah (sodomy), three schools equate this with adultery and prescribe the hadd punishment and evidentiary requirements of adultery to sodomy, but the Hanafis hold that the punishment is tdzir (discretionary) and only two witnesses are required.83 The foregoing will give some idea of the variations in the value classifications developed by the different schools, extending as they do over Hb?d?t, mu?mal?t and %uq?b?t and touching matters of the most serious moral import as well as trivial. What finally requires to be noticed in this connection is that it is more than differences in cjegree of value attached but sometimes the views of the different schools stand in complete contrast.84 Punishments for Disobedience to Ahk?m The differences between schools and the differences in the meaning and nature of the ahk?m which have been described earlier are not unauthorised by Islamic theory with its recognition of ikhtil?f, although a comparison of the earlier and classical developments will show that the differences were perhaps more sharp in later times and in more striking contrast, even contradic tion? than those which existed in the early centuries. This was accentuated by the fact that the earlier thinkers were less dogmatic and more cautious in attaching values of an extreme nature to acts and, possibly, were more aware of the reality of the Hereafter with its inevitable rewards and punishments and were, consequently, content, when asked to indicate for believers the preferable course of action for them, to talk in moderate terms, more confident that these would be sufficient to make them adopt or desist from a course of action, with their great awareness of the Hereafter. There is, besides these changes in classical times, a more striking change and that is with regard to punishments as an index of the hukm or value attached to an act. Thus, although two acts were both regarded as obligatory, in classical times a sharp contrast can often be seen in the nature of the punishment a violation incurred. The effect of acts carrying identical values being subject to punishments of different degrees of severity, was, This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 88 KEMAL FARUKI inevitably, to blur the moral quality of the acts concerned particularly when no consistent principle appears to have been the basis of these distinctions in punishments. The other factor which gave rise, possibly, to these anomalies was the definition of the distinction between the rights of God and the rights of man which will be more fully examined later. The differences in punishment can be seen in the pillars or ark?n of Islam, faith, worship, poor-rate, fasting and the pilgrimage. Thus, with regard to faith (zm?n), this is, of course, obligatory for a Muslim. For non-Muslims, it is also obligatory but the punish ment for not possessing it, was regarded as being reserved for the next world. Where a Muslim moves from faith to unbelief (i.e. apostasy), death was the punishment prescribed for the Muslim man and imprisonment for the Muslim woman. On the next rukn, sal?h (worship), also classified as obligatory, the classical HanafI view for neglecting it, is imprisonment, while the Maiiki and Shafu view is that the violator be asked to repent, failing which he was to be killed. In addition, it was held that there will be punishment in the next world as well.85 Coming to the poor-rate (zak?h)% equally obligatory and presumably possessing the same SharVah hukrn, the only punish ment laid down by the classical view in this world is the taztr or "discretionary" punishment, which at first appearance would seem to be for lesser offences. On fasting (saivm), again taztr is prescribed by the classical system with the addition that the violator be put in prison until he repents. Again, punishment in the next world was considered to be also the consequence.86 On hajj, the situation was identical with that for zak?h. A contrast is again observable on the questions of drinking intoxicants (shurb al-khamr) and qim?r and maysir (gambling). Both are regarded as being forbidden by SharVah (where they are discussed together) but while for shurb al-khamr, the punish ment prescribed is flogging of 80 lashes, for gambling there is only the taztr or discretionary punishment of the q?dt.87 On those acts for which prescribed punishments were held to be found in the Qur an, such as qadhf (imputations of unchastity), sartqah (theft), zin? (illicit intercourse), qat% al-tariq (brigandage) and qatl (murder), the punishments follow the meanings under stood from SharVah. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 89 For the other acts, those which fall into the three middle categories of mand?b (recommended), mub?h (permitted or indifferent), and makr?h (disliked), no punishments are, obviously, provided. But for those acts which come into the categories of w?jib (obligatory) or har?m (forbidden), theoretically, classical law held that all infringements of the obligatory or prohibitive act made the wrong-doer subject to punishment in this world. This was an inevitable consequence of regarding the Community as representing God on earth and hence empowered to enforce with out further distinction all the huq?q All?h (rights of God). The full implications of this will be considered in the next section, but for the moment what has to be noted is that every offence found to be such by the classi Bcations of al-ah??m al-kjiamsah became liable for worldly punishment by worldly agencies. No punishments being directly set out in SharVah for these offences, they did not attract the hadd penalties. Indeed, in the case of a few, like nik?h (marriage) which was held by some to fall into the "obligatory" and not "recommended" category, no punishment was even theoretically provided for, and the same was the case for the prohibition, e.g. of eating food over which the name of God had not been invoked and had not been ritually slaughtered. In the case of those acts which led to legal effects and inci dents, where an obligatory or prohibitive command was violated, the act was held to be not valid. Thus a nuptial gift (sid?q) was held to be w?jib (obligatory) and failure to fulfil this rendered the marriage invalid. Similarly, with the performance of forbidden acts, such as the 'mah already referred to, which makes such a sale invalid according to all Sunni schools except the Shafute. For wrongful acts or omissions to act which are not capable of being made invalid (and indeed for some which are, as well) classical law regarded it as essential that, theoretically at least, they were all capable of being punished here in this world by society when they were held to violate the rights of God (Huq?q Allah). Clearly, however, many of God's rights concern inward thoughts and depend largely on the intention behind acts and the difficulties of a worldly agency trying to enforce them became apparent. If it pertained to a matter of faith or belief, the tendency was to enlarge the area of things that had to be accepted This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 90 KEMAL FA RU Kl to qualify a person as being regarded as a believer and if he openly rejected any aspect, often less significant, he was regarded as being an unbeliever and liable to the punishments for violation of ?m?n and for irtid?d (apostasy) set out earlier. For other less tangible violations, classical law was forced increasingly to emphasize the outward manifestations and disregard the niyah or intention behind an act. But even then this did not prove sufficient and increasingly all such acts came under the ubiquitous classification of offences which invoked tazir, i.e. discretionary punishment by the q?di. Indeed, barring the hadd offences, all other violating acts or refusal to act came under tdzlr. This had two important effects which should be noticed. The first was that, in the ahk?m classification, all obligatory or pro hibited acts are obviously not of the same degree of moral serious ness. Yet, one of the most definite ways in which people tend to judge the moral seriousness of an act or omission to act lies in the punishment which it attracts. But by bringing all such violations under the category of acts involving xdzir the effect was inevitably to blur the degrees of seriousness attached to different acts, all equally prohibited or equally mandatory. The second effect was ironical. The whole effort of the jurists of the past, by the rules they elaborated for understanding the Qur'?n, for testing Had?th, for applying analogical rules, for testing the acceptability of ijtih?d and even those claiming to exercise it, for eliminating the zann or fallible, subjective views of individuals in the Ijma or consensus of accepted disciplined judg ment, were in fact largely negated by the fact that when the ahh?m so understood were enforced, they all became subject (barring the few hud?d offences) to the highly individual "discretion" (tdzlr) of individual judges whose very hona fides were at times questioned when the temporal power appointing them was regarded by many or most as being un-Islamic. The elaborate, painstaking structure of ahk?m categorization built up from Shan ah in pursuance of understanding the all embracing nature of the Islamic ethos for all human acts and relationships became largely vitiated or, at the very least, greatly confused by the hesitation implicit in the convenient word xdzir, as being the nearest to a definitive punishment that could be set out for a wide variety of offences, personal and social, grave and minor, deliberate or accidental, all of which tended to be regarded, This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHK?M AL-KHAMSAH 91 in any case, as less important than the offences for which hadd punishments applied. A person stealing clothes or firewood in winter or one piece of jewellery (virtually regardless of motive, or circumstances) became regarded as morally far more reprehensible (because this attracted a hadd punishment) than a person who systematically on a large scale and for many years indulged in bribery (rishwah), neglect of orphans, embezzlement (k]iiyanah)t or various forms of oppression or injustice all of which were only liable to tdz?r. VI. THE FIVE VALUES IN TERMS OF MORALITY AND LAW The process of giving an Islamic value to all human acts and relationships begins, as has been seen, with the Qur an. The all-embracing Islamic system aims at identifying, and emphasizing the importance of, the moral quality of any human act or relationship. The Qur'?n in pursuance of this moral evaluation emphasizes the importance of the individual and the role of conscience in securing compliance with this value-system, and without the prior sincere obedience of the individual believer any attempt at organizing the Community along Islamic lines is bound to prove infructuous. Hence, the chief incentives to compliance which the Qur'?n reiterates are the rewards and punishments which are meted out by God, in this world to an extent, and in full measure on the Day of Judgment, to the individual human being. Yet, as we have seen in discussing these ahk?m in relation to the Qur'?n,88 these values frequently also find expression in a social dimension, and even the rewards and punishments of God are stated to be awarded community-wise. In a broad and ultimate sense, whether a value is personal or social in significance, it involves a right of God. It is His right that we should remember Him much and give thanks to Him for the good things with which we are provided and it is also His right that we should turn aside from open and secret indecencies or oppression of our fellowmen or dishonesty in our social and mercantile dealings. Yet the distinction between what values concern purely the rights of God and those which also concern the rights of human beings as well becomes of immediate importance when human beings endeavour to arrange their mutual affairs, as enjoined by This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 92 KEMAL FARUKI the Qur'?n, by consultation amongst themselves. There can be little doubt that the Qur'?n envisages a society which is stable and run by predictable and non-arbitrary rules and that it is opposed to anarchy. Certain principles are, therefore, necessary to determine the distinction between a pure right of God and a right of man (which is also, of course a right of God) and at the same time lay down the basis on which these rights are enforced. It would seem that the basis, in line with the ideas of equit ability that are contained in the Qur'?n, would be that rights of God would be enforced by God and violations punished by Him, certainly on the Day of Judgment (if not in this world) and that rights of man would be enforced and violations punished by man, whether on an individual basis (by retaliation) or by the Community on behalf of the individual members. To a large extent, such a concept of the differences between the pure rights of God and the rights of man and of enforcing them appears to have been the guiding principle in early thought. Certainly, the only places where the Qur an calls for definitive enforcing action by the Community are on those matters which clearly involve the rights of man whether singly or in community : whether it be theft, brigandage, open indecency or slander. Even as late as al-Sh?fi'i, when discussing har?m proper, he gives as the proper course for one who violates the ahk?m of har?m that the believer should sincerely repent and never repeat the forbidden act again.89 We also had occasion to note that the place at which Malik discusses the need for the Community "forcing" compliance was on a matter which clearly affected the Community as a whole, namely the refusal to pay zak?h.90 Yet in late classical thought the distinction between the rights of God (huq?q All?h) and the rights of man (huquq al-ib?d) was, in an important way, almost the reverse of this : a right of man was held to be one concerning individuals to be enforced by the individual whose right was adversely affected by another's act in violation of the ahk?m, while a right of God was regarded as a right of the Community which it was the duty of the Community to enforce and secure compliance to. The Community was seen as representing God on earth and theoretically capable of punishing all infringements of God's rights.91 The result of placing the Community in this perilously exalted position was to force classical thinkers to regard every act as being This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHK?M AL-KHAMSAH 93 capable of community compliance, whether it be the acts so personal that only the All-knowing God could effectively mete out justice or other acts which had social implications on which the Community could properly and genuinely take action. The scale of values set out in the Qur an, originally and basically moral in quality, became increasingly overwhelmed by a legal scale applied to acts for which law was not designed. In attempting to make virtually the whole range of acts conform to the five-fold scale and be subject to worldly enforcing agencies, violations of any value were conveniently held to be subject to tdzir or discre tionary punishment by the qadt and in the process the fine range of moral values attached to acts became obliterated under this omnibus term of tdztr. For other acts which, viewed in a moral sense, were definitely obligatory, such as spending out of one's wealth for the poor, kindness, patience, faithfulness to one's trusts or avoiding open and secret indecencies, the classical system was obliged to relegate most of them to the category of mand?b or recommended, owing to the impossibility of applying the sanctions which the community would have been obliged to invoke once they were classified as w?jib or obligatory. The moral values of Islam far from controlling the legal system had, instead, become submerged by the desire to make every value conform to a legally enforceable rule. The second factor which appears to have distorted the under standing of Islamic values, particularly with regard to criminal offences, has been the interpretation of hadd, in classical theory and practice, as being the "fixed" punishments unalterable once the offence was proved to have been committed. To begin with, these punishments are not described as hud?d in the Qur'?n itself. The primary meaning of hadd of being the "extreme limit" beyond which one should not proceed was not applied to these punishments set out. The difference in effect was profound. By regarding hadd as "fixed", any theft, for example, however small the amount92 or, however great the temptation or the extenuating circumstances, attracted in the classical view the penalty of amputation whereas, if regarded in the more usual sense of hadd as being the "limit", the punishment for theft would have been capable of more accurate ly meeting the facts of a particular case, with the protection that in no case could the "limit" of amputation be exceeded, regardless of how heinous the theft in a particular case was or how primitive This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 94 KE MAL FARUKI the society. Because of the nature of the classical view of hadd, judges were extremely loth to apply the "fixed" punishment and the evidentiary tests where hadd offences were concerned were deli berately made mere and more exacting so that as many as possible could escape the extreme penalty. Indeed, it came to be regarded as desirable that the q?di indicate to one accused of an offence attracting a hadd punishment the various ways in which he could avoid suffering the extreme penalty and, in effect, be acquitted. The natural hesitation at applying the hadd punishment when it was regarded as the "fixed" and not the "maximum limit" also had the effect of preventing any extension of these values and their punishments to offences which otherwise were in pari materia. Thus the offences of embezzlement, corruption and fraud which are closely related to theft (in its basic meaning, sariqah means to take by stealth) were not brought within the same category (which would have attracted the hadd punishment) but left in the vague, indeterminate region of tdztr. This, also, significantly affected the inconsistent value-judgments on such acts and contributed to widening the gulf between the true Islamic moral value of an act and the value it came to possess as a result of its position in the penal scale of classical law. The increasing necessity of distinguishing between the moral and the legal and the immoral and the illegal led to the later development of the values of sahth (valid) and f?sid (void) but these never approached a full development comparable to al-ahk?m al-Qhamsah. Clearly, if the predominant moral quality (which must be appreciated of any act or relationship before it is sought to invest it with legal implications) is to be reasserted then the whole scale of the Five Values requires reunderstanding first, in purely moral terms in which the obligatory or the recommended quality of an act is not compromised by considerations of practical legal enforce ability. Second, these moral values must thereafter serve as the framework for the legal system that follows. Third, in under standing the distinction between those acts which can be enforced by society and those which cannot, the correct relationship between huq?q Allah and huq?q al"lib?d requires restatement. Fourth, consideration is required of whether the hud?d All?h means "fixed" punishments prescribed by God or the "limits" prescribed by God beyond which no punishment can go. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 95 Once these questions are resolved, the Five Values or al-ahk<xm al-khamsah can effectively serve their real purpose of providing the moral evaluation of all human acts and relationships on the basis of Islam's all-embracing nature, which complex of moral evaluations can then supervise and effectively control the Islamic legal rules which follow a system of rules which understands the Qur'?nic distinctions between what is personal and what is social and what may be punished here and what can only be punished by God, whether here or on the Day of Judgment. NOTES 1. At the outset the author would like to express his great indebtedness to Mawlana Ahmad Hassan of the Islamic Research Institute for his research work in connection with this study. 2. See, for example, the article on "Law and Society" by David de Santillana in The Legacy of Islam (London, 1931) at p. 288. The different views on the original or essential nature of things (whether positively permitted, indifferent or prohibited) before a specific Divine command thereon is known are summarised in Ibn 'Sbid?n, Radd al-Muht?r *ala al-Durr al-Muhhtar, Cairo, n.d , III : 25. See also Sayf al-D?n Abu -Hasan 4Ali al-Amidi, al-lhkam fi Usui al-Ahkam, Cairo 1914. I : 176. 3. See as examples V : 100, XI ; 114, XIV : 25-6 ; XVI : 128, XXIX : 41, XXX : 41 and XLII : 30. 4. See p. 39, pp. 45-9 and pp. 50-1, below. 5. 'Abd All?h Muhammad Wal? al-D?n al-Tabriz?, Mishk?t al-Mas?b?h, ed. by Mawl?n? Fadlul Kar?m entitled aURad?th, Dacca 1960, 1 : 197. Cf. Arabic text, Delhi, Mujtaba'? Press, 1310 A.H., 412. 6. IWd..II:47. 7. Ibid.. II: 46. 8. Thus, Hadiths are frequently couched in language where the narrator states that he heard the Prophet say that such and such good deed will bring Paradise nearer or that such and such bad deed will take the perpetrator to Hell. In other Hadtth the authority reports the Prophet's reply to a question asked of him or what he himself observed the Prophet doing. On Hadtth concerning certain offences which are personal in nature the first confession by the wrongdoer is followed by a report that the Prophet turned aside and only after a repetition of the confession a number of times did the Prophet cease turning aside and order punishment, frequently accompanied by evidence that what the Prophet sought was repentance on the part of the wrongdoer. See also the Hadith cited by al-Sb?fi'i in his Kitab al-Umm, Cairo, 1324 A.H. VI : 124. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 96 KEMAL FARUKI 9. Mishk?t aUMascLbih, op. cit., VI : 109. 10. Ibid., XXV : 133. 11. Ibid., XXV : 127. 12. An apparent contradiction between the Qur'?n and a Sunnah which is accepted as true can only, obviously, strengthen the validating function of Ijm?'. 13. Abu YGsuf, al-Radd 'ala Siyar al-Awz?'i, Cairo, n.d., 61-2. 14. Ibid., 68. 15. Ibid., 70. 16. Ibid., 72-3. 17. Ibid., 72-3. 18. Ibid., 72-3. 19. Ibid , 79. 20. Ibid., 94. 21. Ibid., 96-7. 22. Mslik b, Anas, al~Muwatta\ Cairo, 1951, 1 : 53. 23. Ibid., 55. 24. Ibid., 71. 25. Ibid., 107. 26. Ibid., 269. 27. Ibid., 283. 28. Ibid., 318. 29. Ibid., 311. 30. Ibid., 334. 31. Ibid., 397. 32. Jfcd.. III : 673, 33. Ibid., 487. 34. Abu YOsuf, op. cit., 15. 35. Ibid., 62. 36. Ibid., 97. 37. J&iU, 105. 38. Al-Shayb?n?, Kit?b al-Asl, Cairo, 1954, 3. 39. Ibid., 7. 40. Ibid., 235, 41. Al-Shayban?, aUJ?m? al-Sagh?r, Lucknow. 1291, A.H., 16. 42. Ibid., 10. 43. Ibid., 10. 44. Al-Shayb?n?, al-Muwatta', Deoband, n.d., 72-3 and 76. 45. At p. 375. 46. Vol. I. p. 134 of 1957 Cairo ed. 47. The word ib?hah (in its literal sense of "permission") however is found in al-Shayb?n?'s al-Siyar al-Kabir. 48. Al-Sh?fi'?, al-Ris?lah, Cairo, 1321, A.H., 48-9, 49. Ibid.. 48-9. 50. Ibid, 43, 51. Ibid.. 265-6. 52. Al-Smid?, op. cit., I : 176. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions AL-AHKAM AL-KHAMSAH 97 53. Ibn 'Sbid?n, op. cit., III : 251. 54. Ahkam al-Qur'?n, Istanbul, 1335 A.H.. II : 169-70. 55. Ibid , 169-70. 56. Ibid., 452. 57. Ibid., 29. 58. Ibid., 319. 59. Kit?b al Mu'tamad fi Usui al-Fiqh, ed. Muhammad Hamid Ullah, Damascus, 1964, 1:8. 60. Al-Waraqah ft Usui al-Fiqh in Majm?m' ut??n Us?liyah (Maktabah Hashm? yah), Damascus, n.d., 28. 61. Makkah, n.d., 19. 62. Ed. Cairo, 1937, 1: 42. 63. op. cit., 138. 64. Ibid., 140. 65. Ibid., 170. 66. Ibid., 176. 67. Usui al-Fiqh, Cairo, . d., 41. 68. Ibid., 44. 69. On the foregoing see al-Sh?tib?, al-Muw?faq?t ; al-?mid?, op. cit., Muhammad al-Khudar?, Usui al-Fiqh ; and Muhammad Abu Zahrah, op, cit. 70. Al-Margh?n?n?, al-Hid?yah, Deoband, n.d., 1: 6 and also Ibn Rushd, Bid?yat al-Mujtahid, Cairo, 1329 I : 6. 71. Al-Margh?n?n?, op, cit., 1:100-1, and 'Abd Allah Muhammad b. 'Abd al Rahm?n, Rahmat al-Ummah fi lkjitil?f al-Aimmah, Cairo, 1300 A.H., I: 17 72. Al-Margh?n?n?, op. cit., I : 175 and 'Abd Allah Muhammad b, 'Abd al Rahm?n, op. cit., 43. 73. Al-Margh?n?n?, op. cit., II : 293-4 and 'Abd Allah Muhammad b. 'Abd al Rahm?n, op. cit., 183-4. 74. Ibn Qud?mah, al-Mughn?, Cairo, 1367 A.H., IX : 149-50. 75. Al-Margh?n?n?, op. cit., III : 55. 76. Ibid., III : 163. 77. Ibid., III : 57 and 'Abd Allah Muhammad b. 'Abd al-Rahm?n, op. cit., 73. 78. Abd Allah Muhammad b. 'Abd al-Rahm?n, op. cit., 73. 79. Al-Margh?n?n?, op. cit., IV : 568. 80. Ibid., IV : 562. 81. Ibid., IV : 560. 82. 'Abd All?h Muhammad b. 'Abd al-Rahm?n, op.cit., 128. 83. Ibid., 140-1. 84. Most of the foregoing examples can be found in the work of 'Abd Allah Muhammad b. 'Abd al-Rahm?n already cited. 85. 'Abd al-Rahm?n Mubarakp?r?'s commentary on Jami' al-Tirmidhi entitled Tuhfat al-Ahwadhi, Delhi, 1352 A.H., III : 360. 86. Ibn 'Abidin, op. c?t.. Ill : 187. 87. See also generally for these and the following : Abu Yusuf, Kit?b al-Kharaj ; Ibn '?bid?n, op.cit., al-Margh?n?n?, op. cit., Ihn Qud?mah, op. cit., and Ibn Rushd, op. cit. 88. At pp. 3-16, above. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions 98 KEMAL FARUKI 89. See p. 35, above. 90. PP. 29, above. 91. The exhortations to Muslims to "enjoin" good and "forbid" evil must be read in conformity with the Qur'?n's statements on the necessary separation of acts punishable or rewardable here and in the Hereafter and the constant emphasis on the absence of compulsion in matters of religion. 92. A later minimum limit of 10 dirhams according to the 'Ir?qis was placed on the value of property stolen and ? d?nSr according to the Medinese and the Shafi'ites. Some 'IrSq? jurists, however, held the view that the minimum should be five dirhams. This content downloaded from 212.219.238.14 on Wed, 8 Oct 2014 14:56:00 PM All use subject to JSTOR Terms and Conditions