Thirty Principles Of Islamic Jurisprudence

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This text provides a comprehensive overview of Islamic jurisprudence, delving into the fundamental concept of Ijtihad and the Principles of Jurisprudence. It highlights the significance of Ahadith in Islamic law and offers a detailed study of how new subjects are addressed. The author then focuses on Ijtihad, its conditions and applications, and the following chapters explore crucial facets of Islamic jurisprudence, from ownership and permissibility to the avoidance of harm and hardship.

Each principle is dissected in a clear and logical manner, providing insights into Islamic law's core principles and their application. 

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Thirty Principles Of Islamic Jurisprudence Ayatollah Sayyid Fadhel Hosseini Milani Recorded and edited by Amar Hegedüs Publisher: Ansariyan Publications First Edition by Islam in English press P.O. Box: 2842, London W6 9ZH Second Reprint (Ansariyan): 2011-1432-1390 ISBN: 978-964-219-216-8 All Rights Reserved And Recorded For The Publisher Ansariyan Publications P. B. Box 187 22, Shohada Str. Qum, I.R. Iran Fax: 7742647 Tel: 0098 251 7741744 Email: Int_ansarian@yahoo.com www.ansariyan.org & www.ansariyan.ir

Editor’s Note

Islamic Jurisprudence plays a significant role in Muslim life, be it in regard to involvement in trade and business, family law or legal and illegal action. In short, Muslims search for clarification to ensure they fully meet their liabilities towards their Creator.

In the face of new and more complicated situations that are the result of scientific and technological advancement, the need for shari’ah clarity becomes ever more pressing.

As in every field of knowledge, it is only highly educated specialists who are in a position to provide clarity. Only those specialists in Islamic Jurisprudence who are capable of excercising ijtihad by way of their expertise and experience in utilizing its 'tools', are able to provide clarity regarding the matters mentioned above.

Sayyid Fadhel Milani, who for the last 35 years has researched, studied and applied the most common principles and tools used by mujtahids - one of the most complicated subjects of jurisprudence - is in the position of being able to access the reliable sources of shari’ah.

Islam in English Press is privileged to present his extensive knowledge of this subject in the English language.

Amar Hegedüs

Foreword By Dr. Sayyid Fadhel Hosseini Milani

In the Name of Allah, the Most Generous, the Most Merciful

Every branch of knowledge employs its own specific framework, methodology and processes to arrive at its objectives. In the early days of Islam, Muslims sought the Prophet's (S) guidance to resolve matters they found problematic, and in some instances he (S) sought further Divine revelation to inform his response. When he was no longer with them, the Muslim community relied upon reports of his companions such as Ali (‘a), Ibn Abbas or Abdullah Ibn Masoud on how he (S) had dealt with specific matters.

Later Muslim scholars were faced with a variety of contentious issues regarding hermeneutics, the interpretation of the Qur'an - especially its equivocal terms - the reliability of those who reported ahadith and the interaction between the Qur'an and the ahadith. This necessitated the setting-up of guiding principles by which to meet ever-increasing requests for answers.

Discussions regarding these principles and rules has resulted in the discipline now referred to as jurisprudence. The general principles evolved from such scholarly debate and investigation developed into the sole 'tools' by which questions regarding shari’ah are universally answered.

In this reference text, intended for students of Islamic Jurisprudence at MA level, I have tried to provide a concise exposition of the thirty major principles most frequently used in this field. I hope that it will be followed in the future by a further work of greater depth.

Dr. Sayyid Fadhel Hosseini Milani

Conventions

(S) Salla Allahu alayhi wa alihi wa Salaam

May Allah's greetings and blessings be upon him and his progeny (used immediately after referring to the Prophet Muhammad)

(‘a) Alayha al-Salaam - Peace be upon her

(used immediately after referring to Khadijah, Fatimah, Zaynab and Maryam)

(‘a) Alayhi al-Salaam - May Allah bless him

(used immediately after referring to a single Imam or Prophet)

(‘a) Alayhimi al-Salaam - May Allah bless them

(used immediately after referring to two Imams or two Prophets)

(‘a) Alayhum al-Salaam - May Allah bless them

(used immediately after referring to three or more Imams or Prophets)

(ra) Rahimahu Allah - May Allah grant him mercy

(used immediately after referring to a single deceased and respected person)

(ra) Rahimahum Allah - May Allah grant them mercy

(used immediately after referring to deceased and respected people)

(qs) Quddisa Sirroh - May his soul be blessed

(used immediately after referring to a single deceased and respected scholar)

(qs) Quddisa Sirrohuma - May their souls be blessed

(used immediately after referring to deceased and respected scholars)

(ra) Radi Allahu anhu - May Allah be pleased with him

(used after referring to a respected companion of the Prophet (S) or the Imams)

Ijtihad

Ijtihad is the deduction of rulings from their sources, mainly the Qur'an and ahadith. This word, like the word jihad, is derived from the Arabic root juhd. Ijtihad is used to describe the striving or exertion required for any activity that entails a measure of hardship. While juhd is used to imply the carrying of a heavy load, ijtihad refers to intellectual exertion.

To be able to undertake ijtihad, a 'learned counsel' - faqih or mujtahid needs experience and to be well versed in the statements of both the Prophet (S) and error-free Imams (‘a) in addition to being well acquainted with the Holy Qur'an. Legal opinions that result from the process of ijtihad are referred to as fatawa.

Imam al-Sadiq (‘a) is recorded to have said, 'To provide legal opinions on points of Islamic law, the mujtahid needs to have1:

Comprehensive understanding of the Qur'an.

Comprehensive understanding of the ahadith.

Cognition of the inward meaning of matters directly or indirectly implied.

Comprehensive understanding of etiquette and good manners.

Comprehensive understanding of consensuses and disagreements in Islamic Law, as well as the arguments upon which these are based.

The ability to supply and justify their independent opinions and conclusions.

The public's acknowledgement of their being righteous people.

Like the oceans, Islamic law does not yield its treasure easily. Not infrequently, the inexperienced, ill-prepared and ill-equipped are drowned in their attempts to fathom its depths.

As considerable expertise and knowledge are needed to undertake ijtihad in the cultural, economic, legal, political and socio-ethical spheres, those mujtahids whom others acknowledge are best equipped to undertake ijtihad receive the greatest following.

Principles Of Jurisprudence

Ijtihad is based on Principles of Islamic Law - Usul al-Fiqh. Attendees of theological colleges - Hawzah - concentrate on the study of three major textbooks - and those who attain the highest levels of Al-Bahth al-Kharij often memorize them.

These textbooks are:

Fara'id al-Usul by Shaykh Murtada al-Ansari, d. 1281AH

Kifayat al-Usul by Muhammad Kazim al-Khorasani, d. 1329 AH, and

Durus fi’ilm al-Usul by Muhammad Baqir al Sadr, martyred 1380 AH

After five years of in-depth study of these treatises, the most able students are invited to enrol in Al-Bahth al-Kharij courses. Even though this requires a further eight to twelve years' study, it is only via this lengthy process that the most intelligent and intellectually able students can acquire the experience needed to enable them to undertake ijtihad in the future.

The Significance Of Hadith

According to the Thaqalain hadith, two precious and significant elements safeguard the Muslim nation from being led astray. These elements of guidance and prosperity are the Qur'an and the guidance of the error-free Imams (‘a).

Imam al-Sadiq (‘a) said, ‘It is our duty to teach you the principles and it is your duty to explain the ramifications of legal rulings.’2

He refers here to the need for a consistent examination of possible ramifications that may result from the application of the trustworthy principles established by the Imams (‘a).

Based on the above, scholars need to investigate all ahadith for the following:

Firstly, the authenticity of all narrations needs to be verified to ensure that no omission or addition has been made to the original text, and secondly, the reliability of the narrators must be ascertained.

Allamah Mameqani discusses the lives and reputations of hadith narrators and the opinions of those who have criticized them in his book Tanqih Al-Maqal fi ilm al-Rijal (Verification). While this provides one yardstick by which to discriminate and determine which narrators are considered reliable, Ayatollah al-Khoei (qs) later produced a 24-volume work on this subject entitled Mu’jam Rijal al Hadith (Encyclopaedia of Hadith Narrators).

Even though it takes many hours to confirm the reliability of each narrator of a particular Hadith, no mujtahid is able to certify it as being genuine and accurate without first having undertaken that process.

Because some ahadith are more didactic than others, mujtahids need to differentiate between the text of a hadith and its context, to discern its literal and metaphorical meanings, and to understand which parts of the text are general and which are specific; which are conditional and which unconditional. Without the ability to do this they cannot arrive at secure, sound conclusions. For example, the Prophet's advice to men not to wear robes that trail on the ground is a reference to the common Arab under standing that to do this is symptomatic of arrogance, pride and the flaunting of wealth. However, those who only understood what was said in a literal sense took it to mean that the length of robes should never be longer than a full hand's-width above the ankle.

As the Holy Qur'an is a book of guidance that explains everything (Qur'an 16:89), the mujtahid needs to be able to find an explanation - for every subject raised in the Qur'an - in the other ayat of the Qur'an.

Clearly, in the absence of a comprehensive knowledge of the Qur'an, this is not a possibility and to rely solely on one's own interpretation of any particular ayah is considered to be an act of gross ignorance.

Comprehensive Study

Contrary to what many think, the great Imamiyah mujtahids examined the works of all the other schools of Islamic law. For example, ‘Allamah Hilli (who died in 726 AH) recorded in his ljazah to Sayyid Muhanna bin Sinan (see Bihar al-Anwar Vol. 107, p. 146) that, in addition to having studied Al-Kulayni's Al-Kafi, the works of Shaykh Al-Tusi and Shaykh Al-Saduq, he had also studied Malik bin Anas's Al-Muwatta’, the Sahih of al-Bukhari, the Musnad of Ahmad Ibn Hanbal and the Sunan of abi Dawud.

He also studied under the Shafi’i jurist Najdmuddin Umar Katibi (d. 675 AH), and was so well acquainted with Mu’tazilite theology and methodology that, in her PhD thesis, The Theology of Allamah Hilli, Sabine Schmidtke opined his theological works to be a marriage of Mu’tazilite and Imamiyah theology.

Although I do not agree with that opinion, her work nevertheless illustrates that Allamah Hilli did not limit his studies to one sectarian source. In his treatise on comparative Islamic law Tadhkerat al-Fuqaha, Allamah Hilli presents opinions of the Imamiyah, Hanafi, Maliki, Shafi’i and Hanbali schools of law on a wide variety of subjects.

Allamah Sharafuddin did not either restrict his investigation of hadith to Shi’ah teachers, as is evidenced in his book “The Right Path (Al-Muraj’at)3”. He travelled to Damascus, Makkah, Madinah and Cairo to obtain the authorization of a diversity of traditionalist scholars.

How To Deal With New Subjects

When a mujtahid is faced with new subjects that need the clarification of Islamic law, two methodologies are available.

To apply the basis of a known subject to another subject, and provide the same ruling. This, referred to as analogy - qiyas - was strongly supported by Abu-Hanifa. Alternatively, the 'spirit of the text' rather than the text itself may be examined. This is referred to as 'Study of the Objectives of Legislation' rather than the 'Study of that which is Apparent' - an approach strongly supported by Maliki jurists and propounded by Imam Shatibi in his book Al-Muwafaqat fi Maqasid al-Shari’ah. Dr Ahmad Raysuni presented his study on this subject for his doctoral thesis.4

The majority of Sunni scholars regard the approach outlined by Shatibi to be the most practical methodology by which to reform ijtihad.

The Imamiyah, on the other hand, recognize intellectual reasoning as being the fourth source of Islamic law. (The consensus of learned scholars who reflect the opinion of the error-free Imams is the third source.) For the purpose of ijtihad they undertake comprehensive examination of each hadith and - in conjunction with this valuable tool - see little purpose or benefit in using qiyas or Shatibi's methodology.

Furthermore, their lengthy debates have proven qiyas and 'The Objectives of Legisla tion' to be both inefficient and implausible tools for ijtihad. Detailed evidence to support their view was presented by Sayyid Muammad Taqi Hakim (qs) in his Principles of Comparative Jurisprudence - Al-Usul-alAmmah lil Fiqh al-Muqarin.

Conditions Of Ijtihad

A mujtahid must be a competent Muslim of sound mind with the intellectual capacity to form independent judgements. In many ahadith, the mujtahid is regarded as being a successor to the Prophet (S). This is in respect of the ability to elaborate on rulings and to guide the community to 'things that please Allah'.

Trustworthiness, reliability and righteousness are thus key qualities of a mujtahid. Those who fail to meet one or more of these requirements are disqualified from undertaking ijtihad.

Shahid II (Imami mujtahid d. 966 AH) said, 'Knowledge of the following six introductory studies is essential in the process of ijtihad: Theology, Principles of Jurisprudence, Arabic grammar, Morphology, Lexicology and an unquestionable comprehension of the Qur'an, Sunnah, Consensus and Intellectual reasoning.'5

Ibn abd al-Shakur (Hanafi scholar) said, 'Ijtihad requires Faith, knowledge of the Qur'an, at least of the 500 ayat that deal with rulings, knowledge of the Sunnah - at least of the 1,200 ahadith that deal with jurisprudence, ability to identify the authenticity of narrators and a familiarity with consensus. However, being righteous is only required for those who accept his fatawa.'6

Al-Ghazali (Shafi’i scholar d. 505 AH) said, 'While eight branches of knowledge are needed for ijtihad, four are essential, the others being only introductory. The essentials are, Qur'an, Sunnah, Consensus and Intellect. The introductory ones, Methodology of Argument, Arabic Grammar, knowledge of 'abrogator and the abrogated', and ability to recognize authentic hadith.'7

Al-Qarafi (Maliki scholar) offered a similar statement to Al-Ghazali's in his book Sharh Tanqih al-Fusul, p. 194.

Ibn Qudamah (Hanbali scholar) said, 'The mujtahid must have complete comprehension of the Qur'an, Sunnah, Consensus, Presumption of Continuity and Analogy. As for knowledge of the Qur'an, he must be well versed in the 500 ayat concerned with rulings, not necessarily by having committed them to memory, but knowledge of how to refer to them when needed.

As for Sunnah, he must be well acquainted with the ahadith that concern rulings, regardless of them being many or limited. Knowing that a hadith in question has not been abrogated is sufficient for the process of ijtihad. Differentiation between strong and weak ahadith is a further requirement.

As for consensus, it is sufficient to know if the issue in question has been dealt with by previous mujtahids or if no precedent exists.

Knowledge of Grammar and Arabic language, ability to recognize both explicit and ambivalent texts, what is literal and what metaphorical, what is general and what is specific, are essential requirements in the process of ijtihad.8

Al-Shawkani (Zaidi scholar) said, 'There are five requirements for a mujtahid:

Comprehensive knowledge of the Qur'an and ahadith;

Comprehensive knowledge of the issues that apply to consensus;

Comprehensive acquaintance with the Arabic language to enable him to arrive at conclusions from the Qur'an and ahadith;

Comprehensive knowledge of the Principles of Jurisprudence; and

Ability to recognize the abrogator and the abrogated.'9

It is easy to see that all the Schools of Islamic Law have most of the requirements for a mujtahid in common, but refer to them in greater or lesser detail.

Sources For Islamic Law Accepted By Various Schools Of Thought

Examples Of The Various Views

1. Insurance And Assurance

Although the concept of insurance is relatively new, marine insurance was introduced to England by the Lombards sometime in the 16th century. It only grew in importance after the English Civil War when London became a centre of trade.

Because the Royal Exchange, the traditional meeting place of merchants, lacked comforts and convenience, merchants frequently eschewed it for the comforts of the new coffee houses that began to appear at that time. In contrast to inns and taverns, these proved congenial meeting places for serious and clear-headed discussion.

The insurance business in those days involved an agent or 'insurance office', hawking a new policy around the city for subscription, by those with private means prepared to take a share of the risk in return for a portion of the premium. An insurance office's reputation hung upon its ability to ensure that policies were only underwritten by men of sufficient financial integrity who could meet their share of any claim.

Little is known of Mr Lloyd or the coffee house he opened in 1688, but his clientele must have consisted of the most influential ship's captains, owners and overseas trade merchants, for it to become such an important underwriting centre. The first record of Lloyd's coffee house was in a London Gazette advertisement in the late 1680s in which it was announced that a reward would be paid there, in return for information on stolen watches.

For some years, intermittent attempts were made to set up a securely based insurance corporation (or chartered company), to bring some regularity to the disorderly commercial world of the early Georgian period.

Too much wealth and too little employment had given rise to wild investment speculation that culminated in the 1720 collapse of the South Sea Company and the ruination of thousands of investors. The 'South Sea Bubble' was the most spectacular of many frauds and failures of corporate enterprise, at a time when disreputable companies ballooned and burst overnight.

Thus, in 1720, the British Parliament enacted a piece of legislation (the 'Bubble Act') that granted charters to the Royal Exchange Assurance and the London Assurance Companies, and prohibited marine insurance by any other corporation or business partnership. After a period of evolution this culminated in the incorporation of Lloyd's by Act of Parliament in 1871.

Today, legislation to cover insurance is part of the fabric of every civilized country.

However, when this type of business found its way to the Muslim world, towards the end of the 19th century, when exports of cotton from Egypt needed to be insured against the risk of fire, it drew forth a wide variety of reaction from Muslim jurists.

One opinion is that insurance is prohibited in Islam. This is supported by many jurists in Egypt, in addition to a few in Najaf and Qum, who base their opinions on one or other of the following justifications.

That no such contract was known at the time of the Prophet (S), the companions or the Imams (‘a). They claim that only contracts of the types known by the above categories can be considered to be binding.

Insurance leads to ambiguity and lack of information. Despite predetermined premiums being paid for x years, the final amount of any payout is not predetermined and, indeed, may or may not even occur.

Because insurance is similar to earned interest - riba. As riba is prohibited, it is analogous that insurance needs also to be. When a person pays £500 per annum to insure their car, they might receive £5,000 if it is written off. Such 'profiteering' ought to be regarded as earned interest.

It is a matter of fact that riba applies specifically to loans, while 'profit', which may or may not result from an insurance contract, has nothing whatever to do with borrowing or lending.

Insurance contains risk, uncertainty and hazard - gharar. As it is reported in one hadith that 'The Prophet (S) prohibited sales in which gharar plays any part', it follows that insurance cannot be permissible either.

A second opinion is that insurance represents a type of contract that was known at the time of the Prophet (S). This was suggested by a great jurist of Najaf, Shaykh Husayn Hilli, whose lectures, compiled by Sayyid Izzudin Bahr al-Ulum, appeared as 'Discourses on Jurisprudence' - Buhuth Fiqhiyah. He suggested that insurance be recognized as a mutual agreement - sulh - or as a conditional gift.

Ayatollah al-Khoei accepted his opinion regarding conditional gifts and, according to his ruling, the same conditions apply to insurance as apply to such gifts. That is to say, the insured should regard, and undertake to 'gift' premium instalments, with the clear understanding that the insurer will return the amount mentioned in the policy, as and when the policy conditions apply.

A third opinion is that insurance is indeed an independent contract which meets all the requirements needed for agreements to be valid in Islamic Law. None of the justifications for its invalidity apply as insurance agreements are of the type made at the time of the Prophet (S). This is Ayatollah Sistani's opinion and I encourage that view with my advanced students. This case was put forward by Sayyid Abdul Hadi Hakim, who obtained a PhD in Islamic Law, on the basis of his 500 - page dissertation on this matter.

2. In Vitro Fertilization - IVF

When artificial insemination was first discussed, Muslim jurists expressed differing opinions.

The first opinion was that it is Haram for one of the following reasons:

That it would entail non-mahram doctors touching the pudenda of Muslim women.

That it would require masturbation to obtain semen.

And, according to many Sunni jurists, because they thought it akin to fornication - zina. They based their opinion the analogy (qiyas), that as adultery is a major and prohibited sin, IVF must be prohibited too.

The second opinion rejects the validity of qiyas for this subject matter on the basis of the technical meaning of the term zina. In Islamic law this refers specifically to an act of physical intercourse: to be precise, when a male inserts his penis into the vagina of a female who is not his wife. IVF clearly does not involve any such act.

As to members of a medical team touching the private parts of the subjects, we need to consider and weigh the necessity of both of these acts:

to help a woman desperate to conceive and fulfil her biological motherhood function,

and

to involve a medical team. There are invariably sizeable sections in books on Principles of Jurisprudence, dedicated to the Table of Priorities - Tazahum. For certain categories, a mujtahid will refer to this in order to examine the priority of one circumstance over another. As for masturbation, there are alternative and permissible means to obtain semen and eggs.

Bahth al-Kharij-level students at the London hawzah regularly discuss the circumstances in which IVF can take place and the acceptability of surrogate motherhood.

One may use the needed fertilized eggs and request the others be destroyed. To be on the safe side, one should have someone witness that they are destroyed and not misused. Such action is not regarded as abortion, as by definition this can only occur after a fertilized egg is lodged in the womb.

3. Organ Donation, Cosmetic Surgery, Genetic Engineering

While all the above are relatively new to medical science, the first reaction of some jurists was clearly not favourable. Their one word on these subjects was 'no'. I do not propose we discuss the psychology behind that negative response but look, rather, in some depth at the sources of ijtihad.

Those who object to the above base their rejection on one ayah:

"And most certainly I will lead them astray and certainly I will arouse desires in them, and certainly I will bid them that they slit the ears of the cattle, and I will certainly command them that they alter the creation of Allah…" (Surah An-Nisa, 4:119).

To these jurists it is perfectly clear that those who conspire to change Allah's Creation, work in accord with Shaytan's plans.

However, if we examine this ayah we find:

This ayah is to be read in the context of Qur'an:

"Allah has not appointed any Bahirah, Sa'ibah, Wasilah, and Ham, but those who disbelieve make up a lie " (Surah Al-Ma’idah, 5:103).

[Pre-Islamic superstitious belief demanded that domesticated beasts had their ears slit and be set free in particular circumstances. The terms above denoted their type and status.]

Principles of jurisprudence clearly show that some ayat convey unrestricted and unconditional concepts - mutlaq - while other ayat refer to concepts which are restricted - muqayyad. It is not possible that the ayah that records Shaytan's desire to change Allah's Creation, is of the unrestricted type because that would suggest that any alteration of nature is unlawful - haram.

This would cover the construction of bridges, dams, tunnels through mountains, the digging of wells, diversion of river water to irrigate fields, or the extraction of teeth, to name but a few of the myriad things that alter Allah's Creation in one way or another. Not one jurist has ever deemed such acts haram - in spite of the fact that they clearly effect a change in Allah's Creation. Indeed, the use of henna to dye an elderly person's white beard is considered to be a sunnah, despite changing Allah's Creation in this way. We have therefore to conclude that the above rejection cannot be based upon Qur'an 4:119.

Also, books on the Principles of Jurisprudence include more or less comprehensive sections on Principles of Permissibility - Asalat allbadah - and the majority of jurists support such inclusions. Indeed, they refer to them when called upon to consider the permissibility of any new subject that has no clear prohibition in either Qur'an or ahadith.

However, we do not rule out the significance of moral debate regarding the above issues. As for organ donation, anyone may incorporate in her/his will the wish that specific organs or body parts be used to save the lives of Muslims who need them.

4. Games Of Chance

Gambling - qimar - is prohibited in Islam. Earnings based on games of chance, rather than on an individual's intellectual, entrepreneurial or physical efforts, are not permitted in Islamic law.

Allah tells us in the Qur'an:

"O' you who have Faith! Verily wine, gambling, idols, and (dividing by) arrows are an abomination of the Satan's work, so avoid it, that you may be succesful." (Surah Al-Ma’idah, 5:90).

The foundation of business in Islamic law cannot be based upon 'false means'. It is made clear in many ahadith that this Qur'anic term refers specifically to games of chance. As lotteries are unashamed games of chance they are clearly prohibited to Muslims. However, in-depth analysis of this subject resulted in both Ayatollah al-Khoei and Ayatollah Sistani making the following distinctions:

If a person spends one dollar with the intention of acquiring an opportunity to win the jackpot in a game of chance, it is clearly gambling and prohibited in Islam.

If, on the other hand, that person's intention is to donate the dollar to the charities that are supported by the lottery, and they themselves have no intention to participate in the lottery and do not anticipate any return whatever, any gains that might result from their action would be considered lawful or halal.

To arrive at the above opinion, one must appreciate that in Islamic law, all agreements, contracts and financial involvement are considered on the basis of intention (see chapter 15). The merit of all acts of worship is based on the intention to draw closer to Allah - Qasd al-Qurbah. An intention may be to gamble or make a donation - and different rulings apply to different intentions. This is the foundation upon which my opinion on this subject is based.

Another viewpoint regarding this subject comes from Ayatollah Sayyid Muhammad Sa’eed Hakim, who views lottery tickets as lawfully exchangeable items and thus perfectly legal to purchase.

These are but a few examples of contributions mujtahids make in considering contemporary issues that require firm, clear responses for the Muslim community. It is obvious that when subjects call forth a wide variety of opinions, one should defer to the opinion of the jurist with the greatest experience, intellectual ability and wisdom - described in books of fatawa as 'Following the most learned'.

1. Misbah al-Shari’ah Chapter 63, p.355.

2. Bihar al-Anwar Vol. 2, p.245.

3. Available online at: https://www.al-islam.org/al-murajaat-abd-al-husayn-sharaf-al-din-al-musawi [8]

4. Raysuni, Ahmad: Imam Shatibi's Theory of The Higher Objectives and Intents of Islamic Law, The International Institute of Islamic Thought 2006, Herndon, USA.

5. Al-Rawdah al-Bahiya - The Brilliant Garden - Vol. 1, p. .236.

6. Musallam al-Thubut Vol. 2, p. 320

7. Mustasfa al Usul Vol. 2, p. 101-103.

8. Rawdat al-Nazer, p. 190.

9. lrshad al-Fuhul, p. 250.

General Principles Of Jurisprudence

As the sources of Islamic law are limited and contemporary problems unlimited, one may question how jurists – fuqaha deal with the process of ijtihad to provide verdicts on an ever-increasing variety of issues.

The answer lies with General Principles of Jurisprudence, in which the faqih devotes utmost effort to locate appropriate principles to apply to the subject in question. For example, if questioned about Islamic rulings on 'Organ Transplant', he/she will search within the original sources of law, i.e. the Qur'an, ahadith, consensus of earlier jurists, and employ intellectual reasoning (including analogy (qiyas), in order to confirm its validity). If he/she cannot trace suitable texts or proofs regarding its permissibility or non-permissibility, he/she is obliged to refer to general principles, such as the principle of permissibility (which is discussed in chapter 2).

Based on the above, the mujtahid will conclude that organ transplants are permissible within Islamic law. He or she will apply the same method, using other general principles, to give answers to specific problems.

Many general principles appear in the reference books of Jurisprudence but here we will only discuss thirty:

Possession Indicates ownership

The principle of permissibility

The principle of validity

The principle of purity

Islamic law does not occasion harm

Islamic law does not occasion unbearable hardship

Certainty is not challenged by doubt

When a text is clear, interpretations are unacceptable

Liability for damage

Avoidance of disadvantage has priority over considerations of benefit

Rulings regarding conflicts in evidence

Table of priorities

Casting lots

Ends do not justify means

Contracts are based upon the intentions of participating parties

Not to co-operate in the perpetration of sinful actions

Those who have been deceived are entitled to redress

Actions undertaken with good intent do not incur liability

Nursling nurture establishes ties equivalent to blood relationships

Reliance on the 'Muslim market'

Invalid terms and conditions of contract

Custom circumscribes religious rulings

Summary knowledge is as binding as detailed knowledge

Persistent doubts are to be ignored

All liquids that cause intoxication are considered impure

Inability to fulfil a religious duty does not absolve one from obligation

Dissimulation and its manifestations

The execution of a will has precedence over distribution of assets

Speculative analogies do not provide valid bases

Changes of circumstance lead to changes in rulings

Chapter 1: Possession Indicates Ownership

To understand this principle, we need to examine the following sections:

The definition of ‘Hand’ and ‘Possession’

The basis of this rule

Its universality

Conflict between this rule and the presumption of continuity

The possessed items

1. The Definition

In the Arabic language, the above principle may be transliterated as Al-yad amarah ala al-melkiyah. Although ‘yad’ literally means ‘a hand’, to obtain a clear understanding of the role of a hand vis-a-vis possession, we need to familiarize ourselves with the variety of usages of the word ‘yad’.

In addition to its literal meaning, ‘yad’ may also describe a handle, power, control, authority, assistance and help. Used in Islamic law, 'hand' specifically indicates possession or actual control. The holder of control is thus known as ‘dhul yad’, rightful possession as ‘yad muhiqah’ and, conversely, unrightful possession as ‘yad mubtilah’.

The application of this principle becomes apparent when one observes whether the manner in which a person treats something in their possession accords with the manner in which others treat similar items that they own. We then conclude that he/she is indeed the real owner, and rule out any possibility that the item has been stolen.

However, if another person lays claim to the ownership of that item, they have the responsibility to prove the validity of their claim. If they fail to prove that, all legal systems accept that rightful ownership has been accurately determined via the above rule. For example, a person who is taking full shopping bags home is acknowledged to be the rightful legal owner of the bags' contents. Any who wish to claim otherwise are required to submit convincing evidence to support their claim.

2. The Basis Of This Principle

From Ahadith

Hafs Ibn Gheyath narrates from Imam al-Sadiq (‘a) that he was asked: 'When I see something in the possession of another, may I bear witness in court that, that person is the owner?'

Imam al-Sadiq (‘a) replied in the affirmative. The questioner then asked: 'Because it might rightfully belong to someone else, should I not bear witness that I found it in their possession rather than witness that it belongs to them?'

When asked by Imam al-Sadiq (‘a) if it was lawful to buy that item from them, the man replied that it was.

The Imam (‘a) then asked, 'If it might belong to someone else how can it be purchased to become your legal property?'

The Imam (‘a) concluded, 'If you do not rely on ownership being valid, no business transaction can ever be possible or valid'.

This hadith has been reported on the authority of Al-Kulayni, in Al-Kafi Vol. 7, p. 387 and Al-Saduq, in Man La Yahduruhu al-Faqih, Vol. 3, p. 31 and Shaykh Al-Tusi, in Al-Tahdhib Tahdhib al Ahkam? Vol. 6, p. 261.

Uthman Ibn lsa and Hammad Ibn Uthman both narrate from Imam al-Sadiq (‘a) that a conversation took place between Imam Ali (‘a) and Abu Bakr regarding ownership of Fadak. Imam Ali (‘a) records in Nahj alBalaghah, letter number 45, that 'Fadak was all that we possessed under this sky. However, when a group of people lusted after it, the other party with-held themselves from it knowing that Allah is the best of arbiters.'

The conversation is recorded as follows:

Imam Ali (‘a): Do you judge us contrary to Allah's rulings?

Abu Bakr: No.

Imam Ali (‘a): If I laid claim to an item in the possession of a Muslim, whom would you order to provide two witnesses?

Abu Bakr: I would ask you to provide two witnesses.

Imam Ali (‘a): And if a Muslim claimed an item in my possession, would you ask me to provide two witnesses to attest to the fact that I had owned it during the Prophet's lifetime as well as after his demise?

Abu Bakr: (Made no comment and remained silent.)

This hadith1 clearly indicates that the possession of, or ongoing authority over, an object or commodity conveys legal recognition of ownership and rightful possession.

The chain of narrators of the above hadith has been recognized to be both sound and strong.

Yunus Ibn Ya’qub narrates the opinion of Imam al-Sadiq (‘a) regarding a wife who predeceases her husband, and a husband who predeceases his wife. The Imam (‘a) said: 'The wife may take the household effects that are normally used by women, whilst items normally utilized by both men and women are to be shared with the deceased's heirs. Whoever holds control over an item is deemed to own that item.'2

Although this statement is part of the ruling of inheritance between a spouse and the deceased spouse's heirs, jurists believe that it conveys a general ruling that has validity beyond matters of inheritance. Especially when we observe 'Whoever' ...

Al-Kulayni narrates from Muhammad Ibn Muslim, on the authority of Imam al-Baqir (‘a) that when he (‘a) was asked for a ruling concerning money found in a house, he (‘a) replied, ‘If the house is occupied the money clearly belongs to the occupants. However, if a house is deserted and in ruin, whoever finds money in it acquires all rights to it.’3

From Consensus

Many jurists have relied on consensus to support the principle that possession indicates ownership. However, according to Imamiyah jurists, consensus is acceptable only in instances that reflect the approval of the error-free Imam (‘a) and as Ayatollah Bujnordi mentions in his book AlQawa’id al-Fiqhiyah, Vol. 1, p. 113, the above consensus does not meet the necessary criterion and thus cannot be relied upon.

It is safe to conclude that there is no need to depend on consensus as its basis is explained under the next heading 'Common practice'.

Common Practice

There is no doubt that all peoples, regardless of belief, race or degree of civilization, regard 'the one who holds authority over any item' as being its real owner. If any wish to make claims to the contrary, they are obliged to provide evidence to support that claim.

Throughout history, 'common practice' has been widely accepted in Muslim communities and no Imam or Caliph has ever rejected it.

When people observe that someone is building or demolishing something on a piece of land or letting a property for rent, they assume that unless someone else challenges that action, it is being carried out by the owner of the property or someone acting on her/his behalf. Indeed, all legal systems consider possession as constituting 'nine-tenths of the law'.

Consideration of all the available sources leads one to conclude that this is indeed a general principle that has universal acceptance.

3. The Universality Of This Principle

There is no doubt that the above principle is universal and applicable to all peoples, Muslim or non-Muslim. When one seeks to purchase a carpet, a motor car, or an item of furniture, the person or company that holds authority over that item is automatically accepted as its legal owner.

When a Muslim trader wants to import five tonnes of sugar from Cuba he opens a letter of credit and proceeds to place his order, without any need to investigate if the supplier is the real owner of the merchandise or not. This is because the above-mentioned principle is recognized by him to provide valid proof of ownership. When a tourist goes to Singapore and buys an antique clock, no doubts are entertained or investigation undertaken, regarding the item being legally owned by the vendor. This is because it is common practice to recognize the validity of this principle.

4. Conflict Between This Rule And The Presumption Of Continuity

One of the tools mujtahids use to deduce laws from their sources is the 'presumption of continuity' - istishab. This will be fully discussed under principle 7, 'Certainty is not challenged by doubt'.

What happens when these two principles conflict? For example, when 'Presumption of Continuity' leads to belief that a motor car was for some years owned by Mr A, but the 'Principle that Possession indicates Ownership' testifies to that same motor car being indeed owned by Mr B.

Although chapter 11 covers conflicting evidence and provides guidelines to the resolution of such conflicts, we will summarize the above case: Even though reliance on the principle of possession is universal, we need to bear in mind that it is normal for the ownership of a motor car to be frequently transferred from one person to another. As ownership may even sometimes be repeatedly changed in the same month, it may be concluded that the principle of possession indicates that ownership holds precedence over the presumption of continuity. Thus, certainty is challenged by another strong proof and not by any doubt.

5. The Possessed Items

It is not necessary for ownership to be based upon trade or purchase. There are items from 'ownerless' sources, such as fruit from trees on common land, water drawn from rivers or springs, and creatures hunted or fished in areas where there is no private ownership. Some items may also come into a person's possession through inheritance or by their being a beneficiary of an assurance policy.

In all the above examples, when we find an item in the possession of a person, we recognize that person to be the legal owner - without consideration as to how that item was acquired. However, if another person presents strong evidence to show that it is they who own the item, the above principle is rendered invalid.

1. Wasa'il al-Shi’ah, Vol. 27, p. 293.

2. Wasa'il al-Shi’ah, Vol. 26, p. 216.

3. Wasa'il al-Shi’ah, Vol. 25, p. 447.

Chapter 2: The Principle Of Permissibility

We may deal with this principle in two ways:

When we do not know if an act is permissible or prohibited, this principle attests that unless there is a clear text that prohibits such an act, we have to regard it as being permissible - mubah. In other words, anyone who commits such an act is deemed to be free from legal liability.

For example, consider smoking. There is no clear text in either the Qur'an or the ahadith regarding this. No one is able to claim that there is evidence to prohibit smoking in these two primary sources of Islamic law. If the mujtahid examines the third source, i.e. consensus - ijma'a - he will not find even there any verdict concerning smoking from the jurists of earlier times, for tobacco was only introduced from the Americas four centuries ago. There is thus no clear evidence that smoking is prohibited and the conclusion is that smoking is therefore permissible.

However, when we discuss the principle that ‘Islamic law does not occasion harm’ (see chapter 5) and know that smoking does damage health - according to some experts fatally - a mujtahid needs to take cognizance of that information!

When we do not know if a certain food is lawful or unlawful, the ‘principle of permissibility’ guides us to it being lawful.

It is clear that (a) and (b) reflect the two faces of the same coin.

The Basis Of This Principle

From The Qur'an

A) “Wedo not punish those to whom We have not sent a messenger.” (Surah Isra’, 17:15).

When a faqih is faced with a subject not mentioned in either the Qur'an or ahadith, when permissibility and non-permissibility may be equally valid, most jurists tend to conclude that the subject is permissible. They base such conclusions on the above ayah. (No chastisement before We have sent a Messenger.) The sending of a Messenger is not to be understood in any literal sense, but rather as an indication that clear proof has been sent. In other words, do not penalize those who have not been provided with clear proof.

B) “Allah has explained to you in detail what is forbidden to you unless you are in desperate need” (Surah Al-‘An’am, 6:119).

Permissibility is thus the norm with regard to matters that are not otherwise regulated. When all the prohibited acts have been explained in detail and we do not find the subject matter included in them, the only legal ruling to be followed is that of ‘permissibility’. Presumption is not enough to declare something unlawful. In other words, prohibition needs to be clear and specific.

From Ahadith

Hadith al-Raf.1 The Prophet (S) is reported to have said: ‘Nine things have been removed from my nation’:

Mistakes

Forgetfulness

Actions committed under duress

What they do not know

What they are unable to afford

What they are in desperate need of

Envy (which they have not acted on)

Evil omens

Whispering doubts regarding Allah's creation.'

The removal of the above nine things means that people are not to be held legally liable for such actions committed by them.

This includes the fourth item, 'What they do not know', that complies with the phrase used in common law, 'Everyone is deemed to be innocent unless proven guilty'. In every juridical system it is the duty of the prosecutor to prove guilt, not for the accused to prove themselves innocent.

And it is the obligation of the Law Maker to clearly explain the rulings within Islamic law that are to be binding on people. If He has not informed His servants of restrictions or prohibitions, the subject is clearly categorized as 'What they do not know' of which the Messenger of Allah said, 'They have no liability'.

The Prophet (S) is reported to have said:

‘Allah has made certain things obligatory - so be sure not to neglect them. He has also laid down certain limits that you may not exceed. And has prohibited certain things that you are obliged to adhere to. He has, out of His mercy - not forgetfulness - also chosen to remain silent about certain matters - so do not be inquisitive and enquire into them.’2

In the Qur'an Allah has provided a comprehensive list of prohibitions that have to be observed regarding marriage, but has made only general reference to those whom it is lawful to marry.

Ayah 23 of surah 4 details the category of women who are not marriageable3; however in the next ayah Allah tells us: 'It is lawful for you to seek marriage with women other than these'.4

Similarly, the Qur'an specifies the foodstuffs that are prohibited, other than which, everything else is lawful.

“Say, I do not find in what has been revealed to me anything that has been forbidden to eat, other than carrion, gushing blood, the flesh of swine - for that is truly unclean - or animals that have been slaughtered in a name other than Allah”. (Surah Al-‘An’am, 6:145).

This ayah indicates that there is no attempt in the Qur'an to elaborate on what is permissible in either of the above instances. Any elaboration on the above subjects is found within the ahadith.

It has been reported that Imam al-Sadiq (‘a) said5, ‘Everything is halal, until it is specifically recognized to be haram’.

Many fuqaha, including Shaykh Murtada Al-Ansari (d. 1281 AH), Muhammad Kazem Al-Khurasani (d. 1329 AH), and Muhammad Hussain Al-Nainy (d. 1355 AH), regard the above hadith as the source that proves the principle of permissibility - when both permissibility and non-permissibility of an action or food are equally valid. This hadith clearly states the universality of 'Everything is halal according to Islamic law, until something has specifically been recognized to be haram'.

From Intellectual Reasoning

It is agreed by all reasonable people that if no prohibition clearly exists, then no governor, administrator, boss or army commander may hold employees, subjects or soldiers accountable for doing something that they have not clearly been told they must refrain from doing.

Is it acceptable to fine drivers for entering a road without having clearly indicated that 'no entry' to that road is permitted?

What is thought of an employer who punishes employees for doing something that they have not been told they must not do?

Or a lecturer who sets questions for the final examination that have not been included in the course syllabus?

The answers to the above questions are too obvious to warrant explanation. No punishment in the absence of a clear warning.

1. Al-Kafi, Book of Faith and Disbelief. Man La Yahdurohu al-Faqih Vol. 1, p. 36.

2. Nahj Al-Balaghah, Aphorism 105.

3. The full Verse reads:
“Forbidden to you are your mothers and your daughters and your sisters and your paternal aunts and your maternal aunts and brothers' daughters and sisters' daughters and your mothers that have suckled you and your foster-sisters and mothers of your wives and your step-daughters who are in your guardianship, (born) of your wives to whom you have gone in, but if you have not gone in to them, there is no blame on you (in marrying them), and the wives of your sons who are of your own loins and that you should have two sisters together, except what has already passed; surely Allah is Forgiving, Merciful.” (Surah An-Nisa’, 4:23).

4. The full Verse reads:
“And all married women except those whom your right hands possess (this is) Allah's ordinance to you, and lawful for you are (all women) besides those, provided that you seek (them) with your property, taking (them) in marriage not committing fornication. Then as to those whom you profit by, give them their dowries as appointed; and there is no blame on you about what you mutually agree after what is appointed; surely Allah is Knowing, Wise.” (Surah An-Nisa’, 4:24).

5. Wasa'il al-Shi’ah, Vol. 17, p. 89 Edition 1414 Qum.

Chapter 3: The Principle Of Validity

If one person authorizes another to undertake a service for them - they are technically referred to as a principal and an agent - when the agent informs the principal that the service has been completed, should the principal doubt her/his word, or presume the commission has been completed in the appropriate manner?

If a husband, in divorcing his wife, appoints a cleric to undertake on his behalf all the necessary formalities before two reliable witnesses - as is specified for divorces to be valid in Imamiyah fiqh - should he later entertain doubts about all necessary formalities being met?

Do we accept that a restaurateur, who is a practising Muslim and fully aware of the rulings regarding halal slaughter and purity, has punctiliously ensured that the detail and spirit of all that is required for the supply of halal food and drink has been met?

Common to all three examples above are questions regarding necessary requirements being met, and the ruling that relates to doubts people may have.

The answer exists in the 'principle of validity'. Imagine how onerous life would be if every Muslim had to personally check each and every tradesperson, butcher, baker, restaurateur, cafe owner, etc. Is this practicable to undertake? Indeed, is it possible to check if all utensils, surfaces and vessels used in food processing are indeed clean and free of impurity, before ourselves consuming any processed foods?

The principle of validity indicates that unless there is clear proof that a person or company has been slipshod in meeting the necessary standards and requirements, one has to assume that all their obligations have been carried out in an appropriate manner.

It is clear that we are referring to actions undertaken by practising Muslims conversant with Islamic rulings. This principle does not of course, apply to non-Muslims who are unfamiliar with, and have no knowledge or interest in shari’ah.

When the above principle is applied to actions undertaken by Muslims, all acts of worship, contracts and commitments are assumed, and all their actions are considered to be acceptable, valid and to have been appropriately undertaken. This means that we assume that meat offered by a Muslim is halal, that the prayer led by a Muslim is valid, that the prayer leader is a person worthy to pray behind, that divorces are valid, and that after the waiting period – ‘iddah -women are legally entitled to remarry, etc.

The Basis Of This Principle

From The Qur’an

A) “O you who believe! Avoid much suspicion. Indeed, some suspicions are sins. And spy not [on others], neither backbite one another.”. (Surah Al-Hujurat, 49:12).

This indicates that doubts regarding the validity of actions undertaken by other Muslims are ‘suspicions to be avoided’. Within principles of jurisprudence the verb avoid is emphatic and conveys prohibition.

In other words, this ayah orders Muslims to ignore the possibility of doubt. Not to spy on others, not to check up on or investigate what others do, not to talk about them behind their backs, even if such statements might be true. This clearly rules out the invalidity of a Muslim's actions and indicates that the only option is to accept that all the actions of other Muslims have been validly undertaken.

Some jurists pose two arguments to the above:

The above ayah may refer to the prohibition of accusing others or spreading rumours about them.

The possibility neither to accept doubts, nor to confirm the validity of actions but simply to continue to exercise precaution.

Our answer to both of the above is that no problem is to be solved via either of these arguments.

Speak well about people!1

Imam al-Sadiq (‘a) elaborated upon this ayah saying,

“You have to think well about people unless it becomes evident that they do not deserve that consideration”.2

Clearly, we indicate our belief and reliance in those whom we speak about. However, if we examine the Qur'anic term Husn in its variety of usages3, we find it is used to indicate that not only people but also actions contain goodness - Husn - another way to signify validity and appropriateness.

From Ahadith

Imam Ali (‘a) said,

“Think well of your brother's affairs until it is evident that he does not deserve that consideration. Do not consider expressions uttered by your brother in Islam to be evil before you have carefully considered if they are also capable of containing some goodness”.4

This hadith emphasizes the significance of trust and reliability within Islamic society, by which to establish strong bonds between Muslims. If this were not the case, no one would be able to pray behind another, or accept the word of fellow Muslims for all would harbour suspicions about everyone else.

Imam al-Sadiq (‘a) said to Muhammad Ibn Al-Fadl,

“O Muhammad, do not rely on what you see or hear about a brotherin-faith. If 50 qusama [those, from the surrounding area, who swear an oath that they are not guilty of having commited a murder] claim that he has committed an act which he denies, believe his claim rather than their words”.5

It is unreasonable not to rely on what one sees and hears because the senses of sight and hearing are means through which we are able to communicate. How can we acquire information if we do not rely on what we hear, read or see?

The above hadith emphasizes the need to remove doubts and to be as precise as possible before passing judgements. Furthermore, in Islamic criminal law it is adequate for an oath to be sworn by one reliable person only. How then can it be that 50 people are to be ignored?

The best way to explain this hadith is to point to the tendency people have to hear only that which they think is apparent from the utterances and declarations of others. They will then tend to adhere steadfastly to that belief. However, there are many circumstances in which people claim to have been misunderstood, misinterpreted or had their words taken out of context.

Thus, if a statement is able to convey two different meanings or understandings, Muslims are required to accept the meaning and understanding intended by the person who made the statement - in preference to their own interpretation of what has been relayed to them.

This applies to both actions and statements. Shaykh Murtada Al-Ansari cites the example that, despite the person in question being known to be righteous, people assumed that the claret-coloured grape juice he sipped from a glass was red wine. In this case, Imam al-Sadiq (‘a) tells us to reject our own interpretations of events and be guided to 'think well about others'.

However, Imam 'Ali (‘a) advises us to differentiate between different periods in time.

In periods when virtue is in vogue, it is considered unjust to entertain evil suspicions about those of whom nothing dishonourable is known. However, in periods in which vice is in vogue to entertain a favourable impression of another is to imperil oneself.6

This emphasizes the importance of comprehending the zeitgeist or 'spirit of the times' before making judgements about the affairs of others.

To conclude, the above hadith clarifies that one should not think evil about the deeds and actions of others unless there are extremely strong reasons for doing so. Indeed, this defines what is meant by the principle of 'validity'.

Imam al-Sadiq (‘a) said,

‘When a believer accuses his brother in faith, faith dissolves from his heart as salt does in water’.7

There are three different possible motivations for people's actions:

To do good.

To commit a sin.

To enjoy something that is permissible.

Acts may themselves be recognized as being:

Both appropriate and suitable.

Appropriate in the view of the ‘doer’ but regarded as unsuitable by others.

The above hadith excludes motivation (2) but accepts the possibility of an act being considered to be either (a) or (b). This means that if Muslims act in good faith and without any intention to sin, no one has the right to doubt, accuse or cast aspersions on them.

From Consensus

Shaykh Murtada Al-Ansari claims that consensus in both the verbal and practical sense is the third source of support for the principle of 'validity'. According to him, no jurist disputes the reliability of a person who claims to have fulfilled her/his obligations in the appropriate way. He says that in so far as practical consensus is concerned, it is evident that all Muslims throughout history have tended to accept the principle of 'validity' and that those who deny this are simply being stubborn.8

Our observation is that we should accept the second aspect, i.e. practical consensus. Vis-a-vis verbal consensus, the opinions of the fuqaha of earlier times are difficult to trace. Nonetheless, one may claim that reliance on reasonable people was practised at the time of the error-free Imams (‘a) and that they approved of it.

People are recommended to take all precautionary measures to avoid finding themselves in positions in which they might be misjudged.

On The Basis Of The ‘Decisive Factor’ In Ahadith

Before proceeding, we need to clarify the difference between the above category, referred to in Arabic as Tanqih al-Manat al-Qata’i, and analogy qiyas. Illah, the most important essential – rukn - for qiyas, is an attribute of an original ruling that is constant, evident and which bears proper relationship to the ruling itself.

To cite two examples, wine is prohibited because of its intoxicating quality, lying is not permissible because of its role in the destruction of trust between people. Thus, we may define Illah as being the rationale behind a ruling. This will cover all other elements that share the same attributes. All intoxicants thus fall under the same ruling.

If we leave this type of ijtihad open and without restriction, we arrive at what is referred to as analogy. However, if we rely on the authority of a decisive factor of an ayah or a hadith to use as the general principle to apply to all matters that share the same rationale, we may be said to be employing Tanqih al-Manat al-Qata'i. This is the area where those who endorse qiyas and those who do not, meet on common ground.

In the first hadith to support the ‘principle that possession indicates ownership’ (chapter 1), we observed that Imam al-Sadiq (‘a) said, 'If you do not rely on this principle, no business transaction can ever be possible or valid'.

Applying the decisive rationale in this hadith leads us to conclude that all things that cause anarchy and disorder in regard to transactions are to be avoided. As rejection of the principle of validity would likely result in anarchy and disorder, such rejection needs to be ruled out. We thus have no choice other than to accept the Principle of Validity as one of the general principles within jurisprudence.

This is the view supported by Shaykh Murtada Al-Ansari in Fara'id al-Usul, Volume 2, p. 393. As we discussed earlier, it is not practical for everyone to check that all utensils, surfaces and vessels are clean and free of impurities before food is processed. To attempt such verification would certainly constitute an insufferable hardship for people to bear and Allah tells us that He does not intend to establish any unbearable hardships for us.

What About Ourselves?

So far, we have discussed the acts and contracts of others and how to reject doubts regarding the validity of their actions. So what about the doubts that we ourselves entertain concerning our own actions?

As the above principle is a general one it also covers our own actions. For example, if after completing Salat al-Asr one were to entertain doubts as to whether the prostration in the second cycle of either Salat al-Zuhr or Salat al-Asr, was performed correctly or not, the ruling accepted by all jurists is to ignore those doubts and presume that the prayer was indeed correctly performed. This is referred to as the principle of completion - Qa'idatal-Faragh - and expressed as, ‘Any doubt that arises after the completion of an act is to be ignored’.

Psychologists acknowledge the existence of a ‘repetitive compulsive disorder’ - waswas - that arises when people do not accept that the principle of validity covers their own actions. One may shut a door behind one and yet maintain doubts whether this was indeed done and feel an urgent need to repeatedly check that it has been. Hour upon hour may be spent in an endeavour to complete valid ablution, or ensure that the pronunciation of a certain ayah is correct. The ideal solution indicated by shari’ah, is to ignore such doubts and to rely upon the principle of validity.

1. The full verse reads:
"And (remember) when We made a covenant with the Children of Israel (instructing): 'You shall not worship any but Allah; and (you shall do) good to (your) parents, and to the near of kin and to the orphans, and the needy, and speak kind words to people, keep up the prayer, and pay the poor-rates (zakat)’. Then you turned away, except a few of you, and you backslide (even now)." (Surah Al-Baqarah, 2:83).

2. Al-Kafi Vol. 2, p. 164.

3. Examples of Husn in the Holy Qur’an:
“Until when he reached the setting-place of the sun, he found it setting in a muddy spring and he found by it a people. We said: ‘O’ Zul-Qarnayn! Either you chastise them or you take a way of kindness among them?” (Surah Al-Kahf, 18:86).
“Save he who has been unjust, then he does good instead after evil, for verily I am the Forgiving, the Merciful;” (Surah An-Naml, 27:11).
“And We have enjoined on man goodness unto his parents; and if they strive with you that you should associate (others) with Me, of which you have no knowledge, then do not obey them, unto Me is your return, and I will inform you of what you were doing.” (Surah Al-‘Ankabut, 29:8).
That is [the great Bounty] whereof Allah gives glad tidings to His servants who believe and do righteous good deeds. Say [O Muhammad! Say unto people]: “No reward do I ask of you for this [Divine Call] except to be kind to my close relatives.” And whoever earns a good righteous deed, We shall give him an increase of good in respect thereof. Verily, Allah is Oft-Forgiving, Most Ready to appreciate [the deeds of those obedient to Him]. (Surah Al-Shura, 42:23).
"And (remember) when We made a covenant with the Children of Israel (instructing): 'You shall not worship any but Allah; and (you shall do) good to (your) parents, and to the near of kin and to the orphans, and the needy, and speak kind words to people, keep up the prayer, and pay the poor-rates (zakat)’. Then you turned away, except a few of you, and you backslide (even now)." (Surah Al-Baqarah, 2:83).

4. Usul al-Kafi Vol. 2, p. 361, Nahj al Balaghah, Aphorism 360.

5. Thawab al-A'amal, p. 295.

6. Nahj al-Balaghah, Aphorism. 114.

7. Al-Kafi Vol. 2, p. 361.

8. Fara'id al-Usul Vol. 2, p. 392.

Chapter 4: The Principle Of Purity

Before being able to discuss the basis of this principle it is necessary to be clear about what Islamic law regards as pure, what it regards as impure, how items are rendered impure, and the means by which they may be cleansed of impurity.

The Arabic for impurity is najasah, and an item may be described as being impure - najis - or ‘impure in itself’ - najis al-'ayn.

Impurities

Islamic law considers the following to be impure:

Urine of humans and animals - other than those that are lawful to eat - whose blood 'gushes out forcefully' when their jugular veins are slashed.

The faeces of the above.

Semen

Human corpses and those of animals whose blood 'gushes out forcefully' when their jugular veins are slashed.

This includes animals that are lawful to eat but which have not been slaughtered in accordance with the requirements of Islamic law.

The following, when associated with dead bodies, are not considered najis as they are not normally defined as containing life - in the sense that no nerve systems pervade the substances themselves: bones, teeth, ivory, nails, hooves, claws, horns, hair, fur, wool and feathers.

Rennet taken from dead animals that are lawful to eat is not considered to be najis. Thus, there is nothing wrong in eating cheese made with animal rennet other than pig rennet.

Blood of humans and animals whose blood 'gushes out forcefully' when their jugular veins are slashed. Fish and insect blood is regarded as pure because it does not gush in this way. The same applies to the occasional spot of blood in egg yolks that, although considered pure, is recommended not to be eaten.

Dogs.

Pigs.

Wine, including all intoxicating beverages. This does not apply to alcohol required for anything other than its intoxicating property (e.g. alcohol additives in paint, cough syrup), or used in cosmetic products such as after-shave and eau de cologne. It should be noted that both fresh apple juice and bananas contain small percentages of alcohol, as do citrus-flavoured boiled sweets since citric essences are preserved in alcoholic solvents. Jurists agree that the above examples are legally regarded as pure.

Atheists/agnostics/idol-worshippers. Followers of Divine Scriptures such as Christians and Jews are not considered to be impure unless they have been in physical contact with things that are regarded as being impure.

Some jurists regard Christians who believe in the Trinity as not following Holy Scripture and therefore impure.

The sweat of animals that persistently consume impure things - and are defined as jalalah.

How Items Are Rendered Impure

When an item defined as 'pure' comes into physical contact with any of the above impurities - if either of them is moist - the pure item is rendered impure. In Arabic, such items are referred to as mutanajis. The essential aspect of mutanajis is dampness or moistness, for, when a hand soiled by urine - that has dried before it has been cleaned - is brought into physical contact with anything else, it does NOT transfer impurity. Thus, the dry hand that has patted the dry coat of a dog is not regarded as najis.

The important question is, then, does najasah transferred from one moist item to another retain the ability to indefinitely transmit such najasah? Is this process continued ad infinitum to affect everything that is brought into contact, directly or indirectly, with the original najasah?

For example, a person's hand rendered impure by urine, being brought while it is still wet, into contact with their shirt that is moist with perspiration. If that person then leans on a chair or dries themselves with a towel, is the najasah then transmitted by the towel or chair to other items brought into contact with them?

Fuqaha in the past would have considered it valid to regard najasah as retaining an indefinite ability to be transmitted from one item to another. However, both my respected teachers, Ayatollah Milani and Ayatollah Khoei, were of the opinion that this is not the case. Based on their methodology of ijtihad, the transmission of najasah ends after a second item has been rendered impure.

For example, if the right hand of a person becomes impure via contact with urine, and while still wet is touched by his/her left hand, the left hand is also rendered impure. Even if the moisture on the now impure left hand has dried it will still transmit the najasah to a wet cloth and render that impure too. However, if that cloth is later brought into contact with another wet item, that impurity is no longer transmitted; i.e. the fourth item is not considered to be impure.

I support their view and regularly discuss the full detail of the logic that underpins such legal opinion with students at the level of Bahth al-Kharij. At this juncture it must be made clear that the subject of legal purity is in no way to be confused with guidelines regarding hygiene and the transmission of pathogens. In circumstances concerning issues of hygienic risk, the faqih will take into consideration the principle that, 'Islamic law does not occasion harm' (see chapter 5).

Purifying Agents

Islamic law acknowledges the following to be purifying agents:

Water. This is based upon the following Qur'anic ayat 8:11 and 25:48. It is obvious that water contaminated by impurity, particularly when its colour and odour have become tainted, cannot be utilized in the process of purification.

Despite fruit juice consisting largely of water, it is not legally defined as water and therefore cannot be used as a purifying agent.

Earth. The soles of feet or shoes are purified when the earth is dry and uncontaminated by anything ‘impure in itself’ - najis al-'ayn.

Transformation - istihalah. This refers to all of the chemical changes required to transform one substance into another. For example, vinegar is obtained by the acetic fermentation of dilute alcoholic liquids (as fermented cider, malt beer or wine) or of dilute distilled alcohol that is often seasoned with herbs such as tarragon). Thus, wine vinegar, spirit vinegar, etc., are all lawful and pure.

A sperm is considered impure but after being transformed into a human being is regarded as pure. A dog that dies in a saltpan and is, after a period, itself transformed into salt can no longer be considered to be anything other than pure salt.

Indeed, all substances derived from impure creatures that have been broken down into their chemical constituents, such as the MMR vaccine, derived from pig intestines, have been transformed from one thing into another. Thus, they are regarded as being lawful and pure and there is no Islamic reason to refuse MMR inoculations.

Islam. The pronouncement, by an unbeliever, of the two declarations of faith -Shahadatain - regardless of the tongue they use to renounce them in, is considered to have purified them. Of course, if there is a substance on them that is ‘impure in itself’ - najis al-‘ayn - it will need to be washed from their bodies with water.

Interdependence. This is applicable to two specific circumstances:

Children of unbelievers who have embraced Islam are considered to be Muslim and pure.

Vessels that contain wine that is being transformed into vinegar are considered to be pure.

Drainage of blood. After slaughter, when the blood of the animal has been drained and the wound in its throat washed, any retained internal blood is considered pure.

The sun. Earth, buildings and trees tainted with impurities are purified by sunlight, providing nothing that is najis al-‘ayn remains on them after rainfall or being washed.

Confinement. Applies specifically to jalalah animals which are only returned to purity by being prevented from eating najasah for the following time periods:

Camel – 40 days

Cows – 20 days

Goats – 10 days

Sheep – 10 days

Ducks – 5 days

Chicken – 3 days

Reliance upon a Muslim. When clothes, carpets and household utensils, in the possession of a Muslim, are seen to have become impure, if the person is acknowledged to be a practising Muslim one may depend on that acknowledgement to accept that such items in his/her possession will be/have been, purified of najasah.

Removal of najis al-‘ayn. This applies to the removal of najasah from the mouth, nose or ears. Once blood or other najasah has been removed, they are considered pure and not in need of washing.

Now To ‘The Principle Of Purity’ Itself

It is generally accepted by all the schools of Islamic law that unless one is certain of the above impurities being present, things are to be presumed to be pure. Thus, everything is regarded as pure unless it is apparent that it is not.

For example:

The principle of purity assures Muslims, who buy houses from nonMuslims with no awareness or understanding of the Islamic concept of purity, that such homes are pure and without need of cleansing - unless visible evidence of najasah is found on any surfaces.

Similarly, the principle of purity assures Muslims travelling in nonMuslim lands that they should rely on the purity and suitability of the towels and sheets provided in hotels.

The principle of purity indicates that in the absence of certainty that intoxicants are included in beverages, Muslims should rely on them being pure and suitable to drink.

The basis of 'the principle of purity' is ‘Ammar's report that Imam al-Sadiq (‘a) told him, ‘Everything is regarded pure in the absence of certainty that it is impure. For, while one is unaware of the presence of impurity one cannot possibly be bound by restrictions regarding them’.1

1. Wasa'il al-Shi’ah, Vol. 3, p. 467.

Chapter 5: Islamic Law Does Not Occasion Harm

In the Arabic language, this principle is expressed as: La Darar wa la Dirar fi al-Islam, there is no harm in Islam.

Within the references of Islamic law, we find this principle expressed in the following ways.

Harm must be removed.

Wherever necessary, decisions that occasion the least harm are to be given priority over decisions that occasion greater harm.

Wherever necessary, decisions that harm a few individuals are to be given priority over decisions that harm the whole of society.

No one is permitted to deflect harm from themselves by endangering others.

All the above expressions reflect that Islamic law does not occasion any harm.

The Basis Of This Principle

All jurists agree that this principle is based upon a hadith narrated by an uninterrupted chain of narrators - mutawater. When we trace this hadith in both Ahl al-Bayt and Sunni sources we find:

From Ahl Al-Bayt

Al-Kulayni, in Al-Kafi Vol. 5, p. 292; Al-Saduq in Man la Yahduruhu al-Faqih, Vol. 3, p.147; and Shaykh Al-Tusi in Al-Tahdhib Vol. 7, p. 147 include ahadith that support this principle. These were narrated by many students and companions of Imam al-Baqir (‘a) and Imam al-Sadiq (‘a) such as Zurarah, Abu Obeida, Al-Hajaj Ibn Urtat, Harun Ibn Hamza and Uqbah Ibn Khalid.

From Ahl Al-Sunnah

In sources narrated by many of the companions of the Prophet (S) such as Abdullah Ibn Abbas, Jabir Ibn Abdullah, Abu Sa’eed al-Khudri, Abadah Ibn al-Samit, Abu Hurrairah, Abu Lubabah and Ayesha, we find ahadith that support this principle.1

It is evident that a hadith that is unanimously reported is recognized as mutawater.

The incident in which the Prophet (S) said, 'Islam occasions no harm', is as follows:

Samurah Ibn Jundub owned a palm tree growing in a garden that belonged to an Ansari in Madinah. This Ansari's house was sited at the garden's entrance.

Samurah, who liked to care for his tree, did not seek the permission of the garden's owner. He was asked to request permission before coming, but insisted that it was not necessary for him to do so as he owned the tree. The garden's owner complained to the Prophet (S), who summoned Samurah and ordered him to seek permission before he entered the garden. When Samurah declined to comply, the Prophet (S) recommended him to offer the tree for sale and make a large profit.

However, this too Samurah rejected. The Prophet (S) then asked if he would be prepared to exchange the tree for a palm tree in paradise. However, Samurah eschewed this with contempt. At this stage Allah's Messenger (S) turned to the owner of the garden and said, 'Uproot it and throw it before him because Islam does not tolerate harm being occasioned.'

The Use Of The Word La In The Arabic Language

In Arabic there are two basic uses of the word La.

To negate – nafy

To prohibit – nahy

The difference between the two is that while the first reflects the negation of a statement, the second indicates prohibition being addressed by one person to another - even if that prohibition lacks authority.

Examples of La in its negating form:

La shak le kathir al shak - there is no value in frequent doubts.

La talaq illa be ishhad - divorce is not valid unless it is witnessed.

La Salat illa be tahur - without ablution, prayers are not accepted.

Rufi’a an ummati ma la ya’lamun - my nation is not accountable for what it has not been informed of.

La haraj fi al Din - there is no unbearable hardship in Islam.

La Salat le jar al-masjid illa fi al-masjid - the prayers of residents neighbouring a mosque are not perfect if not offered in the mosque.

In all of the above examples, the word la is used to express negation, even when the negated subjects are different. In the first, the statement indicates that unreasonable doubts should be ignored, in the second and third that validity is negated. In the fourth, as discussed in the principle of permissibility (chapter 2), accountability is negated. In the fifth, the existence of the legislative order in Islamic law is negated and in the sixth, it is neither validity nor acceptance but perfection that is negated.

Examples of La in its prohibiting form:

La taqtulu al-nafs al-lati harrama Allahu illa bil haq - Do not take life, (which Allah has decreed sacred) other than in the legitimate pursuit of justice (Qur'an 17:33).

La taqrabu mal alyatim illa bil lati heya ahsan - Do not touch the property of orphans who have not attained maturity (Qur'an 17:34).

La tamshe fi al-ard marahan - Do not strut the earth in triumph and arrogance (Qur'an 17:37).

La taqrabu al-zina - Do not have sexual relationships outside marriage (Qur'an 17:32).

La taj’al yadaka maghlulatan ila unuqeka - Do not be miserly and worthy of reproach (Qur'an 17:29).

La tubathir - Do not fritter your wealth away (Qur'an 17:26).

It is evident from the above examples that Allah Almighty prohibits certain acts with a definitive authority that is binding upon all Muslims.

Having discussed the difference between the above groups, we are now in a position to consider to which group the word la in La Darar belongs. There is a variety of opinion amongst the fuqaha.

In shari’ah, any harm caused has to be redressed. By demanding harm be redressed, 'The Lawmaker' clarifies that He does not approve of, or permit, damage being inflicted by one human being on another. Shaykh Murtada Ansari and Al-Fadhel al-Touni support this view.

The negation of harm implies negation of all that causes it. This opinion was espoused by Muhammad Kazem al-Khorasani.

It is merely prohibition, i.e. 'Do not harm any other'. The view is supported by Shaykh al-Shari’ah lsphahani.

This applies to any rulings or acts that occasion harm. The opinion is held by Al-Mirza al-Nayeni.

From the above examples of the word La, it is evident that while the structure of this hadith is not compatible with its implication of prohibition, it matches perfectly its implication of negation. From the incident of Samurah and the palm tree it is clear that the Prophet (S) employed his authority to declare that harm does not exist in the body of shari’ah law.

Consequently, when jurists are faced with references that have the possibility of causing harm, they ignore them or, in other words, negate them.

To me, the fifth opinion appears to have the greatest validity. When Samurah insisted on access that harmed the Ansari, the Prophet (S) negated his right to see his tree by stating, 'Islamic law does not occasion harm'.

A few applications of this principle are given below - examples of the many cases in which jurists apply the above principle:

Forcing traders who hoard essential foodstuffs to offer them to the market at fair prices.

Affording legal redress to those who have been outrageously overcharged.

Stopping traders from restricting public access to walkways or pavements by their displays of goods.

Permitting trustees to discharge their trusts to court administration when they find their obligations too onerous.

Preventing partners from dispersing assets when the market is unfavourable, when doing so imperils their joint investment with other shareholders.

Individual Or Public Harm?

Do claims that 'Islamic law does not occasion harm' refer to individual or societal harm? For example, as the exclusive provision of cold-water ghusl facilities during winter months might harm the majority of people, shari’ah permits tayamum in its place. This applies despite the possibility that some members of society would indeed be able to survive cold showers in freezing conditions.

Should we favour the good of one individual above that of society by leaving each to make their own choice, or give preference to all the members of society being covered by one ruling?

Another example might concern the midsummer fasting of those who suffer renal problems, when daylight hours can be extremely long. As the majority of such people need to drink water frequently, what ruling should apply to exceptional individuals who are able to fast for long periods despite such problems?

It is obvious that each person must respond to their own circumstances to avoid harm being occasioned to them.

Does This Principle Apply To Prohibited Acts?

We may gather from the above discussions that, when acts or commitments occasion harm, the Principles of Jurisprudence indicate those acts or commitment are NOT binding.

In the same manner, rights can be circumscribed when acts are liable to harm others. No one is permitted to play loud music or continue noisy partying into the early hours if that disturbs their neighbours. Similarly, a neighbour's right, privacy or well-being may not be restricted by the exercise of one's own rights, as when the Prophet (S), circumscribed Samurah's right to visit his tree.

To discuss if the above principle applies to prohibited acts, or not, we first need to carefully consider the following criteria:

If the jurist counsels a shopkeeper not to sell wine it may seriously reduce his income and eventually drive him out of business. In such circumstances may a Muslim shopkeeper argue that, as this will occasion him harm, he is entitled to continue such sales?

When a Muslim buys a pizza shop at a purchase price determined by the revenue it has yielded, it is obvious that if items are thereafter discontinued these may, or may not, affect the shop's earning potential.

Families in some Islamic countries earn their living by farming opium poppies and cannabis. If the jurist counsels them to discontinue doing this their 'living' may be jeopardized.

To permit any of the above acts would be to destroy the structure of all Islamic rulings and teaching. People frequently twist legal understandings to further their own egotism, selfishness and ill desires. The entire corpus of guidance of all of Allah's prophets (S) is focused at civilizing people and encouraging control of their ego's desires. If there was no such teaching, all would be free to do whatever they willed regardless of its effect.

Furthermore, this principle the 'favour' of the All Mighty to His obedient servants - is to remove burdens from them. How may disobedient people take advantage of that 'favour' in the knowledge that the examples above are considered sinful by Islam.

The only matter open for discussion is if restraint from a particular sin will lead to unbearable hardship, and this is dealt with by the next principle.

1. Musnad of Ahmad Ibn Hanbal - Hadith number 2867, Al-Muwatta' - Vol. 2, p. 171, Al Mustradak ala al-Sahihain - Vol. 2, p. 58, Sunan al-Bayhaqi - Vol. 6, p. 157, Sunan Al-Darqutni - Vol. 4, p. 227.

Chapter 6: Islamic Law Does Not Occasion Unbearable Hardship

The cardinal objectives of shari’ah include the establishment of contentment and the elimination of hardship.

The Arabic for 'unbearable hardship' is usr or haraj. By reference to the Qur'anic statement, 'Allah has imposed no hardship - haraj - in religion', Muslim scholars characterize shari’ah as the legal system of accommodation. The notable companion Ibn Abbas is reported to have said that the word haraj implies that there is no escape from difficult situations.

This principle may be manifest in three ways:

That shari’ah rulings are easy to comprehend because, in the main, they relate to practical rules regarding conduct.

As Allah (swt) clearly states in the Qur’an, As Allah clearly states in Qur'an that: 'He does not burden any beyond their capacities' (2:286), all obligations and duties are easy for people to comply with.

And, as Al-Jassas maintains in Ahkam al-Qur'an, no jurist is permitted to pass opinions - fatawa - that cause hardship when easier alternatives are available.

One example of hardship being caused relates to the lives of hundreds of innocent pilgrims being lost each year during the pilgrimage - Hajj. The four schools of Islamic law specify that stoning of the jamarat in Mina is to be done after 'noon', while those who follow Ahl al-Bayt and the teaching of their Imams, are permitted to undertake the stoning at any time between sunrise and sunset.

Furthermore, in his 'Rulings' concerning Hajj - Manasik - rule number 433, Ayatollah al-Khoei clarifies that even though it is obligatory for men to stone the jamarat during daylight hours, children, women, the elderly and the infirm are permitted to fulfil this Hajj rite during the hours of darkness.

In his lectures on jurisprudence Ayatollah al-Khoei confirmed that, ‘This permission is granted to anyone who finds it difficult to stone the jamarat in the crowded hours of daylight’.1

The Basis Of This Principle

From The Qur'an

Allah has imposed no hardship in religion. (Surah Al-Hajj, 22:78).

Allah does not desire to inflict hardship upon you. (Surah Al-Ma’idah, 5:6).

Allah affords you every facility and does not wish to make any matter difficult for you. (Surah Al-Baqarah, 2:185)

Lord, do not burden us as you burdened those before us ... (Surah Al-Baqarah, 2:286)

Allah wishes to lighten your difficulties for humanity has been created weak. (Surah An-Nisa’, 4:28)

We read in the Qur'an that among the characteristics of Allah's Messenger (S) and his religion is: ‘to remove burdens and shackles from believers’. (Surah Al-‘Araf, 7:157).

The inevitable conclusion is that Islam is a faith of accommodation NOT of severity. This accommodation is manifest in rulings that apply to acts of worship, rights and the duties and, indeed, all regulations that concern business and trade.

An example of the principle 'Islamic law does not occasion unbearable hardship' is apparent from its application to debtors who find themselves in difficulties and unable to make loan repayments. Contrary to 'common law', by which they may be sentenced to terms of imprisonment, Allah instructs that,

'If a debtor is in straitened circumstances let there be a postponement until he/she can afford to settle his/her debts' (Qur'an 2:280).

When Ibn ‘Abbas was asked why the Prophet (S) combined the prayers of Zuhr with ‘Asr and Maghrib with ‘Isha he replied, 'He did not wish to burden his community.' On another occasion when Ibn ‘Abbas was asked the same question he responded, ‘He did not want to impose difficulties on the community’.2

This notable companion clearly applied the principle, 'Islamic law does not occasion hardship', to the combination of prayer times.

From Ahadith

Bukhari narrates from ‘Utbah Ibn Mas’ud, on the authority of Abu Hurairah, that, 'A bedouin in the mosque stood up and urinated. Despite people being upset and annoyed at this, the Prophet (S) told them not to confront him but just to pour a bucket of water over the area, "as we have been ordered to make things easy for people and not difficult".'3

The same hadith is narrated by Tirmithi in his Sunan, Chapter on Ablution, Tradition number 147 and Nisa'i in his Sunan, Vol. 1, p 175.

Abu Dawud narrates in his Sunan that while he was in Mina during the Farewell Pilgrimage, the Prophet (S) made himself available to answer questions. One person asked, 'O Messenger of Allah, while not being aware that I should not have, I shaved prior to offering my sacrifice. What should I do?' The Prophet (S) replied, 'Offer your sacrifice as there is no haraj for you.' Another asked, 'O Messenger of Allah, in my ignorance I made my sacrifice before stoning the jamarah, what should I do now?' The Prophet's (S) reply was, 'Go and stone the jamarah as there is no haraj for you.' That day the Prophet (S) gave the same reply to all who asked him similar questions.4

Ibn Abbas narrated that the Prophet (S) said, ‘In His magnanimity, Allah (swt) has made this religion easy for people, NOT difficult’.5

Shaykh Al-Tusi records from Imam al-Sadiq (‘a) that male pilgrims are not permitted to circumambulate the Kaabah before shaving their heads, unless that is an oversight on their part. He then narrated the incident in Mina where the Prophet (S) told people that there was no haraj levied upon them for errors of ignorance or oversight.6

Al-Kulayni records from Imam al-Baqir (‘a) that there is no haraj for pregnant women about to give birth or for breastfeeding mothers who break the fast during the month of Ramadan. In place of that, they may feed the poor and, when able to do so, make up for the days they have missed.7

Upon their departure to Yemen, the Prophet (S) instructed the judges Abu Musa al-Ash’ari and Mu’adh Ibn Jabal to ensure that they 'Bring ease not hardship and give people good, rather than gloomy news'.8

Bukhari narrates from ‘Ayesha that whenever the Prophet (S) had two options he chose the easy one - provided that, that course was not sinful.9

It is evident from the above ahadith that the intention of The Lawmaker has been to avoid unbearable hardships - in the sense that all acts of worship are easy to observe and that rulings of shari’ah are clear. No burden or shackle is imposed upon the Muslim community. It has been firmly established that fuqaha who prohibit things that Allah permits are as culpable as those who permit things that He prohibits.

This principle applies to every type of duress, oversight, ignorance or excuse made by Muslims suffering conditions of consummate hardship. This indicates that none are held accountable for acts committed under duress or as the result of oversight. Notwithstanding this, their accountability for damages to others remains.

1. Lectures of Ayatollah al-Khoei Vol. 29, p. 407.

2. Sahih Muslim, Chapter on Prayer, Bab - Combining Two Prayers at Home. Tradition numbers 1629, 1630, 1632 and 1633.

3. Sahih al-Bukhari Chapter on Wudu' Vol. 1, p. 65.
In the collection of all the Al-Sihah al-Sittah this is recorded on page 20.

4. Sunan Abi Dawud Chapter on Hajj Vol. 1, p. 464.

5. Suyuti in Al-Ashbah wa al-Nadaer, p. 68.

6. Al-Tahzeeb Vol. 1, p. 149.

7. Al-Kafi Vol. 4, p. 117.

8. Sahih al-Bukhari Vol. 8, p. 37. In the collection of all the Al-Sihah al-Sittah this is recorded on page 516.

9. Sahih al-Bukhari Vol. 8, p. 37. In the collection of all the Al-Sihah al-Sittah this is recorded on page 516.

Chapter 7: Certainty Is Not Challenged By Doubt

Before being able to discuss this subject we need first to define the words 'certainty' and 'doubt'. In Islamic jurisprudence, 'certainty' indicates absence of doubts as to the correctness of something. In other words, a matter is so clearly evident that no questions about it are entertained. The Arabic word for this is yaqin.

The degree of certainty expressed by the word yaqin is 100%. Probabilities of accuracy that appear to be between 99% and 51% are referred to as zann. Probabilities that are equal when the probability of existence or nonexistence of things is equipoised - are referred to as shakk. Probabilities below 50% are referred to as wahm.

Statements based on shakk or wahm are not considered by the Islamic legal system. With regard to Zann, the closer it is to certainty the greater the consideration it will be given.

To appreciate the significance of yaqin, we refer to Qur'an:

"And thus, did we show Abraham the dominions of the heavens and the earth and that he might be of those who are sure." (Surah Al-‘An’am, 6:75)

In the Qur'an we learn that there are three levels of yaqin:

‘Ilm al-yaqin - lit. to know with certainty. (Surah Takathur, 102:5).

‘Ayn al-yaqin - lit. certainty itself. (Surah Takathur, 102:7).

Haqq al-yaqin - lit. absolute certainty. (Surah Al-Waqi’ah, 56:95).

Haqq al-yaqin is the level of certainty that is acquired when a spiritual and physical encounter - between a 'knower' and a 'known thing' – is experienced. This level of certainty leaves no room for any doubt whatever. Clearly, at this level, certainty is not challenged by doubt.

The following examples illustrate the application of this principle within the field of Islamic jurisprudence:

Twenty years ago person A borrowed money from person B. Some time later A begins to entertain doubts as to whether the debt was repaid or not. In the absence of incontrovertible proof - documentation or witnesses that confirm that the debt was honoured, jurists will deem it not to have been. This is because there is certainty that the loan was made but no certainty that it was repaid.

At 8 a.m., certain that he/she had made ablution - wudu' - and was in a state of 'ritual purity', the person occupies themself with work. At 1 p.m. uncertainty takes root as to the validity of their wudu'. Unless certain that anything that would negate the validity of wudu' has occurred, they have to presume the continuity of their former certainty.

Knowing them to be clean and 'ritually' pure, a neighbour borrows towels. Once they have been returned, in the absence of physical evidence to the contrary, any suspicion regarding the cleanliness of the towels has to be ignored, and reliance placed upon the former certainty that the towels remain clean and 'ritually' pure.

The Basis Of This Principle

From Ahadith

Zurarah narrates from Imam al-Sadiq (‘a) that he asked 'If a person who is in the state of ritual purity dozes off for a few seconds is their wudu' invalidated?'

The Imam (‘a) replied, 'While the eye might close, the heart and ear might remain aware. Only when eye, ear and heart sleep is wudu' broken.'

Zurarah then asked, 'What if something at their side is moved without them feeling it?' Imam al-Sadiq (‘a) replied, 'Unless a person is certain that he/she fell asleep, they may presume the continuity of their previous wudu'. Never challenge certainty with doubt, for certainty is only dispelled when it is replaced by another certainty.'1

Both authenticity and content of this hadith are secure. Regarding authenticity, the 'chain' of its narrators is recorded as: Shaykh Al-Tusi from Husayn Ibn Saeed, from Hammad Ibn Isa, from Hariz Ibn Abdullah, from Zurarah.

The last sentence of the hadith clarifies that certainty can never be challenged by doubt. It is clear that this ruling is not restricted to issues of wudu' but is applicable to all areas of jurisprudence. This is also the view of Muhammad Kazim al Khorasani in Kifayat al-Usul, p. 389 and Muhammad Baqir al-Sadr in Durus fi ‘ilm al-Usul, Vol. 3, p. 442.

In Arabic grammar, the article 'al' may be applied to two different concepts:

Universality - lam al-jins

Reference to a previously mentioned subject - lam al-‘ahd

When the second concept is referred to, it is clear that that reference is being made to a specific subject. Thus, some jurists claim that the above hadith refers specifically to certainty of ablution not being challenged by doubt. Such jurists do not accept that this principle may be applied to other areas of jurisprudence. However, the majority of Imamiyah jurists believe that the article ‘al’ expresses universality and that claims to the contrary cannot be supported and are thus not valid.

Another hadith from Zurarah refers to six questions that he asked Imam al-Sadiq (‘a):

Question 1: 'When I noticed that blood from my bleeding nose had left a stain on my clothes I planned to wash it off before praying. However, I forgot to do that and only remembered it after having finished the prayer. What should I do?'

The Imam (‘a) answered: 'Clean your clothes and repeat the prayer.'

Question 2: ‘Even though I was certain that blood had stained my clothes I could find no trace of it and so offered my prayer. However, after the prayer I did find a bloodstain. What should I do?’

The Imam (‘a) answered: 'Clean your clothes and repeat the prayer.'

Question 3: ‘1 thought that blood had stained my clothing but as I could not find a stain I could not be certain. However, after the prayer I did discover a bloodstain.'

The Imam (‘a) answered: 'Clean your clothes, but you do not need to repeat the prayer.'

When I asked him why that was the case the Imam (‘a) replied, 'Because when you started your prayer, you were certain of the ‘purityn of your clothes and only later entertained doubts about it, and you may not challenge certainty by doubts.’

The other three questions2 that Zurarah asked are not included here because it is this third question that is relevant to our topic.

This hadith clarifies the general principle, 'Certainty may not be challenged by doubt', for when the Imam (‘a) replied, 'Because when you started your prayer you were certain of the "purity" of your clothes', he (‘a) validated 'presumption of the continuity of certainty' - the very core of this principle.

From Common Practice

Regardless of culture, background or religion, people commonly rely upon certainty unless presented with facts that dispel that certainty. The reason for this is that their 'degree' of certainty is 100% while probabilities or doubts appear to them to be less credible. Some scholars, support this on the grounds that it applies to human beings as well as to Allah's other creation.

For example, consider the biannual migrations of swallows, swifts and martins to Southern Africa and back, to nests they have established 6,000 miles apart. Many other species such as wildebeest and elk, salmon and eels also migrate. Their urge to return to far-off habitats is driven by the 'continuity of certainty' that it is the correct thing for them to do.

From Consensus

Al-Qarafi reports in Al-Foruq, Vol. 1, p. 111, that the consensus amongst jurists is to support this principle and to ignore doubts that assail certainty.

Ibn Al-Qayyim al-Jowzia in I’alam al-Muwaqein, Vol. 1, p. 295, also claims that there is consensus among jurists regarding this principle. He confirms that such consensus exists despite differences they might have concerning its detail.

Al-Nawawi, after quoting the prophetic hadith - 'When a person entertains doubt as to whether he/she has broken wind during prayer, they should ignore those doubts and continue their prayer unless they have actually heard the sound of wind being broken' - claimed this hadith to be an essential ruling of Islam. This means that no Muslim scholar is prepared to argue against it.

Muhammad Kazim al Khorasani in Kifayat al-Usul, p. 388, relates from Allamah Hilli in Al-Mabadi that the consensus amongst jurists is that if doubts are raised regarding the continuity of a ruling, it is imperative for them to confirm and support its continuity.

Essential Elements Of This Principle

Some scholars mention that up to seven different elements need to be present for this principle to be applied. However, we believe that it only requires the following four:

Certainty at the outset.

Doubts later arising concerning its continuity.

That both the certainty and doubt relate to a specific issue.

Issues in which the presumption of continuity impacts upon religious obligation.

The examples shown above illustrate the need for these four elements. For instance:

The example of the loan - Certainty that the loan was made, doubt that it had been repaid, both certainty and doubt relate to the loan and the impact that this principle has regarding the religious obligation to repay loans.

The example of wudu' - Certainty that the person was in a state of religious purity, doubt regarding that having been invalidated, both certainty and doubt relate to religious purity and the impact that this principle has regarding the religious obligation for prayer to be conducted in a state of religious purity.

It is worth mentioning that the Imamiyah, Hanafis and Shafi’is consider the principle of presumption of continuity to be an important 'tool' in itjtihad while the Malikis do not.

1. Wasa'il al-Shi’ah, Vol. 1, p. 245.

2. Tahzeeb al-Ahkam Vol. 1, p. 421.

Chapter 8: When A Text Is Clear, Interpretations Are Unacceptable

There are wide variances in the texts of the Qur'an and ahadith. The meaning of a text may be apparent, but when words are used in their metaphorical, rather than their literal sense, the text may at first appear to be unclear. Instances of ambiguity may also exist concerning words used in the Qur'an and elaborated upon in a hadith.

So, if a word is equivocal, that is to say it can be understood in more than one way, what does the faqih do?

For example, in Qur'an 2:228 we read, 'Divorced women must wait for three quru' . . .' Two meanings may be conveyed by the word quru';1 one refers to the period during menstruation – Hayd - the other to the time between two monthly periods of menstruation - tuhr.

Classification

Fuqaha classify multiplicity of meanings in the following ways:

1. That Which Is 'Manifest' - Zahir

Any practices and procedures that were not disapproved of and abolished by the Prophet (S) are believed to have his approval - hence the statement employed by fuqaha, 'Absence of rejection indicates approval'.

While signs, body language and telepathy are not adequate means by which to communicate precise information, words are an extremely effective means by which to accurately communicate sophisticated nonmathematical information. Like all other peoples, pre-Islamic Arabs depended on words to express ideas, and as there is not a single report of the Prophet (S) rejecting this method, it is clear that under Islamic law it is the only approved means of communication.

When what is meant is clear, a word is classified as being 'manifest'. However, when it does not accord with the context in which it appears the meaning of the word has to be interpreted. For example, when it is used to imply some other meaning or quality, as in the statement, 'I saw a lion so ferocious that none would face him.' Here the word 'lion' is used not in its literal sense, but rather to reveal the valorous nature of a particular person.2

Zahiris claim that both Qur'an and ahadith must be understood in their literal sense and thus completely rule out all interpretations. A simple example to illustrate the silliness of this viewpoint is when we read in Qur'an 48:10 that, 'Allah's hand is on top of their hands'.

Literalists are obliged to understand that Allah has a human-like form - a view rejected in the Qur'an, ahadith and Islamic theology.

Examples from the process of ijtihad of words not being manifest are found in the commands of the Qur'an. Do all Qur'anic commands highlight obligations, or are some open to interpretation? Fuqaha acknowledge that the commands that follow prohibitions convey permissibility rather than obligation. Thus, in Qur'an 5:2, 'When you leave the state of ihram go hunting', is not an order to hunt but rather, permission to hunt at that time if one so wishes.

2. That Which Is 'Unequivocal' – Nass

This refers to definitive texts or rulings in the Qur'an or ahadith. Nass, as opposed to zahir, signifies words that confer clarity on the principal theme of the text in which they occur.

For example, for the hadith concerning taxable limits for zakah on the number of camels owned, please see table overleaf.

All the taxable limits in this hadith, i.e. 5, 10, 15......76, are unequivocal and no other interpretation may be countenanced. The same applies to the amount of zakah due.

Another example is the fixed share stipulated in the Qur'an to be due to heirs, e.g. 'Half is due to the only daughter.' The text here is unequivocal – nass – and no other interpretation can be considered.

Similarly, the Qur'anic text, 'Unlawful to you are dead carcasses and blood' (Qur'an 5:30) is nass regarding the prohibition for humans to consume those things.

3. That Which Is 'Ambivalent' – Mujmal

Mujmal denotes a word or text that is inherently unclear because there is no clue in the text that specifies what it is meant to convey. A word may be homonymous - with more than one meaning - and require an indication as to which meaning should apply. It may be a constructed word that no one is familiar with, or be a word to which the Law Giver has applied a specific meaning that differs from its literal one.

Certainly, the literal meaning of words such as salah, riba, Hajj and siyam are no longer conveyed, as all now refer specifically to the matters that the Law Giver applied to them. Everything mujmal that has been explained by the Law Giver becomes mufassar.

Allah tells us in the Qur'an, 'Allah permits trade but prohibits riba', (Qur'an 2:275). The last word of this sentence literally means 'increase', however, as not every increase or profit is unlawful the text is ambivalent - mujmal - as to the type of increase that is forbidden. Clarification by the Prophet (S) and error-free Imams (‘a) has served to remove that ambivalence.

When one has no access to water, ablution without water - tayamum - needs to be performed. 'If you have entered a woman and do not find water, use clean earth ...' (Qur'an 5:6). The word sa’id used is ambivalent for it could refer to a plateau, to high ground or to clean soil. However, the usage of this word is clarified in the hadith.

4. That Which Is Equivocal – Mutashabih

Allah tells us there are two types of ayat - muhkam and mutashabih. Regarding the latter we read:

'Perverse hearts seek out mutashabih ayat in order to mislead others by their own interpretations. Only Allah and those with authentic knowledge comprehend their real meaning' (Qur'an 3:7).

An essential guideline for charitable acts is that good deeds have a tenfold reward and evil acts a single-fold penalty (Qur'an 6:160)3.

An example of misinterpretation of this ayah is the claim that, 'Stealing an apple to give away as an act of charity yields a nine-fold reward' (the giving bringing a ten-fold reward, minus the single-fold penalty for stealing, leaving the nine-fold benefit).

Another example is the justification for frequenting nightclubs - environments that abound with things that are not permitted - by claiming that doing this affords opportunities to advise people to keep to the good and to eschew the bad.

According to the Imamiyah School of law, valid interpretation of mutashabih ayat is the sole province of the error-free Imams (‘a) appointed by the Prophet (S) (see Thaqalain hadith), to guide us in conjunction with the Qur'an.

Conclusion

From the above classifications we conclude that Zahir, ambivalent and equivocal words in the Qur'an and ahadith, are open to interpretation, but that those that are unequivocal – nass - are not. Thus, the ijtihad of companions or jurists that oppose these rules are regarded as invalid and not open to consideration. Historians have nonetheless recorded numerous breaches.

The noted scholar Sayyid Abd al-Husayn Sharaf al-Din (the author of ‘The Right Path’ - Al-Murajat), in his work on this subject Al Nass wal Ijtihad, records 15 interpretations by the first Caliph, 55 by the second, 2 by the third, 13 by Ayesha, two by Khalid Ibn Walid and 13 by Muawiyah, that flout things that are unequivocal - nass - in the Qur'an and ahadith.

An example in contemporary times is found in the suggestion to permit interest on loans for investment and start-up funding - but to maintain the prohibition on interest for loans to those in desperate need. Such an interpretation is not acceptable as it is in flagrant breach of the ayah prohibiting interest that all fuqaha have understood to constitute a definitive ruling with no possibility of interpretation.

1. The full Verse reads:
"And the divorced women should wait (not wedding anyone else) concerning themselves for three (monthly) courses; and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and (in) the Last Day. And their husbands have a greater right (than others) to take them back in the meanwhile, if they wish for reconciliation (indeed). And they (women) have rights similar to those against them in a fair manner, but men have precedence above them; and Allah is the Mighty, the Wise." (Surah Al-Baqarah, 2:228).

2. Muhammad Abu Zuhra, Usul al-Fiqh, p. 93.

3. The full Verse reads:
"Whoever brings a good (deed), he shall have ten times its like, and whoever brings vice, he shall not be recompensed but with its like, and they shall not be dealt with unjustly." (Surah Al-‘An’am, 6:160).

Chapter 9: Liability For Damage

Two types of liability exist:

Liability associated with contracts or commitments.

Liability that results from harm that is caused.

The terms and conditions of contracts specify liabilities, in the sense that parties to the contract are entitled to include all manner of conditions and terms that are legally binding. Disputes that later arise are then judged in accordance with those terms and conditions.

As stated by the principle that 'Islam does not occasion harm' (see chapter 5), no person is permitted to cause damage or harm to another's person or property. The issues and criteria upon which compensation is based, discussed in this chapter, concern those liabilities that result from damage to persons, property or financial circumstances.

Fuqaha referred to the following guideline on this issue, 'Those who cause damage to another's property are responsible for any compensation levied.' The great scholar Shaykh Muhammad Hasan Najafi stated that, despite the principle being commonly accepted by jurists, there is no hadith to state this.1

In the early years of Islam, the primary application of this rule was understood to refer to the rights of the individual and the rights of the community, as is seen from the following:

The Basis Of This Principle

Zurarah narrates that he asked Imam al-Sadiq (‘a) about a passer-by who had fallen into a well that had been dug by someone who did not own the land. Imam al-Sadiq (‘a) replied that the person who had dug the well was to be held liable for any compensation claimed by the passer-by.2

Abu al-Saba al-Kinani narrates from Imam al-Sadiq (‘a) that 'Those who cause damage on "common land" or "public rights of way" are liable for any compensation that is claimed.'3

When Sama’ah asked Imam al-Sadiq (‘a) about liability related to wells dug in one's own property, the Imam replied (‘a) that 'Those who dig wells on their own property have no liability; however, those who dig wells on "common land", or on the property of another, are liable for any compensation that is claimed.'4

Al-Halabi narrates that he asked Imam al-Sadiq (‘a) about the liability of those who leave obstacles on a 'public right of way' that cause a 'mount' to stumble, throw off and thus injure the rider. The Imam (‘a) responded saying that 'Those who leave obstructions on "public rights of way" that result in damage to others are liable for any compensation that is claimed.'5

The content of the above ahadith is exceedingly clear. Regarding authenticity, the narration of the first and fourth ahadith are Sahih, the third is Muwathaq, while the second is not considered to be entirely reliable. However, in these instances, the chain of narrators is mostly authentic.

While the above outlines how issues of liability for damages came about, unremitting efforts to establish 'Principles of Jurisprudence' have resulted in concentrated examination of this subject by fuqaha.

Negligence

Liability for loss or damage to property left in the care of another is determined by the diligence with which that property has been safeguarded.

Those who accept the burden of caring for the property of others are obliged to uphold that trust. They are considered to have behaved negligently if they have not securely stored items of value. All organizations assess risk, be they schools that take pupils on educational trips, hospitals that care for patients, companies that advance loans, offer insurance or undertake other ventures. A standard aspect of any ‘risk assessment’ is examination of the detailed consideration that has been undertaken to ensure safety and avoid accusations of negligence.

Thus, every care has to be taken to ensure the safe working environment of those whom we contract to effect work in our homes. However, if a carpenter, plumber or other contractor is negligent, they themselves must bear the cost of their own negligence

Stories of litigation over negligence abound. A coffee shop in America was sued for not warning a customer that the cups in which they served coffee were hot. A life-long cigarette smoker who contracted lung cancer sued a tobacco company for not having warned him, when he started smoking over fifty years ago, that this disease could be contracted from their product. The courts ordered the company to pay him compensation to the value of 50 million dollars.

However, no liability is incurred in the absence of negligent behavior being proven, that is, when all possible pecautionary steps have been taken to protect the life and property of others.

Intention

An important aspect of liability is ‘intention’. In all legal systems the difference between murder and manslaughter rests upon the existence of intent or premeditation. Murder is defined as taking the life of another with intent; manslaughter, as taking the life of another without any intent so to do.

Examples:

Driving at speed without due care that results in the injury and/or death of another/others.

Shooting at a moving object while hunting, without having first clearly established that the object is not a fellow huntsman.

Building a camp fire without ensuring that it will not get out of control and endanger life or the natural environment.

In all these examples, despite the absence of any intention to cause such consequences, liability for compensation for the effects of those actions rest with the perpetrators.

In other words, it is not relevant if an act is committed intentionally or unintentionally. If a sleeping person's fitful movements result in another's property being damaged, they are nonetheless liable to compensate the owner for the damage to their property. Any who intentionally or unintentionally drop a banana skin upon which another slips and sustains injury are liable for all damage claims that follow.

Questions of intention only become relevant when fuqaha consider if a murder charge is to be altered to one of manslaughter.

Professional Liability

Although it may be easy to differentiate between the work of a surgeon with many years of experience and a trainee, both are liable for their own mistakes and errors of judgement. While it is not unknown for a healthy, rather than an ailing, kidney to be removed, it is the surgeon who removes it who has to be held liable.

The only way in which professionals can avoid liability is if they enter into pre-operative contracts that clearly state that they will NOT be held accountable for any misadventure.

In a clever approach to this subject, fuqaha differentiate between a doctor who prescribes medication for a patient, and a doctor who is directly involved with the patient taking that medication. The first is not liable for any consequences while the latter is.

A tailor who ruins a bolt of cloth is held liable for the damage caused and for any compensation that is claimed. If a cabinetmaker ruins timber, it is he who is liable for any damage caused and any compensation claimed.

The following ahadith support this viewpoint:

Al-Kulayni reports in an authentic chain of narration from Imam al-Sadiq (‘a) that Imam Ali (‘a) had said, ‘Physicians and veterinary surgeons are liable for the compensation claimed as the result of their actions, unless they have previously entered into pre operative agreements that negate such liability’.6

Shaykh Al-Tusi reports in an authentic chain of narration from Imam Ali (‘a) that he had held a person who circumcised a boy liable for compensation due for having removed the child's glans penis.7

Al-Kulayni reports in an authentic chain of narration from Imam al-Baqir (‘a) that he had said, 'If a baby dies as the result of its wet nurse falling asleep with it in bed, the nurse is liable for any compensation claimed by its parents. If she had accepted to feed the child as a matter of pride, for example to be associated with a prominent or noble family, such compensation must be paid out of her own funds. If, however, her acceptance was the result of her being obliged to earn her living, the compensatory payment must be shared by her paternal male relatives - 'aqelah'.8

The consensus of all the schools of Islamic law is that 'damages' that result from acts committed with intent have to be paid from the perpetrator's own funds. However, if intent is not a factor, 'damages' incurred must be met from the joint funds of the perpetrator's ‘aqelah’, who have to fulfil their family obligations and share such burdens. In this way victims are not denied rightful compensation and those who cause unintentional harm are not overly burdened.

Indirect Responsibility

Fuqaha consider both direct and indirect responsibility. For example, a person who terrifies another, by bellowing so threateningly in their face that they suffer a heart attack and die, is held liable for their death. At the time of the Caliph Umar, a woman of 'ill repute' was ordered to attend court by the caliph's representatives. She was so terrified by the manner of the summons that she suffered a miscarriage.

While some of the caliph's colleagues argued that he could not possibly be held accountable for that happening, others expressed the view that the miscarriage was an indirect result of the intimidatory nature of the summons. When the Caliph Umar asked the opinion of Abu al-Hasan (‘a), his (‘a) view was that ijtihad clearly indicted Umar.9

Another example is when Talbah and Zubayr were being chased by Imam Ali’s (‘a) troops during the Battle of the Camel. A pregnant bystander was so distressed by her proximity to the action that she had a miscarriage. Imam Ali (‘a) ordered that she be compensated from the funds of the Bayt al-Mal.10

1. Jawahir al-Kalam Vol. 31, p. 91.

2. Wasa'il al-Shi’ah, Vol. 29, p. 241.

3. Wasa'il al-Shi’ah, Vol. 29, p. 241.

4. Wasa'il al-Shi’ah, Vol. 29, p. 242.

5. Wasa'il al-Shi’ah, Vol. 29, p. 243.

6. Wasa'il al-Shi’ah, Vol. 29, p. 260.

7. Wasa'il al-Shi’ah, Vol. 29, p. 261.

8. Wasa'il al-Shi’ah, Vol. 29, p. 266.

9. Wasa'il al-Shi’ah, Vol. 29, p. 268.

10. Al-Kafi Vol. 7, p. 354.

Chapter 10: Avoidance Of Disadvantage Has Priority Over Considerations Of Benefit

An essential understanding of jurisprudence is that 'the obligatory or recommended' yield benefits and advantages to individuals and/or society, and conversely, that 'the prohibited or discouraged' harm and disadvantage individuals and/or society.

This is based upon Allah Almighty's Most Beautiful Name, 'The Wise' - Al-Hakim. His wisdom vis-a-vis creation indicates that all things have been created in the best and most appropriate manner, and, vis-a-vis legislation, that rulings are not based upon vanity but rather that extreme consideration informs all rulings that deal with people and their actions.

In the introduction to his book Al-Makasib, Shaykh Murtada al-Ansari details a hadith from Tuhaf al-Uqul in which Imam al-Sadiq (‘a) reflects on the incomes of civil servants, tradespeople, manufacturers and landlords, and discusses the lawful and unlawful activities of each.

With regard to manufacturing, Imam al-Sadiq (‘a) mentions the following:

Manufacture that provides the necessities of life such as building, clothing, furniture, ironmongery, pottery, weaving, etc., is lawful as it contributes to the quality of life.

Manufacture of tools and equipment that have the potential to be used for both ill as well as beneficial purposes, such as cutlery, writing equipment, etc., are lawful when used for beneficial purposes, but not lawful when not used beneficially.

Manufacture of tools and employment that has no beneficial aspect in the eye of ‘The Lawmaker’, such as weapons of mass destruction; publications that promote immorality; intoxicating beverages and gambling, are all unlawful.1

It is clear that the basis of all lawful activities is their benefit to individuals and society as a whole, and that the basis of activities being unlawful is that they engender harm and disadvantage.

In chapter 5, ‘Islamic law does not occasion harm’, we noted that everything that causes harm is not permissible and must be immediately halted. What happens when we are caught between two situations and must choose only one? The fuqaha's answer to this question is:

Avoidance of disadvantage has priority over considerations of benefit.

This means that before advantages may be evaluated, consideration must be directed to the avoidance of everything that is or may be disadvantageous.

For example:

Regardless of the benefits to be accrued from reduced unemployment, improved balance of payment figures, or increased corporate export revenue, etc., according to Islamic law, armament manufacturers are accountable for all the damage that results from their products being used to destroy the lives of innocent men, women and children.

It is clear that the need to avoid harming others has greater priority than benefits and the accumulation of wealth.

The consequences of loss of privacy and security must be considered before the advantages of improved vistas that result from the removal of walls or hedges.

The effects of the trade in drugs are an illustration of why avoidance of difficulty has priority over considerations of benefit.

In the promotion of goods and services, advertisers 'tempt' prospective customers with crass propositions, without any regard whatever to the ethical values they flout or the immoral stances they inculcate.

The Basis Of This Principle

The hadith from Imam al-Sadiq (‘a) quoted above.

The principle that Islamic law does not occasion harm (see chapter 5).

1. Al Makasib Vol. 1, pp. 10-11. Edition 1420. Qum.

Chapter 11: Rulings Regarding Conflicts In Evidence

Those familiar with collections of ahadith are aware of the diversity of opinion and the need to evaluate the accuracy of sometimes widely opposed statements. The Prophet (S) and error-free Imams (‘a) predicted that problems would occur as the result of fabricated narrations and incorrect transmissions being included in the body of ahadith that are purported to be from them. Thus, it is, that we sometimes find diametrically opposed versions of a hadith: one that claims a certain action is permitted, and another that claims it is not. What do we do about this?

Zurarah asked Imam al-Baqir (‘a), 'If two traditions narrated from you are in conflict, how do we know which one to accept?'

Imam al-Baqir (‘a) replied, 'Take the one that is well known to your companions (i.e. the Shi’ah) and leave the one with which you are unfamiliar.'

He then asked, 'What should we do if both traditions are equally well known?'

To which Imam al-Baqir (‘a) replied, 'Take the one whose narrator is recognized to be the more reliable.'

Zurarah then asked, 'What if both of them are regarded as equally reliable?'

Imam al-Baqir replied, 'Ascertain which one accords with the standpoint of the 'masses' - and reject it in favour of the opposite view - for truth lies in that which contradicts them.'

Sayyid Muhammad Taqi al-Hakim clarifies that this rejection was recommended because, during the Umayyad and Abbasid periods, scholars were not permitted to gainsay opinions propagated by the state.1

Zurarah then said, 'There are sometimes two traditions, both of which either agree or disagree with the view held by the 'masses'. What should we to do in those instances?'

Imam al-Baqir (‘a) replied, 'Select the tradition that is closer to 'precaution' and reject the other.'

Zurarah then asked, 'How do we fulfil our duty if both traditions accord with 'precaution?'

Imam al-Baqir (‘a) replied, 'In such cases you may choose either.'2

It is safe to conclude that the sequence of criteria for choosing one conflicting hadith over another is that it should be well known, that its narrator is considered the most reliable, that it does not concur with the viewpoint of the 'masses', and that its content is closer to precaution.

These measures are accepted by all fuqaha of the school of Ahl al-Bayt for the assessment of conflicting ahadith. However, it is reasonable to say that the crux of all such decisions rests upon the issues of reliability and precaution.

The Definitive Qat’i – And The Speculative – Zanni

We have already explained the textual terms 'unequivocal', 'manifest' and 'ambivalent' (see chapter 8), from which it is apparent that 'unequivocal' texts have definitive content, while 'ambivalent' and 'manifest' texts have speculative content. It follows that no conflicts exist between the definitive and the speculative and that fuqaha give preference to the definitive over the speculative.

A hadith that has successive reliable narrators is classified as mutawater. Mutawater ahadith can never be challenged by single conflicting reports - khabar wahid - because mutawater texts are definitive and khabar wahid texts are speculative.

An example of this is the renowned hadith that rigorous factual analysis has established as being mutawater, 'Two Precious Things' - Thaqalain - that states that the Qur'an and the Prophet's progeny are the 'two most precious things', and the khabar wahid narration that claims the Qur'an and the Prophet's Sunnah are the two most precious things.

Reconciling Differences

When conflicting views appear in two different ahadith, fuqaha investigate the people who narrated them as well as the circumstances behind both reports, before deciding if their differing views are able to be reconciled.

For example, one hadith records that it is unlawful to sell excrement while another records that this is permissible. Fuqaha investigation reveals that both narrators are reliable and that both ahadith are authentic, but discloses that the contexts to which each refer are entirely different. The subject of one concerns the illegality of selling human excrement; the subject of the other is the legality of selling ‘manure’, that is, the excrement of those animals that are permitted for human consumption.

This is the basis of Shaykh Al-Tusi's statement, 'It is illegal to sell the excrement of animals that are not regarded as suitable for human consumption.' Human excrement clearly falls within this category.3

When one ayah/hadith indicates that a certain action is required and another indicates that it may be omitted, fuqaha resolve the conflicting statements by establishing if the requirement is a 'categorical' or 'recommended' one. While it is clear that categorical statements are not to be ignored, statements that are recommendations are not obligatory. Consider, for example, the Qur'anic statement regarding the documentation of loans:

“O' you who have Faith! when you contract a debt for a stated term, then write it down; and let a scribe write it down justly between you….” (Surah Al-Baqarah, 2:282)

However, from the subsequent ayah, fuqaha understand that the statement is a recommendation and not an obligation, for it reads:

'And if one of you deposit anything on trust, let the trustee discharge his/her trust.'(Surah Al-Baqarah, 2:283).

Here the word 'trust' implies that creditors may trust debtors in the absence of written records being made.

A text that makes general comments concerning a subject can be reconciled with another that is directed to a specific issue. For example, one text states, 'You must respect scholars', another, 'Do not respect scholars who follow the commands of unjust rulers.'

There is no conflict or disagreement between these texts because the latter is specifically focused on, 'the commands of unjust rulers'.

While all know that rules and exceptions exist, none claim that exceptions negate or contradict rules. However, exceptions need to be understood in the context of the rules to which they apply. For example, Islamic law dictates that interest may not be levied on loans. Despite this, there are ahadith that report that no usury exists between a father and a son. Thus, a loan made by a father to his son may specify that a payment of interest be made at the time the son repays the loan to his father.

Another example: Muslims are not permitted to consume meat of the pig or of any animal that has not been slaughtered in accordance with Islamic requirements. However, an exception is made in circumstances in which it is deemed that such prohibition might result in death4.

It is apparent that rules of reconciliation and preference are grounded on the presupposition that conflict does not occur in Divine Law. Therefore, it follows that if two pieces of textual evidence cannot be implemented, one of them will be able to be. Should a faqih determine that it is not possible to reconcile two specific texts, he rejects both of them and seeks further sources.

Can Consensus Conflict With The Qur'an Or Ahadith?

All schools of thought acknowledge the Qur'an and ahadith to be the primary sources of Islamic law. Reference to consensus amongst fuqaha is only permissible in circumstances in which no clear text exists within both these primary sources.

It is inconceivable that consensus could exist about matters that conflict with either the Qur'an or a clear text. This is discussed in chapter 8, ‘when a text is clear, interpretations are not acceptable’.

Abrogator And Abrogated

No Islamic scholar denies that the Divine revelation of Islam has abrogated Jewish and Christian injunctions, nor that a few initial prophetic injunctions have been abrogated by later injunctions. For instance, the Qur'an records the abrogation of Jerusalem as the direction of prayer when Divine Will changed that to Makkah.

However, Islamic scholars are not in agreement regarding the prospect of one Qur'anic ruling abrogating another, or of authentic hadith and consensual opinion abrogating Qur'anic rulings.

In Al-Nasikh wal Mansukh, Abu Bakr al-Nahhas claimed that 137 ayat have been abrogated. However, the factual analysis of Ayatollah Al-Khoei shows none of those to be de facto abrogations. In arriving at his conclusions Ayatollah Al-Khoei referred to Qur'an, in which Allah tells us:

“Will they not then ponder on the Qur'an? If it had been from any other than Allah, they would have found therein much incongruity.” (Surah An-Nisa’, 4:83) 5

In Qur'an 2:2346 we learn that widows must observe ‘iddah of four months and ten days followingthe death of their husband. This applies to all widows, regardless of their being pregnant or not at the time of their husband's death. However, in Qur'an 65:47 we learn that the ‘iddah of pregnant women ends when their child is delivered. This ruling applies equally to widows who are pregnant and must wait until the birth of the child. According to this second ayah, a pregnant woman whose husband dies the day she gives birth could be considered to have completed her ‘iddah, while, according to the first ayah, her ‘iddah is still four months and ten days.

Imamiyah jurists, in considering both rulings - the time that the widow still has to carry her child, and the prescribed period of four months and ten days - conclude that a pregnant widow's ‘iddah is the longer of these two periods.

Contradiction Between Obligation And Prohibition

While a single act cannot be both obligatory and prohibited, there is a possibility of obligatory acts being combined with prohibited acts in the fulfilment of certain duties.

For example:

Listening to music while offering an obligatory daily prayer.

Holding a glass of wine in one hand at a fund-raising event while giving an envelope that contains a donation - zakat - with the other.

Performing ablution with usurped water (taking it without the permission of its owner), etc.

In all of the above examples, texts that refer to each of the described actions are clear. However, it is in their being combined that the clarity of what is right and what is wrong becomes confused.

Does listening to music during prayer invalidate the prayer? Does drinking wine while giving zakat render such zakat unacceptable? And, is ablution performed with usurped water valid?

This issue is known by scholars of the Principles of Jurisprudence as 'The combination of command and prohibition' – ljtima al-amr wal-nahy. There are two differing opinions - some opine that it is impossible to combine opposites; others understand it to represent the two sides of the same coin, each with its own ruling. One is to be rewarded for one's obligatory actions and at the same time be punished for one's sinful actions.

We know that an essential requirement for an act of worship is for it to be performed with the intention of drawing closer to the Almighty - in utter submission to Him. How is it possible for an act of disobedience to achieve such an objective? Piety and righteousness are the only criteria for the acceptability of actions.8

The behaviour of those who employ unlawful means to achieve an objective does not meet the criteria of acceptability and thus, the combination of obedience and disobedience in the above examples renders them invalid and nullifies all benefits.

1. Comparative Principles of Jurisprudence Al-Usul-al-Ammah Iil Fiqh al-Muqarin p.162.

2. Awali al la ‘ali Vol. 4, p. 133. A similar tradition is recorded in Wasa'il al-Shi’ah, Vol. 27, p. 106.

3. Refer to Al-Mabsut Vol. 2, p. 167.

4. Refer to the following Verse:
"Verily, He has forbidden you only carrion, blood, swine flesh, and whatever has other (name) than Allah's been invoked upon it. But whoever is forced (by necessity), not desiring nor transgressing, no sin shall be on him; surely Allah is Forgiving, Merciful." (Surah Al-Baqarah, 2:173).

5. Refer to ‘The Prolegomena to the Qur'an’ (Oxford University Press), p. 193.

6. The full Verse reads:
"And those of you who die, and leave widows behind, they should keep themselves in waiting for four months and ten (days); when they have completed their waiting period, then it is no sin on you for what they do for themselves in a fair manner. And Allah is fully aware of what you do." (Surah Al-Baqarah, 2:234).

7. The full Verse reads:
“and those of your women who are hopeless of having monthly courses, for them the prescribed period, if you have doubt about their periods, is three months; and for those who have no courses their prescribed period is three months likewise, except in case of death. And for those who are pregnant, their prescribed period is until they lay down their burden; and whosoever fears Allah and keeps his duty to Him, He will make his matter easy for him”. (Surah Al-Talaq, 65:4).

8. Referring to the following verse of the Holy Qur’an:
"(O' Prophet!) Recite to them the truth of the story of the two sons of Adam when they offered each a sacrifice, hut it was accepted from one of them and was not accepted from the other, (The one) said: 'I shall certainly slay you,' (The other) said: 'verily Allah accepts only from the pious ones." (Surah Al-Ma’idah, 5:27).

Chapter 12: Table Of Priorities

Before discussing this principle, we need first to clarify two issues:

The difference between this principle - tazahum - and the preceding one – ta’arud. Tazahum refers to circumstances in which two rulings are binding, but in which one of them cannot be complied with. For example, when drowning people cannot be rescued without the use of a boat that the prospective rescuer does not own. In that circumstance, two rulings apply: (1) to save life and, (2) not to touch that which does not belong to one. Despite both rulings being right and binding, a potential rescuer patently cannot comply with both. This quandary is resolved when the ruling that has greater importance in the circumstances is given precedence over the other. In Islamic Jurisprudence, the field referred to as 'Priorities' covers precisely such matters.

Ta’arud, on the other hand, concerns two conflicting texts that cannot possibly both be true. When reconciliation is not possible, the faqih must select the text that is most likely to be true and reject the text that lacks validity.

Five 'core' values are considered to have the greatest importance in the eye of the Law Maker. These are life, property, family, human intellect and public order (including religion/state). But what happens when a person is caught between two of these, as was the case in the previous example?

Allah tells us in the Qur'an that:

“…the slaying of a human being, unjustly or to spread discord in the land, is equivalent to the destruction of all of humanity, while the saving of one human life is akin to saving all of humanity” (Surah Ma’idah, 5:32).

Thus, nothing may be compared with the most essential aspect (life). However, justice requires the establishment of a secure society in which property, ownership and family life can be protected, and every citizen made aware of his/her limits and entitlement to privacy.

Greater Importance

Intellectual reasoning indicates that, when caught between two evils, it is rational to choose the lesser evil. Similarly, when faced with two choices, it is rational to prefer the one that is of greater importance. Criteria by which to assess importance:

Injunctions that specify compliance within a limited time' frame - wajib mudayyaq - have preference over injunctions that have flexible time' frames - wajib muwassa’. For example, those who go to the mosque to pray and see the floor soiled by najasah have a duty to: (a) remove it and cleanse the floor of all impurity and (b) offer their prayer. As the time frame for the prayer is flexible - wajib muwassa’ - but the time frame for the removal of impurities is limited - wajib mudayyaq - they must cleanse the najasah prior to offering their prayer.

Injunctions that cannot be substituted have preference over those that may be. For example, stranded travellers with a limited' supply of water may keep it to drink and not for ablution - wudu' - because there is no substitute for drinking water, while tayamum is the substitute for wudu'.

Injunctions based upon ‘rational ability’ have precedence over injunctions based upon ‘religious ability’. For example, a person with £2,000, sufficient to cover the cost of pilgrimage - Hajj - needs to repay a loan of £2,000. As there is a ‘rational ability’ (to repay the loan, this has precedence over the ‘religious ability’ to perform pilgrimage. In addition, Hajj is not a requirement for those who cannot afford it.

When a mujtahid concludes that a specific injunction is of utmost concern to the Law Maker, he considers it to have greater importance than other obligations. Thus, the main pillar of Islam, prayer, is of the greatest importance and is not to be compared with anything other than 'faith'.

Equity - Istihsan

While the above four criteria for tazahum are known to Imamiyah jurists, some Sunni schools apply istihsan as an alternative methodology to achieve similar ends. Equity is a western legal concept grounded in the idea of fairness and conscience, and derives legitimacy from belief in natural rights or justice beyond positive law. (Osborn defines equity as fairness or natural justice. A fresh body of rules by the side of the original law, founded on distinct principles, and claiming to supersede the law in virtue of a superior sanctity inherent in those principles.)1

According to Muhammad Hashim Kamali, istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic law to the changing needs of society. To him, istihsan literally means to approve, or to deem something preferable. It derives from hasuna, which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcements of the existing law.2

1. See Osborn's Concise Law Dictionary, p. 124.

2. Principles of Islamic Jurisprudence, p. 246.

Chapter 13: Casting Lots

When all of the previously mentioned methods of reaching a decision have failed, there is no recourse other than to draw lots. A 'lot' is a slip of paper that bears a name, or is a common object that is typically owned by every candidate that takes part in a determination. Such 'lots' are then 'cast' on the ground, or into a receptacle, before being 'drawn' out one at a time. The named person, or owner of the object 'drawn', is thereby selected.

Dealing with uncertainties by consulting Allah in this manner results in equitable, impartial and just answers that are accepted by all without dispute.

However, secular society views this, and similar methods, somewhat differently. (See also the English words 'allot' and 'ballot'.)

For example:

'This is an occasion of great dignity and solemnity. It represents the first application of a principle believed by many to be thoroughly democratic, equal, and fair, in selecting ...'1

When undertaken in secret, and without sincere inention to submit to Allah's will, such processes may lead to corruption, for example, the 'Champagne Unit' of the US National Guard, so called because it served as the vehicle through which 'sons of Houston society' were able to escape service in the Vietnam War - an option that was not made available to the sons of less privileged Americans.

The Basis Of This Principle

From The Qur’an

The Prophet Yunus (‘a), is recorded as having fled his people on a heavily laden ship. When it was in danger of sinking in a raging storm, the captain realized that the only way to save his ship, and avert the loss of all on board, was for some passengers to be thrown overboard. They determined who would have to perish by drawing 'lots', in other words, by appealing to the 'One who determines all things' - the 'One who is just' - the 'One who is all-knowing' - to make the selection. Unfortunately for him, Yunus's lot was drawn, which is how he came to be thrown overboard and swallowed by a whale2.

Another example is found in the revelation concerning Isa's mother Maryam (‘a) being dedicated to the temple in Jerusalem. (This was to fulfil the vow that her mother Hanna had made while carrying her.) When the temple authorities disputed over who was to care for and train Maryam (‘a) they resolved the issue by drawing lots. (In this instance, the pens of the temple authorities were used.) That is how Zakaraya came to be selected3.

The above two Qur'anic references are clear regarding the casting of lots as being a last resort. However, is this part of the methodology of Islamic law?

From Ahadith

Shaykh Al-Tusi narrates from Muhammad Ibn Hakim (Hakam) that when he asked the seventh Imam's (‘a) opinion, the Imam (‘a) replied, 'For those matters that remain unknowable, lots are to be drawn.' The narrator responded, 'Drawing lots may or may not reveal the truth. 'To which the Imam (‘a) replied, 'One cannot fault what Allah has ordained.'

Shaykh Al-Saduq narrates from Hariz that Imam al-Baqir (‘a) said, 'The first person to be selected by the casting of lots was the daughter of lmran, Maryam (‘a), Yunus (‘a) was after that, when on three consecutive occasions his name was drawn. Yunus was followed by ‘Abd al-Muttalib, who had nine sons and vowed that if a tenth arrived, he would sacrifice him in the name of Allah.

In order to fulfil that vow after his son Abdullah, the Holy Prophet's father was born, Abd al-Muttalib made ready to sacrifice the boy. However, friends and relatives begged him to draw lots, as had been done in the selection of a carer for Maryam (‘a) - In order to determine if the sacrifice of ten camels would constitute an acceptable substitute for 'Abdullah, "lots" were cast.

When Abdullah's name was drawn, Abd al-Muttalib offered a further ten camels and cast lots again. Abdullah's "lot" continued to be drawn with each increment of ten camels, until the number of camels to be offered for sacrifice reached 100. Only then was sacrifice of camels accepted over that of the baby Abdullah.'

Shaykh Al-Saduq narrates that Imam al-Sadiq (‘a) said, 'In irreconcilable disputes, if both parties are in agreement, the fairest method to arrive at a just decision is to draw lots.'

Shaykh Al-Saduq narrates from Imam al-Sadiq (‘a) that, ‘A person asked for advice regarding a vow he had made to grant freedom to the first slave to come into his possession. His father had recently passed away and he, as the sole heir to his property, had inherited seven slaves. In order to fulfil his vow, he wanted to know which of those slaves he should grant freedom to?’

The Imam (‘a) told him that the only way to determine that was for lots to be drawn.'4

It is clear from the above that even though the casting of lots is recommended for a variety of subject matter, it is NOT considered to be a valid methodology by which to determine rulings of jurisprudence.

For example:

Doubts that may be harboured by a person vis-a-vis the fast being harmful for them cannot be resolved by the 'casting of lots'.

Three factors to be considered in relation to non-siblings that have been suckled from the same breast:

If they have been suckled for 24 hours or more.

If they have been suckled for a minimum of 15 consecutive feeds, and

If their flesh and bones have been nourished from the same bosom.

Casting lots is clearly not suitable for determining the criteria upon which fatawa are based.

Many ahadith are specific about the need to implore Allah Almighty for guidance, prior to the casting of any lots.

Conflicting Witness

When reliable witnesses submit conflicting evidence to an Islamic court, two possibilities apply: (1) to reject both, or (2) to cast lots to determine which evidence to accept. The first point matches what has already been said regarding conflicts without possibility of being reconciled. The second line of reasoning is the subject of this chapter.

Shaykh Al-Tusi narrates from ‘Abdullah Ibn Sinan from Imam al-Sadiq (‘a) that a dispute concerning a horse was referred to Imam ‘Ali (‘a). After he (‘a) had examined the witnesses and determined them to be equal in both reliability and number, he beseeched Allah's help and then cast lots. The lot that was drawn determined Imam ‘Ali's decision.5

1. Secretary US War Department - at the start of the ballot for military conscription in 1917. Jameslindlibrary.org

2. Refer to the following Verses of the Holy Qur’an, Surah As-Saffat, 139-144:
“Verily Jonah was (one) of the Envoys,” (37:139)
“When he ran away to the laden ship.” (37:140)
“So he cast lots, and was of the rebutted,” (37:141)
“Then the fish swallowed him while he blamed himself;” (37:142)
“So had he not been of those that glorify Allah,” (37:143)
“He would have tarried in its belly until the Day of Resurrection.” (37:144)

3. Refer to the following Verse of the Holy Qur’an:
“This is of the news of the Unseen which we reveal to you; and you were not with them when they did cast (their lots with) their pens as to which of them should have the charge of Mary; and you were not with them (to see) when they were quarrelling (among themselves)” (Surah ‘Ali-Imran, 3:44).

4. Wasa'il al Shi’ah Vol. 27, pp. 258 – 261.

5. Wasa'il al Shi’ah Vol. 27, p. 255.

Chapter 14: Ends Do Not Justify Means

Obedience to Allah Almighty is manifested by behaviour that pleases Him. No rational Muslim commits unlawful actions in the belief that these will please Allah. It is clearly nonsensical to postulate that closeness to Him can be achieved through actions that distance people from Him.

Thus, it is not valid to justify visits to discos and bars with claims that it is done to enjoin others to the good. Nor, in Islamic law, is it valid for politicians to cheat, lie or try to deceive the public with claims that after stability is achieved, all wrongs will be righted. The supreme point of honourable political behaviour is demonstrated by Imam Ali’s (‘a) response, when he was advised by companions to secure political authority via the provisional endorsement of Mu’awyah in Syria, and to rescind it later by dismissing him. Imam Ali (‘a) refused their suggestion on the grounds that 'Ends do not justify means'.

On another occasion people opined Mu’awyah to be more politically astute than Imam Ali (‘a) - To this, he (‘a) responded, 'By Allah, Mu’awyah is not of good judgment, he is merely deceitful and prepared to commit evil acts. If I did not despise deceit, I would be the most cunning of men. However, deceit is a sin and sin is disobedience to Allah. Every deceitful person will be obliged to bear the banner by which they will be recognized on the Day of Judgement.'1

No Muslim is permitted to poison water or bomb centres of population, even if that is thought to be the only way a battle may be won. This prohibition is based upon the hadith narrated by Imam Ali (‘a) in which the Prophet (S) ordered, 'DO NOT poison non-believers' sources of water.'

Indeed, using unlawful means to achieve ends is the antithesis of achieving one's objectives. Muslims are counselled to remain honest and to adhere to Islamic principles at all times.

Those who try to attain objectives via sin and illegitimate action hasten their failure and guarantee their disappointment.2

‘Umar Ibn Sa’ad was promised the governorship of Rayy - Tehran - if he killed Imam Husayn (‘a) - Driven by desire to control the treasures of Iran he readily carried out every atrocity imaginable in Karbala. However, once he had committed that most heinous of acts, Yazid denied him the governorship. It is thus clear that lawful actions are the appropriate means by which to secure honourable ends.

1. Nahj al-Balaghah, Sermon 200.

2. Bihar al-Anwar Vol. 17, p. 149.

Chapter 15: Contracts Are Based Upon The Intentions Of The Participating Parties

While none are free to suggest amendments, or alter ‘acts of worship’ specified by 'The Law Maker', contracts, business and transactions are all based upon the mutual agreement of participating parties. There are, of course, guidelines in Islamic law regarding contracts:

- We are ordered to fulfil and honour our contractual commitments.

"O' you who have Faith! Fulfil the contracts (made by you or people). The four-footed animals are lawful to you (for food) except those which will be recited unto you, pilgrim garb, and while you are in deem not game permitted to be hunted. Verily Allah decrees whatever He intends." (Surah Al-Ma’idah, 5:1).

- Believers are described as people who manage their trusts honestly and fulfil all their covenants.

“And those who are keepers of their trusts and their covenant,” (Surah Al-Mu’minun, 23:8).

“And those who keep their trusts and covenants.” (Surah Al-Ma’arij, 70:32).

The main conditions concerning parties to any contract are:

All parties to a contract must be 'of age' - baligh. Thus, contracts concluded by minors are not valid.

All parties to a contract must be sane and of sound mind. Thus, contracts concluded by those who are unstable or mentally ill are not valid.

All parties to a contract must enter it of their own free will. Thus, contracts concluded under duress are not valid.

Parties to contracts that offer ownership must be the legal owners, or agents authorized by the legal owners.

The intentions of all parties to a contract must be clear and comprehensive, and all parties must comprehend the obligations and commitments they are committing to.

This chapter elaborates on this fifth point.

In his book Al-Makasib, Shaykh Murtada al-Ansari writes, 'It is obvious that intention is an instrumental element of any contract. Thus, pronouncing or uttering the formula of a contract, without the sincere intention to adhere to its content, is of no value whatever.'1

Clearly, commitments that are: made in jest, made light-heartedly without reflection, that have not been clearly considered, or that contain conditions that one of the parties only vaguely comprehends, have no validity.

Conflict Between What Is Said And What Is Meant

Disputes occasionally arise between parties when one feels that the wording of a contract has not clearly indicated her/his intention. They may also arise when one party claims not to have been able to decipher the terms and conditions included in the small print.

To avoid potential disputes, Islamic law recommends all parties to clarify their intentions, and to clearly comprehend the terms and conditions of contracts prior to committing themselves to them. Fuqaha discuss the clarity required, in a variety of circumstances, for contracts to be fully understood, particularly when one of the parties is either extremely exhausted or even drunk.

Uttering a formula for an offer or acceptance by mistake, i.e. when the intention is to rent something but the phraseology is taken to imply sale, is another ground for dispute between parties.

In all the above examples, it is a judge in court who has to examine the validity of claims and pass judgement as to contracts being valid or invalid.

Change Of Intention Leads To A Change Of Ruling

In Islamic law, the basis of business must not rest upon false means; thus, games of chance are clearly prohibited. Some contemporary jurists have considered the lottery in the following manner. Their opinion is that if a person pays one pound with the intention of buying an opportunity to win the jackpot, it is unashamed gambling - prohibited in Islam.

However, if a person's intention is simply to donate a pound to the charitable causes supported by the lottery, without expectation of anything in return, any prizes, should these be forthcoming, are lawful. This is a clear example of change of intention leading to a change of ruling.

The Link Between Intention And Usage

To understand the role that intention plays in the validity of transactions, we compare the following circumstances:

An owner of a vineyard who sells his crop to a vintner understands that it will be used to produce wine.

If the same vineyard proprietor sells his crop to a multiple grocer, his understanding is that it will be retailed to the public.

There are, too, cases in which the intention of a buyer is not known and no indications exist to guide a vendor.

The consensus of jurists is that the first example is not permissible, but both the second and third are.

For a more general or universal ruling, jurists conclude that it is unlawful to participate in commercial undertakings in which the clear intention of the other party is to indulge in non-permitted activities. Vis-a-vis a person's spiritual condition, the approval of sin committed by others - not even to mention participation in it - is considered to damage the Islamic persona.

It is worth mentioning that in many ahadith the telling of an untruth, in order to reconcile husband and wife, or two friends, is regarded as permissible: for example, a friend telling one of the parties that he/she broached potential reconciliation with the other party and found them very willing to agree to it. In this manner both parties may be encouraged to have more positive attitudes towards reconciliation. Although this example has nothing whatever to do with contracts or transactions, it clearly illustrates the importance that intention plays in relation to human actions.

1. Al-Makasib Vol. 3, p. 295, Edition 1420.

Chapter 16: Not To Cooperate In The Perpetration Of Sinful Actions

Islam orders Muslims to cooperate in good causes and charitable pursuits. Many ahadith encourage believers to support the needy and assuage the distress and anxiety of others. One hadith makes clear that the best of people are those who benefit others most.

In contrast, Muslims are told not to participate in anything that endorses or supports aggression, unfair treatment or sinful actions. To illustrate the extent of personal responsibility - with regard to the activities and actions of others - compare the following two circumstances.

A printer is contracted by a publishing house to print a number of volumes on history, literature and art without knowing what the titles or contents of the books are to be.

A printer is approached to print a series of books to promote discrimination and religious and racial hatred, in furtherance of the political objectives of a fascist organization.

It is clear that in the first example the printer cannot be held accountable for the content of the books. However, in the second, both parties are quite clear about the nature, purpose and intent of their cooperation and thus are both held to be equally culpable and accountable.

The Basis Of This Principle

From The Qur’an

Allah tells us in the Qur'an: 'Cooperate in goodness and piety but not in sin and transgression.'

"O' you who have Faith! do not profane Allah's Monuments, nor the sacred month, nor the offering, nor the sacrificial animals with garlands, nor those going to the Sacred House seeking the grace and pleasure of their Lord. And when you are free from the pilgrim garb (and acts of Umrah), then (you can) hunt. And let not hatred of a people (once) hindered you from the sacred Mosque move you to commit aggression. And cooperate in righteousness and piety, but do not cooperate in sin and transgression; and be in awe of Allah (for), verily, Allah is severe in penalty." (Surah Ma’idah, 5:2).

This ayah clearly evidences the prohibition against cooperating in the perpetration of sinful actions.

From Ahadith

Shaykh Al-Tusi narrates on the authority of Imam al-Sadiq (‘a) that when he (‘a) was asked about the renting of premises in which wine was to be sold, his response was that such action was unlawful.1

Al-Kulayni, citing an authentic chain of narration, reports that Imam Ali Ibn al-Husayn (‘a) said, 'Do not associate with those who oppress others.'2

Al-Kulayni, citing an authentic chain of narration, reports that when one of Imam al-Sadiq's (‘a) companions told him, 'I am being coerced into building a house or repairing a dam for the oppressors of our times,' the Imam (‘a) responded, 'I do not like to assist them even in the slightest way. Those who assist oppressors will, on the Day of Judgement, be corralled together by fire until Allah Almighty has completed His interrogation of souls.'3

In order to create awareness amongst the community, the Imams (‘a) warned of the consequences of cooperation with unjust rulers. For, even though the building of a house or bridge does not directly bolster such rulers, people are advised to avoid any cooperation with them on the grounds of the injustice of their regimes.

Al-Kulayni narrates on the authority of Imam al-Baqir (‘a), 'The Messenger of Allah (S) cursed ten groups of people for being involved in the wine industry: those who cultivate vineyards, guard vineyards, press grapes, drink wine, offer or serve wines, transport wines, accept delivery of wines, sell wines, buy wines and those whose livelihoods depend upon wine.'4

It is clear from the above that in addition to those who drink wine, all who condone or promote a culture of wine drinking, who contribute or cooperate directly, or indirectly, with the production, sale or distribution of wines, are accountable for the perpetration of sinful acts.

Many ahadith clarify that all who are accessory to crimes are deemed guilty - to the extent of the degree of their contribution to those crimes. Al-Kulayni reports, via an authentic chain of narration, that the verdict passed by Imam Ali (‘a) in the case of a man who, abetted by a third party to block his victim's escape, pursued and murdered another, was the death penalty for the murderer and the life imprisonment of the one who hindered the victim's flight.5

In Islamic criminal law, as indeed in all other systems, those who are accessory to crimes are culpable.

Common Usage

Those associated with the perpetrator or perpetrators of an act - in the absence of their protestation against that act - are held to be complicit and culpable with the perpetrators.

Followers of Ahl al-Bayt (‘a) are highly recommended to honour Imam Husayn (‘a) via Ziarat ‘Ashura - in which they condemn: those who killed the Imam (‘a) and his companions, those who were complicit in their murder, and those who heard of, but remained indifferent to, that tragic event. People not in a position to challenge oppressors should distance themselves from their actions covertly if not in a position to do so overtly.

Indirect Responsibility

When we examine those who are accessory to crimes and sin, we find some directly and others only indirectly involved. In the example of the cultivation of a vineyard - a farmer who has no specific intention to sell a crop for wine production is not directly involved in the possible misuse of her/his crop.

Similarly, no farmer can be held responsible for actions committed by those who have been sustained by his crop. We may thus conclude that the cultivator of the vineyard condemned by the Prophet (S) (see hadith number 4 above), was knowingly involved in the production of wine. People are accountable for actions in which they knowingly participate.

Applications Of This Principle

Islamic jurisprudence abounds with examples of the application of this principle, for example:

It is prohibited to sell wood to fashion crosses or idols - Muslims may not provide materials or equipment for use in illicit activities.

Military personnel, whose duties involve illegal/indefensible actions, cannot draw benefit from Allah's concession to shorten the Zuhr, Asr and Isha prayers during travel.

Shaykh Ansari quotes a scholar who was asked by a tailor if his work for the oppressor of the time had made him an accessory to the oppressor's deeds. His reply was, 'Not only you, but also the merchants who supply your cloth, needles and thread.'6

Imam al-Sadiq (‘a) once said, 'Had the Umayyads not found support they would never have dared usurp our rights.7

The sale of arms for use against the innocent is prohibited. Culpability for this covers all the vendor's personnel - and this even includes the secretaries, clerks and cleaners.

When an oppressor asked to borrow a scholar's pen, aware that it could be used for statements, verdicts and commands, the scholar broke his pen to avoid becoming an accessory to the tyrant's deeds.

1. Wasa'il al-Shi’ah, Vol. 17, p. 174.

2. Wasa'il al-Shi’ah, Vol. 17, p. 177.

3. Wasa'il al-Shi’ah, Vol. 17, p. 179.

4. Wasa'il al Shi’ah Vol. 17, p. 224.

5. Wasa'il al Shi’ah Vol. 29, p. 50.

6. Al-Makasib Vol. 1, p. 135.

7. Wasa'il al Shi’ah Vol. 17, p. 199.

Chapter 17: Those Who Have Been Deceived Are Entitled To Redress

Buyers - in contracts based upon the quality of goods offered - who discover that they have been defrauded can annul the contract and demand full refund of the purchase price. The liability for all loss, harm or compensation that results from deception rests with the perpetrators of any deceit.

Muslims are exhorted to remain honest and to shun deceit and illegal activities. As we saw earlier, ends do not justify means (see chapter 14) and none are permitted to employ dishonest measures to attain their objectives.

The Basis Of This Principle

From Ahadith

Al-Kulayni reports via an authentic chain of narration that Imam al-Sadiq (‘a) was asked by a man - who had married a lady without having been told that she was blind in one eye - how he could have this situation redressed. The Imam's response was that as the marriage had already been consummated, the lady was entitled to keep her dowry, but that the questioner was justified in demanding redress from her father, who had deceived him by not disclosing his daughter's impediment.1

It is the tradition in many Arab societies that only the ladies of the groom's family see the prospective bride prior to a marriage. Despite this, many authentic ahadith verify that couples are permitted to meet each other before they enter into what is intended to be a lifelong partnership.

Imam al-Baqir (‘a) said, 'If testimony in court results in fines, witnesses who later withdraw their testimony are required to recompense those who were sentenced on the strength of their evidence.'2

Those who offer false testimony are liable for the consequences of their actions.

Shaykh Al-Tusi reports, via an authentic chain of narration, that when Imam al-Sadiq (‘a) was asked about people who perjured themselves in court, his response was that they remained liable for all the losses that occur as the result of their perjury.3

Common Usage

All legal systems acknowledge deception to be a criminal act and that those who practise it must bear the consequences of their actions.

Estate agents who are aware of the defects and deficiencies of a property are required to disclose that information to prospective buyers. If they deceive purchasers by non-disclosure, they become liable to claims for compensation. This applies equally to agents' solicitors who do not disclose such facts, or fail to undertake customary 'searches' prior to the completion of contracts.

Applications Of This Principle

Vis-A-Vis Marriage Contracts

The most common way for marriages to end is divorce. However, in certain circumstances a marriage may be terminated by annulment - a process by which the marriage contract is declared null and void by means of a legal ruling that the marriage was never a true marriage and thus never took place. Clearly the conditions for annulment do not apply in cases of divorce.

Certain defects entitle one of the spouses to have their marriage annulled.

These are as follows:

Impotence

Impotence is a medically significant disorder that renders a man unable to perform sexual intercourse. However, Imamiyah fiqh states that a wife's right to have a marriage annulled has not been ascertained until the husband is proven to be incapable of performing sexual intercourse with any other woman. For in the way that blindness is the inability to see anything, impotence is the utter inability to perform any act of sexual intercourse.

At the time of marriage, a man is presumed to be aware of his ability or inability to acquire and maintain penile erection for penetrative intercourse.

If he marries without declaring such a deficiency to his bride, she is entitled to have the marriage annulled. The details of how impotence may be proven, and the conditions for giving a man the opportunity to have such an abnormality treated, are dealt with in the books of Islamic jurisprudence.

Insanity

Those who intend to spend their lives together need to be aware of their prospective partner's qualities and failings. People who suffer from mental illnesses patently need to share that with their prospective partner. For, if such illness is not curable, it is highly probable that the bonds of marriage will be severed - a circumstance catered for by Islamic jurisprudence.

Leprosy and incurable diseases

Leprosy and leucoderma are defects that entitle either party to seek an annulment of their marriage.

Leucoderma must have existed prior to the marriage and not have been disclosed before it if annulment is to be a valid option. Leprosy on the other hand is such an exceedingly contagious disease that every precaution needs to be taken to avoid it being passed to others.

Deformities such as untreatable vaginal obstruction

The non-disclosure of such an abnormality provides valid grounds for a husband to appeal for an annulment of the marriage. Despite circumstances of this kind, a newly wed husband may be prepared to accept his wife's condition and remain with her.

Defects or deficiencies that have not been disclosed

An agreement to marry, based upon fictitious merits or undisclosed circumstances, entitles the party that has been misled to seek annulment of the marriage on grounds of them having been deceived. For example: if a man purports to be a university graduate when he is not, or claims to be a practising Muslim when he is not, such claims have a bearing on his acceptability as a marriage partner, and his deceived spouse is entitled to withdraw her consent to marry him.

Vis-A-Vis Commerce And Trade

We have discussed the liability for any deficiencies regarding commerce and trade under principle 9 (Liability for damage).

1. Al-Kafi Vol. 5, p. 406.

2. Al-Kafi Vol. 7, p. 383.

3. Wasa'il al Shi’ah Vol. 27, p. 327.

Chapter 18: Actions Undertaken With Good Intent Do Not Incur Liability

In the Arabic language this is called, ‘The Principle of Ihsan’ - of doing good. While people are held liable for any damage they cause, consequential damage that results from legitimate efforts to save others - for example, the lives of those caught in a fire - do not incur liability.

Similarly, if conditions become so extreme that the lives of passengers and crew are endangered - and the ship's captain is obliged to order items of surplus weight to be jettisoned - he is not liable for losses that result from that 'good action' he is obliged to order out of necessity.

The Basis Of This Principle

From The Qur'an

“Those who undertake good actions do not incur in blame” (Surah At-Tawba, 9:91).

The above ayah was revealed to the Prophet (S) when, en-route to the battle of Tabuk, some who accompanied him reported that they had no equipment with which to participate in military action. When they learned that he had nothing to provide them with they are reported to have departed in tears.

The first part of the above ayah reads, 'There is no blame on the weak, the sick, or those without funds, if such descriptions accurately reflect their condition.'

Further, all fuqaha agree that the ayat that deal with specific cases also operate as general rulings. Thus, exemption from blame or liability, at times of good faith and good intention, is not restricted to jihad alone but applicable as a general ruling.

The phraseology of the above ayah, 'Those who undertake good actions', applies to a wide range of activities and covers those who seek to benefit or protect others financially, physically or morally. Negation of blame includes exemption from liability for damages, in addition to exemption from accountability on 'The Last Day'.

Common Usage

It is reasonable and just to 'return a favour' and to treat those who have acted in 'good faith' with similar appreciation and 'good faith'. For example, those who are stirred to save the property of others from fire, pillage or flood - by lodging them in safe and secure premises - are not held liable for any subsequent damage to that property. It would be wholly unreasonable to seek compensation from those who have sincerely attempted to save your property.

To discuss liability for damage we need to distinguish between honesty, trustworthiness and circumspection on the one hand, and dishonesty, intention to cheat, and lack of care on the other. If one leaves an envelope or box of jewellery in the care of another - who takes all precautionary measures to protect those effects - they are not held liable for any loss or damage that inadvertently occurs while those effects remain in their possession.

However, if they neglect to take the same reasonable precautions as they do for their own property, they are held liable for any compensation that might be claimed.

Even in circumstances in which an item left in the care of another is moved by them to a safer location - despite the owner's objections to this being done - liability is not incurred for any consequential damage on the basis of the ayah, 'Those who undertake good actions do not incur blame.'

Consensus

All jurists accept this principle and do not hold liable for consequential damages those who have acted with good intent. For example, refer to1.

Points For Debate

Even though the rulings on this subject are clear, we need to explore examples that include areas for debate, for example:

Valuables are left in the care of a person who safeguarded them with the same level of security as he did his own valuables. When he travelled he did so in the firm belief that he had taken every reasonable precaution to safeguard the items left in his trust.

However, in his absence a thief gained access to his safe and stole everything lodged therein. In these circumstances he should not, according to this principle, be held liable to compensate the owner. However, it might be argued that the items left in trust would have been better protected if they had been temporarily deposited in a facility that maintains regular security checks.

It is important to clarify that the points of liability to be discussed only concern the two parties involved and that, for this purpose, matters concerning insurance policy conditions are not relevant.

It is the considered opinion of an 'investment manager' that - in the light of impending improvements to market conditions - a client's capital should be immediately invested. Unfortunately for this 'investment manager', the market unexpectedly moves in the opposite direction and a loss is suffered.

In their deliberations, Islamic jurists make distinction between financial investors and 'guardians' appointed to oversee a minor's funds. For the latter they presume guardians will make every effort to safeguard and advance a minor's interests. However, in financial investment issues juridical judgements are based upon the terms and conditions agreed by the parties to the contract.

Assume that two routes to a destination are available, one longer but considered safe, the other shorter but considered riskier. If a transport company, in the light of reliable current information and with the best of possible commercial motives, decides to take the shorter, riskier route, is he to be held liable for consequential loss?

1. Shaykh Muhammad Hasan al-Najafi in Jawahir al-Kalam, Vol. 27, p. 147.

Chapter 19: Nursling Nurture Establishes Ties Equivalent To Blood Relationships

The 4,000 species of mammal all produce milk to meet the specific nutrient needs of their offspring, and thus human breast milk is the ideal sustenance for human infants.

Well-documented advantages of breastfeeding include health, nutritional, immunological, developmental, psychological, social, economic and environmental benefits. For example, breast milk is said to help to lower the risk of, or to protect against: diabetes, gastroenteritis, diarrhoea, asthma, allergies, urinary tract infections, chest infections and wheezing, ear infections, obesity and attention-deficit hyperactivity disorder.

Furthermore, mothers produce antibodies to whatever disease is present in their environment and their milk is thus adapted to fight the diseases their babies are exposed to.

Benefits For The Infant

Milk fed directly from the breast is immediately available at body temperature. Sucking at the breast exercises and strengthens the jaws and encourages the growth of straight, healthy teeth. In addition, it creates early attachment between mother and child. At birth, infants see only 12 to 15 inches (30 to 40 cm), the distance between a nursing baby and its mother's face.

Benefits For The Mother

Breastfeeding releases hormones that relax mothers and cause them to experience nurturing feelings towards their infants. Breastfeeding, as soon as possible after birth, increases the levels of hormones that stimulate contraction of the womb and trigger the secretion of milk.

Breastfeeding may also help a mother return to her previous weight as fat accumulated during pregnancy is utilized in her production of milk. Frequent and exclusive breastfeeding delays return of menstruation and fertility, allows iron stores to be maintained and retains the possibility of natural child spacing. Breastfeeding mothers experience improved bone remineralization after the birth and a reduced risk for both ovarian and breast cancer - both before and after the menopause.

Bonding

Maternal bonds are strengthened by breastfeeding's hormonal releases that reinforce feelings of nurture. The strengthening of maternal bonds is important as studies show that up to 80% of mothers suffer from some form of postpartum depression.

When looking after a child while the mother is away for short periods, an alternative carer may feed the child with the mother's expressed breast milk (EBM). However, mothers who are unable to breastfeed may draw upon the assistance of a wet nurse. The biography of the Prophet Muhammad (S) records that a lady by the name of Haleema Sa’diah nursed him and, in the absence of his mother, was his foster mother.

All schools of Islamic law agree that the nurture of nurslings establishes ties equivalent to blood relationships. That is, any two children who suckle from the breast of the same woman are considered by shari’ah to be siblings. A man may not marry his blood sister, or a 'sister' who has been suckled from the same breast that fed him.

The Basis For This Principle

From The Qur’an

Mothers shall suckle their children for two full years... and the father must maintain them in the manner appropriate to their way of life.

"And the (divorced) mothers shall suckle their children for two whole years for him (father) who desires to complete the period of suckling. It is (incumbent) upon the father to provide (sustenance) and their clothing (nursing mothers) in a fair manner. No soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and the same devolves upon the heir. But if they desire to wean by mutual consent and consultation, then it is no sin on them. And if you desire to seek a wet nurse for your children, it is no sin on you as long as you pay what you promised for in a fair manner; and be in awe of Allah, and know that Allah sees what you do." (Surah Al-Baqarah, 2:233)

“It is prohibited to marry your mothers, daughters, sisters, paternal or maternal aunts, nieces, 'wet-nurses' who have suckled you, or 'sisters' that result from having been breast-fed with you…” (Surah An-Nisa, 4:23).

Conditions

The Imamiyah deem it necessary for the wet-nurse's lactation to have been brought about via lawful sexual relations. If this is not the case, none of the above-mentioned relationships apply. Divorce, or the death of a wet-nurse's husband after legal conception has taken place, does not impact on this ruling.

The Hanafi, Shafi’i and Maliki schools opine that there is no difference between a woman, being married or unmarried, as long as she has milk with which to feed the child.

According to Hanbali fiqh, the legal results of suckling do not follow unless the milk is the result of a pregnancy but they set no condition for pregnancy being the result of legal intercourse.

The Imamiyah deem it necessary for the child to suckle directly from the breast - if the milk is taken via indirect means such as a bottle the above relationships are not established. The other four schools consider it sufficient for milk to reach a child's stomach regardless of how it is taken. For Hanbalis, it is sufficient for milk to reach the child's stomach even if it needs to be fed via the nose.

For the above relationships to apply, the minimum period of suckling - for the Imamiyah - is either 24 hours or fifteen consecutive feeds with no other source of nourishment, being given. Indeed, the hadith that is reported from the Prophet (S) via the error-free Imams (‘a) and companions that relates to this point reads, 'What makes the flesh grow and strengthens the bones'. This clarifies the principle that nurture by nursing establishes relationships.

For example:

Al-Kulayni reports via an authentic chain of narrators that the nurture by nursing that establishes relationships is that which develops flesh and strengthens bones.1

The Shafi’i and the Hanbalis consider five breastfeeds to be the minimum necessary to establish relationships. Apparently, they rely upon what ‘Amra reported from ‘Ayesha, who said, 'Among the ayat revealed in the Qur'an was "Ten complete sessions of suckling establishes relationships. The ayah was then altered downwards to "Five complete sessions of suckling", and when the Prophet died five sessions of suckling continued to be recited as part of the Qur'an.'2

(However, as no such ayah exists in the Qur'an, the above narration only serves to illustrate the view of some companions, vis-à-vis alterations being made to the Qur'an - an issue that is completely rejected by all knowledgeable Muslims.)

The Hanafis and Malikis opine that, irrespective of the quantity of milk imbibed, all breastfeeding results in the establishment of relationships, even if only a drop of milk is fed.3

The Imamiyah, Shafi’i, Maliki and Hanbali schools all mention the period of breastfeeding to be up to age two. This is based on Qur'an 2:233 - however, the Hanafis extend that period by six further months.

According to the Hanafi, Maliki and Hanbali schools, it is not necessary for a wet-nurse to be alive at the time of feeding. Thus, even if she dies and the child manages to attach to her nipple and suckle, that is sufficient to establish such relationships. Malikis have gone even further and claim that even if doubt exists if, at the time of suckling, it was milk or any other liquid that was sucked, the relationship is established.4

The Imamiyah and Shafi’i state that in order for such a relationship to be established a woman must be alive when the baby suckles.

Conclusion

When all the above conditions are met relationships are established, the wet-nurse's husband is regarded as her suckling child's foster father, his mother its grandmother, and so on throughout their family.

1. Wasa'il al Shi’ah Vol. 20, p. 382.

2. Sahih Muslim Vol. 4, p. 167.

3. Al-Fiqh ‘ala al-madhahib al-arba’h.

4. Al-Fiqh ‘ala al-madhahib al-arba’h.

Chapter 20: Reliance On The 'Muslim Market'

The 'principle of validity' (see chapter 3) outlined the basis upon which communities rely on the reports, conduct and transactions of practising Muslims, with regard to religious requirements of 'purity', 'permissibility' and 'acceptability' having been met.

The principle of reliance on the Muslim market examines the standing that 'Muslim markets' have in regard to Islamic legal requirements being met, their acceptance by the community and the consequential assumptions made vis-a-vis the market's trade and business dealings.

Should the clientele of a Muslim market assume that all meats on sale are from animals slaughtered in accordance with shari’ah? That all leather goods displayed are from halal slaughtered beasts? That all beverages offered are free of impurities? That all the goods available have been lawfully acquired and are legally authorized to be sold?

The answer to such questions is that all business conducted within a Muslim market is considered to be 'in line' with shari’ah.

Imagine how onerous life would be if every Muslim customer had to check every tradesperson - butcher, baker, restaurateur, cafe owner, etc. As Imam al-Sadiq (‘a) expressed it, 'If you do not rely on this principle no transaction would ever be possible or valid'1

The Basis Of This Principle

From Ahadith

Shaykh Al-Tusi narrates that when Al-Halabi consulted Imam al-Sadiq (‘a) on the suitability of slippers sold in the market he (‘a) said, 'You may wear them while you offer prayer unless you are certain that the pair you bought was made from a non-halal slaughtered beast.'2

Shaykh Al-Tusi also narrates that when Ahmad Ibn Muhammad Ibn Abi Nasr asked Imam al-Sadiq (‘a) if a fur garment - bought in the market without knowing if the creature had been slaughtered according to shari’ah - could be worn during prayer, the Imam (‘a) told him that there was no need to investigate the matter because Islam does not cause anything to be a hardship.3

The sole reason why no investigations are made about a creature's slaughter is because, being reliant upon the Muslim market, we need to presume that its conduct is undertaken in the appropriate manner.

Shaykh Al-Tusi also narrates that when Ahmad Ibn Muhammad Ibn Abi Nasr asked Imam al-Rida (‘a) if leather slippers - bought in the market without knowing if the creature had been slaughtered according to shari’ah - were suitable for use during prayer, the Imam replied (‘a), 'I buy my slippers from the market, sometimes specially made for me, which I use during prayer without carrying out any investigations.'4

Common Practice

Examination of the manner in which the Prophet (S) and error-free Imams (‘a) availed themselves of the services of the Muslim market reveals that they did not investigate the claims its tradespeople made - indeed, no record exists of them having done so. That the common practice of righteous Muslims was accepted by Allah's Messenger (S) indicates that we too must accept that the Muslim market works within the rules laid down by shari’ah - unless there is clear evidence to the contrary.

This principle is clearly the counterpart to the already discussed principle of validity.

Ambiguous Circumstances

It is unconsciously assumed by consumers within Muslim majority countries that franchised outlets of global brands manifest Muslim market characteristics - reliance upon which is the general rule. It follows that they believe the products sold by them to be halal.

However, as entrepreneurial eyes, focused upon the generation and accumulation of wealth, are not necessarily concerned with the requirements of shari’ah, the anomalous existence of international outlets in Muslim majority lands results in ambiguity. Such ambiguous circumstances are an exception to the above rule and need clarification.

1. See Al-Kafi Vol. 7, p. 387.

2. Tahzeeb al-Ahkam Vol. 2, p. 234 & Wasa'il al Shi’ah Vol. 3, p. 490.

3. Wasa'il al Shi’ah Vol. 3, p. 491.

4. Wasa'il al Shi’ah Vol. 3, p. 492.

Chapter 21: Invalid Terms And Conditions Of Contract

Parties to contracts may include whatever terms and conditions they manage to get the other party to agree to. However, instances could hypothetically exist in which the terms and conditions included in a contract are meaningless - for example, a motor rental contract that precludes the vehicle from ever being driven, or a marriage contract that precludes conjugal rights. Clauses that contradict the purpose of a contract are not considered to have effect and are thus ignored by jurists.

Terms And Conditions Prohibited In Islamic Law

Rental of premises subject to their being used to purvey intoxicants.

The making of monetary loans subject to payments of interest.

The employment of attractive women specifically to beguile and lure custom.

The sale of arms or equipment designed to attack the innocent.

The sale of grapes subject to their being used in wine production.

The sale of premises, subject to the purchaser agreeing to continue to run casinos from them.

According to shari’ah, such conditions are prohibited on the grounds that they constitute an encouragement to major sins. Some jurists discuss the possibility of this type of contract being valid with their terms and conditions being ignored. However, others are of the opinion that the inclusion of any of the above conditions renders contracts invalid.

The Basis Of This Principle

From The Qur’an

O you who believe, fulfil the contracts you make.

"O' you who have Faith! Fulfil the contracts (made by you or people). The four-footed animals are lawful to you (for food) except those which will be recited unto you, pilgrim garb, and while you are in deem not game permitted to be hunted. Verily Allah decrees whatever He intends." (Surah Al-Ma’idah, 5:1)

Remain true to your word for you are accountable.

“And do not approach the property of the orphan except in the best manner (to his advantage); until he reaches his maturity, and keep the promise, verily every promise will be questioned about.” (Surah ‘Isra, 17:34)

From Ahadith

The Prophet (S) said, 'Believers must abide by conditions that they have agreed to.'1

The Prophet (S) said, 'Those who believe in Allah and the hereafter must fulfil their promises.'2

Prerequisites For Validity Of The Terms And Conditions Of Contracts

We need to be familiar with what constitutes a valid condition. In some references on Islamic jurisprudence five prerequisites are needed for terms and conditions to be considered valid:

1. To Be Within The Abilities Of The Contracting Parties

Although this seems obvious, most jurists cite it as a prerequisite. The common example they give for a condition that is not within the ability of anyone to meet is the sale of dates - ready for consumption - at a time when such dates have only recently appeared on the palm trees. To mature, dates require suitable conditions and time to develop and ripen. It is not within the ability of any vendor to command dates to ripen instantly.

Another example is the sale of a motor car that is claimed not to require any type of fuel - clearly not within the realms of possibility. Yet another example is a stipulation that the purchaser paint a painting, regardless of their having or not having artistic ability to do so.

2. Not To Contradict Anything That Has Been Set By The Qur’an And Sunnah

This is the most important prerequisite for all who claim to submit to Islamic law. See the examples above prohibited by the Qur'an and Sunnah - that are not permissible to include as conditions to a contract.

Abdullah Ibn Sinan reports, with an authentic chain of narrators, that Imam al-Sadiq (‘a) said, 'Muslims have to honour their commitments - unless the terms and conditions of a contract contradict the Holy Qur'an.

A similar narration states that Imam al-Sadiq (‘a) said, ‘It is not permissible to include conditions to a contract that oppose the Holy Qur'an.’3

When an Islamically unacceptable condition was included in a contract, the Prophet (S) declared, 'Any term or condition that does not exist in the Book of Allah is invalid. What Allah ordains is supreme and binding upon those who believe.'4

As the Sunnah supports and details Qur'anic principles, conditions that contradict it are not acceptable.

3. To Be Reasonable

4. Not To Negate The Purpose Of The Contract Itself

Conditions that negate the purpose of a contract are void and meaningless. Examples include: a vehicle rental contract that precludes the car from being driven, or a marriage contract that precludes conjugal rights (cited above).

Those of sound mind who include such terms and conditions can have no genuine interest in the contract itself. Serious and sincere intentions are necessary prerequisites for contracts to be established.

5. To Be Clear And Specific

Ambiguity in the terms and conditions of a contract is not acceptable. A phrase such as, 'I will rent my house to you on condition that you do me a favour', without clearly specifying what is meant by the word 'favour', renders a contract invalid due to that ambiguity.

If the currency to be used in a contract is not specified, confusion may result from that lack of transparency. Every detail within a contract needs to be clearly stated and understood. Bids for construction contracts require bills of works and specifications that detail precisely the materials, work and time span of the contract. Ambiguity in such details leads to future disputes.

1. Tahzeeb al-Ahkam Vol. 7, p. 37 & Al-lstibsar Vol. 3, p. 232.

2. Al-Kafi Vol. 2, p. 270.

3. Wasa'il al Shi’ah Vol. 18, p. 16.

4. Sunan al-Bayhaqi Vol. 4, p. 338.

Chapter 22: Custom Circumscribes Religious Rulings

Legal duties may arise in a variety of contexts but are most generally established by custom, statute (drawn up by a legislative body), or constitutional law. Whatever its source, a legal duty must be owed to the plaintiff by the named defendant in order for a civil suit to be viable.

Common law is nothing other than the common customs that have obtained force of law by being established via the implied consent and practice of illiterate people as unwritten justice - in Latin, jus non scriptum. It has not been instituted by Charter or Parliament - acts reduced to writing and record - but exists in use and practice, unrecorded and unregistered other than in the memory of the people.

A custom begins and grows to perfection when a reasonable act is found to be good, beneficial and agreeable to the nature and disposition of the people. They then use and practise it again and again until, by frequent repetition continued without interruption, it is a custom that has obtained the force of law. In the view of some people, such customary laws are peerless, for written laws made by the edicts of princes, or councils of estates, are imposed upon subjects whether or not they are fit, agreeable or convenient to the nature and disposition of the people.

By contrast, custom never becomes a law to bind people until it has been tried, tested, approved and found not to be inconvenient, for if it had been so it would no longer have been used and would have lost the virtue and force of law. Thus, common law reflects custom and precedent. Statute and deliberate design play no, or at best a minimal, role in establishing the unformulated web of rules that govern the way people deal with each other.

As in certain customary law cultures influential people or groups do have the power to change the norms of customary law, there is no significant distinction between customary law and statutory law. Even though there is no reason for one to be subordinate to the other, there is hardly anywhere in the world where a central power respects and upholds indigenous or minority religious customary laws.

Those who argue that there cannot be two legal systems within one state cite the hierarchical source of law and claim that customary laws could only be applied if they do not conflict with the statutory law of the state. Despite this, it is feasible to introduce an order - through legislation or otherwise - to respect two legal systems if the political will to do so exists.

If customary laws are not inferior to those of other legal systems, and if it is possible for legislators and courts to grant them equal value to that of other legal systems, it is not customary law that is viewed as inferior, but the culture of those from which it springs. Colonizers have historically regarded indigenous peoples and minority cultures as racially and culturally inferior.

Despite such views being scientifically false, substantial parts of the legal order created under colonialism remain in the books of law and - consciously or subconsciously - in the minds of those who apply the law.

The Prophet Muhammad (S) encouraged his followers to forsake prerevelatory Arab customs and traditions that related to adoption, usury and looting, but did not abolish their other customs and traditions. To explore the validity of Arab customs and traditions that still influence the lives of the Muslim population we need to define the word ‘Urf - custom.

‘Urf is defined as 'recurrent practices within society that are accepted by those of sound mind'. For any custom or tradition to have a valid basis in legal decisions it must have the support of sound and reasonable people within society. Practices that promote prejudice or corruption have no value and are not considered.

The Basis Of This Principle

From The Qur'an

It needs to be noted that the word ‘urf, used in Qur'an 7:1991, refers to sound and laudable behaviour and does not, in that context, convey the same sense as it does when it is employed as a technical term by jurisprudents.

The word ‘urf, as used in Qur'an 7:199, derives from a similar word from the same root, ma’ruf - as in the phrase amr bil ma’ruf - to enjoin good behaviour. If society encouraged honourable behaviour and discouraged the doing of iniquitous deeds, only moral values would be evident in society. The Qur'an refers to such recurrent practice as ‘urf.

Shari’ah attempted to amend and regulate Arab customs and bring them into line with the principles of the shari’ah. An example of this is the ruling concerning the liability - aqilah - of an offender's kinsmen to pay blood-money - diyah. In cases of manslaughter, all male relatives of an indicted person are jointly liable to indemnify the victim's family for bodily injury suffered.

Conditions For Valid ‘Urf

For ‘urf to be valid, it has to be reasonable and accepted by those of sound mind, in addition to the following:

1. A Custom Cannot Violate Any Definitive – Qat’i - Principle Of Islamic Law

For example, in some communities, females are disinherited at their father's death, a practice within Bedouin society prior to the advent of Islam. However, as this custom is in contradiction to the rules of inheritance revealed in the Qur'an, it holds no validity in Islamic law.

Nowadays, no one expects interest-free bank or building society loans to be made, despite parties to such contemporary financial instruments being of sound mind. Nonetheless, the levy and payment of interest is not acceptable in Islamic law and the Holy Qur'an considers that such transactions 'wage war against Allah and His Messenger'. In order for the economy to function, shari’ah promotes profit-sharing - mudarabah - a more equitable method to conduct such transactions.

2. Custom Cannot Contravene Any Clearly Stipulated Terms Or Conditions Of A Contract

While it is customary for the cost of formal registration of a property to be borne by the purchaser, should both parties agree that the vendor will cover that expenditure, or that the purchaser and vendor share it equally, the terms and conditions of the agreement overrule such custom.

In many traditions a bride's dowry is paid in two instalments - the first being paid immediately and the second one being deferred. In Iraq it is the custom for the deferred part of dowries to fall due after 12 or 14 years. Most wives do not claim deferred dowry payments unless they become involved in divorce proceedings.

However, if a bride should stipulate that her dowry is to be paid in full on her wedding day, her demand would overrule the customary practice of society.

3. Custom Needs To Be Approved By The Majority Of A Society

Traditional behaviour that is restricted to a select group has no effect on society at large. An example of this concerns items that are to be included in the sale of a property or motor car.

Nowadays, properties for sale list fixtures and fittings to be included in the sale. In the absence of such a list, how does one determine which items are to be included? One suggestion might be to defer to what is customarily understood by estate agents. However, shari’ah does not accept that the customs and opinions of specific trades or professions are valid as rulings for those who do not work in those trades or professions.

Oral And Practical Customs

To define the meaning of a particular term we need to refer to the customs of the society or specific groups that employ it. For example, the understanding of the term 'basic foodstuff may differ depending on what the staple diet of a community is. In one it may be rice, but in others it might be bread, pasta or potatoes.

Similarly, different communities may understand the word 'transport' to apply to a small boat, a donkey cart, a camel, a bicycle, a bus or an executive jet.

Do we understand words used in the Qur'an and Sunnah according to the context in which they are used in the Qur'an, or do we need to look up their meaning in a dictionary or lexicon? All disciplines employ their own terminologies by which their texts are understood.

When someone is charged a price over the market rate, if the overcharge is marginal, they have no legal claim for refund but, if it is considered to be far beyond what is regarded as normal, they become entitled to a refund. Understanding of what is considered to be a marginal or an extreme overcharge rests with the practical customs of the society in which the parties live.

Another example concerns the maintenance of bonds with womb relatives. We know that severance of such relations is considered in Islamic law to constitute a major sin. But for guidance on how to define what is meant by 'the maintenance of bonds', we need to refer to the customs of various societies.

In English society, picking up the telephone to say 'hello' is widely considered to fulfil this duty; on the other hand, Middle Easterners expect relatives to visit them at home and stay for a 'decent' length of time. In some communities it is important to take a bunch of flowers when visiting; in others a box of chocolates is considered to be more appropriate.

Before a custom can be approved, it must be ascertained if it was practised in the presence of the Holy Prophet (S) or error-free Imams (‘a) - If these made no objections, it is considered to have received their indirect approval. The Arabic language refers to this as Al-Sirah al-Muttasilah bi zaman al ma’sumin.

1. “Keep to forgiveness and enjoin kindness, and turn away from the ignorant.” (Surah Al-‘Araf, 7:199).

Chapter 23: Summary Knowledge Is As Binding As Detailed Knowledge

To introduce this subject, we will examine the following:

If we are certain that a drop of blood or wine has dripped into a tumbler of water, we are clear that both tumbler and water have been rendered impure.

However, if there are two tumblers of water and we are certain that a drop of blood or wine has dripped into one of them, how should we respond with regard to purity and impurity?

Our knowledge in case (1) above is detailed - tafsili -whilst our knowledge concerning case (2) is only summary - ijmali. The difference is that in (1) there is no confusion or ambiguity regarding what is known, whilst in case (2) clarity and ambiguity are balanced. Clarity is represented by the certainty that there is a drop of blood or wine in one tumbler while ambiguity is represented by lack of knowledge as to which tumbler of water has been contaminated.

There are infinite examples of summary knowledge. For example, the teacher of a class may know that pupils have thrown a chair out of the window, but be uncertain as to which pupil did so. It may be clear that a neighbour's vehicle has bumped one's parked car but one may have no clear information as to which neighbour is responsible.

In chapter 7 'Certainty is not challenged by doubt', which dealt with 'detailed' knowledge, it was made clear that doubt is ignored when certainty is arrived at. That is because certainty has the value of 100%, while the value of doubt, by definition can never exceed 50%.

When certainty is achieved, shari’ah determines that one is accountable to act upon it. If, for whatever reason, one does not act upon certainty, one is in violation of Allah's laws.

In order to answer the question of 'how to respond' to summary knowledge, we need to differentiate between what is obligatory and what is prohibited. When someone is torn between two actions because he/she knows that one is obligatory but is not sure which, he/she must fulfil both to ensure security.

For example, if a traveller is unsure whether he/she meets the requirements for shortening the prayer, it is incumbent upon her/ him to offer the full as well as the shortened prayer. Or, if one entertains doubts that the Friday prayer offered by a particular congregation meets the essential requirements of such prayer, it is incumbent upon one to offer both the Zuhr and the Jum’ah prayer.

If someone has summary knowledge that one of two possible actions is prohibited, they must avoid them both. For example, if I know that either x or z was nursed by my mother and thus one is my sister by suckling, I am not permitted to marry either of them.

There are often more than two alternatives; for example, if one of ten sheep slaughtered on a particular day one did not meet shari’ah slaughter requirements, it is obligatory to avoid eating any of them.

So, what are the consequences of acting upon one option of summary knowledge? For example, concerning the above example of two tumblers of water, a person might make the assumption that one of the tumblers has not been contaminated and drink from it. This situation is unsafe because he/she might have consumed contaminated liquid, referred to as 'probable non-conformity' - mukhalafah ihtimaliyah. However, drinking both tumblers of water would constitute 'definitive non-conformity' - mukhalafah qat’iyah - a situation that represents outright disobedience to Allah.

Dissolution Of Summary Knowledge

In the above example of women who may have been suckled by the same nurse - if several reliable witnesses confirm that it was clearly not x who was suckled by the same nurse as oneself, the ambiguity is displaced by clarity. Certainty may also be brought about via one's senses - in the example of the polluted tumbler of water, if it is possible to detect the smell of wine in one tumbler clarity may be achieved.

The technical term for such clarification is referred to in jurisprudence as 'dissolution of summary knowledge' - inhilal al-‘ilm al-ijmali. Similarly, in the example of the slaughtered sheep above, if clarity is obtained that a specific sheep was not slaughtered in conformity with shari’ah, the remaining nine become permissible to consume.

In the study of Principles of Jurisprudence, there are various cases to be examined under the title 'dissolution of summary knowledge'; the few examples given above provide clear indication of this subject.

Chapter 24: Persistent Doubts Are To Be Ignored

Errors clearly need to be put right. A plumber or electrician who makes a mistake is expected to ensure that their fault is remedied, and the same applies to acts of worship. However, if doubts persist about the same issue, jurists recommend they be ignored. The basis of their ruling rests mainly upon ahadith related by the error-free Imams (‘a).

The Basis Of This Principle

From Ahadith

Zurarah and Abu Basir report that they asked Imam al-Sadiq (‘a) about a person who prayed without concentration and was thus not aware of the number of rak’at they had offered.

The Imam's answer was that such prayer needed to be repeated.

When asked, what if that person continues to retain persistent doubt every time he repeats the prayer?

He (‘a) said, 'such repeated doubting needs to be ignored because it represents the attempt of Shaytan to ruin prayer. Once he is ignored he will not return'.1

Muhammad Ibn Muslim narrates from Imam al-Baqir (‘a) that those who are persistently inattentive must ignore that fault and continue with their prayers.2

Shaykh Al-Tusi reports via a reliable chain of narrators from Imam al-Sadiq (‘a) concerning a person who entertains persistent doubts during prayer as to whether he had gone into sajdah, ruku or not.

He (‘a) said, 'He must ignore his doubts and only if he is absolutely certain that he has missed something should he correct his prayer.'3

Muhammad Ibn Abi Hamzah narrates from Imam al-Sadiq (‘a) that those who doubt one in three of their actions are to be considered 'persistent doubters'.4

Who Is A Persistent Doubter?

On many occasions we cannot find a definition for a particular term in the ahadith. The only way in which to determine precisely what it means is to refer to ‘urf - custom. Persistent doubting is a psychological phenomenon known as obsessive compulsive disorder (OCD).

However, hadith number 4 above characterizes such people as those who entertain doubts three times in one action. People with this psychological disorder need not wait for doubt to occur three times in one action and should ignore them entirely as and when they occur.

When A Normal Person Has Doubts During Prayer

The general rule from the error-free Imams (‘a) for doubts as to the number of rak’at offered during a prayer is to assume that the greater number has been offered and to then offer an additional precautionary rak’ah after the prayer has been completed.

The doubts of a normal person may be relieved in the following manner:

If after the recital of the second prostration a person entertains doubt as to whether he has performed two or three rak’at, he should assume that he has indeed performed three and complete his prayer accordingly. After finishing he should then rise and perform one precautionary rak’ah - just in case he had only performed two.

If after the recital of the second prostration a person entertains doubts as to whether he has performed two or four rak’at he should assume that he has indeed performed four rak’at and complete his prayer accordingly. After completion, he should then rise and perform two precautionary rak’at - just in case he had only performed two.

If after the recital of the second prostration a person entertains doubt as to whether he has performed two, three or four rak’at he should assume that he has indeed performed four rak’at. After finishing the prayer, he should then rise and perform two precautionary rak’at plus two rak’at in the sitting posture. It is the opinion of all Imamiyah jurists that two rak’at performed in the sitting position equate to one in the normal standing position.

If after the recital of the second prostration a person entertains doubt as to whether he has performed four or five rak’at, he should assume that he has indeed performed four rak’at and complete his prayer accordingly. After finishing the prayer, he should perform two prostrations for inattentiveness - sajdat al-sahw.

If at any stage of the prayer, a person entertains doubts as to whether he has performed two or four rak’at he should assume that he has indeed performed four rak’at and complete his prayer accordingly. After finishing the prayer, he should rise and perform two precautionary rak’at plus two rak’at in the sitting posture.

If while standing, a person entertains doubts as to whether this is his fourth or fifth rak’ah, he must sit down and recite tashahud and the salam of the prayer. After the prayer has been finished, he should perform either one rak’ah of precautionary prayer in the normal way or two rak’at in the sitting position.

If while standing, a person entertains doubts as to whether this is his third or fifth rak’ah, he must sit down and recite tashahud and the salam of the prayer. After the prayer has been finished, he should perform two rak’at of precautionary prayer in the normal way.

If while standing, a person entertains doubts as to whether this is his third, fourth or fifth rak’ah, he must sit down and recite tashahud and the salam of the prayer. After the prayer has been finished, he should perform two rak’at of precautionary prayer in the normal way plus two rak’at in the sitting posture.

Doubts That Render A Prayer Void

When two possibilities of doubt are meaningless in terms of the number of rak’at completed, it is clear that no basis exists for the prayer to be recognized as valid. For example, one has to pray four rak’at for Zuhr and whilst doing so to entertain doubts as to whether one has completed three or six rak’at. Both possibilities are meaningless because neither three nor six rak’at are valid for the Zuhr prayer. At least one of the possibilities has to be credible - if both are not, the prayer cannot be valid.

In all the situations below the offering of the prayer is considered to be void. The prayer thus still needs to be offered in its entirety.

Doubts about the number of rak’at offered in salat al-Fajr or Maghrib.

Doubts as to whether two or five rak’at have been completed during the Zuhr, ‘Asr or ‘lsha prayers.

Doubts as to whether three or six rak’at have been completed during the Zuhr, ‘Asr or ‘lsha prayers

Doubts as to whether four or six rak’at have been completed during the Zuhr, ‘Asr or ‘lsha prayers.

1. Wasa'il al Shi’ah Vol. 8, p. 228.

2. Wasa'il al Shi’ah Vol. 8, p. 228.

3. Wasa'il al Shi’ah Vol. 8, p. 229.

4. Wasa'il al Shi’ah Vol. 8, p. 229.

Chapter 25: All Liquids That Cause Intoxication Are Considered Impure

The verb ‘intoxicate’ is borrowed from the Latin word for poisoned - intoxicatus - from the noun for poison - toxicum. Its meaning of drunkenness is borrowed from the Medieval Latin for poisoning - intoxicationem - derived from intoxicare ‘to poison’. The word ‘drunk’ implies that someone is at present the worse for drink - to have lost control over behaviour, movement or speech as the result of having been poisoned by alcohol.

In its figurative sense, the word ‘intoxication’ derives from an earlier adjectival sense of being stupefied or exhilarated. Thus, in its metaphoric sense, ‘drunk’ may describe the state of irrationality that results from intense fear or excitement, or the euphoria that is stimulated by poetry, music or success.

In the Qur'an the word ‘drunkenness’ is used in both its literal and its metaphorical sense.

In its literal sense:

"O' you who have Faith! do not approach prayer when you are intoxicated, until you know what you say, nor when you are polluted - unless you be passing through - until you wash yourselves. And if you are ill or on a journey, or one of you come from privy or you have touched the women and you cannot find water, then betake yourselves to pure earth then wipe your faces and your hands; verily Allah is Pardoning, Forgiving." (Surah An-Nisa’, 4:43).

In its metaphorical sense - while describing the Day of Resurrection:

“On the Day you shall behold it, every suckling mother shall forsake her suckling babe, and every pregnant woman shall lay down her burden, and you shall see the people (‘a) intoxicated, yet they are not intoxicated, but the chastisement of Allah is severe.” (Surah Al-Hajj, 22:2).

The metaphorical sense of the word is also found in the ahadith:

Intoxication may be the result of three things: being drunk on wine, being drunk on riches or being drunk with power.1

Beware of being intoxicated by your sins because that is far worse than being intoxicated by wine.2

Have you not read that Allah Almighty said:

"(They are) deaf, dumb, blind - so they shall not return (to the right path)." (Surah Al-Baqarah, 2:18).

The return to sobriety after the intoxication of heedlessness or conceit is far more of a problem than the return to sobriety after being drunk on wine.3

With regard to 'impurity', most Islamic jurists acknowledge the difference between liquids and solids. Liquid intoxicants are considered impure, while solids, such as opium, cannabis, etc., whilst being Haram, are considered to be pure.

Gradual Introduction To The Prohibition Of Intoxicants

After their acceptance of Islam, many Arabs continued to drink wine and question the Prophet (S) about it until the following ayah was revealed:

"They ask you (O Prophet) concerning wine and gambling. Say: 'There is a great sin in both of them and (some) profits for people; but their sin are greater than their profit'…" (Surah Al-Baqarah, 2:219).

It is clear from the above ayah that in the early years of Muhammad's (S) prophethood, drinking wine was not completely prohibited despite the evil of drinking being signalled. Later Divine Revelation to some extent forbade the use of wine by telling Muslims not to pray while intoxicated:

"O' you who have Faith! do not approach prayer when you are intoxicated, until you know what you say" (Surah An-Nisa’, 4:43).

At the last stage, prohibition was made absolute:

"O' you who have Faith! Verily wine, gambling, idols, and (dividing by) arrows are an abomination of the Satan's work, so avoid it, that you may be prosperous." (Surah Al-Ma’idah, 5:90).

"Certainly Satan desires to cast enmity and hatred among you by wine and gambling, and to hinder you from the remembrance of Allah, and from prayer. So will you stop?" (Surah Al-Ma’idah, 5:91).

The Basis For This Principle

From The Qur'an

"O' you who have Faith! Verily wine, gambling, idols, and (dividing by) arrows are an abomination of the Satan's work, so avoid it, that you may be prosperous." (Surah Al-Ma’idah, 5:90).

In this ayah, the drinkingof wine is described as an abomination. In customary understanding – ‘urf - this equates to it being impure. Although some jurists have questioned the clarity that this ayah contributes to the Islamic legal definition of impurity, its interpretation is made clear in the following ahadith.

From Ahadith

Two groups of ahadith may be cited. The first communicates that wine and beer are prohibited, and the second that they are impure.

Examples regarding prohibition:

Al-Kulayni narrates on the authority of Imam al-Baqir (‘a) that the Prophet (S) said, 'All intoxicants are prohibited and all are to be treated in the same manner as wine.'4

In a letter to the Abbasid Caliph Al-Ma'mun, Imam al-Rida (‘a) wrote, 'Even the tiniest droplet of a liquid that may cause intoxication, is prohibited.'5

Imam al-Baqir (‘a) said, 'The prayers of those who have consumed wine or other intoxicating beverages are not accepted for 40 days.'6

Al-Kulayni narrates that when Al-Washa wrote to Imam al-Rida (‘a) for a ruling regarding beer, his reply clearly stated that beer is Haram.7

Examples Regarding Impurity

Al-Kulayni records that when ‘Abdullah Ibn Sinan asked Imam al-Sadiq (‘a) if he needed to launder a garment he had lent to a person who drank wine, he was told not to wear it for prayer until that had been done.8

Al-Kulayni records that Imam al-Sadiq (‘a) said, 'When clothes are polluted by wine or other intoxicants the polluted areas need to be washed; if the full extent of the pollution is unclear, the whole garment needs to be laundered. Any prayers offered in polluted clothes need to be repeated.'9

Shaykh Al-Tusi records that Imam al-Sadiq (‘a) said, 'Do not offer prayer in places where wine is served because the Angels avoid them - and do not offer prayer in clothes polluted by wine or other intoxicants until they have been cleaned.'10

Shaykh Al-Tusi records that when Imam al-Sadiq (‘a) was asked what should be done if a droplet of wine or other intoxicating liquid fell into a dish of meat in sauce or gravy, he was told that the meat should be washed before being eaten but that the sauce or gravy was no longer suitable for Muslim consumption.11

Al-Kulayni records that when Imam al-Sadiq (‘a) was asked about beer, his response was that it should not be drunk as it falls into the same category as wine and for that reason, clothes contaminated by beer need to be cleaned.12

Alcohol

In English, the word 'alcohol' is commonly used to describe any intoxicant even though, chemically, several types of alcohol do exist, e.g.

Methanol CH₃OH

Ethanol CH₃CH₂OH

1-propanol CH₃CH₂CH₂OH

1-butanol CH₃(CH₂)2CH₂OH

1-hexanol CH₃(CH₂)4CH₂OH and

1-octanol CH₃(CH₂)6CH₂OH

Although all alcohols are toxic when ingested, human beings are able to tolerate low levels of ethanol - which is the reason why the alcohol ethanol is used as the basis for all alcoholic beverages.

Ethanol CH₃CH₂OH

Synonyms Ethyl alcohol, grain alcohol

Properties

Toxicity Can be ingested at low levels

Other Colourless, odourless, liquid

Uses

In the manufacture of alcoholic beverages - the 'alcohol' in alcoholic drinks.

To dissolve organic compounds insoluble in water - for example in the production of perfumes and cosmetics.

As an industrial feedstock.

As a fuel - ethanol can be used as a fuel in its own right, or in mixture with petrol (gasoline). 'Gasohol' is a petrol/ethanol mixture that contains 10% - 20% ethanol.

Note: Industrial methylated spirits (meths) is ethanol, with a small addition of methanol and colour. It is because methanol is toxic that industrial methylated spirits are unfit to drink.

Thus, all Islamic religious reference to 'alcohol' refers to ethanol - and not to the alcohols that are too toxic to be drunk. It follows that, as these are not in the same category as wine and other intoxicating beverages, they are not considered by Islamic jurists as being impure.

It should be noted that Islamic jurists are in agreement that small percentages of alcohol found in fresh apple juice and bananas, citrus-flavoured boiled sweets made from citric essences preserved in alcoholic solvents and the alcoholic additives used in the manufacture of cough syrup and cosmetic products such as aftershave and eau de cologne are all legally considered to be pure.

Liquor

The word 'liquor' is derived from the Latin word liquor - liquid. Prior to 1300 CE it had the sense of being any drink, especially wine. Today it refers primarily to distilled alcoholic drinks such as whisky, rum, brandy, gin, etc., also referred to as spirits or 'hard liquor'.

However, the word liquor may also refer to the reduced liquid or juice from the cooking of food or, when prefaced by the noun of a specific substance, e.g. chocolate, refer to the liquid or paste (liquor) that is produced when cocoa beans are roasted and ground. However, 'chocolate liquor' is not to be confused with 'chocolate liqueur', for the word 'liqueur' is a French word, itself from the Latin liquor. Liqueurs are sweet alcoholic beverages flavoured by herbs, spices, flowers, roots, bark, chocolate or cream being dissolved in the alcohol.

Spirit Vinegar / Wine Vinegar

When the chemical formulation of the elements oxygen and hydrogen - which as H₂O constitute water - are no longer bonded together as H₂O, they cease to constitute water and are transformed back into the gases hydrogen and oxygen. As changes to chemical structures transform their properties - referred to in Islamic jurisprudence (fiqh) as istihalah - such transformations are acknowledged by jurists to be 'purifying agents'. Once the structure of wine or spirits is transformed into vinegar, all jurists accept it as pure. Even supermarkets understand that vinegars have no place in alcoholic drink displays.

Alcohol Used In Cooking

It might be assumed that alcohols added to food before or during cooking would be dissipated. However, the table below shows that this is not the case. The results of a US Department of Agriculture 'Nutrient Data Laboratory' study show the percentages of alcohol retained after a variety of methods of cooking:

The above table is included on the following URLs:

http://chefshane.com/alcohol_burn_off.php [9]

http://www.diabetic-lifestyle.com/articles/febo4_cooki_1.htm [10]

http://homecooking.about.com/library/archive/blalcohol12.htm [11]

www.ochef.com/165.htm [12]

http://www.ucook.com/news2.cfm?item_no=2074 [13]

http://whatscookingamerica.net/Q[14] A/AlcoholCooking.htm

1. Bihar al-Anwar Vol. 10, p. 114.

2. Bihar al-Anwar Vol. 77, p. 102.

3. Ghurar al-Hikam.

4. Wasa'il al-Shi’ah, Vol. 25, p. 326.

5. Wasa'il al-Shi’ah, Vol. 25, p. 330.

6. Wasa'il al-Shi’ah, Vol. 25, p. 330.

7. Wasa'il al-Shi’ah, Vol. 25, p. 360.

8. Wasa'il al-Shi’ah, Vol. 3, p. 468.

9. Wasa'il al-Shi’ah, Vol. 3, p. 469.

10. Wasa'il al-Shi’ah, Vol. 3, p. 470.

11. Wasa'il al-Shi’ah, Vol. 3, p. 470.

12. Wasa'il al-Shi’ah, Vol. 25, p. 361.

Chapter 26: Inability To Fulfil A Religious Duty Does Not Absolve One From Obligation

Some examples of this principle are:

We know that the body of a deceased person requires to be washed three times. The first washing is with liquid from Lote leaves soaked in water, the second with diluted camphor water and the third with pure water. If Lote leaves or camphor are not available, the three washes clearly must be done with pure water. In other words, the absence of Lote leaves or camphor does not absolve one from the need to wash a body three times.

Some shari’ah penalties stipulate that a slave must be freed. The fact that this is no longer an available option does not absolve one from fulfilment of this penalty via a substitute penalty of equivalent worth. A jurist will specify a comparable sum to be spent upon the poor and needy.

Some shari’ah penalties to expiate sin stipulate fasts of 60 days' duration - with a minimum of 31 such days being consecutive. If for reasons of health this is not possible, the fast has to be performed in whatever manner is considered to be possible.

The Meaning Of This Principle

It is apparent from the above that when shari’ah requirements comprise several aspects, some of which cannot be met, people are not absolved from the obligation to fulfil the aspects that can be met.

The Basis Of This Principle

From The Qur’an

Some jurists attempt to endorse this principle through the following ayah:

"Therein are clear signs, the standing place of Abraham, and whoever enters it is secure; and pilgrimage to the House is a duty upon mankind for Allah, who can afford the journey to it; and anyone who disbelieves, then verily Allah is Self-sufficiently independent of the worlds." (Surah ‘Ali-Imran, 3:97).

We know that pilgrimage consists of various acts including the stay in ‘Arafat from noon till sunset on the ninth of Dhul Hijjah, the stay at Muzdalifah, the sacrificial offering, and the 'stoning' of the Jamarat in Mina. If, for whatever reason, it is not possible to stone the Jamarat no one may conclude that their whole pilgrimage is ruined - because Muslims are only obliged to correctly fulfil as many aspects of pilgrimage as they are able. This principle also applies to those who cannot circumambulate the Ka’bah on foot and need to use a wheelchair or to be carried.

From Ahadith

The Prophet (S) said in his Hajj speech, 'O people, Allah has made pilgrimage incumbent upon you - so fulfil it.'

When a person asked if it was to be repeated every year, he (S) remained silent. Only when the question had been repeated for the third time did he (S) say, 'Had I answered "yes", it would have become incumbent upon you even if you were not able to fulfil it.' He then said that the interminable questioning of prophets had placed onerous obligations upon previous nations.

He (S) continued, 'When I instruct you to do something, fulfil as much as you are able, and when I forbid you to do something, refrain from it.'1

It is apparent from the above that the Prophet (S) took into consideration the limitations and abilities of the Muslim community to fulfil their religious obligations and duties. He clearly intended to establish that, in circumstances in which they were unable to complete a duty, they still needed to strive to fulfil those parts of it that they could.

Imam ‘Ali (‘a) said, 'That which you are unable to fulfil does not absolve you from the fulfilment of the whole obligation.'2

Imam ‘Ali (‘a) said, 'Even if you know you will not be able to complete something, do whatever part of it that you are able to.'3

In accordance with this hadith, even if one lacks the means to cover the complete cost of medical treatment for someone who is desperately ill, one should nevertheless contribute as much as one can. Similarly, if a person is not able to stand for the whole prayer, he/she should stand for the part they are able to stand for, and sit for the rest.

Although this principle applies to obligatory acts, it can be extended to voluntary acts. For example, if one is not able to perform all of the 11 rak’at of the midnight prayer, one should still complete as many as one is able to.

1. Sahih Muslim Vol. 2, p. 975 Tradition 1337 and Sunan al-Nisa'i Vol. 5, p. 110.

2. Al-Qawa’id al-Fiqhiyah Vol. 4 p. 136.

3. Al-Qawa’id al-Fiqhiyah Vol. 4, p. 136.

Chapter 27: Dissimulation And Its Manifestations

Dissimulation, from the Latin dissimulatus - concealed or disguised - is the English word to describe behaviour that is intended to cloak a person's true feelings or thoughts from others. The Arabic for this - taqiyah - is derived from the word waqa - to protect.

It must be noted that those Muslims who vehemently oppose everything that differs from their own understanding of Islam are eager to disparage the Prophet's progeny, Ahl al-Bayt (‘a). They thus wilfully misinterpret this concept in order to accuse the followers of Ahl al-Bayt (‘a) of concealment of the truth and of being dishonest in the expression of their beliefs.

This chapter sets out to clarify the concept, starting with the Islamic law definition of dissimulation, 'Concealing creed or commitment from those likely to cause you great damage.'

To provide a simple example, the various schools of Islamic law - mathahib - have differing views regarding some details of prayer; for example, Shi’ah Muslims, those who follow the Ja’fari mathhab, are required to place their foreheads on the earth during prostration - an action not required by the other mathahib.

In circumstances in which a Shi’ah Muslim joins a Sunni congregation and fears being attacked by 'anti-Shi’ah' Muslims who see him place his forehead on a sun-dried clay tablet, should he/she invite attention by doing so, or seek 'protection' by acting in the same manner as the other members of the congregation?

There are two different aspects of this issue:

Permissibility to dissimulate under Islamic law.

Whether actions of dissimulation are valid, or need to be compensated for.

Permissibility To Dissimulate

From The Qur’an

"The believers should not take the infidels as their friends, rather than the believers, and whoever does that then nothing of Allah is his, except when you guard yourselves against them, guarding carefully; and Allah warns you to be cautious of (disobeying) Him; and toward Allah is the destination." (Surah ‘Ali-Imran, 3:28).

“He who disbelieves in Allah after believing in Him; not he who has been compelled, while his heart is still content with the faith, but he who opens (his) breast to disbelief, upon them shall rest wrath from Allah and for them shall be a great chastisement.” (Surah An-Nahl, 16:106).

The above ayah was revealed to the Prophet Muhammad (S) when Makkan infidels tortured ‘Ammar Ibn Yaser in order to force him to utter what they construed to be a recantation of his Islamic belief. History evidences that ‘Ammar's faith was firm and that he did not forsake it.

However, when he went to the Prophet (S) ashamed of what he had been forced to articulate, the Prophet (S) not only consoled and reassured him that his faith had not been sullied, but counselled him to behave in a similar manner should he again find himself in similar circumstances.

Both the above ayat indicate that in times of danger it is permissible to conceal information, or even to deny one's faith. This is not a matter of hypocrisy or playing games with religion, but one of survival and of giving priority to the most important issue over other issues of lesser importance.

From Ahadith

Al-Kulayni narrates from Imam al-Sadiq (‘a) that his father used to say, 'Nothing is more pleasing to my eye than taqiyah. Taqiyah is a shield for believers.'

Al-Kulayni narrates from Imam al-Sadiq (‘a) that, 'Taqiyah is a shield for believers. Taqiyah is a caution for believers. Those who do not observe taqiyah do not have faith.'

Imam al-Sadiq (‘a) said,'Taqiyah constitutes nine-tenths of religion.'

Imam al-Sadiq (‘a) said that his father used to say, 'By Allah, there is nothing on earth more pleasing to me than taqiyah. Those who observe taqiyah will be elevated by Allah, and those who reject it will be rejected by Allah.'1

Discussion

From the above ayat and ahadith it is patent to Islamic jurisprudents that, in circumstances in which life may be threatened, shari’ah clearly condones dissimulation. However, Shaykh Murtada al-Ansari drew attention to situations in which dissimulation can be either obligatory or prohibited.

The example he cites for dissimulation being obligatory is self-defence. He points out that common sense dictates that in the defence of life, every means available must be employed - even those that are in normal circumstances considered to be criminal. The example he provides for dissimulation being prohibited is, if you are told you will be killed if you do not kill another. In such a situation shari’ah forbids people from taking action that they hope may save their own lives, for they have no basis or authority upon which to make a judgement on the relative value of lives.

In circumstances in which dissimulation is neither obligatory nor prohibited, the legal ruling that supports permissibility remains in force.

Are Dissimulated Acts Valid?

It is clear that the rulings that concern dissimulation are circumstantial and not absolute. In times when the unjust behaviour of dictatorial rulers leads to the maiming, torture or death of those whom they suspect might disagree with them, dissimulation seems to be the only solution. However, if we compare this to situations in which individuals are able to exercise their religious duties in an arguably freer atmosphere, one may conclude that there is no place for dissimulation.

So, do acts of worship performed with taqiyah have to be compensated for once safety is attained? Or, put in other words, can a normally unacceptable act of worship - undertaken due to threatening circumstances - be a valid replacement of an essential act?

The extraordinary rulings of the Prophet (S) or an error-free Imam (‘a) - instituted to meet specific circumstances - are as binding as normal and more general rulings. In the specific circumstances for which they were decreed, they are as incumbent as general rulings are in normal circumstances.

Thus, those who exercise taqiyah in threatened circumstances are deemed to have fulfilled their obligations and do not need to do anything further.

When, on the last day of Ramadan, the governor of Hirah once asked Imam al-Sadiq's (‘a) opinion about the need to fast on that day he (‘a) responded that it was entirely at the discretion of the leader of the community - 'if he fasts the population fasts, if he does not, they do not'.

The governor promptly ordered food to be served and Imam al-Sadiq (‘a) related that, 'I ate with him in spite of my knowing that it was the last day of Ramadan - for to break one day's fast and make up for it later is better than to be killed and in addition, being guilty of violating a Divine Rule (to observe taqiyah].'2

This hadith indicates the permissibility to exercise taqiyah, but that doing so does not relieve one from making up for a particular day's fast that one is in no doubt is required.

However, when authorities in Hijaz declare that a particular day is the ninth of Dhul Hijjah, it is incumbent on all pilgrims to regard that day as being the true day for the stay in ‘Arafat - even though they might be certain that it is the eighth of Dhul Hijjah. This rule may be supported by a hadith narrated by Abul Jarud who once asked Imam al-Baqir (‘a) about confusion over ‘Id al-Adha and was told, 'One must observe what the majority observe regarding fasting and pilgrimage.' The only objection to this hadith is that Abul Jarud is not considered to be a reliable narrator and that we may not base any deductions upon a weak hadith.

Consideration of the above hadith - in the context of taqiyah - clarifies that it is more important in the eye of 'The Legislator' that the Muslim nation be united in celebration of a single day such as ‘Id al-Adha - than for individuals to adhere to their own calculations.

However, there is a specific issue that can be a matter of debate between jurisprudents, namely for followers of Ahl al-Bayt (‘a) to join the congregational prayer of Ahl al-Sunnah.

In an authentic chain of narrators Shaykh Al-Saduq narrates that Imam al-Sadiq (‘a) said, 'Those who join the congregations of Ahl al-Sunnah are like those who pray behind the Holy Messenger of Allah in the first row.'3

Some jurists understand the above hadith within the context of taqiyah - when people fear that they will face great danger if they exhibit any difference from the majority. However, there are others who understand it to express the essential need for the Muslim nation to display solidarity, harmony and unity and to avoid disputes and rifts.

1. Wasa'il al-Shi’ah, Vol. 16, pp. 204-205.

2. Wasa'il al-Shi’ah, Vol. 10, p. 132.

3. Wasa'il al-Shi’ah, Vol. 8, p. 299.

Chapter 28: The Execution Of A Will Has Precedence Over The Distribution Of Assets

Despite it being highly recommended that Muslims fulfil their charitable obligations during their own lifetime, philanthropic donations are frequently left to heirs to discharge.

Islamic law specifies that the assets of the deceased should be used for the following:

For the execution of the will

For the discharge of outstanding debts

For heirs to receive the residue in accordance with the rules of inheritance.

In line with Islamic law, heirs automatically inherit prescribed shares of a deceased person's assets. Not withstanding this, everyone has the option to bequeath whatever property they wish to specific individuals or organizations.

This chapter examines the precedence that categories (1) and (2) have over category (3), differentiation between various types of last will and testament, prerequisites for a will to be valid, and the limitation for only a third of the assets being utilized for charitable purposes.

It Is Highly Recommended To Leave A Will

Many Muslims do not consider the importance of leaving clear instructions regarding the disposal of their assets. Thus, when they depart this life, their heirs are often confused as to what they might have wished.

The worst situations occur when one heir asserts, without the availability of clear supporting evidence that, certain property was promised to her/him. In such circumstances it is not uncommon for acute family divisions to result. To avoid dissension Allah has ordered:

"It is prescribed for you, when death approaches (any) one of you, and if he leaves behind wealth for parents and near relatives that he makes a bequest in a fair manner - (this is) a duty (incumbent) on the pious ones." (Surah Al-Baqarah, 2:180).

There are many ahadith from the Prophet (S) and error-free Imams (‘a) to support this injunction:

Muhammad Ibn Muslim narrates that Imam al-Baqir (‘a) said, 'To leave a will is a duty. The Prophet (S) did so and it follows that it is incumbent upon all Muslims to do so too.'

The Prophet (S) said, 'Whoever dies without leaving a will is to be regarded as being from a pre-Islamic community.'

The Prophet said, 'No Muslim should retire at night without a will under their pillow.'1

Technical Terms

In the Arabic language the Islamic law term for 'last will and testament' is Wasiyyah. This is defined by jurists to be an endowment of property to be affected after death. In Arabic, the person whose will it is, the testator, is the musi. The one to whom something is left, the legatee, is the musa lahu, and the legacy itself is the musa bihi. The executor, or person whose duty it is to execute the will, is the wasiy.

Islamic law ascribes two aspects to a will:

Gifting - by which the beneficiary/legatee is bequeathed property - Wasiyyah tamlikiyah.

Administration - by which an executor is charged to handle the administration of the will without being a beneficiary - Wasiyyah ‘ahdiyah. This, of course, does not preclude payments being made for such services.

Wasiyyah Tamlikiyah

It is clear from the above that four aspects need to be discussed:

The will itself

The testator

The legatee

The legacy

1. The Will Itself

There is a discussion between jurists as to whether a will is a contract between two parties that in common with all contracts requires offer and acceptance, or if it is an initiative established by one party without need for formal acceptance by the named executor.

In light of the similarities between wills - Wasiyyah tamlikiyah – and 'deeds of gift' – ‘aqd al-hibah - we support the first opinion. The only difference between the two is that in the former, property transference occurs after the death of the donor while in the latter, the transference occurs during the donor's lifetime.

Having asserted that Wasiyyah tamlikiyah is a contract, it requires, as with all other contracts, both offer and an acceptance. The reason why some jurists thought that it was not a contracted arrangement is that the legatee does not pay anything in exchange for the bequest. Notwithstanding that, there is no necessity for a contracted arrangement to include an exchange of property; for example, one may offer one's professional services free of charge.

Furthermore, the only occurrence under Islamic and possibly all other legal systems - in which transference of property is automatic and without need of contractual acceptance - is 'inheritance'. In other words, it is an exception to the general rule.

No Terms That Transgress Islamic Law Are Valid

An essential requirement for validity of a will is that its terms be acceptable under Islamic law. It is therefore not permissible for a will to include terms such as:

The legacy is to be used to establish centres that promote ‘sinful’ activity.

The legacy is to be used to publish materials to mislead others.

The legacy is to be used to support political agendas that are likely to result in societal discord.

As seen in chapter 16, ‘Not to cooperate in the perpetration of sinful actions’, Islamic law does not sanction Muslim participation in sinful acts.

Can One Cancel Or Amend One's Last Will And Testament?

People may, of course, at any time - verbally, in writing, or by their actions change, amend, alter or revoke a previously drawn-up will. For verbal revocation or alteration, two reliable witnesses are required. For written revocation or alteration, a declaration needs to be made to the effect that the will being currently drawn up is one's ‘last will and testament’, and it must be clearly dated to evidence that it has been affected subsequent to all previous wills.

An example of an action that revokes a will is the sale of property specified in the will. Ahadith from the error-free Imams (‘a) record that:

Imam ‘Ali (‘a) said, ‘The living may vary or cancel the terms of their Wills.’

Imam ‘Ali Ibn al-Husayn (‘a) said, ‘one may bequeath a gift or change one's mind about it at any time prior to death.’

Imam al-Sadiq (‘a) said, ‘A testator may revoke her/his Will at any time.’2

2. The Testator

For a will to be valid a testator must be adult, mature, of sound mind and not subjected to duress - the prerequisites for all valid transactions. The only exception to this rule concerns the acceptability of a teenage testator's will. Although commencement of responsibility and accountability, with regard to 'acts of worship', is commonly considered by jurists to begin when boys complete their fifteenth year and girls enter their tenth year, there are ahadith that refer to boys of ten being entitled to make their own wills.

Muhammad Ibn Muslim reports that Imam al-Sadiq (‘a) said, 'If a teenager writes a Will but dies prior to attaining majority, the only terms that have legal validity are those that concern relatives.'

While this hadith does not specify the age of testators who have not attained majority, it restricts the validity of their wills to relatives.

Abu Basir reports that Imam al-Sadiq (‘a) said, 'When a boy is ten years old he may bequeath one-third of his assets to charitable causes.'

‘Abdul Rahman Ibn Abi ‘Abdullah reports that Imam al-Sadiq (‘a) said, 'A ten-year-old boy's will is legally binding.'

Zurarah reports that Imam al-Sadiq (‘a) said, 'A boy of ten years old is entitled to make charitable donations and reasonable bequests.'3

Based upon the above ahadith, the majority of Shi’ah jurists concur that by ten years old, boys are able to make reasonable charitable donations and bequests.4 While the Maliki and Hanbali schools of law share this view, the Hanafi and Shafi’i schools do not.5

3. The Legatee

Can a beneficial heir also be specified as a legatee?

The four schools of Ahl al-Sunnah all concur that an heir may not inherit specified assets of an estate over and above their prescribed share. They base such decision on ahadith in which Abu Amamah reported that the Prophet (S) said, 'Allah has given every heir what they deserve, so no heir is entitled to receive anything further from the deceased's estate.'6

These schools also cite another hadith in which the Prophet (S) is reported to have said, ‘No heir may be an additional legatee unless all the other heirs approve.’7

In contrast, Imamiyah and Zaydiyah jurists acknowledge that heirs are entitled to receive, in addition to their prescribed share of an estate, any property that has been specifically bequeathed to them in a will - without the need for any approval. They base this upon the ayah with which we opened our discussion:

"It is prescribed for you, when death approaches (any) one of you, and if he leaves behind wealth for parents and near relatives that he makes a bequest in a fair manner - (this is) a duty (incumbent) on the pious ones." (Surah Al-Baqarah, 2:180).

As it is clear that no hadith may contradict an explicit ruling of the Qur'an, it does not require a great exertion to refute the previous ahadith. This ruling has been emphasized by more than ten reports related by the error-free Imams (‘a).

In his attempt to endorse the opinions of the four schools of Ahl alSunnah, Dr Zuhaili writes, ‘Giving preference to a particular heir over the others would lead to disputes and enmity and stimulate jealousy and hatred between blood relatives. That is why the Prophet (S) made the approval of all the heirs a condition for one of their number receiving specified property in the Will.’8

It is interesting to note that in the Qur'an Allah Almighty awards male heirs twice the share of female heirs without regard to consideration of enmity or strife being established between heirs.

Can A Non-Muslim Be A Legatee?

This category encompasses three groups:

Non-Muslims who are under the protection of the Islamic state (Dhimi) - who are blood relatives

NonMuslims who are under the protection of the Islamic state (Dhimi) - who are not blood relatives

Non-Muslims who are at war with the Muslim state (Harbi).

Whilst jurists from the different schools of thought all agree that people in group (3) are not entitled to inherit or receive property bequeathed to them by any Muslim, they differ regarding groups (1) and (2). One can justify their agreement regarding group (3) in the light of the probability that such bequests could be spent to promote hostilities towards Islam and Muslims.

Al-Muhaqiq al-Hilli (in Sharaye’ al-Islam, Vol. 2, p. 253) believes that only group (1) have a right to property that has been bequeathed to them.

His ruling is based upon the following Qur'anic ayah:

Allah does not forbid you to deal justly and kindly with those who fought not against you on account of religion nor drove you out of your homes. Indeed, Allah loves those who deal with equity. (Surah Al-Mumtahana, 60:8).

However, ‘Allamah Hilli (in Qawa’id al-Ahkam, Vol. 1, p. 293) and AlMuhaqiq al-Karaki (in Jami al-Maqasid, Vol. 10, p. 51) believe that both groups (1) and (2) are entitled to receive bequests. They base this on a report that Imam al-Sadiq (‘a) said,9 'If a person appoints me to be the executor of a will, in which he has made a specific bequest to a Jew or Christian, I would comply with his wishes because Allah tells us in the Qur'an:

'Sin rests with anyone who alters [a will] after hearing it.' (Surah Al-Baqarah, 2:181)

Furthermore, in Qur'an (60:8) Allah makes no reference to any restrictions that require a legatee to be a relative for a will to be valid - a powerful argument in support of ‘Allamah Hilli's opinion.

Can A Muslim Bequeath Her/His Assets To Pet Animals?

In Qawa’id al-Ahkam, ‘Allamah Hilli states, 'If a person bequeaths something to an animal, that article of their will is to be considered invalid because for bequests - wasiyyah tamlikiyah - both offer and acceptance are required and it is not possible for acceptance to be received from an animal. Of course, it is perfectly acceptable to leave provision for the care of one's animals.' This opinion is supported by Al-Muhaqiq al-Karaki10 and by Hanafi, Shafi’i and Maliki jurists.11

Is It Necessary For A Legatee To Exist At The Time A Will Is Drawn Up?

While one is clearly not able to bequeath anything to those who have already passed from this world, it is perfectly natural to wish to bequeath something for one's family's future offspring. The only point of debate regarding this issue is if such action is to be considered within the category of wills - wasiyyah - by which ownership is transferred, or within the category of endowments - waqf - that concern beneficial interests rather than ownership.

4. The Legacy Or Bequest

The legacy must meet the following requirements:

It must exist as property not simply as a right to something.

A right to revive barren land does not constitute property and thus cannot be bequeathed.

It must have a lawful usage.

Musical instruments, gambling equipment and wineries are not considered suitable as bequests.

It is not to exceed one-third of the total assets, unless the heirs willingly approve of such bequests.

This is based upon ahadith from the Holy Prophet (S) and error-free Imams (‘a).12

Wasiyyah ‘Ahdiyah

The above issues have all concerned the transference of ownership of bequeathed property. We now examine the issues concerned with the execution of a will - Wasiyyah ‘ahdiyah. This concerns the administrative duties to affect a will - appointment of guardians for minors and the safeguards needed to ensure that the articles of a will are fulfilled in strict accord with the wishes of the testator, etc.

Sanity and maturity are two prerequisites for executors. Jurists differ regarding a third prerequisite, namely 'being a righteous and trustworthy person'. To most jurists it is clear that executors need to be both trustworthy and righteous. However, there are others who consider it the prerogative of the testator to choose whomever they wish to deal with their affairs after their demise.

However, if an executor is deemed not to be up to the task, the jurist in charge of people's affairs will appoint an assistant to discharge the responsibilities.

1. Wasa'il al-Shi’ah, Vol. 19, p. 258.

2. Wasa'il al-Shi’ah, Vol. 19, p. 303.

3. Wasa'il al-Shiah Vol. 19, pp. 361-362.

4. Al-Ghunyah, Tathkirat al-Fuqaha and Sharaye’ al-Islam.

5. Al-Fiqh al-Islami wa Adillatuhu Vol. 8, p. 26.

6. Al-Sihah al-Sittah other than Nisa'i.

7. Nail al-Awtar Vol. 6, p. 40.

8. Al-Fiqh al-Islami wa Adillatuhu Vol. 8, p. 41.

9. Al-Kafi Vol. 7, p. 15.

10. Jami alMaqasid, Vol. 10, p. 49.

11. See Al-Fiqh al-Islami wa Adillatuhu Vol. 8, p. 35.

12. See for example Wasa'il al-Shi’ah, Vol. 19 pp. 271-281.

Chapter 29: Speculative Analogies Are Not Valid Bases

Three methodologies may be applied in analytical studies and scientific research:

Inference from one particular to another - when two subjects are similar and a judgement about one is known, that judgement may be inferred to the other subject on the basis of it being similar. The technical term for this in Islamic law is analogy - qiyas.

Inference from the particular to the universal is called induction - istiqra'. In order to arrive at a rule that is truly 'universal' scientists have to examine an extremely wide number of incidents and repeat experiments before being able to claim that 'universality' really does exist.

Inference from the universal to the particular is referred to as deduction, or a syllogism - burhan. This is a formal deductive argument made up of a major premise or kubra, a minor premise or sughra, and a conclusion or natijah. An example of such inference within Aristotelian logic is, 'All birds have feathers, penguins are birds, therefore penguins have feathers.'

In comparisons between the above three methodologies, we observe: for analogy or qiyas to be a reliable tool in the derivation of Islamic legal rulings, the Imamiyah emphasize the need for it to be definitive and not speculative. However, other schools of Islamic law, the Hanafiyah in particular, make no differentiation between that which is definitive and that which is speculative.

As for induction - istiqra' - it goes without saying that exploration of as many particulars as possible is required before one is able to provide a definitive universal judgement. With regard to deduction/ syllogism or burhan, it is agreed by all scholars that in the absence of the article 'all' in the major premise, such reasoning is false. For example, if it were to be said that 'Birds sing beautifully, penguins are birds, therefore penguins sing beautifully', the reasoning used for such judgement can clearly be seen to be false because it has not been asserted that 'all' birds sing beautifully.

Speculative Reasoning Does Not Provide Valid Methodology

In referring to the Holy Qur'an we find that,

“Most of them [those who disbelieve] follow nothing other than conjecture; truly conjecture is not able to provide the truth.” (Surah Yunus, 10:36).

In another ayah, Allah condemns those who suggest measures for both the lawful and the unlawful based only upon their own understandings, saying,

“Has Allah permitted you, or do you forge a lie against Allah?” (Surah Yunus, 10:59).

It is clear from the above that speculative conclusions that are not based upon definitive statements do not provide a valid methodology for the derivation of Islamic rulings.

Judgements passed in courts have to be based upon definitive investigations. In referring to judges who make mistakes, for which they are to be held accountable on the Day of Judgement, the Prophet (S) included those whose verdicts, despite being precise, were not based upon thorough investigations.1

In another hadith, the Prophet (S) is recorded to have said, 'Those who act without proper knowledge ruin more than they may cure'.2

Based upon the Holy Qur'an and the above ahadith, the Imamiyah reject speculative analogical deduction - qiyas - and do not regard it to be a valid methodology in the absence of textual sources.

Essential Requirements For Qiyas

Technically, qiyas is the extension of a shari’ah value from an original case - asl - to a new case on grounds that the latter has the same effective cause as the former. The original case is regulated by a given text and qiyas seeks to extend the same textual ruling to the new case.3

The essential requirements for qiyas are:

The original case – asl – on which a ruling has been given in the text and which analogy seeks to extend to a new case.

The new case – far’ – on which a ruling is needed.

The effective cause – ‘illah – that is a characteristic of the asl to be shared with the subject of the new case.

The ruling – hukm – that has been clearly given for the original case and, by way of qiyas, extended to the new case.

A good example for this is that it is clearly prohibited for Muslims to drink wine (this is asl) and its prohibition is called hukm. There is no text to tell us about the ruling regarding the taking of narcotics, so by establishing similarities in the effective cause (‘illah) between wine and drugs, those who support qiyas extend the ruling for wine to cover narcotics. The only observation of the Imamiyah regarding this type of derivation is that similarity in the effective cause must be definitive rather than speculative.

But how can one differentiate between the definitive and speculative bases?

When the lesser degree of any action is prohibited in a text, it is logically right to say that the greater degree is also prohibited. For example, in Qur'an we read that none is permitted to say to their parents “I am fed up with you” (Surah Isra’, 17:23).

It is only rational and logical that insults via the use of stronger words or actions are prohibited too. This is technically referred to as mafhum al-Muwafaqah.

When the wording in the original ruling is used only as an example, e.g. when we read in a hadith that, 'You have to wash hands that have been in contact with impurities such as urine,' it follows that this applies to any other parts of the body too - the hands being only the example. This is technically referred to as definitive effective cause - tanqih al manat al qat’i.

When the effective cause ‘illah is mentioned in the text itself. For example, when we read in a hadith that 'Drinking wine is prohibited because it leads to intoxication', the reason for such prohibition is explicitly mentioned in the text and can thus be applied to any other item that is likely to cause intoxication. This is technically referred to as mansus al ‘illah.

To go back to the example of narcotics, by extending the ruling for wine to encompass them we employ syllogism rather than analogy, explained as follows:

The major premise: All intoxicants are prohibited

The minor premise: Narcotics are intoxicants

The result: Narcotics are prohibited

If we use the above methodology of syllogism or refer to the case as mansus al ‘illah we arrive at the same conclusion.

All jurists concur that the Qur'an and the Sunnah constitute the sources - asl - of qiyas. However, according to the Hanafiyah, qiyas may also be founded upon rules that have been established by consensus. For instance, Allah tells us in Qur'an 4:6 to monitor minors, and when it is clear that they have attained maturity, to permit them to deal with their own property themselves.4

This rule indicates that minors need the consent of their guardian to validate the decisions they make concerning their wealth. This is the asl of some of those who defend the concept of qiyas and extend need for the consent of the guardian to female minors' dealings with marriage - on the grounds that they perceive similarities between marriage and transactions.5

1. Wasa'il al-Shi’ah, Vol. 27, p. 22.

2. Wasa'il al-Shi’ah, Vol. 27, p. 25.

3. Al-Shawkani, lrshad al-Fuhul, p. 198.

4. The full verse reads:
"And do test the orphans until they reach the age of marriage. Then, if you find in them maturity, make over to them their property and do not consume it wastefully and hastily lest they should grow up; and whoever (of the guardians) is rich, let him abstain (from taking something of the property of the orphans) and whoever is poor, let him devour reasonably. Then, when you make over to them their properly, take witnesses over them; and Allah is enough as a Reckoner." (Surah An-Nisa’, 4:6).

5. Abu Zahra, Usul, p. 181.

Chapter 30: Changes Of Circumstance Lead To Changes In Rulings

In Islamic law, every statement is composed of two elements - subject matter and ruling. The first element may consist of any thing, act, or even omission, and the second element, of one of the five following rulings:

Obligatory - wajib. When an action is emphatically demanded by Qur'anic and/or Sunnah reference, it is referred to as being obligatory, e.g. daily prayer, fasting during the month of Ramadan, pilgrimage to Makkah for those who can afford it and the payment of zakat, etc.

Prohibited - haram. When an action is prohibited by Qur'anic and/or Sunnah reference to inform Muslims that they 'must' refrain from it, it is referred to as being haram. This refers to sins that contaminate soul and mind, e.g. theft, bribery, lying, usury, etc.

Recommended - mustahab, mandub. This refers to actions that are demanded by Qur'anic and/or Sunnah reference, but have a lesser degree of emphasis. While acting upon them secures the merit that leads to higher levels of righteousness, their omission does not render one accountable. The actions covered include voluntary prayer, helping the poor, caring for orphans, etc.

Discouraged/detested - makruh. Actions that are not considered to be sins but that may become obstacles to the soul being elevated, e.g. overeating, being a chatterbox, not being forgiving, or being involved in a trade that dulls the senses to pain and distress.

Optional - mubah. When either action or omission are considered to have equal value, i.e. when there is no preference of one over the other; for instance, to have either two or three meals a day, to have either two or three dishes on the table, to travel on foot or by car, etc. This type of ruling is also referred to as being lawful or permissible.

The relationship between subject matter and ruling is similar to the relationship between cause and effect, in that a ruling is the product of deliberations related to specific subject matter. Thus, any change in the subject matter will lead to a change in the ruling. For example, although the consumption of wine is not permitted, wine that has been transformed into vinegar is permitted.

Subject matter Ruling

Wine prohibited

Vinegar permitted

The above example illustrates that after a subject matter has been materially changed, rulings that formerly applied are also changed; that is, when the item under discussion is no longer wine, the rulings that concern wine are no longer relevant.

To provide another example, when minors - who require guardians to act on their behalf - have reached puberty and are entitled to handle their own affairs, rulings that relate to minors no longer have relevance.

Under principle 5 (Islamic law does not occasion harm) and principle 6 (Islamic law does not occasion unbearable hardship), we discussed in detail how freedom of choice to act is restricted, when an action is likely to cause harm to others; or when obligatory actions are likely to result in unbearable hardship, they cease to be binding.

Muslims know that fasting is obligatory during the month of Ramadan; however, for those with renal problems, this ruling does not apply - yet another example of ‘change in ruling’ when the subject matter is changed.

When Imam al-Sadiq (‘a) was consulted about a person who had, with the intention of causing damage and harm to his neighbour, demolished the party wall between his and his neighbour's property he (‘a) said, ‘That person is not at liberty to do that and if he has already done so, he must erect a new wall in the same place’.1

Although one may argue that one is free to effect whatever changes one likes to one's own property, changes in circumstance inevitably lead to changes in rulings.

A difficult task that faces contemporary jurists is to determine whether changes in cultural and educational circumstances play any role whatever in changing rulings. For example, in the past it was considered that interest on loans was levied to satisfy the greed and avarice of wealthy lenders and, according to many scholars, that was the reason for interest being prohibited.

However, in contemporary society, finance for building the infrastructure of a nation is not possible without the involvement of venture capital - no longer associated with the greed and avarice of the wealthy but with the sharing of profit between those who invest the finance and those who employ it. Should jurists provide a legal opinion that such payments of interest are lawful?

In answer to the above question, it must be noted that under Islamic law the sharing of profit between those who invest finance and those who utilize it - referred to as mudarabah - has existed since the time of the Prophet (S) and is not to be confused with the borrowing and lending of money.

In chapter 22 (Custom circumscribes religious rulings) we noted that recurrent practices within society, accepted by those of sound mind – urf – may circumscribe religious rulings, provided that they do not violate any definitive principle of Islamic law.

1. Da’aim al-Islam, Vol. 2, p. 504.

Glossary

Ahadith (pl. of Hadith): The sayings of the Prophet Muhammad (S) and error free Imams (‘a)

Ahl al-Bayt: The progeny of the Prophet Muhammad (S)

Ahl al-Sunnah: Sunni Muslims.

‘Aqd al-hibah: Deeds of gift.

‘Aqilah: Paternal male relatives.

Asalat al-lbahah: Principle of Permissibility.

Asl: An original case used in qiyas.

Ayah (pl. ayat): Literally, a sign. In Qur'anic terminology, a technical division of the Qur'an, a verse.

Ayn al-yaqin: See yaqin.

Al-Bahth al-Kharij: The most advanced course of jurisprudence in Islamic theological colleges.

Baligh: Mature, legally, of age.

Bayt al-Mal: Treasury.

Burhan: Deduction, inference from the universal to the particular.

Dhimi: A non-Muslim under the protection of an Islamic state.

Dhul yad: A person who has control (see yad).

Diyah: Blood money. Financial compensation.

Faqih (pl. fuqaha): A jurist.

Far’: New case used in qiyas.

Fatwa (pl.fatiwa): Independent legal opinion/s.

Fiqh: Jurisprudence.

Gharar: Risk, lack of information, uncertainty, hazard.

Ghusl: Bathing of the whole body, also known as the greater ablution.

Hadith (pl. ahadith): A report of sayings of the Prophet Muhammad (S) and error-free Imams (‘a).

Hajj: Annual pilgrimage to Makkah and other holy sites which each Muslim must undertake at least once in a lifetime if he or she has the health and wealth to do so.

Halal: Lawful and permitted under Islamic law.

Hanafi: A follower of Abu Hanifah, after whom one of the Schools of Jurisprudence is named.

Hanbali: A follower of Ahmad Ibn Hanbal, after whom one of the Schools of Jurisprudence is named.

Haqq al-yaqin: See yaqin.

Haraj: Unbearable hardship.

Haram: Unlawful and prohibited under Islamic law.

Harbi: At war with the Islamic state.

Hawzah: A traditional Islamic theological college.

Hayd: Menstruation.

Hukm: A statement, verdict.

Husn: Beauty or goodness, appropriateness.

‘Iddah: A celibate period of waiting for divorced or widowed women before remarriage.

Ihram: The condition of observance and purity required for pilgrimage, also describes the clothing worn by male pilgrims.

Ihsan: (lit. virtue) doing good.

Ijazah: Permission granted by an authorizing source.

Ijma: Consensus.

Ijmali: Summary knowledge (see inhilal).

Ijtihad: The deduction of rulings from their sources, primarily the Qur'an and ahadith.

Ijtima wal-amr wal-nahy: The combination of command and prohibition.

‘Illah: Cause, reason.

Ilm al-yaqin: See yaqin.

Imamiyah: Followers of the authentic Qur'anic teaching of the twelve Imams of the Prophet's (S) progeny.

Inhilal al-‘ilm al-ijmali: Dissolution of summary knowledge.

Istihalah: Transformation.

Istihsan: Equity. To deem preferable. Preference for one kind of analogy over another.

Istiqra’: Induction, inference from the particular to the universal.

Ishtishab: Presumption of continuity.

Jallalah: Animal accustomed to eat impure substances.

Jihad: To strive, struggle. To carry a heavy load.

Juhd: To strive. Struggle.

Khabar wahid: Solitary report.

Kubra: A major premise in a syllogism (see Sughra, natijah).

La: An article that expresses negation.

Lam al-‘ahd: Reference to a previously mentioned subject.

Lam al-jins: Reference to universality.

Mafhum al-muwafaqah: A case of higher degree compared to a text (understood without saying).

Mahram: A person with whom marriage is not lawful, e.g. a brother, sister, mother, father, aunt, uncle, etc.

Makruh: Any act or thing that is discouraged/detested under Islamic law.

Malakut: The celestial realm. Spiritual authority.

Maliki: A follower of Malik Ibn Anas after whom one of the Schools of Jurisprudence is named.

Manisik: Rituals of pilgrimage.

Mandub: Recommended.

Mansus al-‘illah: When the reason for a ruling is clearly mentioned in the text.

Ma’ruf: Good behaviour.

Mathhab (pl.mathahib): School/s of Islamic law.

Mubah: Permissible, optional.

Mudarabah: A business contract in which the investor and entrepreneur agree the ratio in which any profits are to be shared.The investor provides the capital and the entrepreneur the expertise, time and effort.

Mufassar: Unequivical.

Muhkam: Perspicuous or lucid.

Mujmal: That which is ambivalent.

Mujtahid: A jurist.

Mukhalafah ihtimaliyah: Probable non-conformity.

Mukhalafah qat’iyah: Definitive non-conformity.

Muqayyad: Qualified. Restricted concept.

Musa bihi: A legacy.

Musa lahu: A legatee.

Musa: A testator.

Mustahab: Recommended.

Mutanajis: Item affected by impurity (transferred via dampness).

Mutashabih: That which is equivocal.

Mutawatir: A Hadith with an uninterrupted chain of narrators.

Mutlaq: Unrestricted and unconditional concept.

Nafy: To negate (a statement).

Nahy: To prohibit.

Najasah: Impurity.

Najis: Unclean, impure.

Najis al-‘ayn: Impure in itself.

Nass: An unequivocal/explicit text.

Natijah: A conclusion drawn from the premises in a syllogism (see Kubra, Sughra).

Qa'idat al-Faragh: The principle of completion: no validity for doubt after an action has been completed.

Qasd al-Qurbah: To draw closer to Allah.

Qat’i: Definitive.

Qimar: Gambling.

Qiyas: Analogy.

Qusamah: Those who have sworn an oath in court.

Rak’ah (pl. rak’at): A cycle for standing, bowing and prostrating during prayer.

Riba (lit. increase): Interest on loans, i.e. usury.

Rukn: An essential element.

Ruku: To bow before the Lord. A position during prayer.

Sa’id: Soil, earth.

Sajdah (sujud): To prostrate. A position during prayer.

Sajdat al-sahw: A prostration made for any mistake during prayer.

Shafi’i: A follower of Muhammad Ibn Idris al-Shafi’i after whom one of the Schools of Jurisprudence is named.

Shahadatain: Declaration of the two tenets of faith.

Shakk: Scepticism or doubt.

Shar’i: Legal.

Shari’ah: Islamic law.

Shaytan (pl. Shayatin): Satan or devil.

Shi’ah: Followers of the Islamic teaching of ‘Ali (‘a) after the Prophet (S).

Siyam: Fasting.

Sughra: A minor premise in a syllogism (see kubra, natijah).

Sulh: An amicable treaty or agreement.

Sunnah (lit. practice): The Prophet's (S) tradition, sayings and way of life.

Sunni: Those who follow the caliphs after the Prophet (S).

Surah: A division of the Qur'an.

Ta’arud: Texts that conflict and thus cannot both be true.

Tafsili: Detailed (knowledge).

Tanqih al-manat al-qat’i: Verifying the precise reason for a ruling. Definitive effective cause.

Taqiyah: Dissemination.

Tashahud: A declaration of faith.

Tayamum: To perform ablution without water.

Tazahum: Table of Priorities.

Tuhr: The time between two monthly periods of menstruation.

‘Urf custom: Practices within society that are generally accepted.

‘Usr: Unbearable hardship.

Usul al-fiqh: The Principles of Islamic Law.

Wahm: Low probability (less than 50°/o).

Wajib: Obligatory or incumbent.

Wajib mudayyaq: A limited time frame.

Wajib muwassa’: A flexible time frame.

Waqf: Charity or endowment.

Wasiy: The executor of a will.

Wasiyyah: Last will and testament.

Wasiyyah ‘ahdiyah: Administration of a will.

Wasiyyah tamlikiyah: Gifting under a will.

Waswas: Obsessive compulsive disorder.

Wudu': Ablution in preparation for prayer.

Yad: A hand, a handle, power.

Yad mubtilah: Unrightful possession.

Yad muhiqah: Rightful possession.

Yaqin: Certainty, absence of doubt.

‘Ayn al-yaqin: Certainty itself.

Haqq al-yaqin: Absolute certainty.

‘Ilm al-yaqin: To know with certainty.

Zahir: That which is manifest.

Zaidi: A follower of Zaid Ibn ‘Ali Ibn Husayn, who believed that he was eligible for the Imamah rather than his brother Muhammad al-Baqir (‘a).

Zakah/zakat: An Islamic religious annual welfare tax due on specific commodities.

Zann: High probability of accuracy (51-99%).

Zanni: That which is speculative.

Ziarat ‘Ashura: Salutation to Imam Husayn (‘a) on 10th of Muharram.

Zina: Adultery, fornication.

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Note: All ‘Al-Sihah al-Sittah’ listed above under their authors/titles have been collected together in one volume published by Dar al-Salam, Riyad, 1420 (2,754 pp)

Topic Tags:

Beliefs and Doctrine [7]

Author(s):

Sayyid Fadhil Milani [2]

Publisher(s):

Ansariyan Publications - Qum [3]

Source URL: https://www.al-islam.org/thirty-principles-islamic-jurisprudence-sayyid-fadhil-milani

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[2] https://www.al-islam.org/person/sayyid-fadhil-milani
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[4] https://www.al-islam.org/printpdf/book/export/html/165425
[5] https://www.al-islam.org/printepub/book/export/html/165425
[6] https://www.al-islam.org/printmobi/book/export/html/165425
[7] https://www.al-islam.org/tags/beliefs
[8] https://www.al-islam.org/al-murajaat-abd-al-husayn-sharaf-al-din-al-musawi
[9] http://chefshane.com/alcohol_burn_off.php
[10] http://www.diabetic-lifestyle.com/articles/febo4_cooki_1.htm
[11] http://homecooking.about.com/library/archive/blalcohol12.htm
[12] http://www.ochef.com/165.htm
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[14] http://whatscookingamerica.net/Q