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Commands and Prohibitions

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Commands and Prohibitions

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madanuodad
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CHAPTER SIX Commands and Prohibitions i Is modern .statutes\ins:thaty Qurranier lepilationtismntbmconianedyte) 'f~ . This moral appeal may consist of a persuasion or a warning, an allusion to the possible benefit or harm that may accrue from observing or violating an injunction, or a promise of reward/punishment in the Hereafter. Modern laws are often devoid of such appeals, as they are usually confined to an exposition of imperative tules and their tangible results." of forms. While an injunction is normally expected to be in the He cbrence of wll eurencs of clefastts foc The Lawgiver may at times order something which has hitherto been prohibited. The question then arises as to the nature of a command which follows a prohibition (al-amr ba‘d al-hazar); does it convey an obligation or mere permissibility? The majority of ‘ulamd’ have held the view that a command following a prohibition means permissibility, not obligation. Two examples of such a command in the Qur’an have already been given above in the context of the permission to hunt following its prohibition during the hajj ceremonies and the permis- sion to conduct trade following its prohibition at the time of the Friday prayers (al-Ma’idah, 5:2; and al-Jumu‘ah, 62:10 respectively).? An example of such a command in the Sunnah is the hadith in which the Prophet is reported to have said: ‘I had forbidden you from visiting graves. Nay, visit them, for it reminds you of the hereafter.’!° Ub boy) 98 VW pill OL) oF pA OS BAW pS Sas Commands and Prohibitions 191 The Hanafis have taken the view that a command following a prohibition conveys an obligation, which is the primary meaning of a command and that this basic meaning remains unaffected by what might have preceded it. The basic evidence that establishes something as wajab does not distinguish between an amr that is preceded by a prohibition or is not preceded by one. Some Hanbali ‘ulama’, and also the Hanafi scholar Kamil ibn al-Humam, have held that a command following a prohibition removes the prohibition and the matter is consequently restored to its original state, that is, the state in which it was prior to the prohibition. Zaydan has considered this to be the most appropriate view." The next question that arises in’ this connection is whether a command requires a single compliance or repetition. According to the majority view, this question can only be determined:in the light of indications which might specify that repeated performance is required, Howeusrpsinath erase o6 Ste et tet eee performance is th« i mumand. Among the indications that fees eeeneen is eta a command is issued in conditional terms. For example, the Qur’anic provision ‘if you are impure then clean yourselves’ (al-Ma’idah, 5:6) ly rebld Lex 2 Oly or the text that states: ‘The adulterer and adulteress, flog them each one hundred lashes’ lor Ls Lagee daly JS Sytlorld al phy ai) that is, if they commit adultery (al-Nir, 24:2). Since the command to take a bath in the first ayah is conditional on janabah, that is, on sexual intercourse, then a bath must be taken following every instance of sexual intercourse. Similarly, when a command is dependent on a cause or an attribute, then it must be fulfilled whenever the cause or the attribute is present. The Qur’anic command, for example, that reads: ‘Perform the salah at the decline of the sun’ (Bani Isra’il, 17:18) net) Ayla) Soba af requires repeated performance at every instance when the cause for it is present, that is, when the specified time of salah arrives. Some Shifi‘is scholars and the majority of Hanbalis are of the view tes elo 192 PRINCIPLES OF ISLAMIC JURISPRUDENCE that a command requires sustained repetition throughout the lifetime of its audience unless there is evidence to suggest otherwise. A refer- ence is made, in support of this view, to the incident when the Prophet addressed the people and said that ‘God has prescribed the hajj as a duty upon you.’ A man then asked the question ‘Is it every year, O Messenger of God?’ To this the Prophet replied ‘If I said it, it would have been so...Hajj is required only once and more than that is supererogatory.’ From this argument it has been advanced that the man who asked the question evidently knew the Arabic language and ifa command did not require repetition he would not have asked the question in the first place. This is, however, considered to be a rather weak argument, for it is possible to say just the opposite in that if a command had conveyed a repetition as a matter of linguistic certainty, the man would have not raised any question about it. The episode thus remains inconclusive on the subject of repetition." As.forthe:questionof whether acommand requires immediat delayed»performance;sityis,once-again, observed, thatthe, cae itselfrmerely:consists’of a’demand, and the manner ofits performance: rfiust "be determined inthe "light “of indications~and» surrounding, drewmstances: When, for example, A tells B to ‘do such and such now’, or alternatively orders him to ‘do such and such tomorrow’, both orders are valid and there is no contradiction. However, if a command were to require immediate execution then the word ‘now’ in the first order would be superfluous just as the word ‘tomorrow’ in the second order would be contradictory. When a person commands another to ‘bring me some water’ while he is thirsty, then by virtue of this indication, the command requires immediate performance just as the order to ‘collect the rent’ when it is given, say, in the middle of the month while the rent is collected at the end of each month, must mean delayed performance. Fhus:itsisobvious:that:the:commandant ‘may ‘specify»a»particular Commands and Prohibitions 193 something. implies: the prohibition ofiits:oppositesAccording"towthe majority view,,a.command'to" do'something does'imply the prohibi- tion: of its opposite, regardless:of whethersth consists, of,aysingle:act/or'of'@"plurality’oPacts. Thus when a person is ordered to move, he is in the meantime forbidden to remain still; or when a person is ordered to stand, he is forbidden from doing any ofa number of opposing acts, such as sitting, crouching, lying down, etc. However, some Sulama’ Sea al-Juwayni, al-Ghazali, Ibn opporite, ae 5 iene ae etna Sanaa 'S There are those who maintain that the exact opposite of a command has to be determined by looking at the command itself. Ifthe command conveys an obligation (wujiib), then its opposite would be a prohibition (tahrim), but it would be an abomination (karahiyyah) if the command only conveyed a recommendation (nadb) in the first place. According to yet another view, the ruling here is confined to the imperative command, thereby excluding commands that only convey recommendation. ‘The other limb of this equation is also generally"tphield'in’ that” prohibition. not.to.do. something:conveysinthemeantimiea command in-respect of doing the same. Thus"the Qur’anic"ayali(al=Baqarah, 2:228).concerning divorced*women that “it is not lawful for them to conceal what God’has'created in their*wombs’ eet gal Ge L GS of ob JA YG conveys in the meantime a commiand that they should'revealthe:facts sofetheirpregnancy. Similarly, when we read in the Qur'an the command ‘tell the believers to lower their gaze’ when encountering members of the opposite sex, it conveys in the meantime a prohibi- tion in respect of the lascivious gaze. The result of such differences would obviously have a bearing on whether the person who commits the opposite of a command must be penalised and, if so, to what extent. Specific answers to such questions can only be determined in the light of the surrounding circumstances and the state of mind of the individual concerned, as well as the general objectives of the law that can be ascertained in a given command. 194 PRINCIPLES OF ISLAMIC JURISPRUDENCE II. Prohibitions ior.’ The addressed from a position of superiority to one who is inferior. pical form of a prohibitory order in Arabic is that of a negative ani eginning with la such as 1a taf or in the form of a present participle, such as God ‘forbids immorality and evil’ (al-Nahl, 16:90). ’ Sly clindll oF ey A prohibition is also conveyed by denial of permissibility (nafy al-hall) such as in the following text: ‘When he divorces her [three times] she is no longer lawful for him unless she marries another man’ (al- Bagarah, 2:230). ope ny} CSS er der et JF Hb gl of ae ich depuobibitionmrays ae hin ee ee dhani al-bay‘ (‘abandon sale’, that is during the time of Friday salah) in sara al-Jumu‘ah (62:9), or wajtanibit qawl al-ziir (‘avoid lying’) in sdira al-Hajj (22:30), or may occur in a variety of other forms that are found in the Qur’an. Although the primary meaning of naliy is illegality, or tahirim, nahy is . ani . irshad) a’), An example of nahy which implies reprehension is the Qur’inic ayah addressing the Commands and Prohibitions 195 believers to ‘prohibit not [ld tuharrimil] the good things that God has: made lawful to you’ (al-Ma’idah, 5:87). SS a ote lab Lye 2 YLT cull Lott Nahy which conveys moral guidance may be illustrated by the Quranic dyah addressing the believers to ‘ask not questions about things which, if made plain to you, may cause you trouble’ (al-Ma’idah, s:101). oS Sd SS Ag Of LA ge Isls V1 paT pil Upll ‘An example of nahy which implies a threat is when a master tells his recalcitrant servant: ‘Don’t follow what I say and you will see.” An example of nahy which conveys supplication in the Qur'an occurs in sira al-Baqarah (2:286) which reads: ‘Our Lord, condemn us not if we forget or make a mistake.” vibef of Lu of Leis Yu, Since nahy can convey several meanings, the ‘ulama’ have differed as to which of these is its primary (haqiqi) as opposed to secondary or metaphorical meanings. Some have held that illegality (tahrim) is the primary meaning of nahy while others consider reprehension (karahiyyah) to be the original meaning of nahy. According to yet another view, nahy is a homonym in respect of both. The majority (jumhiir) of Sulama have held the view that nahy primarily implies tahirim, a meaning which will be presumed to prevail unless there are indications to suggest otherwise. An example of nahy in the Qur’an that has retained its primary meaning is the phrase ‘a tagtuli’ in the ayah which states ‘Slay not life which God has made sacred’ (al-Anam, 6:151). SN p> coll ntl ke Vy There is no indication in this text to warrant a departure from the primary meaning of 14 taqtulii, which must therefore prevail. The primary meaning of nahy may be abandoned for a figurative meaning if there is an indication to justify this. Hence the phrase ‘Id tu’akhidhna’ (‘condemn us not’) implies supplication, as the demand here is addressed to Almighty God, and is hence a demand from a position 196 PRINCIPLES OF ISLAMIC JURISPRUDENCE of inferiority, which indicates that the correct meaning of nahy in this context is supplication, or du‘a’.'7 III. The Value of Legal Injunctions The object ofa prohibition may be to prevent an act such as adultery (zina), or it may be to prevent the utterance of words such as those purporting to effect the sale of dead corpses, or of a freeman, Y means of offer and acceptance. I not produceany-rights or legal effects whatsoever. ‘Hence norehret contrai perpetrator paternity is established through. zind; on the contrary the } is liable to punishment. Similarly, no contaieigeoncludidabclno tight of ownership is proven as a result of the sale of a corpse. seg Dfeedot If the object of prohibition is an act, and it is prohibited owing to © See" an extraneous attribute rather than the essence of the act itself, such =" 2" ‘4s fasting on the day of “id, then the act is null and void (bafil) accord- » slxlo¥t ing to the Shafi‘is but is irregular (fasid) according to the Hanafis. The lad act, in other words, can produce no legal result according to the Shafi‘ts, but does create legal consequences according to the Hanafis, although it is basically sinful. The Hanafis consider such acts to be defective and must be dissolved by means of annulment (faskh), or rectified if possible. If the prohibition consists of words such as concluding a contract of sale which partakes of usury, it is still bafil according to the Shafi's but fasid according to the Hanafis, which means that it should either be revoked or amended to the extent that it is purified of its usurious content. SGhnaaahianienicceueSexeomithmeparcicoriosionalmatis (ibadat) whose purpose is seeking the pleasure of God. T ‘he, i is equivalent to batil. Hence there is no merit to be eae by fasting on the day of ‘id, nor will it be taken into account in compensation to the fasting owed by the mukallaf. With regard to mu‘amalat, if the prohibition is due to an external factor, such as a sale concluded at the time of the Friday prayer, the majority maintains that all the legal consequences will follow from the prohibited act, although the perpetrator will have incurred a sin. Thus the sale so concluded will prove the right of ownership, which is however, deficient and should be rescinded at an early opportunity." Further detail on the fasid and batil can be found in our discussion of the alikam, which is the subject of a separate chapter. As. forthe question of whether a prohibition requires both immediate as well as repeated compliance, the ‘ulama’ are generally Commands and Prohibitions 197 in agreement that it does and that this is the only way a prohibition can be observed. Unless the object of a prohibition is avoided at oS! x4 all times, the prohibition is basically not observed. It is therefore necessary to avoid the prohibited act as from the moment it is issued and whenever it is applicable. This is the case with regard to prohi- bitions that are not qualified in any way, such as the Qur’anic text concerning the property of orphans which states: ‘Do not approach the property of the orphan except in the way that is best’ (al-An‘am, 6:151). Te bY pal JL Ny Vy However, if'a prohibition is qualified by a condition that overrules immediate compliance, then it has to be observed within the mean- ing of that condition. An example of this occurs in the Qur'an (al-Mumtahinah, 60:10) which reads, in an address to the believers: “When there come to you believing women refugees, examine [and test] them. If you find that they are believers, then send them not back to the unbelievers. God knows best as to their faith.’ CAP Ol arlgs Ole Sele 15 Leet cpl! Ugly + USN A) ot peri WB le pe oa tale Of ; CALL let ai In this dyah, the prohibition (not to send them back) is conditional fe Ore upon finding that they are believers, and until then the prohibition ;, is must remain in abeyance.'? There is a difference between a command #1) and a prohibition in that the purpose of the former is to create some- 5 i thing or to establish the existence of something, and this is realised by a single instance of execution, and there is basically no need for repetition. A prohibition, on the other hand, aims at the absence of if something, and this cannot be realised unless it is absent all the time. A single instance of absence is thus not enough to fulfil the purpose ofa prohibition 2 ‘paxieiiltgwen yates ea to.a prohibition; whenever a prohibition succeeds a command, it conveys illegality or tahrim, not mere permissibility.! Injunctions, whether occurring in the Qur’n or the Sunnah, are of 250 ee ITEE SS 198 PRINCIPLES OF ISLAMIC JURISPRUDENCE two types: explicit (sar7h) and implicit (ghayr sarih). Explicit commands and prohibitions require total obedience without any allowance for individual circumstances and regardless of whether they are found to be rational or not, for it is in the essence of devotion (‘ibadah) that obedience does not depend on the rationality or otherwise of an injunction. The"question”arises"as*to» whether» one»shouldsadopt,a Jliteralyapproach’ tothe enforcement of commands:and»prohibitions, or allow considerations of rationality and maslahah to play a» part in the manner of their implementation. For example, the hadith which provides that the owners of livestock must give ‘one in forty sheep’ in zakah:** should this provision be followed literally, or could we say that the equivalent price of one or many sheep could also be given in zakah? Similarly, when the Qur’an enjoins the Muslims concern- ing attendance at the Friday congregational prayers to ‘rush to the remembrai £ God and abandon sale’ (al-Jumu‘ah, 62:9), SaerenT of y Ged yd abl SS A} yews should the word rush (fas‘aw) be taken literally or in the sense of an emphasis on diligence at attending the Friday prayers? A similar ques- tion can be raised with regard to the second part of the same dyah which commands the Muslims to ‘abandon sale’ (wa dhari’l-bay‘). Should this be taken to imply that a sale that has occurred at the speci- fied time is actually unlawful and void, or should it once again be taken as an order that requires perseverance and consistent observance? Should one follow the main objective of the Lawgiver or the literal requirements of the text which convey a command or a prohibition? These are but some of the questions that are asked concerning the correct understanding of Qur’anic injunctions.*? The implicit injunctions are also divided into two types. The first of these is when a ruling of the Qur'an is conveyed in implicit terms but has been substantiated by the explicit terms of the hadith, in which case it becomes equivalent to an explicit ruling.** The second type of implicit injunction is when a ruling of the Qur'an occurs, not in the form of a command or a prohibition, but as praise or condemnation of certain conduct. The precise import of such provisions cannot always be ascertained in respect of whether they convey an injunction or mere warning or recommendation as the case may be. Note, for example, the text which reads that God ‘does not love the prodigals’ (al —A‘raf, 7:31). Commands and Prohibitions 199 ob pa CF Y 4 The text of this ayah does not indicate the precise legal or religious enormity of extravagance, and it cannot be ascertained whether extravagance is prohibited or merely disapproved of. and prohibitions is related to the means that lead to the performance of a command, or the avoidance of a prohibition. The question is whether the means should also be covered by the rules that regulate their ends. Briefly, the answer to this question is in the affirmative. The means that lead to the observance of commands and prohibitions are covered by the same ruling which applies to the command/ prohibition in the first place.** This is indicated by the legal maxim ‘What is essential for the completion fa wajibitself becomes ewgil’. We may here refer to ywondifferentsituations, one of which is.that the means to a wajib may be the subject.matter of aseparate,command, in which case the matter would fall outside the scope of our discus- sion, for-in-that.case,the means.and:therends:arereat ownerules. An example of this is ablution (wudi’) which is comple- mentary to salah but is regulated under a separate command; and, secondly,-when the means'on'whiel -ofsseparatestuling. This is our main area of concem here and = “lama? have generally:held:thatthe-means here bé the-same"commiarid ‘that'governis'the’end: Thus, if performing the hai necessitates travelling to Mecca, then this activity is also covered by the initial command and becomes an integral part of it. Similarly, if the Qur’anic command concerning consultation (Al ‘Imran, 3:159) cannot be implemented without creating a consultative assembly, then this too becomes a requirement for the same command. We may thus conclude by saying that the means to a wajib becomes a part of that wajib if the means in question is not the subject of a separate command. A mujtahid who deduces the law from a given text must be adequately familiar with the language of the Qur'an, and must know that the alkam are not only expressed in the imperative but that a praise or a promise of reward may in effect be equivalent to a command. Similarly, a mere denunciation, a threat of punishment in the Hereafter, or a reference to the adverse consequences of a form of conduct, may be equivalent to a prohibition. The distinction as to whether a command in the Qur’an conveys an obligation (wujiab), 200 PRINCIPLES OF ISLAMIC JURISPRUDENCE a recommendation (nadb) or mere permissibility (ibahah) must be determined in the light of the objectives of the Shari‘ah as well as by looking at the meaning of the words of the Qur’in. Posdetermine theevalues(iukm)-of a-command,- attention: is paid: not’onlystosthe «grammatical'form Of the words in which»itis*conveyed;butralsosto the general "objectivesof the law. This is equally true of a prohibitory text. To determine whether a prohibition conveys actual tahrim or mere reprehension (karahah) is not always easily understood from the words of the nusiis. Onlysasportion,of thesnusis"convey"a" precise smeaning:bysvirtue,of,the,clarity,of,theirdanguage. In Shatibi's esti- mation, a much larger portion of the nusiis of the Qur’an cannot be determined by reference to the linguistic forms in which they are expressed only. The mujtahid must therefore be fully informed of the general principles and objectives of the Shari‘ah so as to be able to determine the precise values of the nusiis and the commands or prohi- bitions they contain,?7 3 NOTES 1, Shaltalt, Islam, p. 499. 2. This is one of the several ayat which occur in the Qur'an concerning the privacy of one’s home, 3. Badran, Usil, p. 360. 4. Ibid., p. 361; Shawkini, Irshad, p. 91. 5. Cf. Shatibi, Muwafagar, I, 88. 6. Khallaf, ‘lim, p. 111. 7. 8. Abd Zahrah, Usil, p. 75; Badran, Usill, p. 362. . Badrin, Usil, pp. 361-2; Hitu, Wajiz, pp. 134-8. 9. Badran, Usil, p. 363; Hitu, Wajiz, p. 141. 10. Ghazili, Mustagfi, I, 83; Amidi, Ihkam, IV, 211; Tabrizi, Mishkat, I, 554, hadith no. 1769. 11, Zaydin, Wajtz, p. 289. 12, Shawkin}, Ishad, pp. 98-9; Badrin, Usil, p. 364. 13. Ibn Hazm, Ibkam, 111, 294; Shawkani, Irshad, p. 8. 14. Shawkani, Irshad, pp. 99-100; Badrin, Usiil, pp. 365-6. 15. Shawkini, Ishdd, pp. t01-102. 16, Badrin, Usiil, p. 366. 17. Shawkani, Irshad, pp. 109-110; Badrin, Usiil, pp. 366-368; Hitu, Wajiz, p. 150. 18. Shawkan}, Inhdd, p.110; Badrin, Usil, p. 369. 19. Badrin, Usiil, p. 370 20. Hitu, Wajtz, p. 151. 21. Ibid. 23, For a detailed treatment of commands and III, 90-140. 24. Ibid., III, 92. 2s. Ibid., III, 93. 26. Abii Zahrah, Usitl, p. 72. 27. Shagibi, Muwafagat, 111, 90.

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