The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 159 Ghazali’s Juristic Treatment of the Shas‘ah Rules in al-Mustas$i Ahmud Zaki Hammud Introduction Ghazzps approach to q i i l al-jiqh, as articulated in his last and greatest work of Law, al-Mus@f& is based on the premise that, in essence, this science is knowledge of how to extract ahkiirn (rules) from the Sha&h s0urces.I (As for the science of jqh, it concerns itself particularly with the Shanirh rules themselves which have been established in order to qualify the acts of the locus of obligation, man.) Accordingly, GhazZli views it as imperative that any discourse on u ~ i i l focus on three essentail elements: the ahkiirn; the udilla (sources); and the means by which rules are extracted from these sources, which ultimately includes examination of the qualifications of the extractor, namely, the mujtahid. This paper lays out Ghazd?s treatment in al-MustpB of the first of these elements, the uhhrn. Hukm (The Shari’ah Address) Linguistically, h u h is the verbal noun of hakama, which signifies “with- holding, restraint, prevention; and judgment, jurisdiction, rule, dominion, authority, or governinglq The technical meaning, however, varies according to its usages in the terminologies of philosophy, Arabic grammar, up2, andjqh. Ghazdi defines h u h as the Shan‘irh address ( khimb al-Shar’) in rela- tion to the acts of the loci of obligation, the address being Allah’s revelation to His Messenger. It is divided into two categories: revelation for recitation (wahi matluww), that is, the Qur”an; and revelation not for recitation (wa@ ghayr lww matu), namely, the Sunnah. Ahmad zaki H&mad is a graduate. of Al-Azhar University, Faculty of Shdah. He com- pleted his graduate work (al-‘Alamiyya) in the Faculty of Usiil al-Din (Theology), and holds a Ph.D. from the University of Chicago in Islamic Studies. He is currently the president of the Islamic Society of North America. 160 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 Another technical u& application uses hukm to signify the fundamen- tal rules inherent in the Shastxh address, expressing the intent of the Lawgiver, where the commands of the Sha3ah necessitate obligations, and its bans man- date prohibitions. In other words, the genral principles of the rules (ahhm) result in the obligation, prohibition, recommendation, reprehension, or allowance of acts; or establish their rectitude and invalidity. Categorizing the performance of acts as either timely or belated is another nuance of the term ahhm in u&i image. Ghazali further distinguishes between rules that ‘qualify’ acts as obligated or prohibited, and rules that express the ‘conditions’ posited by the ShaGtxh indicating their obligatoriness or prohibition, such as reaching puberty, which is a condition obligating a person to perform or refrain from certain acts. In later uqul; works, these distinct types of rules were assigned terms according to their function, al-hukm al-taklg (the qualifying address) and a l - h u h al-wa& (the positing address). In &hi terminology, h u b is the rule that a mujtahid arrives at, based on the Shazbh sources and in accordance with their general principles concerning an act of the loci of obligation. Ghazdl’ insists that hukm, be it in the u.suli or thefiqhi sense, must be related to the acts of the loci of obligation. So the Sh&h Texts concerning Allah or His attributes, the affairs of preceding nations, the events in the time of the Prophet, or the description of the Day of Judgment are not considered Shaztxh rules per se, for they neither qualify the acts of the loci of obligation nor reveal their req~irements.~ Ghaz& also makes the fine but significant point that the ShaGizh rules are not actually directed to the physical aspects of creatures; that is, to the hands or tongue of a person, or to, for example, Rather, rules qualify acts relating to or emanating from the physical being of creatures, like stealing, eatmg carrion or the flesh of swine, backbiting, ’ or consuming alcohol. Thus, rules obliging the maintenance pf health or cleanliness are related to the acts through which these tasks are performed, not to the body itself. Similarly, rules pertaining to contracts, rites of wor- ship, and avoidance of prohibitions are likewise related to man’s acts. To further clarify this, he notes that the Sharhh address expressed in the following verse does not indicate the prohibition of the mentioned beasts’ corpses, but the act of eating them: Forbidden to you are carrion, blood, the flesh of swine, what is in- voked in the name of other than Allah, that which is killed by strangula- tion or violent blow or fall or gore, or from that which has been de- voured by beasts of prey, except for that which you have sacrificed duly.6 And this is the case in the verse below as well: Forbidden to you are your mothers and daughters, your sisters, your A. Z. Hammad GhazZl?s Juristic Treatment of the Sh&ah Rules in al-MustasE 161 aunts, paternal and maternal, your brother’s daughters, your sister’s daughters, your mothers who have given you suckle, your suckling sisters, your wives’ So, the forbidding of mothers, sisters, and the rest is not directed at their physical beings per se, but at marrying them and the implications of so doing. Ghazzli, furthers the discussion by saying that acts coming under theb categories of the Sh&h rules must meet certain requirements. First, their performance must be possible; so that bidding the performance of two op- posite acts simultaneously or “denaturing a species” is impossible.8 Second, they must be attainable by the locus of obligation. For instance, it is not possible to ask Zayd to fulfill a contract exclusively binding on ‘Am. Third, they must be distinguished from other acts in the mind of the commanded individual and be known as an address from Allah. Fourth, their nature must be in conformity with obedience to Allah, as is the case with most of the rites of worship. For one cannot be commanded by the Sh&zh to perform an act which demands disobedience to Allah, such as worshipping other than Him. Al-H&im (The Ruler) Ghazal?s definition of hukm as the Sh&h address, whose actual source is Allah alone, reflects the classical Islamic view of Law. He does, though, focus on the term, address, and qualifies that the status of an addresser-be he an angel, a prophet, a mujtuhid, or a fuqh-as one who pronounces a rule; for each of them in reality conveys the Sh&h rule. However, the critical distinction is that only the Addresser, Allah, is capable of ‘originating’ rules and revealing them. Therefore, says Ghazali, only He is deserving of absolute obedience, for His is the creation and the command. Based on this, neither an angel, nor a prophet, nor a common man-be he the ruler or master-has actual sovereignty, nor are any of these capable of originating rules. If obedience to them is warranted, it is so only on the basis of Allah obliging it.9 Stressing that originating obligations and prohibitions is an activity that only Allah is capable of, secures order and guards against universal chaos. For if the ability to originate rules was available to those who can pronounce rules, then it is conceivable that the obliging of an act by some pronouncers which others have prohibited, and the inverse, would prevail, leaving no stan- dard and creating confusion. 10 By adhering to this view, Ghazali establishes the justification for any Muslim to reject legislation that commands or pro- hibits unless it comes from Allah or is based on His Shurhh. Furthermore, Muslims have the right to demand proof that the command is based on revealed authority (sum? from those who declare prohibitions or obligations. 162 The American Journal of Islamic Social Sciences / Vol. 4, No. 2, 1987 After establishing this point, Ghazali finds himself compelled to discuss the place of reason (uql) in relation to revelation and devotes an elaborate discussion to this subject. Reason and Revelation G h d & five qualifications of man’s acts are an attempt to set measurable criteria by which to identify and categorize the Shunuh rules expressed by the Qur’an, the Sunnah, and Zjm: He concedes, however, that all human acts in all times and places are not specified by the Shurhh. So he must account for reason’s role in his scheme as well. He supposes a state of pre-revelation before the coming of the Shun&, or after, for those unaware of it. This raises two important questions: (1) Is Allah the sole imposer of obligation, or does reason share in this? (2) Are human acts liable to Shusizh judgments in the state of pre-revelation? Reason and the nature of human acts form the core of the dispute between the Ash’arite, Ghazali and the Mu’tazilites. G h d h position in ul-Mw?ajfi - consistent with his other theological and usna works available to us - is that reason cannot create rules for man’s acts, and any Shanuh context that seem- ngly implies so is figurative. Reason identifies the character that the Shu&h imparts to human acts in forming rules, but is not a source of their origin. Moreover, these characters are not essential ones that render them inherently good or evil. Ghazllli repudiates the Mu’tazilites -particularly of Baghdad -who, alleg- edly under the influence of Greek philosophy, hold that reason not only recognizes good and evil but determines them, since good and evil are essen- tial qualities of acts. Accordingly, pre-revelation acts are obligatory, prohibited, or allowed by virtue of reason. Rather, he insists, it is the Sha&h that classifies acts. What is good is so because Shu6izh directed or allowed it. And what is evil is such because Shadizh forbade it. And the degree of an act’s goodness or badness is determined by the strength of the Sha$fih$ bid- or prohibition. Thus, G h a d rejects the Mu’tazilite notion of intrinsic goodness or badness in human acts, as well as reason’s role as an originating source for commands and prohibitions. An obligatory act is so because of the extrinsic character of revealed “obligatoriness,” and such is the case with the other classifications. Al-Must- examines this issue in relative detail owing to its central impor- tance to the Shu&h rules. It summarizes the Mu’tazilite positions on the pro- nouncement of good and evil (@zdn and q b i ) and their classification of acts in the absence of revelation, paving the way for Ghazalh response. He starts by defining the terms, hum (good) and qubhh (evil), in order to confine the disagreement. Good and evil, he says, are used technically in three A. Z. Hammad G h d h Juristic Treatment of the ShGah Rules in al-Mustasf5 163 applications, two of which are related to an act’s doer and one that pertains to the Shudtzh command itself. The first is popular usage, which is relative, restricting good and evil to the objectives of the doer. All acts that conform with one’s objectives are good and are termed husun. Acts that thwart one’s interests are evil and therefore called qub& When, for example, a king is killed, says Ghazdi, it is deemed good by his enemies and evil by his supporters. Second, these terms are applied to all acts that one is permitted or ex- pected to do. If you have the right to do it, then it is good. If you do not, then it is evil. Therefore, all acts of Allah are good for He is capable of doing them. Allowed acts (mubii?z) are likewise good because one is able to do them. In the third usage, the term ’basan’applies exclusively to what the ShadtiZh declares good. Thus, any commanded act is good, be it obligatory or recom- mended. But this application pronounces neither good nor evil upon the mzhi.?~ act because the Shuffuh is indifferent in regard to it. Ghaziilh approach in defining terminology first enables him to marshal his definitions in order to refute the Mu’tazilite doctrine of the essentiality of good and bad acts (necessarily recognized as to reason and subject by a consensus of all rational human beings). He illustrates an act of lying to dramatize his views. He suggests the case of a prophet being pursued by an assassin. The would-be killer asks someone of the prophet’s whereabouts, but that someone lies in order to mislead the assassin and protect the prophet. Ghazdi argues that this lying is &sun because of the good derived from it, i.e. the saving of the prophet’s life. Indeed, he says, it is more than good. It is obligatory upon the person who knows the prophet’s whereabouts. In fact, he sins and disobeys if he does not lie. Thus, evil is not an intrinsic character of lying per se. Otherwise, it could not have changed from evil to good and would not have been praiseworthy on the part of its doer. Therefore, reason declares an act good instead of evil in relation to the agent and the circumstance of the act. Ghazdi concludes his treatise by analyzing the roots of error in the pronouncement of good and evil. He reduces them to four: (1) confusion in the use of terminology; (2) subjective assessment of acts based on personal aims; (3) faulty generaliza- tion in characterizing &sun and qubh in disregad of exceptions to the rule; and (4) reason’s erroneous imagination caused by association. One may, for in- stance, show aversion to multicolored rope that resembles a harmful snake. After formulating the sources of error, Ghazdi defines key terminology that expresses their causes, which he again employs as the balance with which to weigh his opponents’ arguments. He couches his position in one case, citing those contentions of the Mu’tazilites that hold that all acts, before the coming of the Shur%uh, are in the state of ib% (allowed). He says that one might tolerate this argument, provided the term, ib@, means acts which the doer is 164 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 free to perform or neglect. But this, he notes, is a misuse of terminology. He refutes the definition of ‘ibak’ and restates his position that issuing the Shadizh rules is exclusively within the domain of the divine address. And since there is no address before revelation, there is no ibahu. A second position attributed to other Mu‘tazilites, namely that acts in the prerevelation state are analogous to the manipulation of another’s property and are therefore forbidden, is refuted by his second and fourth definitions, which contend that such acts are neither rationally acceptable nor reported in the Shadizh.ll Finally, he repudiates those Mu‘tazilites who advocate the suspension of judgment in the absence of Shaddh, saying that if they mean that there are no rules until the Shadhh comes, this can be tolerated. But if suspension connotes the stoppage of action until Shadizh that is wrong. Yet Ghazdh skillful argumentation seems more to mirror legal affilia- tions and doctrinal difference of opinion than offer a practical, substantive alternative to the Mu’tazilite position that Reason has legislative capacity. When Ghazdi accepts the principle of Zstishab, he acknowledges that the Shadizh does not qualify all human acts or specify either reward or punishment for them before revelation. Thus, these acts remain in the status of the original state of freedom from accountability, and Reason, by way of ijtihad, rules upon them. However, he emphasizes that the role of the former-(as iden- tifier, not originator) of Shadbh rules. He then proceeds with his discourse on Shadizh rules, their divisions, and their requirements. Al-MaQknm ‘Alayhi (The Locus of Obligation) The Shuddh rules delineate the locus of obligation as either obligatory, recommended, permissible, reprehensible, or prohibited. Ghaziili refers to two fundamental conditions that one must fulfill to be eligible for tuk@ ability (qudra);” and capacity (uhliyyu). l3 Ability, in Ghazdh mind, rests on one’s potential to understand a com- mand or prohibition posited by a Shudhh address. He holds tenaciously to the view that implicit in every Shudizh command is the command to under- stand the responsibility. It is impossible, as he sees it, to demand understand- ing from someone or something not capable of it. For “intending” to comply with a command is necessary, and one cannot intend anything unless he com- prehends it. So, inanimate objects and animals, for example, are not under obligation. l4 As for capacity, it is reason, the instrument of discernment, that is of cen- tral import, for it is the determinant of eligibility for and liability to obliga- tion. Ghazdi notes that since the locus of obligation is a living human equipped A. Z. Hammad GhazZIh Juristic Treatment of the ShaGah Rules in al-MustasfZ 165 with reason, a faculty not perceivable by our senses, the Shan’tzh accepts the signs of maturity, namely the coming of age and normal development, as manifest indications of sound reason. l5 Ghazdi distinguishes between man’s ability to be charged with SharM obligations-which earn a person, whether young, old, male, or female, cer- tain rights and rewards-and the Shun‘ah obligations which render him liable in this world and in the hereafter for performing or neglecting commands. The first capacity is ahliyyat al-wujiib, being eligible for taklg Its essen- tial requirement is being a living human. The second capacity is described as ahliyyat al-udii: the capacity of the human to perform, which requires maturity, sanity, freedom, and the like.16 Delving into greater detail concerning ahliyyat al-ad& Ghazdi refers to the impossibility of obliging the minor, the forgetful, the intoxicated, the in- sane, and the nonexistent,17 all of which share a common trait-lack of reason. He explains that it is not possible for the Shun’izh address to lay obliga- tion upon a minor because of his underdeveloped faculty; nor the intoxicated owing to his temporary loss of reason through intoxication; nor the insane for his insanity; nor the forgetful for his inability to retain the address in mind. Ghazdps opponents, however, argue that since the Qur’Bn has specifically addressed the intoxicated person-“Oh believers draw not near to pmyer when you are intoxicated until you know what you are saying,q8 - one, therefore, may be commanded without understanding the command. Ghazdi responds that the command expressed in this verse may be interpreted in two ways. First, this was revealed before the prohibition of alcohol. Consequently, the prohibition is not directed at prayer. GhazAI cites in support of this inter- pretation an Arabic saying, “Draw not near the night prayer when your stomachs are full,” meaning, do not eat in excess so that it becomes burdensome to pray. l9 Second, the address is directed at those near intoxication but still capable of comprehending the address.2o But this reply is weak because the verse is addressed to the entire urnmh, not to the intoxicated in particular. Even if we suppose the latter, it is certain that the verse would be related to them upon returning to sobriety. In any case, the address was later abrogated by the blanket prohibition of drinking alcohol. Ghazlli further states that an intoxicated person is responsible for his acts during his intoxication. So, if he pronounces divorce or offends someone, he is liable. As for the minor, necessary expenditures, penalties, zakiit, and other such things are indeed obligations to be fulfilled but by his guardian. The intoxicated person, on the other hand, since he generated the acts, must be liable for them.21 Regarding the Ash’arite position that it is possible to lay an obligation upon a person who does not yet exist, Ghazlli defends this possibility by saying that since the laying of obligation is by Allah, it is possible for it to 166 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 precede the existence of someone. The obligation is binding when the person comes into being and is capable of understanding the ShaGtzh address.22 He gives the example of a dying father whose wife has a child in her womb. The father commands that his children spend his wealth in a prescribed manner. It is linguistically and customarily possible to say that he has entrusted all of his children to carry out his will, including the unborn, provided the un- born is born and is later capable of understanding the command. Al-Mamnm Fihi (The Subject to Rule, The Acts) Since the essence of takfifis the acts which the loci of obligation are either obligated to or prohibited from performing, they are, then, that to which the ShaGizh address is directed. This is perhaps why Ghazlli stipulates that a charged obligation be openly or at least potentially knowable, meaning that charging to perform the ShaGtzh acts should be promulgated and not con- cealed in the mind of the Lawgiver or His Messenger. Also the locus of obliga- tion must have the capacity to perform, that is, to possess reason enough to comprehend the intent of the Lawgiver and to understand the act required of him, either directly or through those who know. For example, the abun- dance of manifest signs in the physical world (nature) and the proofs existing in the Qur’ln are sufficient for any rational person to recognize the existence of Allah and that He is the source of obligation, according to Ghaziili. Therefore, a person cannot use ignorance as an excuse for justifying noncompliance. Ghadli states that along with knowing the prescribed act, one must know that this act’s command has been issued from the source of obligation, the only authority capable of originating commands, Allah. This reflects Ghazllps zeal to demonstrate the validity and authenticity of the sources of Islamic Law-the Qur’ln, the Sunnah, Ijmii: and al-Istishiib wa dalil al- hql. In summary, every rule wherein it is possible to understand and know its source as legitimately from the ShaGhh, the loci of obligation are obliged to fulfill, whether the rule is known directly or through persons who have knowledge of the ShaGbh. Concerning the nature of acts that fall under takls Ghazili requires that they be within the capability of the locus of obligation. He argues that “charging the impossible is impo~sible,”~~ and rejects the idea of obliging an impossi- ble act on the grounds that it is incomprehensible to the locus of obligation. He contends that a thing, before materializing, has an existence in the mind, and it is only sought after when it comes into being or is conceived in the mind.24 He does not hide his disagreement on this issue with Abii al-Hasan al-Ash’ar-i, the patriarch of many of Ghazllps views. On the contrary, he criticizes those of his positions that imply the possibility of obliging an im- possible act. A. Z. Hammad Ghazli’s Juristic Treatment of the Shariah Rules in al-Mustasfi 167 Al-Ash’arI’s Position and GhaziilI’s Reply Ash‘arps theological position concerning human acts approximates that of the Predeterminists, holding that all human acts are created by Allah.25 That is, man is essentially impotent, for Allah creates in man the necessary power to perform an act exactly at the time of its being and not before it exists in some potential form. Based on this understanding, it is possible for Allah, in Ash’ari’s view, to command a locus of obligation to perform the acts obliged exclusively upon another and to require him to perform impossible acts, for He creates his acts for him. Ghazlli provides rational and Shariizh arguments against the three Tex- tual references that ash‘^ cites in support of his position, which are as follows: First, Ash’ari cites the verse, “Our Lord, do not burden us beyond what we have the strength to bear . . .*6 from “Siirat al-Baqara,” claiming that if it were not possible to oblige an impossible act, Allah would not have in- structed His creatures to ask Him to remove from them that which is im- possible to bear. Secondly, since Allah has informed His Messenger that his opponent, Abii Jahl, will not accept his message-and it is impossible for the knowledge of Allah to be contradicted - then the Prophet’s invitation to Abii Jahl to believe in his message is equivalent to obliging Abii Jahl with an impossibility. Thus, obliging the impossible is demonstrated, especially when one considers that Abii Jahl is charged to believe in what is revealed to the Prophet-including the fact that Abii Jahl will not believe in him. The third point is that the objections raised against obliging an impossi- ble act are a result of there being no Sha&h text that either indicates this or its rational inconceivability. Ash’ari quotes some verses of the Qur’iin in support of his argument that imply the charging of an impossible act, such as His statement, “Be stone or iron,”n claiming that although this is impossi- ble, He still commands it. Therefore, Ash’as holds, it is rationally conceivable for a master to require his servant to manage his concerns in two different cities simultaneously. Furthermore, there is no contradiction nor corruption in this; nor is it against popular wisdom, for all the acts of Allah are consis- tent and contain no corruption. All that He does is good. Be that is it may, Ghaziili says explicitly that Ash’arps argument using the verse in “Siirat al-Baqara” is weak because the verse is not bidding man to ask Allah to remove what is impossible; but rather to ask Him not to lay on an obligation too burdensome and difficult. Any other interpretation, Ghaziili says, is wrong, for this verse neither explicitly nor implicitly indicates otherwise. In the case of Abii Jahl, Ghaziili says that there was no rational possibility preventing his accepting Islam - particularly when Allah has demonstrated 168 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 both universal and Qur’lnic proofs supporting the truth of Muhammad’s message. Abii Jahl’s course of disbelief is therefore a result of choice based on jealousy and obstinacy, not a consequence of Allah having determined it for him. Finally, Ghazlli rejects the charging of an impossible obligation regardless of whether or not it conflicts with popular wisdom on the grounds that the essence of laying obligation is bidding, which, in turn, necessarily requires something to be fulfilled. For commanding the performance of an act must be understood by the locus of obligation. To illustrate his point, Ghaziili in- sists that it is possible to command a person to move-“taharrak!”-because movement is understood by him. But it is impossible to command him, using Ghaziilps words, with Tamarrak!’q8 - an absolutely meaningless word. Ghazlli cites other examples to further his argument, saying that it is not ra- tionally conceivable to require trees to sew, or to demand blackness to come from whiteness; nor is it possible to demand changing blackness into motion or a tree into a stallion.29 Another impossible obligation, according to Ghaziili, is commanding the simultaneous performance of two mutually contradictory tasks. So his op- ponents project the scenario of a person who is in the field of a usurped farm, and who is at once prohibited by the Shazhh from staying on usurped land but also forbidden to move because motion would cause damage to the crops, which do not belong to him. Hypothetically speaking, he is essentially commanded to move and not to move at the same time. Ghazlli dubs this kind of argument sophistry and states that a jurist in a case like this can only rule that the person leave, “to minimize harm.”30 For remaining in his position is more harmful than the alternative, and that which causes the least amount of damage, then, is not only the preponderating obligation but in compliance with the Shadhh. 31 Furthering his position he cites the verse, “Allah charges no soul save to its capacity,”32 as proof that Allah, the Source of obligation, withholds the oblig- ing of the impossible. Classification of the Shan”ah Rules Ghazili introduces the concept of obligation (wjiib) by listing its various definitions held by jurists. For example, wiijib has been defined as follows: 1. That which is qualified as obligatory. 2. That which one is rewarded for performing and punished for neglecting. 3. That which one must not determine to neglect. 4. That whose abandonment is considered disobedience. To Ghaziili, all of these definitions are deficient because they identify wiijib A. Z. Hammad GhazZli’s Juristic Treatment of the Shasah Rules in al-Mustasfi 169 either by its effect or by one of its conditions. Thus he takes a more holistic approach in defining wiijib by relating it to the other categories of the Shasizh rules whidh also qualify the acts of the loci of obligation, introducing a com- prehensive sense of wujiib within this structure. He notes that, as a term, wajib is technically and linguistically used in various ways. Linguistically, wiijib can mean to fall to the ground. He cites the verse, When theirflunks full down [wujubut] [to the ground],”33 and he also cites the Arabic expression, “The sun set [wujubut ul-sham.~]~~ In theology, wiijib is used to describe the necessary existence of Allah (wiijib ul-wjiid). This is in contradistinction to the impossible or the absurd. According to the f u q h and the usiilis, wiijib describes those acts which the Sha&h declares obligatory- regardless of their being contingent, known, and such-in light of the nature of the Shuriizh biddings. Therefore, if the bidding is binding, the desired act is obligatory, and if it is not, the act is recommended (mandiib). But if the Shuriizh bidding makes doing or not do- ing optional, it is allowed (mubiih). On the other hand, if the ShuAbh bidding demands that the locus of obligation forego an act, it is prohibited @uriim). But if the prohibition is not binding, then it is reprehensible makriih). It is evident, then, that Ghazili in defining obligatory does not isolate it from the family of the five ShuAhh rules. Rather, he discusses its concept in light of the nature of the ShaZizh bidding. Therefore, to him wiijib (obligatory) or ijiib (obliging) is the Shusizh command which bids doing. He also says that efficacy of the ShuAizh commands binding nature-in both obligations and prohibitions -are the consequences for compliance (reward) and disobedience (punishment). Furthermore, the performance of wiijib results in reward and its abandon- ment is a cause of punishment in the Hereafter. Causality here, according to Ghazili, is as medicine is to healing or striking is to pain. Yet it is not absolute causality because the effect may not show in all cases. It is possible, for example, that a person not perceive pain or injury when afflicted, as in the case of a person in the midst of a fierce battle. Claiming that this is analogous to performing an obligation or abandon- ing it, he manifests his @$ inclinations, weaving them into the fabric of his legal theory. He states that Allah, by His divine grace, may penetrate the in- ner being of a person and recognize laudable and praiseworthy characters that alleviate discharging his punishment for neglecting an obligation. Yet this does not exempt the violation from causing punishment on the Day of Judgment.35 According to Ghazili, wajib is synonymous with b t m (necessary), liizim (must), fur4 (mandatory), and maktiib (to be written).36 He refers to the Hanafite scholars who distinguish wiijib from fur4 (like Abii Zayd al-Dabbiis), fur4 being an obligation firmly established on a conclusive proof-decisive in its meaning and the authenticity of its transmission. Wujib, according to 170 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 them, is that which has been based on conjecture and not transmitted by an overwhelming, unbroken chain of transmitters. While GhaziilI concedes that they may use these terms, he does so on the condition that their definitions are made clear.37 Ghaziili defines burTim, the prohibited, as wiijibs antithesis in the family of the five Shanfih rules. It is, therefore, that about which the Sha$bh declares, ‘Abandon it!” or “Do not do it!”38 Huriirn may also be called mahziir or ma$iyu. 39 Mubib, the allowed, is that wherein the Lawgiver grants option with reference to an act’s performance or abandonment, neither praising nor de- nouncing its doer or a b a n d ~ n e r . ~ ~ Contrary to the Mu’tazilites, Ghazlli regards rnubiih as one of the set of five Shadtzh categories, and a de fact0 condition of those acts which the Shadtzh did not declare prohibited or obligatory. Mundtrb, the recommended, is that whose performance is better than neglecting, but one is not blameworthy for negelecting it. In other words, it is that part of the Shadtzh commands which are nonbinding. Mukriih, the reprehensible, Ghazdi says, has been used in various ways by thefiquhii; He cites Shlfi using the term makriih as prohibition. It is also used with reference to that whose abandonment the Shadbh prefers to its per- formance, although no punishment is prescribed for the latter. It may also mean performance of some act in place of another that is more proper. Final- ly, it can also refer to all questionable acts. Ghazlli, however, clarifies this last usage that could be confused with the ijtihiid of qualified authorities- for some consider ijtihiid to be makriih. But he opposes this interpretation. 1. Special Classifications of Wajib In detailing a more complete analysis of the Shanfih rules, G h d i classifies them according to particular aspects, for instance the time within which they are to be performed. Concerning wiijib, for example, Ghazlli divides it ac- cording to (a) the specificity of the obliged act; (b) whether it is a collecitve or individual obligation; (c) time restraints in fulfilling the obligation, which includes timely and belatedly performed acts; and (d) the quantity or extent of prescribed acts required to fulfill an obligation. As for the first, prescribed obligations may give a person options between a number of acts or specify only one act to fulfill the command. These are called, respectively, ’wiijib rnuhyyur’ (obligation with options) and ’wiijib rnuhyyun’ (specific obligation) .41 Obligations such as prayers, fasting, and fulfilling contracts are considered wiijib muizyyun, for they, in particular, must be performed. No other acts can serve as their substitutes. Contrary to A. Z. Hammad Ghaz5li’s Juristic Treatment of the Shasah Rules in al-Mustasfi 171 the Mu’tazilites, who object to this classification, G h d i claims that there is not only rational proof for this, but Shahuh proof as well, because the obligations specified in the Shu&zh fall under one of these two categories. There remain, then, obligations which have options (wiijib mukhayyar). For example, in atoning for the breaking of an oatk, one has the option to fast three days, to free a slave, or to feed ten indigent persons.42 Also, the community has the option to choose the head of the Muslim state from among several eligible persons. For the selection itself is an obligation, but not a particular person.43 With respect to who falls under obligation, Ghazlli classifies wiijib into either wiijib kifa f (collective obligation) or wiijib hyd (individual obliga- tion).44 Collective obligations are those which an individual or a group can perform on behalf of the community, discharging the rest from responsibility. For example, securing a viable system of defense is an obligation binding on the community at large. But if a part of the community acquires the necessary knowledge - including science and technology-and implements it, the com- munity would be discharged from the obligation. Otherwise all are responsible. As for wZijib uyni, these are the obligations required from every individual who meets the conditions of tuklg Obligations are also divisible according to the time allocated to perform them. There are two time-specific kinds: restricted obligations (wiijib muCiayyaq) and obligations with latitude (wiijib muwassu’). Restricted obliga- tions are those for which the Shadhh has prescribed a single, specific time for duration that accommodates the performance of the obligation. Fasting is a clear example. Not only is the month of Runqiiin specified, but the time between dawn and sunset as well. Accordingly, fasting in any other month is an invalid performance of the obligation (unless with the excuse allowed by Shadhh). Also, fasting at any other time of the day is obviously invalid as well. Likewise, fasting two months for the atonement of qihiir (pronouncing one’s wife to be prohibited from him, like the back of his mother) must be done consecutively. Obligations with latitude (wiijib muwussu’) are those whose prescribed times can accommodate the performance of the obligations-any moment within the time range-along with other acts. Such is the case with paying- zakiit upon reaching minimum requirement; it can be paid any time during the following one-year period. Although the performance of these obligations may be delayed until toward the end of the prescribed time, performing the obligation becomes necessary in the last possible portion of the prescribed time where the obligation, and nothing else, can be acc~mmodated.~~ Reg- the performance of the obligation with respect to its time, G m classifies such act as adii’(time1y performance), q&’(belated performance or 172 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 restitution), and ie& (repeated performance). An obligated act performed properly in its time is considered ad$. But if it is performed after the expira- tion of the Sh&h prescribed time-restricted or with latitude-it is called qqfii.’ Also, if one performs it improperly in its time and then repeats it prop- erly while still within its prescribed time, it is called i“&. In the first situation the locus of obligation deliberately or forgetfully neglects performing an obligatory act in its prescribed time, but the act must be performed46 - this is considered qu& (proper). The second is a case where there is a valid obstacle, such as menstruation preventing a woman from fasting; she must fast additional days after the ex- piration of the menstruation, which is considered qqfii but only figuratively. (In fact, Ghazili considers it regular performance.) The third is a situation where one is validly discharged from an obliga- tion but decides to perform it, as in the case of a traveler in Z?unz&iin, who is not obligated to fast but still does so. Here Ghazili cites the Zihirites who hold that fasting during a journey is invalid because Allah said, . . A number ofother days . . . ,”where one is commanded to fast “other days.’’ On the other hand, Karkhi, a Hanafite, agrees with the Ziihirites that one is commanded with “other days,” but contends that if one decides to comply with the com- mand and fast during the journey, it is permissible to do so. Ghazili argues that both opinions are corrupt and invalid, and regards the traveler’s fasting as a legitimate performance of a duty. However, he considers it q d u ’ in the figurative sense only, saying that the verse mentions the “other days’’ only to grant laatitude. The fourth is the case of a sick person. If his sickness is bearable, his situation is identical to that of the traveler. But if his sickness is life-threatening and he still decides to fast, Ghazili regards his action as a valid performance of an obligation. Yet if he dies, he will be punished in the Hereafter, not for fasting, but for disobeying another command to perserve his health and life.47 Others, however, do not consider his act adii’ because he has gone against the exemption of not fasting. Obligations, with reference to the quantity or extent of prescribed acts re- quired to fulfill them, are also divided into fixed obligations (wiijib r?uhddd) and unfixed obligations (wiijib ghuyr mu&ddad). Fixed obljgations are, for example, rites of worship, payment of loans and debts whose fulfillments are non-negotiable and fixed either by the Sh&h or by con- tractual agreement (loans, contributions, etc.). In fact, a person who unilaterally commits himself to contribute a fixed amount of money is obliged to fulfill his commitment to the letter. Spending for the cause of Allah, enjoining what is right and forbidding what is wrong, helping the poor and the like, are obligations whose fulfillments differ from person to person in accordance with circumstance and abilities, unless the ummah reaches consensus on fixing one or another of them.48 A. Z. Hammad GhazZlh Juristic Treatment of the Shasah Rules in al-Mustafi 173 2. The flanaftes’ Class@cation of the &kn The Hanafites add two categories of Shadtzh rules to Ghazdh five: fur# (binding duty) and makriih tu!&nun (prohibitive reprehension), which they determine in accordance with the certainty of a said rule’s transmission. Shun& obligations reported by way of tawiitur are called eitherfir4 or hariim, depend- ing upon their instruction. Those based on a solitary report termed d j i b (obligatory) or mukriih tuhrhnun. So, wiijib is less certain than furd, and mukriih t u h r h n is subordinate to huriim. Thus, the Shudbh rules that bid man “to do,” according to the Hanafites, arefur4 and wiijib. Those that forbid him, in order of potency, are kriim, makriih tuhrhun, and makriih. And, as with Ghazdi, both the “do” and the “do not do” converge on the mubiih (the indifferent). Thus, the Hanafites classify the rules of the Sharii into seven categories. Interestingly, however, al-ShgtibI says that shortly after Ghazilli, these five or seven categories of Shudbh rules were reduced to three under the influence of tquwwuf: the commanded, the prohibited, and the allowed. Violating the commanded, be it obligatory or recommended, is fundamentally a violation against the Commander. And since violating Allah’s command is out of Islamic character (a servant must not go against his Lord), it therefore became obligatory to repent against any violation, minor or major.49 3. Ghazl)(i‘s Five Categories in Relation to One Another It is impossible, in Ghazill?s view, for the Shadhh to declare one and the same act wiijib and kriim, obedience and disobedience. But relative to independent circumstances, it is possible for an act’s rule to change. For ex- ample, murdering an innocent person is absolutely forbidden. But executing the murderer is necessarily obligatory. Therefore, a Shudtzh rule upon one act may vary in relation to other factors. Ghazgli says that it is ”possible for an act having two differing aspects, even though it is one in itself, to be sought after through one of the aspects and reprehensible by the other.”m Further- more, the difference in the aspects of an act is equivalent to the difference in the act itself. An obligatory act, by definition, is distinguished from an allowable (4) act. Therefore, when the obligatoriness of an act is abrogated, it does not necessarily become allowable.51 Rather, it reverts to its pre-obligation status, the character that defined it prior to its becoming obligatory. Reprehensible acts, like the forbidden, are antithetical to obligation. Thus, a reprehensible act is never included under a command, ”to do.” It is necessarily expressed in a way that explicitly or implicitly indicates “should not do.” 174 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 Commanding an act does not necessarily mean the prohibition of its op- posite, according to Ghazlli. That is, the imperative mood neither includes nor necessarily implies the prohibition of its opposite. Similarly, a command to do the opposite of a prohibition cannot be inferred, nor should it be con- strued to mean that the performance of something else is required.52 4. Tuk& and Conformity to the Shan"uh Shazizh rules may be either intended or required as stipulations for the fulfillment of other rules. However, the laying down of obligation by requir- ing "this" or "that" act is not conditional upon the existence of contingent rules. True, the rectitude and validity of a said act's performance requires the fulfilling of its conditions. But it is the laying of obligation to perform a single, central act that corresponds to the Sha&h proof, while accountability is independently established for each contingent act. For example, Ghazdi says, the Sha&h obliges man to fulfill the five pillars of Islam: declaration of faith, prayer, fasting, mkiit, and pilgrimage. Never- theless, declaration of faith is a necessary condition for the correct and valid performance of the other four pillars. Furthermore, the ShaGizh requires the on-going acceptance of each for one to remain Muslim. Therefore, conform- ity with them- each to each and all in all - is a necessary condition of tak@ As a universal state in Ghazll?s legal doctrine, tukZ$charges Muslims and non-Muslims alike. For "unbelievers are addressed by the details of the Shusizh as well, he says. But he adds that unbelievers are not "expected" to perform these obligations, since even if they do, their fulfillment is invalid and meaningless without their formal submission to Islam. Nevertheless, the divine obligation is addressed to all people, Muslims and non-Muslims. In this he takes issue with the Hanafites, who postulate that obliging non- Muslims with the details of Shariizh is rationally inconceivable because of their disbelief.53 In support of their view the Hanafites argue that one who converts to Islam is not obliged to perform restitution for having not fulfilled the Shazizh obligations prior to his acceptance of Islam. Thus, he is not obligated to perform them to begin with. For had this concept been addressed by the details of the Sha&h as an unbeliever, it would necessarily follow that he be obliged to "make up" for obligatory acts after his submission. Moreover, no one, including G h d i himself (or since), has held such restitu- tion as required. Ghazllps response is centered upon the interrogation the unbelievers will face, at the hands of the believers in the Hereafter, about the reason for their punishment and their answer that they were not among those who fulfilled the Shudhh obligation^.^^ A. Z. Hammad GhazZlh Juristic Treatment of the ShaGah Rules in al-Mustasfi 175 . . . In Gardens they will question concerning the sinners, What thrusted you into Saqar?’: . ?We were not of those who prayed, and we fed not the needy, and we plunged along with the plungers, and we cried lies to the Day of Doom, till the Certainty came to us.” It appears from his argument that Ghazftli is recalling the duality of legal responsibility in Islam. On one hand, a person is responsible before the Shanizh in this world; and on the other, he is responsible before the Court of Allah on the Day of Judgment. Only in the sense that they are accountable on the Day of Judgment is Ghazilps claim that the disbelievers are addressed by the Sha&hS details acceptable. Otherwise, in requiring the imposition of Shanizh rule upon non-Muslims, Ghaziili would be contradicting not only himself, but the basic principles of the Shagbh. 5. Sabab and the Shaaah Rules Although revelation itself has been completed, Ghazftli reminds us that certain Shazbh rules are affected by the recurrence of evident manifestations. Whenever these signs appear, it becomes necessary to perform or refrain from one or more acts, in accordance with the five ahkiim. This sign is termed “sabab”(cause). In ritual performance for example, when the sun sets, prayer is obligated; when a year passes, zukiit is due; when RumudanS crescent is sighted, fasting is incumbent. Regarding transactions, the marriage contract affects the mutual rights and marital obligations of a man and woman; the divorce contract abrogates them, setting new guidelines; death is a cause for inheritance; the contract of sale causes ~wnersh ip .~~ The real cause of these obligations is the Shagbh address issuing from Allah. But the technical sabab is the apparent sign with which revelation has conjoined the performane of specific acts. ‘$&z (valid), %@iZ’ and Ssid’ (invalid) are terms used to describe the validity of performing a Shagbh act. The valid act, in Ghazftlps scheme, is one that corresponds to the Sha&h rule, regardless of whether it is performed in restitution (qudii? or on time. The b&iZ act, which is synonymus with the @id act, is one that does not fulfill the Shadbh requirements. However,. the principal approach of the Hanafite jurists, or thefuqahii’ as they are called, defines valid performance as one that discharges respon- sibility, removing the need for re~titution.~~ The dispute between the two views is reflected in the sphere of ritual performance in the following case. If a person prays, thinking that he is ritually pure, Ghaziili and the so-called mutukaZZim jurists regard his prayer as valid; for prayer itself has been ade- quately performed. But if he later remembers that he was not ritually pure, 176 The American Journal of Islamic Social Sciences Vol. 4, No. 2, 1987 then restitution is established by a different command. Based upon the Hanafite definition, however, the same prayer is invalid because it does not discharge the person from his obligation to pray, since he has not fulfilled all the prescrib- ed Shurbh requirements. Concerning business transactions, a valid contract (al- bqd al-muthmir), according to Ghazdi, is one that is effected and stipulates the fulfillment of all agreement^.^' Hence, a contract that is not effected is invalid. Yet the Hanafites distinguish the invalid contract (biitil) from the irregular @id). For the latter is essentially a valid Shuridh contract that includes a violation or a stipulation that disregards the Shuztzh, such as a sales contract that includes a usury clause. In principle, the agreement is lawful but the inclusion of the usury stipulation impairs it. This example illustrates a fundamental difference between the approaches of the mutukutlimiin and theJeuquh6.’ A contract of sale stipulating usury is flatly rejected as invalid by the mutakallimiin, Ghazdi included. The Hanafites on the other hand contend that what is invalid here is the stipulation of usury. But the rest of the contract may be valid. These distinctions are technicalities, as Ghazili notes. However, they help one to properly understand the application of these terms in the legal writings of both schools. In sum, Gha& legal doctrine establishes that the Shariizh rules (a) originate from Allah and are manifested through revelation in the Shasizh address; (b) adhere to the acts of the loci of obligation as Allah detailed their conditions; (c) are classified into five categories with reference to the bid- ding of the S h h h “to do” or “not to do”; and (d) are divisible into sub- categories according to their prescribed time, requirements of performance, and validity, 1Abil Hmid Ctl-GhazalT, al-Mustasfa, 2 vols. (Bulaq, Egypt: Amiriyya Press, 1322-241 *For the linguistic meaning of hukm see Jamal al-Din b. Muhammad Man@&, LisSrn al- ;I&, 15 vols. (Beirut: Diir Siidir, n.d.), 12:140-145; Ibrtihh M u s e et al., al-Mujam al-Wj?, 2 vols. (TehrEtn: Maktabat alllmiyya, n.d.), 1:189-190; and Edward Lane, An Arabic-English Lexicon, 8 parts (Beirut: Libraire du Liban, 1980), 2516-18. 1905-7, 117. 3Ghaz&li, al-Mustass, 1:129. 4Ghaz&, al-Mmtasj2, 155. % h a d , al-Mcartasfa, 1:7. 6Qur’iin, 5:4. 7Qur‘&, 4:23. Whazilli, al-Mwrm$i, 1:86. PGhazUl, al-MustasJi2, 1353. ’bGhazsli, al-Mustassf, 1:83. “This is inconsistent with the popular Mu’tazilite notion that acts are either ’good’ or ’bad.’ For more information on the various views and positians,,see ZudhI Jar All&, al-Mu’razila, 2nd ed. (Beirut: Al-Ahliyya Publications, 1974), pp. 51-156. A. Z. Hammad GhazZlh Juristic Treatment of the ShaGah Rules in al-Mustasfi 177 12GhazBli, al-Mustasfa, 1:83. I3Ghazdf, al-Mustasfa, 1:84, 14Ghaz%lf, al-Mustasfa, 1:83. IsGhazBlf, al-Mustasfa, 1: 84. 16Ghaz%lf, al-Mustasfa, 1:84. 17Ghaz%lf, al-Mustasfa, 1:85. ISQur’Bn, 4:43. 19Ghaz%li, al-Mustasfa, 1: 85. 20GhazB11, al-Mustasfa, 1:84. 2IGhazBll, al-Mustasfa, 1:84. 22GhazBlf, al-Mustasfa, 1235. 23GhazB11, al-Mustasfa, 1:90. 24Ghaz%li, al-Mustasfa, 1:88. 2sAsh’arf here twists an interpretation of the verse, “And Allah has created you and that 26Qur’Bn, 2:286. nQur?in, 1750. 2*Ghaz%lf, al-Mustasfa, 136-87. 29Ghaz&, al-Mustasfa, 1:88. WGhazBlf, al-Mustasfa, 139. 31GhazBl1, al-Mustasfa, 1239. 32Qur’Bn, 2:286. 33Qur’Bn, 22:36. %Among of the linguistic meanings of wajib are necessary, requisite, binding, obligatory. 35GhazBlf, al-Mustasfa, 1:28. 36Ghaz%li, al-Mustasfa, 1:66. TGhazBl;, al-Mustasfa, 1:28, 1:66. 38GhazBlI, al-Mustasfa, 1:55, 1:66. 39Ghaz%li, al-Mustasfa, 1:28. NGhazBlf, al-Mustasfa, 1:66. 41GhazBlf calls Snuhyyar,’ hubham.’ al-Mustasfa, 1:67. 42Qur’Bn, 5:92. 43Ghaz%li, al-Mustasfa, 1:67. UGhazdi, al-Mustasfa, 1:68. “GhazBli, al-Mustasfa, 1:69-70. &A person is discharged from punishment for being heedless, forgetful, or sleeping 47: . . And caste not yourselves by your own hands into destruction . . .” Qur’iln, 2:195. 48Ghaz%li, al-Mustasfa, 1:70. 49Abi1 IshBq al-ShBtibf, al-Muwa$qiit, 4 vols. ed. Abd Alhh Dir& (Beirut: D& al-Ma’rifa, soGhaz%li, al-Mustasfa, 1:77. SIGhazdi, al-Mustasfa, 133-74. S*Ghazdf, al-Mustasfa, 1:81. 53Ghaz%li, al-Mustasfa, 1:92. 54The Hanafites have a reasonable answer to this, which can be summarizRd as follows: The disbelievers’ answer is figurative indicating that the original cause for punishment is that they did not accept Islam in the first place, therefore they did not pray and did not perform the Sh.zrhh details. Yet G M i does not like this answer. See the full debate in al-Musf@i, 1:93. which you do.” Qur’Bn, n 9 6 . Lane, An Arabic-English k i c o n , 8:2921-2923. through the time. n.d.), 3:148, Whaziili, al-Musmfa, 1:93. WWi , al-Mustasfa, 1:94. 57Ghaz&, al-MusmB. 1:95.