The Concept Of Al-Maslaha Wa Al-Nass With Special Reference To Kitab Al-Buyu' In The Book Of Bulugh Al-Maram

THE CONCEPT OF AL MA$LAHA WA AL NASS WITH SPECIAL REFERENCE TO KIMB ALBUYII' IN TIDE BOOK OF BULIIGHAL MA&4M

Ishak Suliaman

Submittedto the University of Wales in fulfilment of the for requirements the Degree of Doctor of Philosophy

University of Wales, Lampeter 2005

i ABSTRACT

This study examines the concept of al-Maslalia wa al-Nass (Public Interest and Islamic legal text) with special reference to Kitdb al-Buyi (chapter on business transactions) in the book of Bulügh al Mardm. The analysis moves from the connection formed between al-Ma. lalta and al-Nass by Muslim jurists to the investigation of the practical principles of al-Maslaha as those principles apply to alBuyü as encompassed in the ahddith of the Prophet s.a.w in Kitdb al-Buyuf. It is for , this reason that the book of Bulügh al-Maräm has been chosen by the present researcher; Kitäb al-Buyuf represents the most explicit source of aliddith on which to draw for the practical principles discussed.

To this end, six chaptershave been drawn up in three parts; that is, parts A, B and C.. Part A is entitled `The concept of al-Maslal:a wa al-Nass in Islamic Jurisprudence',and consistsof three chapters.The first deals with the definition and historical developmentof the concept of al-Maslaha wa al-Nass.The secondchapter extendsthis with the theoretical development of the concept of al-Ma. lalla wa alNass. This conceptual section closes with the third chapter, which focuses on the significance of Tdlil al Alikam for the concept of al-Mallalia wa al-Naas. Part B examinesthe authenticity of the Iladith, introducesthe book of Bulügh al-Maräm and four discusses five. fourth The two of and consists chapter chapters,chapter chapter the main referencesourcesfor the book of the Uadith, while the fifth both introduces the book of Bulügh al Mardm and analysesin detail eachsuccessivesection. The last part of this thesis is part C, which specifically examinesthe altädith. Part C forms the heart of the thesis, building a specific methodology within the juristic framework of the concept of al-Ma.Flalia wa al-Nall for the analysis of alBuyü according to the practical principles drawn up from the 22 sub topics listed in Kitäb al-Buyuf (chapter on businesstransactions)in the book of Bulügh al-Maräm. The thesis concludes that if these principles of public interest are applied to all businesstransactions in accordancewith what is laid down in the a1iädith of the Prophet s.a.w, then the public interest of humanity amongst Muslims will be preserved.It is for this reason, that the aliädith of the Prophet s.a.w are given to humanity as a universal living source on which to draw for their. eternal well-being. Thus, it is hoped that using the juristic concept of al-Maclalia wa al-Nall as a new tool with which to analysethe altädith of the Prophet s.a.w opensthe door to further study in this field.

ii

Declaration/Statements

DECLARATION This work has not previously been acceptedin substancefor any degreeand is not being concurrentlysubmittedin candidaturefor any degree.

Signed .................................... ............... '... Date.......... .

Statement1

This thesisis the result of my own investigation,except where otherwisestated. Other sourcesare acknowledgedby footnotes giving explicit references. A bibliography is appended.

" Signed4::5; S :... g.:.. os.......... Date......

Statement2

I herebygive consentfor my thesis,if acceptedto be availablefor photocopyingand for inter-library loan, and for the summary to be made available to outside organisations.

Signed ......... T'.. Date.......

d "..'...

.........

iii ACKNOWLEDGEMENT

For the most and prime acknowledgement,I expressall the praisesand thanksbe to Allah the Almighty for His mercy and blessing in bestowing upon me of being a Prophet learn Hadith His knowledge the the to s.a.w of of student seekand valuable been has humble by jurisprudence. Islamic Again, His this work and permission, completedto be examinedand utilised for the sakeof Islamic knowledge.

My earnestappreciation belongs to my supervisor, Dr. Mawil Izzi Dien for his invaluable encouragementand commitment, untiring and smart supervision.I am indebtedto his effort in advising and assistingmy thesis presentablein the present form. His latest book of Islamic law is inspired me to completethis work during the third year of my Ph.D studies.I owe my special gratitudeto my English teachersfor

jargons in their valuablesuggestions of andcomments assistingandcorrectingmy English usage in this thesis, particularly to Carole Russell Williams, Pat Sinclair, Serena Gibbs, Greg Backer, Br. Anuar and Br. Amjad. I also owe my sincere for Studies, UWL, Helen Vella Bonavita, Dr. EFL Director the to appreciation of for Williams Carole Russell a period provision of academicwriting workshopswith of almost one year.

I am indebted to the Government of Malaysia, the Public ServicesDepartment of Malaysia, the Ministry of Education, Malaysia and the University of Malaya for awarding me the study leave for three years and assistingme with financial support during my studiesin the United Kingdom. Very special thanks and appreciationare due to numbers of scholars and colleagues,who gave their moral and academic

IV support prior to and during my studies especially, Professor Dr. Mahmood Zuhdi Abdul Majid, Professor Dr. Ab Aziz Mohd Zin, Professor Dr. Abdullah Alwi, Associate Professor Dr. Zulkifli Yusoff, Associate Professor Dr. Abdul Rashid Ahmad, Associate Professor Dr. Fauzi Deraman, Associate Professor Dr. Abd Karim

Ali, AssociateProfessorDr. Ali Mohammad,Br. Asmady, Br. Anuar, al-UstazAbdul Ghani Shamsuddinand membersof PUM.

Very sincerethanks are expressedto Dr. FrancesKnight, Head Departmentof TRS who endorsed my application of departmental research scholarship. The scholarshiphas been spent to cover my expenditure researchat SOAS, London and part of my trip of research to Egypt in the first year of my studies. The same commitment of appreciation goes to all the librarians who assist me in providing many related materials of my thesis, particularly those librarians from the University

of Wales, Lampeter,University of Wales, Aberystwyth,the British Library, the School of African and Oriental Studies (SOAS), the University of Birmingham, the University of Edinburgh, the University of Malaya, the International Islamic University, Malaysia and the National University of Malaysia.

I am indebtedmost of all to my beloved and dedicatedwife, Noorizah Ghazali

and my lovely kids; Ammar, Muadz, Luqman, Sarahand Imran, for their utmost patient,understanding andcontinualsupportduringalmostthreeyearsof my studies. We have gained wonderful moment during our life of three years in a small and compact university town of Lampeter. The highest degreeof appreciation belongsto

my belovedandcaredmother,Ramlahbinti Ludin, my parents-in-lawandall family membersfor their continuous prayers and wishes for my success.For my late father,

V

Haji Sulaimanbin Ahmad, this thesisis dedicatedto him who alwaysbeing an icon of my life. To all my colleaguesin the University of Wales, Lampeter and membersof EINS at Llanybydder, I offer my sincere gratitude and deepestappreciationfor their highest spirit of Muslim brotherhood.

Again, to all of them; JazakumuLlahKhayr al Jazä'.

Finally, as the perfection and faultlessnessonly belong to Allah as the most perfect, therefore I admit that this thesis is subject to weaknessesbecauselack of knowledge, outlook and experience.Thus, any comment and suggestionthat aims to improve this thesis is highly appreciated. However, to Allah s.w.t. I submit this humble work for my submissionto Him.

Ishak Suliaman Afallen, Bryn Road Lampeter,Wales, United Kingdom. October 2004

vi

TABLE OF CONTENTS Abstract

i

Declaration/Statements

ii

Acknowledgement

iii

Table of Contents

vi

Notes on Transliteration

xi

List of Abbreviations

xiii

INTRODUCTION Background

1

Purpose,scopeand limitation of the thesis

3

Researchmethodology

4

Literature review

5

Outline of chapters

8

PART A: THE CONCEPT OF Al MAFLAHA

WA Al- NAS

IN ISLAMIC JURISPRUDENCE Introduction to Part A

11

CHAPTER 1: THE DEFINITION AND HISTORICAL DEVELOPMENT OF THE CONCEPT OF AL-MAFLAHA WA AL-NA. Y$ 1.0 Introduction

12

1.1 The definition of the conceptof al Maslalia wa al-Nall

12

1.1.1 Literal Definition

13

1.1.2 Technical Definition

15

1.2 The historical developmentof the conceptof al Ma. lalta wa al-Nag 1.2.1During the life of the Prophet s.a.w

20

1.2.2During the period of the Khulafil' al-Räshidiün 1.2.3During the caliph °Umar b. °Abd. °Aziz

22

1.2.4During the Abbasid dynasty

26

21

24

VII

1.2.4.1 The IHanafi School of law

27

1.2.4.2 The Mäliki School of law

30

1.2.4.3 The Shäf(i School of law

34

1.2.4.4 The Hanbali School of law

37

1.3 Summary

40

CHAPTER 2: THE THEORETICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA$, F 2.0 Introduction

41

2.1 The theory of priority of Maslaha over the legitimacy of Nasj

42

2.1.1 The hypothetical form

44

2.1.2 The connectionof MaslalaaMursala with the legitimacy of Naffs

46

2.1.3 alTüfi's theory

51

2.2 The theory of levels of Varüriyya, Hajiyya, and Talisiniyya in

Maclalla the of al wa al-Naas connectionwith concept

67

2.2.1 The Priority Levels of Darüriyya; The Views of Muslim Jurists

73

2.3 The theory of Magd. id al-Syari a in connectionwith Nass

77

2.4 Summary

84

CHAPTER 3: THE SIGNIFICANCE OF TA`LIL AL-AHKf1M FOR THE CONCEPT OF AL-MAgLAHA WA AL-NAý, F 3.0 Introduction

86

3.1Definition of Ta°lil alAhkdm

87

3.2Theviewsof Muslimjurists On Ta°lil alAlikäm al-Syar`ia

88

3.3 The conceptof Ta°bbudiyyain conjunction with TaciT!al Alikäm 3.4 The significance of Ta°lil al-alzkdmin relation to the theory of

90

al-Maslalia wa al-Nas$

96

3.4.1The processof TaC1T1 al-alikämfrom theNaql of the Qur'än or theIladith

97

3.5 Summary

100

Vill

PART B: THE AUTHENTICITY

OF THE HADITH AND INTRODUCTION

TO THE BOOK OF BULOGHAL-MARAM 102

Introduction to Part B CHAPTER 4: THE MAIN REFERENCE

SOURCES FOR THE BOOKS

OF HADITH 4.0 Introduction

109

4.1 Sahib al-Bukhdri

110

4.2 Saliili al-Muslim 4.3 MusnadAhmad b. Ijanbal

113

4.4 SunanAbü Däwüd

119

4.5 Jäm( Abi cIsaal-Tirmidhi

121

4.6 Sunanal-Nasä'i

123

4.7 SunanIbn Mäjah

125

4.8 Other ReferenceSources

128

4.8.1 Muwalld' al-Imam Malik 4.8.2 hilt al-Imam Ibn Khuzaima

128

4.8.3 Saliih Ibn Ilibbdn

129

4.8.4 Sunanal-Däraqutni

130

4.8.5 Sunanal-Kubra al-Bayhägi

130

4.9 Summary

131

116

129

CHAPTER 5: TIIE INTRODUCTION TO THE BOOK OF BULUGHAL-MARiM 5.0 Introduction

132

5.1 The author's biography

132

5.2 Meaning and significance

134

5.3 Juristic features

135

5.3.1Iladith Sallie

136

5.3.2 Hadith Masan

140

5.3.3 Hadith Daif

144

5.4 Compilation methodology

147

5.4.1Numbers of Hadith

148

5.4.2 Arrangementof chaptersand sub-topics

150

ix

5.4.3 The specific terms

159

5.4.3.1al-Sabra

160

5.4.3.2al-Sitta

161

5.4.3.3 al-Khamsa

162

5.4.3.4al Arba"a

163

5.4.3.5'al-Thalätha

163

5.4.3.6al-Muttafaq calayh

164

5.5 Summary

165

PART C: ANALYSIS OF TIDE AHÄDITH Introduction to Part C

167

Methodology of analysis

168

CHAPTER 6: KITAB AL-BUYÜC ; APPLICATION OF AL-MAýLAHA

OF TIIE CONCEPT

WA AL-NA$$ TO TIDE AHÄDITH

OF AL BUYCc

6.0 Introduction

170

6.1 Definition and Significance of al-Buyu`c

170

6.2 Chapteron BusinessTransactions

173

6.2.1 Conditions of businesstransactionsand thosewhich are forbidden

175

6.2.2 al-Khiydr or Options of transaction 6.2.3 al-Ribä or Usury

197 200

6.2.4 Permissionregardingthe sale of al-`Aräyä and the sale of trees(al-Ulül) and fruits (al-Thimär)

207

6.2.5 Paymentin advance(al-Salm), loans (al-Qarcl)

(al-Rahn) andpledges

210

6.2.6 al-Taflis wa al-Hajr or Bankruptcy and seizure

214

6.2.7al-Sullyor Reconciliation

218

6.2.8 al-Hawäla wa al-IDamänor The transfer of a debt and surety 6.2.9 al-Shirka wa al-Wakäla or Partnershipand agency

221 224

6.2.10 al-Igrär or Confession 6.2.11 al `Äriya or Loan

227

6.2.12 al-Ghasabor Usurpation

231

6.2.13 al-Shuf a or Option to buy

228

neighbouring property

233

X

6.2.14al-Qiräd or Equity sharingbetweeninvestor and entrepreneur 6.2.15al-Musägät (cultivating and sharingthe profit of the land) and al-Ijära (wages)

235

238

6.2.16 Iliyd' al-Mawüt or Developing barren lands

242

6.2.17 al-Waqf or Endowment

246

6.2.18 al-Hiba (Gifts), al cUmra (life-tenancy), and al-Ruqba (giving property

for the recipient's life time)

248

6.2.19 al-Lugata or Lost and found items

252

6.2.20 al-Farä'id or Shares of inheritance

255

6.2.21 al-Wasdyd or Wills and testaments

260

6.2.22 al-Wadi a or Trust's property

263

6.3 Summary

265

CONCLUSION OF THESIS

267

Conclusion

267

Suggestion

271

GLOSSARY OF ARABIC TERMS

272

BIBLIOGRAPHY

280

xi

NOTES ON TRANSLITERATION

This work adopt the rules of transliteration usedby Encyclopediaof Islam, with slight variations Consonants

(hamza)

u

(dad)

a

b

(tä')

1

(zä')

z

(ayn)

c

(ghayn)

gh

(fa')

f

(bä')

b

(ta')

t

(thä')

th

c

GYM)

J

c

(hä')

h

Z

(khä')

kh

(aäf)

q

(däl)

d

(käf)

k

(dhäl)

dh

(15m)

I

(rä')

r

(mim)

m

(zay)

z

(nun)

n

ui"

(sin)

s

(wäw)

uA

(shin)

sh

c4

(*äd)

ý

u.

c1 0

'.ý

(hä')

w h

q

(yä')

y

Vowels

'

-

(fathale)

a

longfatlialz

ä

(kasra)

i

long kasra

i

((lammah)

u

long clammah

ü

Tanwin

is representedby an, in, un respectively.

Transliteration involve will only Arabicwords.Otherswill be written in italics. Exceptions "

The namesof well-known places, Medina, Iraq. Mecca, e.g.

xii

" "

No macron over the last i in names. Authors and titles of non-Arabic books.

X111

LIST OF ABBREVIATIONS `Awn al-Abädi, al Macbüd

°büd cAwn al-Ma al-Abädi,

Abi Mansur, Tahdhib

Abi Man5ür Muhammad b.Ahmad al-Azhari, Tahdhib al-Lughah

AbU Dawüd, Sunan

Abü Dawüd, Sunan

°Abd.A1-Razzäq, al Musannaf

°Abd. A1-Razz5q, Abü b. Humam a1-San°ani, al-Musannaf

°Abd al-Ghafar,Criticism

°Abd al-Ghafar, ShuaibHasan,Criticism of Iladith Among Muslims with Referenceto SunanIbn Mäjah

°Abd al-Khäliq, Hujjiyyat

°Abd al-Khäliq, °Abd al-Ghäni, Hujjiyyat al-Sunnah

°Abd. al-Majid, al-Madkhal

°Abd. al-Majid Mahmüd al-Matlüb, al-Madkhal fl bi al-Tarif al-Fiqh al-Isldmi wa Ususihi wa Khasäiýihi wa Masädirihi

Abü Zahra, Uszül

Abu Zahra, Muhammad, Usiil al-Fiqh

Abü Zahra,Abü Iianifa

Abü Zahra Muhammad,Abü Hanifa: Hayätuhu,wa `Asruh,Ära 'uh, wa Fiqhuh

Abü Zahra,Mdlik

AbU Zahra Muhammad,Mälik: Uayatuhu,wa °Asruh, Arä'uh, wa Fiqhuh

AbU Zahra, al-Shdf(i

AbU Zahra Muhammad, al-Shäf(i: Haydtuhu,wa cAsruh,Arä'uh, wa Fiqhuh

Abn Zahra,Ibn Ilanbal

Abü Zahra Muhammad,lbn Ilanbal: Hayätuhu, wa °Asruh,Ära 'uh, wa Fiqhuh

Abü Zahra, Tdrikh

Abü Zahra Muhammad, Tärikh al-Madhähib `Agd'id j wa al-Tdrikh al-Islämiyyah al-Siyäsahwa al al-Madhähib al-Fiqhiyyah

Abti Zahw, al-Iladith

Abü Zahw MuhammadMuhammad, al-Hadith wa al-Muliaddithfsn

a mad,Musnad,

Ahmadb. IHanbal,Musnad

'Ali, Al-Shäf(i

"Ali °Abd. Karim, Al-Shäf(i's Contribution to Hadith an Annotated Translation of His Work Jimä alCIlm

al-Amidi, Al-Ilikäm

°Ali b. Muhammad,Al-Illkäm Sayf al-Amidi, al-Din fT Usül al Altkäm

xiv

al-Amidi, Ghäyah

°All Ghäyah b. Muhammad, Sayf al-Amidi, al-Din al-Marämji`ilm al-Kaläm

cAmiri, At-Tuft a1

cAbdallah At-Tuft's M. al-Husayn, al-°Amiri, Refutation of Traditional Muslim Juristic Sources Regard Priority On The Law And His View of of For Human Welfare As The Highest Legal Source Or Principle

Anderson,Islamic Law

AndersonJ.N.D., Islamic Law in the Modern World

al-Ashgär,al-Shari a

°Umar la Ilähiyya Sulaiman, al-Ashgär, al-Shari a al al-Qawänin al-Wacfiyya

al-Ashgär,Nazarät

°Umar Sulaiman,NazarätJ Usül al-Fiqh al-Ashgär,

al-Ashgär, Tärikh

cUmar Sulaiman, Tärikh al-Fiqh al-Islämi al-Ashgär,

°Atryah,Nahw Ta,f`il

°Atiyah Jamäl al-Din, Nalcw Taf V Magäsid al-Shari a

CUmda al-°Ayni, al-&i

al-°Aynru,Abu Muliammad Malimild b. Ahmad, °Umdaal-Qäri bi Sharli Sahili al-Bukhäri

Ba°albaki,al-Mawrid

Ba°albaki,Rohi, al-Mawrid

al-Baghawi,Sharlc

ibn Mas°üd AbU Mul)ammad al-Baghawi, al-Husayn al-Farrä', Sharli al-Sunna

al-Bäji, al-Muntaqa

Sulayman Sharp ibn Muntaqü Khalaf, al-Bäji, al al-Muwallä'

Bakar, Conflict of Law

Bakar, Mohd. Daud, Conflict of Law and the Methodology of Tarjih; A Study in Islamic Legal Theory

Bakar, TheDiscernment

Bakar, Mohd. Daud, TheDiscernmentof Maslaha in Islamic Legal Theory

Ballantyne,Note

Ballantyne W.M., Note on the New Commercial Code of Bahrain

al-Bagiläni, al-Tamhid

al-Bagiläni, Abu Bakr Muhammadb. al-Tayyib, `ala jial-Rad al-Tamhid al-Mullaida wa al-Mi! allila wa al-RäfIda wa al-Khawdrj wa al-MuCtazila.

a1-Ba*ri,al-Mu°tamad

'Ali b. b. Muhammad Abü al-Basri, al-Husayn al-Tayyib, al Mu'tamad fl U. ül al-Fiqh

al-Baydäwi,Minhäj

al-Baydäwi, °Abdullah b. Muhammad al-Shiräzi, Minhäj al-U iil ila `Ilm al-UUül

xv

al-Bayhaqi, Sunan

Sunan b. Ahmad Abra Bakar al-Husayn, al-Bayhaqi, al-Kubrä

al-Bayhaqi, Mandgib

Managib b. Ahmad Abu Bakar al-Husayn, al-Bayhaqi, al-Shäjri

al-Bazdäwi, Usül

°Ali b. Muhammad, Usül al-Bazdawi al-Bazdawi,

Brockelmann,History

Brockelmann,Carl, History of the Islamic Peoples

al-Bukhäri, Jämi`

al-Bukhäri, Ismail b. Yahya, Jdmi' al-Sahib

Burton, The Sources

Burton, John, The Sources of Islamic Law, Islamic Theories of Abrogation

Dawäbil al-Büti,

al-Bnti, - Muhammad Said Ramadan, Dawdbit alMaslalia ft al-Shari ah al-Islämryyah

.

Buang, The Prohibition

Buang, Ahmad Hidayat, The Prohibition of Gharar in The Islamic Law of Contracts: A Conceptual Analysis with Special Reference to the Practice of Islamic Commercial Contracts in Malaysia.

Calder,Studies

CalderNorman, Studiesin Early Muslim Jurisprudence

Cobuild, Learner

Collins Cobuild, Learner's Dictionary

Coulson,A History

Coulson,N. J., A History of Islamic Laws

Coulson, Conflicts

Coulson, N. J., Conflicts and Tensions in Islamic Jurisprudence

al-Dahlawi,Hujjatullah

°Abd b. Shah Waliyullah al-Rahim, al-Dahlawi, Huf atullahal-Bäligha

al-Dardlr, al-Sharp

b. Mut ammad, alAbü Abmad al-Dardiir al-Barakat, Sharli al-Kabir `ala Mukhtayar Khalil

al-Däsügi, Häshiyah

`ala °Arafah, Ibn Häshiyah al-Däsügi, alal-Qäsugi Sharli al-Kabir

al-Dhahabi,Tadhkira

al-Dhahabi,Tadhkira al-Hufýz

Doi, Shari ah

Doi, 'Abdul al-RahmanI, Shari ah: TheIslamic Law

al-Durayni, Nazariya

ii Fathi, Na? Muhammad al-Durayni, ariya al-Ta`assuf Istfmäl al-Haq fTal-Figh al-Islämi

al-Durayni, al-Manähij

al-Durayni, Muhammad FattiL al-Manähy al-UUüliyyah

xvi

al-Durayni, Khasä'is

Khasd'is Fatlhi, Muhammad al-Tashri alal-Durayni, Islämi fi al-Siyasahwa al-Hukm

Dutton, The Origins

Dutton, Yasin, The Origins of Islamic Law

Ell,

First Encyclopaedia of Islam

EI?

SecondEncyclopaediaof Islam

English Translation

English Translation ofBulügh al-Maräm

Fyzee, Outlines

Fyzee, Asaf A. A., Outlines of Muhammad Law

al-Ghazäli,al-Mustasß

al-Ghazäli,Abi Hämid Muhammadb. Muhammad ibn Muhammad,al MustasJa ft `Ilm Usül

al-Ghazali,,Shifä'

al-Ghazäli,AbTIHämidMuhammadb. Muhammad ibn Muhammad,Shy'al-Ghalil JiMasälik al-Ta°lil

al-Häkim, al-Mustadrak

a1-IIäkim,al-Mustadrak `ala al-$alüliayn

Hallaq, A History

Hallaq, Wael B., A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh

Hasan,TheEarly

IIasan, Ahmad, TheEarly Developmentof Islamic Jurisprudence

Hassan, Nazariya

Hassan Hussein Hamid, Na?ariya al-Mallalia Fiqh al-Islämi

fT al-

Hassan,Studies

Hassan,Mohamed Fadzli, Studies on the Principles and Theory of Maqasid al-Sharicah in the Sunni Schools With Their Application to Malaysia Law

Hilali, The Translation

Hilali, Muhammad Taqi al-Din, Muhammad Muhsin Khan, The Translation of The Noble Qur'an In The English Language

Hitti, History

Hitti, Philip K., History of The Arabs; From The Earliest Timesto ThePresent

Hornby, Oxford

Hornby, A S, Oxford Advanced Learner's Dictionary of Current English

Husairi, Istinbdl

Husain, Istinbäl al Alzkäm Min al-Nusü.y

Ibn al-Athir, al-Nihiiya

Ibn al-Athir, al-Nihäyaft Gharibal-Hadith

Ibn °Abd al-Barr, al-Tamhid

Ibn °Abd al-Barr, Abü 'Umar Yusuf al-Qurtubi,

xvii

al- Tamhrd lima fi al-Muwattä' min al-Ma'dn Masänid

wa al-

Ibn °Abd al-Barr, al-Intigä'

Ibn °Abd al-Barr, Abü °Umar Yusuf al-Qurtubi, al-Intigä' f Faclä'il al-Thalätha al A'imma al-Fugahä' Malik, al-Sh4fit i wa Abü Ilanifa

Ibn °Abd al-Barr, Jam(

Ibn °Abd al-Barr, Abü 'Umar Yusuf al-Qurtubi,

Jämi' al-Bayän al-°ilm wa facllihi wa ma yanbaghi fi Riwayatihi wa Hamlihi Ibn °Abd Saläm, Qawä id

Ibn °Abd Saldm, °Izz al-Drn, Qawä id al Alikäm f Masälil: al Anäm

Ibn cAshür,Magäcid,

Ibn °Asht r, Magä.yid al-Shari a al-Islamiyya

Ibn IIajar, Bulügh al-Mardm Ibn Hajar al-°Asgaläni,Ahmad b. "Ali, Bulügh al- Maräm min adilla al Alikäm Ibn Iiajar, Tahdhib

Ibn ajar al°Asgaläni, Ahmad b. "Ali, Tahdhib al-Tahdhib

Ibn Hajar, Tagrib

Ibn Hajar al-°Asgaläni, Ahmad b. "Ali, Tagrib alTahdlüb

Ibn IHajar,al-ILäba

Ibn Hajar a1-°Asyaläni, Ahmad b. "Ali, al-I, ba fi Tamyizal-,Saliäba

Ibn Hajar, Raf al-°Aýr

Ibn Ijajar al-°Asgaläni,Ahmad b. 'Ali, Rai` al `A, cr `an Qudät Micr

Ibn Ijajar, Fatly al-Bid

Ibn Hajar al-°Asya1ani,Ahmad b. cAli, Fats al-Bäri bi Sharh $aliili al-Bukhäri

Ibn Hajar, Anbä'

Ibn Hajar alCAsgaläni,Ahmad b. "Ali, Anbä' al-Ghumar bi Anbä' al cUmr

Ibn Hajar, al-Majma`

Ibn Hajar al-°Asgaläni,Al mad b. "Ali, al-Majma° al Mua'ssas

Ibn Hajar,Nuzha

Ibn Hajara1=Asgaläni,Ahmadb. 'Ali, Nuzhaal-Nazar ft TawdiltNukhbaal-Fikr

Ibn Hajib, Häshia

Ibn Hajib, Jamal al-DIn Abü 'Amr, Häshia al-Sharif al-Jurjänicala Mukhtacar al-Muntaha al-Ucüli

Ibn Ham, al-Ihkäm

Ibn IHazm,Abü Muhammad 'Ali b. Al mad, al-Ihkämft Usiclal Alikäm

xviii

Ibn al-Jawzi,Mandkib

Ibn al-Jawzi °Abd a1-R4man b. 'Ali, Manäkib al-Imäm Allmad b. hlanbal

Ibn Kathir, al-Bidüya

Ibn Kathir, Ismail b. Kathir, al-Bidäya wa al-Nihizya

Ibn Khaldün, al-Muqaddima

Ibn Khaldnn al-Mugaddima

Ibn Khallikän, Wafäyat

Ibn Khallikän Al mad b. Muhammad,Wafa-yat Abnä' Anbä' al-Zamän wa al-'A°yän

Ibn Majah, Sunan

Ibn Mäjah, Muhammad b. Yazid, Sunan Ibn Mäjah

Ibn Manzür, Lisdn

Ibn Manzür, Mulhammadb. Mukarram ibn 'Ali, Lisdn `Ardb al

Ibn al-Najjar, Sharp

Ibn al-Najjär al-IHanbali,Muhammadb. Al mad b. °Abd al-°Aziz b. °Ali al-Futühi al-IIanbali, Sharp alKawkib al-MunTr al Musammä bi Mukhtacar al-Talirir, ft Sharli aw al-Mukhtabär al-Mubtakar al-Mukhtasar Usül al-Fiqh

Ibn Qayyim,A`läm

Ibn Qayyim al-Jawziyyah, Shams al-Din Abü °Abd Alah b. Abi Bakr, Adläm al Muwaqqfin "an Rabb al' lamin

Ibn Qayyun,Syi '

Ibn Qayyim al-Jawziyyah, Shams al-Din Abü CAbd Alah b. Abi Bakr, Sys' al-`Alil ft Masä'il al-Qaclä' wa al-Qadr wa al-Hikma wa al-Ta°lil

Ibn QayyIm,Zäd

Ibn Qayyim al-Jawziyyah, Shams al-Din Abü °Abd Alah b. Abi Bakr,Zäd al-Ma{ad

Ibn Rushd,Bidäya

Ibn Rushd al-Iiafid, AbU al-Walid, Muliammad b. Ahmad b. Muhammad b. Ahmad, Biddya al-Mujtahid wa Nihäya al-Mugtacid

Ibn Rajb, al-Qawä id

Ibn Rajb, AbU al-Farj, °Abd al-Rahmanb. Shihäbal-Din b. Rajb, al-Qawä id fi al-Fiqh al Islämi

Ibn al-$aläh,Muqaddimah

Ibn al-$aläh al-Shahräzun,Abu °Amr cUthmanb. °Abd "Nam ft Ibn Muqaddimah alal-Rahman, al-$aläli Ijadith

Ibn al-Saläli,ýiyänah

Ibn al-Saläh al-Shahräzuri,Abü °Amr °Uthman b. °Abd al-Rahman,,Siydnah $'alüli Muslim

Ibn Taymiyya,Majmü

Ibn Taymiyya, Tagi al-Din Abu al°Abbäs, Majmü alFatäwä

xix

Ibn Taymiyya, Minhäj

Ibn Taym yya, Tagi al-DIn Abü al-°Abbas, Minhäj alSunna al-Nabawiyya

Ibn a1CImäd,Shadhara

Ibn a12Imäd Abu al-Fallah °Abd al-Iiayyi al-Hanbali, Shadharaal-Dhahäbf Akhbär man Dhahab

Ibrahim, al-Dalälät,

Ibrahim b. Ahmad b. Sulaiman al-Kindi, al-Dalälät wa Turüq al-Istinbät

Ihsan, Utility

Ihsan Bagby `Abdul Wajid, Utility in Classical Islamic Law: The Concept of Maslalta in Usül al-Fiqh

Islahi, Islamic Law

Islahi, Islamic Law, Concept and Codification

al-°Iywäni, Ta'lil

Taha Jabir Fiyad, Ta`lil al Alikäm al-Shariyya wa Ikhtiläf al -Ulamä' fih wa Hagiqa Mawqif wa 'Athär Zalika j Hujjiya al-Qiyäs

Izzi Dien, Islam

Izzi Dien, Mawil, Islam and Environment, theory and practice

Izzi Dien, The Theory

Izzi Dien, Mawil, The Theoryand Practice of Market Law in Medieval Islam

Izzi Dien, Maclalia

Izzi Dien, Mawil, Maclalia In Islamic Law: A Source For Interpretation Concept? A A Framework or

Izzi Dien, Islamic Law,

Izzi Dien, Mawil, Islamic Law, From Historical Foundation to ContemporaryPractice

al-Jurjäni,

'Ali Tacrifät Kitäb b. Sharif, b. Muhammad al-Jurjäni,

Jaziri, Kitäb,

Jaziri, °Abd al-Rahman,Kitäb al-Figh Galaal-Madhähib al Arba`ah

al-Juwayni,al-Burhän,

"Abd °Abd b. AbU al-Malik al-Juwayni, al-W5111 Allah b. Yusuf, al-Burhänfl U.ciülal-Fiqh

al-Juwayni,al-Irshäd,

°Abd cAbd b. Abu al-Juwayni, al-Matl1i al-Mälik Allah b. Yusuf, al-Irshäd, ila Qawäli` al Adilla ji Viril al-ftigäd

al-Kamäli, Min Fiqh

°Abdullah Yahya, Min Fiqh al-Muwäzana al-Kamäli, bayna al-Masälili al-Shariyya

al-Kamäli, al-Shariyya

al-Kamäli, °Abdullah Yahya, al-Shar°ryyaal-Islamiyya wa Fiqh al-Muwdzana

al-Kamäli, Ta'cil

al-Kamali, °Abdullah Yahya,Ta'. TlFiqh al Muwäzana

xx

Kamali, Shari ah

Kamali Mohamad Hashim, Shari ah as Understoodby the ClassicalJurists

Kamali, Have We

Kamali MohamadHashim,Have WeNeglectedThe Shari ah-Law Doctrine of Maslaha

Kamali, Principles

Kamali Mohamad Hashim, Principles of Islamic Jurisprudence

Kamali, Maqüsid

Kamali Mohamad Hashim, Magäsid al- Shari ah: The Objectives of Islamic Law

Kandahlawi,Hujja

Kandahlawi, Hujja Allah al-Bäligha

al-Khalifa, Madrasa

T Misr Muhammad Rashad, Madrasa al-Khalifa, al-Hadith,

al-Khatib, Usül

`Namuhu °Ajjäj, Muhammad Usül al-Khatib, al-Ijadi-th Mugtalähuhu wa

al-Khatib, Tärikh

'Ali, Tärikh b. Abu Ahmad Bakar al-Baghdädl, al-Khatib Baghdäd

al-Khuli, Mcftälc

°Abd Muhammad Aziz, Miftäli al-Khuli, Tärikh Funün al-Hadith

al-Sunna wa

Macdonald,Development MacdonaldDuncan Black, Developmentof Muslim Theology,Jurisprudenceand Constitutional Theory Mal)masäni,Sublii, Falsafat al-Tashrfft al-Isläm

Mahmasäni,Falsafat

Mahmasäni,al-Nazariyydt Mahmasäni,Subhi, al-NaZariyyät al `Amma li al-Müjibät wa al-°Uqüd,T al-Shari a al Islämiyya Majid, Islamic

Majid Khadduri, Islamic JurisprudenceShaffi's Risäla

Malik, al-Mudawwana

Malik bin Anas, al-Mudawwana al-Kubra

Malik, al-Muwattä'

Malik, al-Muwallä'

,

Masud, Shatibi

Masud, Muhammad Khalid, Shatibi's Philosophy of Islamic Law

Muslim, Saliili

Muslim b. al-Hajjäj al-Nisäbün, $alzilt Muslim

Muslehuddin,Islamic

Muslehuddin Mohammad,Islamic Jurisprudenceand the Role of Necessityand Need

al-Nasä'i, Sunan

al-Nasal, Abmad b. Shu°ayb,Sunanal-Nasd'i

d x,

al-Nawäwi, Tahdhib

Abü b. Yahya Mulhy Zakanyya al-Din al-Nawäwi, b. Sharf, Tahdhibal Asmil' wa al-Lugha

al-Nawäwi, al-Minhäj

b. Yahya Muhy Abü Zakanyya al-Din al-Nawäwi, b. Sharf, al Minhäj f Sharli SaleihMush

al-Nawäwi, Sharp

al-Nawäwi, Abü Zakariyya Muhy al-Din b. Yahya b. Sharf, FaItTliMuslim bi Sharli al-Nawäwi

Nu°man, Turuq

Nu°manJughaim, Turuq al-Kashp `an Magäsid ca al-Shari

Nyazee, Theories

Nyazee, Imran Ahsan Khan, Theories of Islamic Law: The Methodology of Ijtihad

al-Qarädäwi,AI-Sunnah

al-Qaräciäwi YUsuf, Al-Sunnah Ma. darän Lil Macrifah wa al-Haclärah

al-Qarädawi,Al-Saliwah

a1-QarädäwiYtisuf, Al-$altiwahal-Islämiyyah bayna al Juhüd wa al-Talarrüf

al-Qard4awi,TheLawful

al-Qard4awi Yüsuf TheLawful and the Prohibited in Islam

al-Qaräfi, Tangili

al-Qaräfi, Shihabal-Din Abü at-"Abbasal-Sunhaji ellm f Tangilt ft lkhti, är al-Bahnasi, al-Majgfil al-Fulfil Sharli Tangih al-Fuýül al-'Ucül

Rahim, Islamic

Rahimin Affandi Abdul Rahim, Islamic legal Reform In TheAdministration of Islamic Law In Malaysia: A Critical Analysis

al-Räzi, al-Maltiül

`'Umar b. Fakhr b. Muhammad al-Räzi , al-Din al-Iiusayn, al-MalesiülfI °Ilm Ucfil al-Fiqh

Rayner, The Theory

S.E Rayner, The Theory of Contracts in Islamic Law

al-Raysüni,Al-Ijtihäd

al-Raysüni, A1imadand Ahmad JamälBärüt, Al-Ijtihäd al-Nass,al-Wägi', al-Mallalia

al-Raysüni,Nazariyyat

al-Raysüni,Ahmad, Na?ariyyat al-Magäcid Cinda al Imäm al-Shälibi

s.a.w

5allaAllah °alaih wa Sallärn

al-Sakhäwi,al Jawdhir

°Abd b. Abü Muhammad al-Sakhäwi, al-Khayr al-Rabman,alJawähir wa al-DurärJi Tarjamah Shaykh al-Islam Ibn Hajar

a1-Sakh5wi,al-law'

al-Sakhäwi, Abu al-Khayr Muhammad b. °Abd

xxii a1-Rahmanal-Daw' al-Lämi'

al-San°äni,Subul

Subul b. Ismä11, Muhammad al-Saläm al-Sancani,

Schart,An Introduction

Schact,Joseph,An Introduction to Islamic Law

Schact, The Origins

Schact, Joseph, Jurisprudence

a1-Shäfi°i,al-Risäla

al-Sh5fi°i , Muhammadb. Idas, al-Risäla

al-Shäfi°i, Ikhtiläf

al-Shäfi°i , Muhammadb. Idas, lkhtiläf al-Hadith

Shälibi, Ta`1Tl

Shälibi, MuhammadMustafa, Tadlil al Alzkäm

al-Shät3bi,al-ftisdm

al-Shätibi, Ibrahim b. MUsaal-Lakhmi, al-ftijim

al-Shatibi, al Muwäfagät

al-Shätibi, Ibrahim b. MUsaal-Lakhmi al-Muwäfagdtjl Usül al-Shari ah

Shawkäni,Irshad

Shawkiini Muhammadb. "Ali, Irshäd al-Fulaül i1ä Taligiq al-Haq min `Ilm al-Usül

Shawkäni,Nayl

Shawkäni,Mu1iammadb. 'Ali, Nayl al Aw(är

Sibä°i,al-Sunnah

Sibä°i Mu*tafa, al-Sunnahwa MakanatuhäfT al-Tashri al-Islämi

Siddiqui, Hadith

Siddiqui, Muhammad Zubayr, Hadith Literature: Origins, Development and Special Features

a1-Suyüti,Tadrib

°Abd Ja1ä1 b., a1-Suyüti, al-DIn al-Rahmanb. Abi Bakr TadrTbal-Räwi f Sharli Tagrib al-Nawäwi

al-Suyüti, Sharp

°Abd b. Bakr Abi Jaläl b. al-Suyüti, al-Din al-Raliman Shark al-Suyüli Li-Sunan al-Nasä'i

al-Suyti i, Tabagat

al-Suy-aj,Ja151al-Din b. cAbd al-Rahman b. Abi Bakr, Tabagätal-Huf a?

Tabäri, Tärikh

Tabäri, Abu Ja°farMuhammadb. Janr, Tdrikh alrusul wa al- muluk

The

Origins

of

Muhammadan

al-Taftazäni,Sharp

"Umar, b. Sharli Sa°ad Mas°üd al-Taftazäni, al-Din `ala fl U li Main ül al-Talwili al-Tangih al-Tawclili al-Fiqh

al-Tinmidhi,Sunan

°Isa b. Abü Muhammad Sawrah,Sunan al-Tirmidhi,

a1cUbaydi,al-Shälibi

al-°UbaydiHammädi,al-Shälibi wa Magäcidal-

xxiii

Shari a

a1-°Ungari,Ta`lil

Diräsa Alikäm Tdlil Fyya wa al-Syar al-`Ungari, al Tatbiq

Wizärah, Al Mawsü ah

Wizärah al-Awgäf wa al-Shu'nn al-IslämIyyah, Al Mawsü ah al-Fighiyyah

Yaqüt, Mu'jam

Yaqüt, Shahäb al-Dn b. °Abdullah al-Hamawi alRümi, Muljam al-Buldän

Zamakhshan, Asds

Zamakhshan AbU al-Qasim Mahmüd b. "Umar, al-Baläghah

al-Zarakshi,al-Balg

°Abdullah, Badr b. Muhammad al-Zarakshi, al-Drn al-Baler al-Multi(

al-Zaylai, Nasb

i al-Zayla Jamal al-Din, Nacb al-Räya li Alzädith

Asäs

al-Hidäya

Zayd, Al Maclalia

Zayd, Mustafa, Al-Mallalta fi al-Tashri al-Islämi

Zaydän,AI-Wajiz

Zaydän°Abd al-Karim, Al-Wajiz fl UUü1al-Fiqh

al-Zirikli, Al Adläm

al-Zirikli, Khayr al-Din, Al A`ldm, QdmüsTaräjim Li Ashar al-Ryäl

al-Zuhayli, Nazariyat

a1-ZOayli, Wahbah,Na?ariyat al-Dariüra al-Shariyya

a1-Zuhayli,Ucül

al- Zuhayli, Wahbah, U.4ül al-Fiqh al-Islämi

a1-Zuhayli,Al-Fiqh

al-Zubayli, Wahbah,Al-Fiqh al-Islümi wa Adillatuh

I INTRODUCTION

Background

In Islamic jurisprudence, the formation of the juristic concept of maclalaaor has been interest in legal Islamic termed texts public connection with or nujüs E), the category of maslalia maslalia mu`tabara. For al-Ghazäli (d.555H11111C. mu"tabara is juristically consideredthe validity and recognisedmallalia, since there is textual evidence in its favour, particularly in the Qur'an and the Sunna or the Iladith of the Prophets.a.wI. Apart from mu°tabara,the categoryof maclalta mursala has beenjuristically recognisedby many jurists although it has no textual divine evidencein its favour. At this stage, it can be learned that any juristic rule that formed in the category of

but Islamic has the of mursala ruling mallalla no parallel andprinciplewith objective law, would thereforebe categorised discredited mulghaor unrecognised, nullified and maclalta2. This principle highlights the significance of maga$id al-shari a or the

law in formation Islamic the ultimateobjectiveof of newrulings. Importantly, the above discussion underlines the category of maslaha highest level in its the muctabaraas category of which juristically in line with the

law Islamic ultimateobjectiveof or magd.id al-shari a. This is becausethe existence of textual divine evidence or proofs from the primary sourcesof Islamic law in the category of maclalta al-mu`tabara. In line with this category, some Muslim jurists form the term al-maslaha wa al-nass as the juristic concept of public interest in

1 a1-Ghaz5li, Mustasfa, 2, 118. al v. p. 2Ibid

2 which interrelated with textual,

civine

Qur'an the and the evidence particularly

Hadith.

The notion of juristic conceptof al-nass wa al-maclalia or al-maclalia wa alnags (interchangeableterms) has been introduced concisely by Abmad al-Raysüni and Abmad Jamal Banat in one of sub topics of the book entitles al-Ijtihäd: al-Nass, al-Waq(, al-Maslaha3.In the introduction to the concept of al-maslalia wa al-naffs, Ahmad al-Raysu-uii claims that the current phenomenonof discussionamongMuslim jurists on the subject of al-`aql (reason) in accordancewith al-nagl (transmitted), is somewhat similar to that of

in in Furthermore, connection with najc4. maclaha

practice, he affirms that apart from the Qur'an, the Hadith of the Prophet s.a.w is a living sourcethat aims to preservethe public interest of the life of humanitys. It appears that Ahmad al-Raysüni's arguments on the significance of the

conceptof al-maclalcawa al-nass is pivotal to be furtherexaminedandanalysed.For this reason,some related questionsmay arise here; on what basis the concept of al-

in light is the examined maýlajtawa al-nag of Islamicjurisprudence?If the Uadt-th juristic is in legal Prophet the texts of s.a.w chosenas a referenceof connectionwith is limitation thus, there concept of maslalia, any as well as special referenceto this thesis becauseof the huge numbers and referencesfor the Vadi-th? Above all, what are the main purposesof this thesis to highlight the concept of al-maclalta wa al-nalc

asthebasicsubjectto be examined? To answerto these particular questions,the next topic will discussregarding the purpose,scopeand limitation of the presentstudy. 3 See al-RaysüniandBärüt, al-Ijtihö4 p.28,49-59. 4Ihid 5Ibid

3 Purpose, scope and limitation of thesis

The main-purposeof this thesis is to examinethe formation of the concept of al-maslalta wa al-nass in the light of Islamic jurisprudence. To achieve this main

purpose,this thesiswill examinethe definition, historical andtheoretical development of the conceptof al-maýlalta wa al-nass.This examination aims to highlight the basic foundation upon which the formation of this concept is established in Islamic jurisprudence. Further examination will focus on the significance of taclil al-alikäm for the concept of al-maclalta wa al-na..F. The purpose of this examination is to analyse the process of taflil al-ankam from the legal text of the Qur'an and the Iladith. This processaims to identify the principles of public interest'as well as the objective of Islamic law that encompassin the legal text of the Qur'än and the Hadith. At this stage,it can be learned that the concept of al-maýlalzawa al-nass is

juristically applicablein the analysisof the divine legal texts of the Qur'an and the Hadith. In other words, the concept of al-maslalia wa al-nalc can be applied to the subject of Qur'anic exegesis(tafsir al-Qur'an) and the analysisof the IHadith (sharp al-Hadith).

As a matter of scopeand limitation of study,this thesis will focus on the Hadith of the Prophets.a.w asa referenceof legal textsin the analysisof the concept for theHadith of al-maslaltawa al-nafl. Sincetherearehugenumbersandreferences. for is Prophet book Bulügh the to the of s.a.w, a special reference of al-Marärn made the purposeof analysis.Bearing in mind that the book of Bulügh al-Maräm consists of a total number of 1572 ahadith. In addition, there are 16 chaptersand 93 subtopics that enclosein that book. Based on these factual numbers,this thesis will focus only on one of the chapters of Bulügh al-Maräm namely Kitäb al-Buyuc or chapter on

4 businesstransactions.The limitation of chapteron Kitäb al-Buyu' in this thesis aims to juristically analyseits 22 sub topics as well as 176 altädith within the concept of alis hopedthat the chapteron Kitäb al-Buyü will be analysedin It maslahawa al-nass. revealing the principles of public interest and their main objectivesof Islamic law of transactions. Research Methodology The study is mainly based on library research within the field of Islamic Jurisprudencein connection with the prophetic source of the Iladith s.a.w. Three basic issues will be discussed: Firstly, the concept of al-mallalla wa al-na.F. y. Secondly, the references sources for the Iladith s.a.w and the book of Bulügh alMaräm. Thirdly, Kitab al-BuyüY;the application of the concept of al-maclalia wa alü. to the aliddith of al-Buy nac

Thebodyof the thesisis focusedon developingandelaboratingthe main field of the study and as a library research;it will entail theoretical, historical, analytical and descriptive approaches.The Sunni Schools of law will be confined to their

concernwith the broadprinciplesof al-maclaltawa al-nag. The studywill refer to valuable Sunnijuristic sourceswritten by manyjurists such as al-Imäm al-Ghazäli, alImäm al-Shatibi, al-Imam Ibn Qayyim al-Jawzi, al-Imäm °Izzuddin °Abd al-CAzizb.

°Abdal-Salämandothersregardingthejuristic conceptof maclaltaandits connection with Islamic legal texts, nail. For the book of Bulügh al-Maräm, the methodology of compilation will be focussed on the second part of this thesis. This includes the variation numbers of al ädith Sakilc, Vasan and Da`if from each chapter of Bulügh al-Mardm. Diagrams

5 and tables will be drawn up to highlight the variation numbers of those types of aliädith. In the part of analysis, the methodology of mulaaddithünor scholars of the Hadith will be applied to analysethe rulings that enclosein 176 aliddith of Kitäb alBuyü of Bulügh al Mardm. However, the analysisof rulings is boundedto rewrite the disagreementof jurists regarding the rulings of the Uadi-th.As an alternative, the agreed rulings by jurists will be highlighted in the analysis of those aliddith. This approach will be applied as methodology in the application of the concept of almaclalia wa al-nass to the analysisof those altädith. Furthermore,the methodologyof simple and,concise elaboration and analysis will also be applied to the process of ta°lil al-ahkäm that aims to examinethe principles of public interest in the alcädith of Kitäb al-Buyü of Bulügh al Maräm. Literature Review

From juristic historical facts, the concept of maclalta has been a popular 6. jurists Muslim beginning Many, A. H. 7t' the subject among since the century of

particularlyfrom the prominentSunnijurists, hadbeguntheir researchon the subject of mallalia within the frameworkof Islamicjurisprudence.In the 8th centuryA.H., Abü Ishäq al-Shätibi (d. 790/1388) produced two books entitled al-Muwäfagät ft

U. ül al-'Abkam and al-ftildm, which discussthe classificationand the levels of maslalcain the light of Islamic jurisprudence. Al-Shätibi's opinion on ma.Flaltaas the ultimate objective of Islamic law affirms that of al-Ghazäli (d. 555/1111), as revealed in al-Mustasfamin cilm al-'UUfil and Kitäb Ship-' .

6Zayd, Maslaiza, 21. alp.

6 The discussionon maslalaa,particularly in connectionwith the legal texts, has been general as well as specific in the works of Hanafi jurists such as °Abd al°Aziz In 'UUid Kashf Asrdr, al-Bazdawy. al-Bukhäri, who wrote a commentary on al Hanbali legal theory, Majmuc al-Fatäwa by Ibn Taymiyyah and al-Mughni by Ibn

Qudämah also discuss the concept of mallaha as a legal principle in Islamic jurisprudenceand its connectionwith the Islamic primary sources. Most discussions in the preceding classical sources indicate that the life be based Muslim must application of maslalcaon on the light of God's revelation it is despite lack to the and a concept of al-maslalia wa al-nass, of specific reference clear that al-Qur'dn and Sunnaprioritise the application of public interest Sincethe scientific period of jtihäd, (particularly from the year 132 until 350 A. H. 7) with its implication for the modem Muslim world, the theory of al-ma.Fälilt al-

by has been than that effectively approached mursalarather of al-majlaltawa al-nafj jurists. Much researchhasbeenconductedand publishedon the subjectof ma. ylaha, Some in type the of these most of al-masälilt al-mursala. elaborating particularly

importantcontemporaryworks are as follows: al- Mallalta ft Tashri al-Islämiy wa fi (1964) Mustafa Abü Zayd, Däwäbil al-Mallalta al-Shari ah al-Najm al-Din al-Tüfi ft ftgh (1966) Said Ramädän Na? äriyat alal-Maýlalia al-BUti and al-Isldmiyyah

Islümi (1981)IIusaynHamidHassan.Most of the discussionin thesebooksrelatesto the argumentsput forward by Najm al-Din al-Tüfi who authorisesrecourseto (consensus). the textual mallalta with or without presenceof a ruling or ymä,

7 Rahim,Islarnic, 32 p.

7 There has been considerable research conducted on the topic of maslalia. Attempts have been made to explore a new focus on the subject such as; `Malik's Conceptof Maslalia (The Consideration of The CommonGood): A Critical Study of This Method As A Means of Achieving The Goals and Purposes of Islamic Law With Special Reference To Its Application At The Shari 'ah Courts In Nothern Nigeria', (1991) written by Yushau Sodiq, `Maslahah dan Pemakaiannya Di Dalam UndangUndang Jenayah Islam', (Malay language), (1999) written by Ridzwan Ahmad and

`StudiesOn ThePrinciples And Theory of Magäsid al-Shari'ah In The Sunni Schools With Special ReferenceTo Their Application To Malaysian Law', (2002) written by Mohamed Fadzli bin Haji Hassan. These contemporary studies focus on the application of public interest within the modem climate of shari a courts, Islamic criminal law and common law, suchas Malaysian Law.

Severalcritiquesof classicalstudieshavedealtwith the subjectof mallalia, `Utility in Classical Islamic Law: The Conceptof Ma.Flalzain 'Ucül al-Figh', such as (1986) by Ihsan Bagby `Abdul Wajid. The research entitled `The Theory of AlMajälih Al-Mursalah In Islamic Law', (1990) by Juma Mikidadi Omani Mtupa was

found to be, verbatim or in toto in someparts,without acknowledgmentfrom the book entitled,`IslamicLegal Philosophy:A Studyof Abu Ishäqal-Shä(ibi'sLife and Thought', (1977) by MuhammadKamäl Mas`ild.

A most up to date piece of research,`Al-Ijtihäd: al-Nall, al-Wägf, alMaclaha', (2002) by Al mad al-Raysüni, and Ahmad Jamäl Bärüt, is classified as a broad principle in underlining the relationship between ijtfhäd, nalc, wägi° and maslalia. Furthermore,the latest book of Islamic law; `Islamic Law; From Historical Foundations To Contemporary Practise, (2004) by Mawil Izzi Dien highlights the

9 significanceof maslalia as `a key tuner that harmonisesall sourcesof Islamic law and occupiesa central position in the formation of legal opinion and the interpretation of the legal texts'8. However, there is a vacuum in terms of detailed approach and analysisto the conceptof al-maslalta wa al-nafl and the presentwriter feels that such in Uadith benefit from Qur'dnic the to study would particular reference evidenceor the analysis under the heading of al-maclalta wa al-nass. It is proposed that the current research entitled `The concept of al-Mallalta wa al-Nag with special reference to Kitäb al-Buyu' in the book of Buliigh al-Maräm', may go some way towards filling this vacuum. As far as can be ascertained,this kind of study has not been carried out previously, particularly in the field of usül al ;f iqh (Islamic jurisprudence).

Outline of chapters

This thesisproposesthreepartsof focusedsubjectwithin six relatedchapters. It is openedwith an introductionand closedwith a conclusionand somefurther suggestions.

The introductionelucidatesthe backgroundof the study,its purpose,scope limitation, its literature the and methodapplied, reviewandthe outlineof the chapters. The partA consistsof threechapters.The first chapterexaminesthe definition is historical development This the and chapter of conceptof al-maýlalaawa al-natl. considereda portal of thesis becauseits highlights the basic information regardingthe juristic conceptof al-ma. lalia wa a1-nalf.

8 Izzi Dien, Islamic Law, 69. p.

9 The secondchapter of part A is classified a skeletonof this thesis becauseits highlights the theoretical developmentof the concept of al-maclalcawa al-nass. This legitimacy discusses hypothetical form the the theory the chapter of maslalia over of of nag and al-Tüfi's theory. It also examinesthe views of Muslim jurists regarding the priority levels of ciarüriyya and the theory of magäsid al-shari a in connection with nass. The third chapterdealswith the significance of taClilal-alikdm for the concept of al-maslaha wa al-nag. It includes the process of ta°lil al-ahkäm from the legal texts of the Qur'an and the Iladith. The part B encompassestwo chapters.The fourth chapterhighlights the main reference sourcesfor the books of Iladith. In this regard, there are sevenbooks of be five for they main reference sources and will of other reference sources which examinedin this chapter. The fifth chapter of part B focuseson the introduction to the book Bulügh alMaräm. This chapter consists some sub topics such as the author biography,juristic featuresand compilation methodology.

The last part of thesis is part C that includesone analysischapterof the Ijadith. The sixth chapterentitlesKitäb al-Buyü ; the applicationof the conceptof alma.Flaltawa al-nail to the alläfiith of al-Buyü. This chapterintendsto analyse22 sub topics of chapteron businesstransactionswithin the number of the Hadith of 176. It is proved during the analysis that there are principles of public interest in the most of every single Hadith and its rulings regarding the juristic themes of business transactions.

10 The conclusionhighlights an overall evaluation and analysis of the findings laid down in the previous chapters.The thesis then concludeswith some suggestions regarding further researchin the area of Islamic jurisprudence and the subject of the Hadith.

11 PART A

THE CONCEPT OF Al-MASLAHA WAAl- NASS IN ISLAMIC JURISPRUDENCE

Introduction

to Part A

This part A aims to present the interesting development of al-Maslalla wa alNass through the history and theory of Islamic jurisprudence, and one of the major

discussionswill centre on the theory of priority of maslalia over the legitimacy of nass.

In order to analyse the preceding points in a juristic light, it is necessaryto examinethe definition of the conceptal-Maclalta wa al-Nall, as expressedin chapter one. In. conjunction with the defining approach, this chapter will also examine the

historicaldevelopmentof al-Mallaha wa al-Nall, with a view to elucidatingthevalue jurisprudence. development by Islamic The to this theoretical of the accorded concept A lalia be debated in The two. part concept of al-Ma. core of chapter wa al-Nall will

is concernedwith the significanceof TaC1Fl Aitkäm to the conceptof al-Maclaliawa al al-Nags,which will be discussedin chapterthree.This will be followedby a summary of the theory of al-Maclalia wa al-Nay,c.

12 CHAPTER ONE

THE DEFINITION AND HISTORICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA9

1.0 Introduction

In the first section of this chapter,the definition of the term al Maclalia wa alNass becomes a key note, important to this study in terms of introduction to the juristic discussion regarding its concept Incorporated is also a terminological discussion of the individual terms al-Maslalta and al-Nall

in the light of Islamic

jurisprudence. The second section of this chapter examinesthe developmentof the four Nall in history, in the to evaluate over eras of order concept al-Maslalza wa al developmentof this conceptwithin the Sunni perspectiveof Islamic jurisprudence.

1.1 The definition of the concept of al-Maslalia wa alNafs

In order to present the definition of the term a1-Maclalta wa a1-Nash,the

discussionwill be dividedinto literal' andtechnical2definitions.The literal definition is i. Ma. Arabic two term the Flalia comprised of e. al wa al-Nall, words of al-Maclalta letter, i. definition Arabic The technical one e. of al-Maclalia wa and al-Nall, and wa. by be the the elaboration and analysismade referred to within scopeof al-Naas will

1 Lexically, `literal' is an b) to the original. adjective word which means, a) corresponding exactly literal basic To term the the concerned with comply with or usual meaning of a word or phrase. definition, maslalza will be given in the original meaning, which Muslim jurists' works have used is lughatan jurisprudence. in In jurists' Islamic Muslim used, Arabic effectively works, al-Tarif many which means `literal definition'.

SeeHornby,Oxford p.393. 2 The term `technicaldefinition' is definitions large in indicate made of to this number used a chapter by Muslim jurists regarding the technical terms of maýlajia. Many Arabic Muslim jurists' works use the term al-Tarif I. tilähan or al-Tarif Shar'an, which canbe translatedas `technicaldefinition'. SeeBa°albaki, al Mawric, p. 118

13 Muslim jurists who were involved both directly and indirectly with the subject of Maslalta in conjunction with the legal text, Nass.

1.1.1 Literal Definition

In the framework of Islamic jurisprudence, many Muslim jurists have defined the word maslalaaon the basis of a literal rather than an etymological definition3. To Abü al-Husayn al-Basri (d.478/1085), maclahameans `goodness'and macälili means `good things'. He addsthat, in Islamic jurisprudence, the term al-maýälih al- shari a law individual is in Islamic to the the to such compelled perform refers actions, which 4 cibäda, definition, is Zamakhshari's (worship) Based on as maclalta referred to as for ft "he that things the were considered na,-ara masälili al-muslimin, which means: the good of the Muslim"5. Ibn Manzür and al-Fayruzäbädidefine the word maýlalia as

liusnal-liäl, which means:"the goodcondition".

It is thus evidentfrom the aforementionedthat a senseof goodis inherentin life. it human life, Muslim to the term masla1za that alwaysrefers and particularly Therefore,later Muslim jurists tend to define maýlajta literally as `benefit' or `interest'?or `utility's in conjunctionwith Shari a that is concernedwith human

3 Etymology is the study of the origin and history of words and their meaning. In etymological indicate is definition, the root of maslaha is becomes This to used al-naf which and means 7i1ä1: . that something,or a person,becomesgood, right and virtuous. In many Arabic dictionariessuch asAlQämüsal Muli4 andMukhtär al4i, iäli, the similar word maclaleais al-. iläli which is contrastwith the word alfarad meanscorruption and invalidity. In a rational sense,maslaha means`a means',`a goal' and `a causewhich is good'. For instance,a pen in the light of malalia is useful for writing. In this casea pen is a causefor the writing, which is referredto asmallalia. Seeal-Fayruzäbädi,al-Qämus,v.i, p.277, al-Razi,Mukhtär,.p.448 andHornby, Oxford, p.393 4 Seeal-Ba$ri, Mu`tamad ii, v.. p.888 al 5 Zamakhshari,Asäs, ii, 23 v. p. 6 SeeIbn Maciu, Lisän, ii, 348 v. p. and al-Fayruzäbadi,Op.cit., v.i, p.277. 7 SeeKamali,Principles, 267. p. 8 SeeIhsan, Utility, 10. p.

14 welfare and justice as well as equity9.This definition concludesthe examination of the literal meaningof maylalia.

In the term al Maslalia wa al-Nash, wa is an Arabic letter that is called !turf catf, a letter which indicates a specific connection between two words1°.One of the 11, is, is letter in language functions to Arabic jam° that the the main yujid al wa of join two words together and form a relationship between them12.In this work, it is is describe function to that the presumed of wa ma.clalcaasbeing parallel with nasl or evenasbeing convergentwith it.

The word Naffs or Nupüc generally means texts, script and provision13 In Islamic legal theory, Nas, refers to a legal text. The Qur'än has been termed a legal document 14as has the Ijadith which is the second source of Islamic law after the ,

Qur'an. As a result,both the Qur'dn andthe Uadithare classifiedasNaasand form the primary sourcesof Islamic legal theory. Muslim jurists unanimously acceptNall

asvalid andaccreditedby the legalsourcesof Islamiclaw. It hasalsobeentermedthe .. Quranic legislation,15ofwhich the ProphetM4ammad s.a.w was the founder;it beinginitially appliedduringthe time of MeccaandMedina.In addition,Nall is also known as dalil, 'evidence' or 'proof' nd nagl16,'transmitted', terms that are common in juristic discussionon the subject of Islamic law. In summary,the literal definition of the word Nall refers to the primary sources, either the Qur'än or the Hadith

9 Bakar, The Discernment, 103. p.

lo SeeBa°albaki, Mawrig p.767. al 11Ibid. 12al-Dakar,Mu`jam, 542. p. 13Qal°ahji andQanybi,Mu`jam, p.480. 14Hallaq,A History, 7. p. is Coulson,A History, 9. p. 16al-Azhäri, Tahdhib, ix, 151. v. p.

15 wherein are contained a dalil, a nagl, a legal text and a legal document for Islamic

law.

1.1.2 Technical Definition

As a study of maclalca is one of the main objectives of this work, it is important to examinethe definition of the term maslaha in conjunction with nass.As a starting point, al-Ghazäli claims that the term maslalta itself has no single standard definition'7. This is partly due to the term itself; the meaning being sometimesvery clear, sometimesless so and sometimescompletely absent1s.Due to this ambiguity, the term has received a great deal of attention from many jurists. The views of a representativeof these have been chosenas sourcematerial for this work. Al-Ghazäli maintains that in general, mallalta is an expressionfor seeking manfa"a (something

indicating (something the useful), whilst simultaneously removal of maciarra harmful). Juristically, he definesmaglalzaas the preservationof the magsüd,an is the objectiveof shari a which concernedwith five issues,i.e. the preservationof 19. life, intellect, lineage religion, andproperty" In conjunctionwith nass,al-Ghazäli definesmu°tabaraas a type of mallalta that has textual evidencein favour of its is for legal therefore consideration, and which valid and utilisable as a principle giyäs20.Moreover, Fakhr al-Din al-Räzi (d.606/1209) emphasisesthat ma. lalia is very

closeto munäsiband munäjaba,which suggests`affinity with a strongfeeling of

17 ii., Mustasfa, a1-Ghazäli, v. p.72. al 18Bakar, Op. cit.,p. 102. 19al-Ghazäli,Op. cit.,, v.i, p.286-287. 20Ibid, 284 p.

16 interest'21.Al-Räzi also claims that God's commandmentrevealed through the text `flla, has God's Therefore, he coincideswith magla)a. commandment no claims that ( ratio legis) and it is wrong for jurists to searchfor andjustify the `ilia behind it22. To al-Shälibi, maylalia means magsüd23,likewise, al-Ghazäli's point of view asserts that maylalia was the foundation of the theory magäsid al-shari a24.Moreover, in injunction that of the specific collaboration with nass, al-Shatibi maintains every Qur'dn and the Sunna has a `specific' purposeor rationale or `ilia that contributes to the achievementof `general' purpose,magäsid al-shari a2S.At this stagemallalia is `ilia in humans God's the the to parallel with revealing of regarding commandment senseof maýlalia.

Ibn "Ashur undertakesa particularly close study of the terms al-Maglaha alQaiiyya and al-Macla)aaal-Janniyya26 which is valuable as a technical definition of

in He maslaha accordancewith nass. assertsthat al-Majlalia al-Qaf iyya meansany particular common good in the light of a definitive legal text, therefore no interpretation or ta'wil can be madeof it. For instance,the existenceof al-Mallalla al-

Qaf iyya on the subject of the pilgrimage which is obligatory for those who are capable of performing it27, is made clear by the definitive nag of the Sara 'Ä1i °Imr7n:9728.The senseof maýlalta exists'in this particular form of definitive nag and

21al-RAzi, al-Mahfül, vol.ii, p.218 22Ibid 23al-Shätibi, Mvwäfagnt, v.ii, p.25. a1. 24Hassan,Studies, 138. p. Zs al-Shälibi, Op.cit., p.322.

26SeeIbn °Ashür,Magäsid, 168. p. 27al-Kamdli,Min Figh,p. 12. 28The full translation of Süra Ali cImrän 97: "In it Magäm (for the example), : are manifest signs; (place) of Abraham;whosoever enters it, he attains security. And flatj (pilgrimage to Mecca) to the house (Kafba) is a duty that mankind owes to Allah, those who can afford the expenses(for one's conveyance,provision and residence);and whoever disbelieves[i. e. deniesHajj (pilgrimageto Mecca), then he is a disbelieversof Allah], then Allah standsnot in needof any of'Alamin (mankind,jinn and all that exists)".

0

17 is exemplified by Sara '1i `Imrän:97, which concernsthe condition of performing it. Here, is the for Muslims that those of pilgrimage capable obligatory are who tnaslalaais absolutely definite, and there is no room for reinterpretation or ta'wil, particularly regardingthe condition of performing pilgrimage.

Notwithstanding al-Maslal:a al-Qa(iyya as a definitive nan, the term alMaslalta al-ZannTyya has been defined technically by Ibn °Ashür as any particular common good achieved by non-definitive nasq and through the process of legal reasoningon the basis of assumption,?anniyya29.For example,the Ijadith, 'no judge 30 is is be judging he from taken should angry when authoritative sources such as Saldh Bukhäri and Faltig:Muslim and the existence of al-Maclalza al-Zanniyya is inherent in its content, which is concernedwith improper acts of judgement such as legal A the reasoningon second example of process of undertaken one when angry. the basis of assumption, is the use of dogs to guard the homes of townsfolk who 31. in Tunisia The in Qayrawan, dangerous locations town point of as a such resided keeping, is Islamic in the the of this ruling regarding case al-Maslalla al-7anniyya dogsby al-liadar (the townspeople);an action that most Maliki jurists disapproveof. As al-SheikhAbü Muhammadb. Abi Zayd had a dog in his house,he claimed that if Imam Malik himself knew how dangerousthe situation was, he would certainly have 32 lion house his a guarding rather thanjust a dog.

Seeal-Hilali, The Translation,p.86 29SeeIbn 'Ashur, Magäsia p.168. 30Thetext the Hadth: of j 'tt,44 r' ! U i1.ß°3ilaj ý: X111 41 J. ;j aL.ý LO xu a2l p :: j v_: W-A UL. This Hadith narrated by Bukhäri, Sahih, no: 6625 and Muslim, $aliih, no: 3241.

üý

31SeealNad wi, al-Qawaid, p.359. 32Seeal-Kamäli,Min Figh,p. 14.

18 Later jurists have offered a comprehensivedefinition of the term al-Maslalza between interaction Ahmad it defines the concept of the wa al-Nan. al-Raysüni as al Maslalaa wa al-Nass (in

Arabic; al-Ta°dmul al-Maslahi ma`a al-Nusüs)33.He

fulfill is intended its the macdlili to that emphasises every single nusiis and ruling concerninghumanity in seeking something useful (manfa`a) or removing something harmful (mafsid) from their lives. In order to clarify the interaction between the following lalia Ahmad three the of concept and najc, al-Raysüni presents ma. methods: (a) the criteria of nassin determining the existenceof maslalca. Al-Raysüni insists that belief in nasj meansbelief in its supremacyand this leads to the fundamental principles such as justice, mercy and mayälih, for as Allah states; "And We have sentyou (0 Mu&iammad)not but as a mercy for the " lamin (mankind, jinn and all that exists)", 21:10734.This verse indicates directly that the ultimate aim in sending the Prophet Muhammad was an act of mercy to the `Älamin, which is connectedwith the subject of macälilc.Moreover, he supportsIbn Taymiyya's view

that mostof the principlesandactivitiesin Shari a that takeplacein the light of nalc he directed In this the ilz. towards point, are conclusionof achieving conceptof masdl claims that most nulül have basic criteria that are employed to determine the value and the types of maslai!a35. (b) the interpretation of maslalta from nusüf. According to al-Raysüni, the interpretation of maslalia from nu.yü.c involves the analysis and study of seeking the magdlid, that is, the objective of Islamic law, by means of nusüc. This methodology entails an examination of every single Islamic ruling in nusüc,and its interpretation in conjunction with the conceptsof magäfid and 33al-Raysüni, 4 al-Ijtihä p.49. 34See al-I ilali, The Translation, p.441. 35al-Raysüni,Op. cit., p.50-52.

19 maslaha.He addsthat by using this method, the hypothesisthat `every single Islamic is in juristically36 be the ruling accordancewith maclajta' can proven (c) the implementation of maslahathrough nulüs. This method is a consequence of the preceding one, whereby following the interpretation of maslalta from nusüs, the implementation of maslalta must be undertaken.It is significant to note that the basic paradigm for the implementation of is by in forming Prophet the the valuable an employed maclaha analysis of method and his companions.To simplify, the Sunna-cum-Iladith is the best example of the implementation of maclalta through nucüs. Al-Raysüni claims that there is much during his implemented how Prophet to the the evidence prove concept of maclalia lifetime. Therefore, the study of Sunna or Hadith, with special attention paid to the elucidation of the concept of ma.laha, is valuable in terms of the analysisof the basic in principle the implementation of maclaltathrough nulü,c37.

The preceding methods proposed by Abmad al-Raysüni indicate a basic

foundationfor the technicaldefinition of the term al-Maclalta wa al-Nall. These methodsare alsobelievedto further developthe elaborationof the form of mallalta be is fundamental in dealing for to mu`tabara, which considered a principle mallalia with na..c.

In conclusion, the definition of the term al Maclalia wa al-Nall from the various aforementioned perspectives, is clarified by the following indicator which shows a framework explaining its concept This model depicts the initial parallel

legal the natureof maslallaand nalc, which becomesa convergence at point wherea 36Ibid., 53-54. p. 37Ibid., 55-58. p.

20 principle is formed. At this stage,firstly, the subjectof maslalta has been discussedin `agal. villa, Secondly, ijtihäd the many ways as parallel with and subject of magdcid, the subject of nasshas also been discussedin many ways as parallel with the subject of the Qur'an, the Sunna, qaf iy and zanni. Meanwhile, both of these subjects i. e. maslalta and nass are also in many ways have been examined as parallel with each others.Eventually, these two subjectsbecomesa convergenceat the point, which is in legal the the as called maslahamu°tabaraor principle Islamic accreditedvalidity of legal theory. In order to elaborate the connection between the legal principle of maslalta muitabara and the concept of al-Maclalta wa al-Nall, thus, this section will proceedto examine how the concept of al-Ma. lalia wa al-Nall has been developed through the history of Islamic legal theory.

AI Maslaha (al-Magdlid), ('illa), (Ijtihäd), CAqao PARALLEL Al-Na,g 4 (Qur'än), (Sunna),(Qaf iy), (Zanni)

CONVERGENCE

(mglaha mu`tabara) THE LEGAL PRINCIPLE IN ISLAMIC LEGAL THEORY

1.2 The Historical Development of The Concept of al-Maclalia wa al-Nag

Scholars,particularly those from the Sunni school, have referred to the historical development of this concept. Many Muslim jurists have the existenceof stated that the early development of the concept of al-Maclalta wa al-Nall commencedduring the life of the Prophet and then continued into the time of the

khulafä' al-Räshidün(Rightly GuidedCaliphs)from 11H1632C. E38. E to 40H/660C.

39SeeE1, (art. Khulafa' ), vol.iv:IRAN KiMp. 937-957

21 Accordingly, the concept of ma. lajta emerged during the period of the Umayyad Empire, particularly under the caliph of 'Umar b. °Abd. °Aziz (991V717C.E to 101H/720C. E)39and then continued into the beginning of the secondand up until the eighthcentury of Hyra4o.

1.2.1 During the life of the Prophet s.a.w

To many later Muslim jurists, the existenceof maslalia during the life of the Prophetconstitutespart of the form of ijtfhäd, although he himself was the expounder of the Qur'dn and the living source of Islamic law41.When the Prophet neededto between lapse during (particularly time the solve a problem or answer a question his during form Indeed the ytihäd revelations), maslaha as of always occurred42. lifetime, there were many events and casesthat set precedentsrelating to the subject of maslaliaand thesecould be obtained from various authenticIladith.

The processof appointmentto leadershipduring that era offers a clear intended In to the two the examplepertaining subject of ma.clalta43. men who caseof to becomerulers of some lands, the Prophet rejected their request,saying; `By Allah, we do not appoint to this position one who asksfor it nor anyonewho is covetousfor

Paradoxically,in the caseof Ziyad b. al-Iiärith who requestedauthority the same'44. 45 to becomea leader,the Prophet agreedto appoint him as leader of the tribe of Südä .

39

al-BUti,

Dawäbit p. 314-315.

40 Ibid. 41Hassan,Studies,

p.138. 41a1-Shaibi, Op.cit.,p.14. 42al-Amidi, al-Ihkäm, iii, 140 v. p. and al-`iywäni, Usüt,p.15. 43al-Raystini,Op.cit.,p.55-57. 44Muslim, Sahih,in Kitäb al-`Imdra, no.:1083.

22

Ibn Qayyim does not perceive any paradoxical nature between these two cases,since they reveal the permissibility of requestingleadershipfrom the Prophet on the basisof the capability of the applicant.He addsthat the former application was rejected as it was basedon irrelevant criteria such as over-enthusiasmfor leadership, Iarith to be a good whereasthe latter was accepteddue to the ability of Ziyäd b. a1-}; leader for his tribe. Ibn Qayyim assertsthat the Prophet s.a.w applied the concept of maslalzain thesetwo cases.In the first, the rejection was partly due to masla,za as it removed the potential harm of over-enthusiasticleadership from the appointment, in whereas the latter case,the acceptancewas partly due to ma.Fla!a as it relied on 46. leadership, by b. seekinggood qualities of such as those possessed Ziyäd al-Harith

The precedingillustrations clearly indicate that the Prophet s.a.w was the best in implementing the conceptof maslalcain the light of Islamic principle and exemplar thus, 'demonstratewhy his actions in life are also regarded as primary sources of

Islamic law. This instanceforms a precedentin Islamic jurisprudence,particularly with referenceto the developmentof the theory of ma.lalta in conjunctionwith hadith-cum-sunna,as both are classified as nalc.

1.2.2 During the period of the Khulayla' al-Räshidün

Subsequentto the death of the Prophet, the Khulafa' al-Räshidün (Rightly Guided Caliphs) took over the leadership of the Muslim nation for 29 years, during y "' 'A: iii tai 4p ie uºU v v' 1'w

-daiJAU l'.tiº

cC Qj7A

as Ibn Qayyim, Za4v. iii, 668. p.

46Ibid

c t' ý 4.,4 zu crýi° . U ýU1j V`ýjlü'ýC+ iýi

cri

'ýuýc kSýº v i;j ur .. iý?! 'f :Iltý L". i

v7c

Liy. ( ! 29 Jrrý

23 which time the application of maslalta was increasingly effective. The main factor responsiblefor this was probably the rapid and vast expansionof Muslim territory and the multicultural nature of the Muslim world47.In order to solve many challengesand problemsduring that period, ma.Flalia as the form of ijtihäd took place in conjunction with the legal principles of Islamic law. Indeed there were many casesand events in the period of KhulaJa' al-Räshidün, which exemplify the application of maslalaa. Examples of these are as follows;

The codification of the Qur'an that began in the period of Abü Bakr (1111/632C. E to 13H/634C.E) was due to the `death reciters' of the Qur'an, particularly in the war of Yamäma.After Abü Bakar's death, the °Umar Qur'an by the codification of was continued as the secondcaliph48. ii.

The decision to wage war against Musaylamah al-Kadhdhab and his followers who refusedto pay zakahin the period of Abu Bakr¢9.

iii.

In the period of °Umar (131V634C.E to 231V644C.E), it was declaredthat a divorce would be valid if a man three times proclaimed his wife to be divorced. Umar's justification for validating this type of pronouncement was basedon the rising social problem of men misusingthe privilegeso

iv.

The decision to reversean application of liudüd, prescribedpenaltiesin the caseof servantswho stole a camel in the period of °Umar, as the theft was due to a year of starvation51

v.

The introduction of a standardcopy of the Qur'an was later namedmulltaf `Uthmäni in the period of °Uthmän (23H/644C.E to 35H/656C.E). Introduction of the mucltaf `Uthmäni was due to the differences between the people of Shamand Iraq in the recitation of the Qur'an52.

vi.

In the period of "Ali (35H/656C.E to 40H/660C.E), the introduction of the for drunkenness punishment was equatedwith that of the punishmentfor gadhaf, false accusationof adultery. This was based on the premise that drunkennessmight lead a personto make suchan accusation,and therefore it should merit the samepunishment"

47Iýassan, The Early, 15. p. 48Bukhäri, SahTh, 6, 183. v. p. 49Zubayli, Figh,, ii, 764. al v. p. soIzzi Dien, Maslaha, 346. p. sl Bayhaqi, Sunan, v. viii, p.278. sZIbid, 5, 510. v. p.

53al-Shdlibi, al-ftisäm, p.334.

24

The abovecasesform part of the judicial processtowards the implementation of Islamic law within the concept of maclalia, which became classified as Utihäd during the period of Khulafa-' al-Rdshidzün.In the caseof i, ii, iii, and v in particular, the preservationof religion was clearly the objective, whereasin the case of iv, the preservationof life for the starving who stole the camel becamethe judicial reasonfor In the case of vi, the preservation of intellect reversing the punishment of leudüdS4. becamethe judicial reasonfor the punishmentof drunkennessbeing equivalent to the punishmentof qadhaf. As Imäm al-Shatibi asserts,the preservationof religion, life, intellect, lineage and property were being offered as a basis for majlalla-cummagäsidss.In addition, later Muslim jurists concur that at the time of KhulaJa-'alRäshidün, the companionstook an inherently rational and comprehensiveapproach towards the implementation of

Qur'anic law and the Sunna, whereby the

circumstancesand surrounding factors were always considered as vital elements in the application of Islamic law56.

1.2.3During the time of caliph `Umar b. `Abd. CAziz

The developmentof the conceptof maclaltain particular,and in connection with nail, beganduringthe period of tabfan, (followers);underthe caliph 'Umar b. °Abd. °Azsz(99H1717C. E to 101H/720C.E) 57in the dynasty of Umayyad. During this era, many jurists considered that the majority of applied government policy was in 54lbid, p.332. 55Ibid, p.332. 56 Kamali, Figh, p.66; al-Durayni, al Manähy, p.33; a1=Iywäni, U4ül,p.21-30; al-Asygär, alShari a,p. 14-15. s' cUmarb. °Abd. °Aziz b. Marwan b. al-Hakam, Abu Hafs al-Ashadjdj, fifth caliph of the Marwanid branch of the Umayyad dynasty reigned 99H171C.E to 101H1720C. E. See El, (art. 'Umar b. °Abd. °Aziz), vol.X: T-U,p.821

25 accordancewith the concept of mallalia. According to Said Ramadanal-Büti, caliph °Umar b. °Abd. °AzIz was among tabfün who had applied the concept of maclaha or istillah through his policy. For example: i)

Giving back the right of people who were treated as victims of injustice by the caliphs before him58.

Al-Bild states that caliph 'Umar b. CAbd. °Azsz expended most of his efforts on returning rights to innocent people. Such a policy was not applied during the period of

the Prophets.a.w and the policy itself has no referenceto Islamic sourcessuch as the Qur'an, the Sunna and QiyäsS9.Caliph 'Umar b. °Abd. °Aziz's course of action reflects the concept of ma.lalta or istislah, which upholds the preservationof life and property in particular and it is undertakenfor those who were treated as victims of injustice by the previous caliph60.Al-Tabari quotes the following sermon given by 'Umar °Abd. °Aziz in be b. in his Khunasirah. It to the to caliph people policy reveals accordancewith the application of maclajta61: "Whenever we learn that one of you needssomething,I try to satisfy his need to the extent that I am able. Whenever I can provide satisfactionto one of you out of my possessions,I seekto treat him as my equal and my relative, so that my life and his life are of equal value".

ii)

The codificationof Hadith, its transcriptionand the creationof its rules of narration62.

°Abd. 'Umar From the perspectiveof mulaaddithin(scholars b. Hadith)63, of caliph °Aziz was a pioneer; being the first to issue definite ordersto Abü Bakar b. Haim, the caliph's governor at Medina and to other centres,to the effect that codification and

58al-Bali, 4Aiwäbi;, 314-315. p. 39lbid, 315. p. 60Ibid 61al-Tabsi, Tärikh, vol. xxiv, p.99. 62al-Sibädi, al-Sunna,p. 104. 63Suhaib,An Introduction, 5. p.

26 °Abd. cUmar °Aziz b. Hadith be written collections of should prepared officially64 informed them thus: "See whatever saying of the Holy Prophet s.a.w can be found, and write it down, for I fear the loss of knowledge and the disappearanceof the learned men; and do not accept anything but the Uadith of the Holy Prophet s.a.w.; and should make knowledge public and should sit in companies,so that who doesnot know should come to know, for knowledgedoesnot disappearuntil it is concealedfrom the public"65. His policy contained fundamental reference to the preservation of religion, specifically with regard to the authentic IHadith of the Prophet s.a.w., as well as the Qur'an, as a primary source of Islamic law66.To some extent, this policy resulted from the appearanceand movement of Muslim sects such as Qadäria and Khawdry believed invalid to and non-authenticHadith as being traceableto who were represent the Prophet67.In order to avoid suchmisrepresentationand to securethe authentic and in implementation Iiadith, this the authoritative of policy was necessary and

is i. legal At Islamic there this clear accordancewith principle e. ma.ylalta . stage, '-Umar the Utihäd evidenceof application of maclaha as a tool of within the policy of b. °Abd. °Aziz. This may be referred to as the starting point of the developmentof the conceptof maýlalta in connectionwith nafl.

1.2.4During the Abbasid dynasty

After the fall of Umayyaddynastyin 1321V750C. E, the Abbasiddynastytook over Muslim territory for more than five hundred years, from 132H/750C.E to 656H/1258C.E68. Philip K. Hitti refers to this era as `the golden prime' of the

64Muhammad,Collection, 33. p. 65Bukhari, $ahih, 1 (k.3,b.34) v. "a1-Büxi, 4 awäbit,p.316. 67Ibid 68Eli (arL cAbbasfd), vol.!: A-B, 21-23 p.

27 Abbasid, which enduredfrom 750C.E to 833C.E 69 This metaphorically golden time juristic fiqh; fiqh Islamic knowledge the witnessed and ucü1 growth of such as developmentsthat encompasseddiscussionof the concept of ma,clalaaand its status within the legal text.

To someextent, the simultaneousemergenceof the four Sunni schoolsof law offered an environmentthat was conducive to freedom of opinion and thought. Most of the Abbasid caliphs encouragedthis and the prevailing climate has contributed indirectly to the developmentof the conceptof maclal:a and its connectionwith nag.

Though the term al-Ma. lalza wa al-Na. c was not in existenceat that juncture, it is theorised that juristic discussions regarding the application of giyäs, Umü, istihsän and mallal: a mursala, and their connection with the primary sourcesi. e. the Qur'dn and the Sunna, indeed contributed to the development of the concept of alMa.claha wa al-Nash. Therefore, the following discussion attempts to prove how the

methodologies of thosefour Sunnischoolsof law haveinfluencedjuristic discussion of the conceptof al-Maclalla wa al-Nass.

1.2.4.1 The Hanau School of law

The Ilanafi School of law or Tariga al-Hanafiyyin was named after Abü Ilanifa70,the eponym of the ancient schools of Kufa and Basra71.The Kufa school of law hasbeendepicted as rationalist or AN al-Ray' due to its flexibility of approachto 69Hitti, History, 2 97. p.

70Imam Abu Iianifa's full nameis Aba Ijanifa a1Nu°man b. Thabit He was born at Kufa, Baghdadin . the year 80H/699C.E and died in 150H/767C.E. Abü Zahra,Abü Hanfa, p. 15. 71E2, (art. Hanafiyya), vol.111:H-IRAM, p. 162.

28 the interpretationof the text and to the application of Islamic law. Thesephenomena in Arabs being Kufa the centre which a are consequencesof existing environment; Kufa in Muslim Muslims intimate Hence, at scholars non-Arab and were contact. Islamic the to the to this apply and were consciousof need accommodate environment Sunna72. Qur'dn in the the the and principles accordancewith primary sourcessuch as

In the IHanafi school of law, Qiyds and Istiltsän(juristic preference) were formulated as secondarysourcesof Islamic law and these have similar attributes to the conceptof maclaha73.According to Hashim Karnali, Ilanaft jurists tend to define Isti#sän similarly with giyäs that consists of a departure from giyäs jali (obvious is khafi (hidden to analogy), which closely connected with ray analogy) giyäs (reason) and analogical reasoning74.Hussein Hamid Hassan adds that 1stilisän will only prefer the benefit of people75in accordancewith Qur'anic principles, such as alZumar,'39:18 and 55: `And give good tidings to those of my servantswho listen to the word and follow the best of it [ahsanahu]. Those are the ones God has guided and endowedwith understanding'.

'And follow the best [alisana]of what hasbeensentdown to you from your lord'. In conjunction with the Qur'än and the Sunna, Hanafi jurists insist that Isti{ssänin

from is by law far Islamic the particular, conformed primary sourceof and removed the elementsof prejudice,biasandthe like76.It is interestingto notethat Ijanafis have formulated the category of al-Istillsän bil-Nag in order to link the connection

betweenIstihsänand nassand to revealhow Imam Abü IIanifa himself appliedthe 72Abü Zahra, 165 and Coulson,A History, 50. p. p. 73Kamali,Istihsan, p.37. 74Kamali,Principles, p.254. 75Hussein,Nazariya,p.587. 76Ibid

29 interpretationof Istiltsän from the nass.An exampleof this can be understoodfrom a Iladith relating to the subject of obligatory fasting77.According to Abü Hanifah, if an individual takes food or drink while fasting becausehe/shehas genuinely forgotten, then the fast is still valid78.Here, Abu Hanifah's judgement is in accordancewith the Hadith of the Prophet, wherein he stated, `continue your fasting (in caseof eating or drinking due to forgetfulness) becauseAllah the Almighty gave you to eat and to drink'79

From the Ilanafi perspective, the juristic method applied in this case is referred to Istilisän, which gives a preferenceto the benefit of Muslims, on the basis that it is connectedwith the primary sourceof Vadith80.To someextent, this example signifies that Istilisän and Qiyäs have been applied as secondarysourcesin Islamic law, particularly by Hanafi jurists, in order to give benefit and preferenceto Muslims.

This notionis intertwinedwith the conceptof maclalza81.

The precedingdiscussionrevealsthat the Hanafi school of law has formulated

the basicdevelopmentof the conceptof al-Mallalta wa al-Nag, althoughindirectly, through the application of Istilisän and Qiyäs to Islamic legal theory that aims to benefit Muslims. In conclusion, as the first established school of Islamic law, the

IIanafishavecontributedthe fundamentalideasto the developmentof the conceptof al-Maslaliawa al-Nafl; a processthat was to be furtheredby the Maliki schoolof law.

77Kandahlawi,Huj/a, 1, 161. v. p. 78Ibid 79Ibid 80Hussein,Nazarrya, 589. p. 81Karnali,Istihsän, 37. p.

30 1.2.4.2 The Mäliki school of law

The Mäliki school of law, known as Ashäb al-Hadith, the `traditionalist' school and also the Medinese school of law, was centred in Medina. This remained the focal point of intellectual activity and the capital of the Islamic empire during Khulafä-' al-Räshidün until caliph "Ali b. AbT Tälib moved to the city of Kufa in Iraq82.Since Imam Mälik83 spent all his life in Medina, some 84 years, he was later known asthe Imam of Medina, Ddr al-Hyra84.

The Mäliki school of law hasbeen depicted as taking a traditionalist approach, particularly with referenceto the book of al-Muwa((ä', the first work compiled and in law book by himself. The Islamic Imam Malik to the pertains written subject of accordancewith the Hadith (tradition of the Prophet) and the prevailing traditions and by drawn is interesting It the to the practices of companions85. note conclusion Macdonald regarding the Mäliki stance, which reveals that both traditional and

Accordingto Macdonald,ImamMalik's Muwalld' rationalapproaches wereassumed. had applied a rational senseto decide the authentic Hadith and its conformity with the

principleof the Qur'an andparallelwith the needsof the people86.

ß2Ibn Hajar, Tahdhib,, p.6. v.x, 3 Imam Malik's full name is Malik ibn Anas ibn Malik ibn Amir ibn al-Harith ibn °Uthmanal-Asbahi al-Himyari, Abu °Abd Allah.The date of his birth is not known; the dates given, varying between 90 E, are hypotheses;which are presumablycorrect. However, it is commonlyaccepted and 97H1708-16C. that he was born in 94H/712C.E and died at the age of about 85 in the year 179H/796C.E in Medina andwasburied in al-Bagi°. SeeIbn Hajar Op.cit., E2, (art. Malik b. Anas ), vo1.VI: MARK-MID, p.262-263., Ibn °Abd. al-Barr, , al-Tamhid,v.i,p.84., Zakariyya,Awjaz,v.i,p. 19. 84a1-Zirikh,al-I'Idm, v.vi, p. 128. ssIbn °Abd. al-Barr, al-Intigä', p.20. 86Macdonald,Development, 99. p.

31 The main features of the Mdl ik! school of law are the recognition of the practices of the people of Medina (`Aural AN al-Madina) and al-Maslaha al-Mursala as the secondary sources of Islamic law, apart from the Qur'än, the Sunna, Qiyas, Qawl al-Sauabi (the views of the companions), al cUrf wa al-'Ada (custom), Sadd alDhard'(

(prevention of presumably a bad thing), Istilliäb (continuance) and Istilzsan

(juristic preference)87.

According to °Ajjäj al-Khatib, `Amal AN al-Madina or the practise of the people of Medina becameone of the main features of Imäm Mäliki's legal theory88. After the Qur'dn and the IHadith as primary sources, Malik gave priority to the preferencesof the consensusof the people of Medina in determining the quality of narration and transmission of the Hadith by any given person89.Al-$äbüni claims that Imam Mälik's view in this regard was due to the practical heritage of the Sunna that was undertakenby the people of Medina90.To some extent, the Mäliki school of law recognisedand endorsed'Amal Ah! al-Madina as one of the sourcesof Islamic

law, in accordance in the principles the Qur'än andthe Sunna91. with

Maclaha Mursala is known to be favoured by the Mäl iki school, as an independenttool in Islamic legal principle92.ThoughImam Malik himself did not defineandelaboratethe conceptof Ma. lalia Mursala,it is believedthat his disciples andin particularIbn Qäsim,had studiedthe Muwa((ä' andclaimedthat the notion of

87Abü Zahra,Abü Hanifa, 257. p. 88a1-Kha#ib, Mukhla. ai Far,p. 126. 89Ibid 90al-$äbuni,Muhaclara,p. 195. 91Dutton, TheOrigins, 9-10. p. 92Abü Zahra,Mälik, 368. p.

32 Maclalia Mursala was originally referred to by Imäm Mälik93.Al-Shätibi claims that Maslaha Mursala is an independentIslamic legal theory in the Mäliki school of law, in Qur'än has been in the the nor which never principles employed contradiction with the Hadith94.He addsthat in elaboratingMaslalta Mursala as an independentIslamic legal theory, it is always in accordancewith the ultimate objective of Islamic law. Imam Malik applied it to a number of casesin al-Muwa(tä' as well as in the record of his opinions entitled al-Mudawwanaal-Kubra95.

Imam Malik applied Maclalta Mursala to many casesin Islamic legal theory, but only within the domain of transactional laws (mucämala). He abandoned its application in the area of worship (`ibdda) becausethis spheremust accord with the has According Abn Zahra, Imam Malik Lawgiver96. to the considered prescriptionsof the rational role of human intellect in transactional acts, thus, the application of Mallalia Mursala fits more obviously in mu`ämala rather than `ibäda, wherein the role of human intellect is very limited97.

The following case portrays the significance of Maclalta Mursala as an independenttool in Islamic legal principle. Malik's Mudawwana outlines a situation

wherebya motherwasgivenguardianshipoverher daughter'smarriageinsteadof the father,becausehe appearedto carevery little for his daughter98. Accordingto Ibn Rushd,Imam Malik shiftedthe responsibilityof guardianshipfrom the fatheron the due living her interest. She to the groundsof consideration of girl's was with mother

931bn°Abd. al-Barr, al-Intigä ,

94 al-Shatibi, alJJti im, v. ii, p. 132. 951bid

96Ibicl 97Abil Zahra,Mälik, 104. p. 98Zakanyya,Awjäz,v.ix.p.278.

33 her parentsbeing divorced". Imam Malik perceivedthat the mother should have the privilege of

guardianship in her daughters' marriage on the basis of Mallalta

Mursala, since there is no specific textual ruling to imply the necessity of male guardianshipin order to validate a marriage10°.

The preceding case reveals that the Mal iki school of law has developed the concept of maslaha through the form of Maslalia Mursala. Although the concept of Ma.FlahaMursala has no connection with the existence of Islamic legal principle in the Qur'an and the Sunna, the former has always been legislated by Muslim jurists without contravening the text At this stage, the development of the concept of in maclaha connection with nass, such as the Qur'an and the Sunna, deals with the condition that the former must contain no contradictory principles with the latter in terms of validity. In, addition, it is worth noting that al-Shätibi was a leading Mäliki his instigated through theory the scholar who a systematic of concept of mavlalta valuable works. A detailed discussion of this will be offered in the separatetopic

entitled`TheTheoreticalDevelopmentof the Conceptof al-Ma.lalta wa al-Nall'.

In conclusion,the Mäliki schoolof law has introducedthe form of Mallalia Mursala in which has no connection with any legal principles that source in the

Qur'än andthe Hadith.Regardingthis, somefactorshavebeendebatedby the Shäfli school,establishedas the third schoolof Islamic law. The subsequentsectionwill examine the development of the concept of al-Maglalia wa al-Nall from the Shäfli perspective.

99Ibn Rushd,Bidäya, ii, 9 v. p. tooJaziri,Kiläb, iv, 27. v. p.

34 1.2.4.3The Shäoi school of law

Also referred to as a traditionalist school (Ahl al-Hadith), the Shä i school of law has been depicted as containing scholastic theologians (al-Mutakallimün), those who adheredto God's text and the principles related to Divine commandmentslol Imäm Shäflf102wasthe eponym of the Shäfli school of law, and as Khadduri claims, he was the first to lay down systematic legal reasoning in Islamic jurisprudence through his valuable work the Risäla103.Imam Shäft'i was a greatjurist who played a between jurisprudence by in Islamic the resolving significant role conflict of approach the Mälikis in Hijaz and the Hanafis in Irag104 Therefore, it is presumedthat Imam Shäfi i's Risäla was born in responseto the conflict betweenboth schoolsof law and it was actually written at the,requestof °Abd. Rahmanb. Mahdi (d. 198/813),a leading traditionalist in Basra, in order to explain the legal significance of Islamic law in accordancewith the Qur'an and the Sunna'°5.

Accordingto Ibn IIajar al°Asgalani, Imam Shäffi composedtwo treatiseon Islamicjurisprudence;bothbeingreferredto asal-Risäla106. It is believedthatthe first book of al-Risälais known as the old Risäla, composedin Iraq; whilst the secondis known as the new Risäla, composedin Egypt107.Majid Khadduri claims that very little is knownaboutthe formercomparedwith the latter,dueto the text of the former 1°1EZ,(art.al-Shari ), vol.IX: SAN-SZE,p. 133. 102Imam Shä[]fi's full nameis Abü `Abd Allah Muhammadb. Idas a)-'Abbasb. `Uthmänb. Shäfi'i b. al-Sa'ib b. `Ubaydb. Abd Yazid b. Hashim b. al-Muttalib b. `Abd Manaf b. Kusay al-Kurashi.He was born at `Asgalan,Palestine,in 1501767,the year of the deathof Abü Hanifa. He died on the last day of Rajabin the year 204IV820CE in Cairo, Egypt. SeeAbd Zahra,al- Shäfici,p. 15. 1°3Khadduri,Islamic, 4. p. 104Ibid., 8. p.

105Seeal-RAzi,Tagdmat, p.250 106Ibn Hajar, Tawär 77 p. 107 Ibid

35 having failed to reachus, thus, it is difficult to define and elaborateprecisely its scope and arguments'°8.The first section of the new Risäla, is mostly concernedwith the superiority of the Qur'an and the Sunna as primary sources of Islamic law. As a leading Muslim jurist of his age, Imäm Shäffi denoted the systematicapproach of dealing with the Qur'än and the Sunna in accordancewith Islamic jurisprudence in which he discussedthe abrogation of Divine Legislation and the duties laid down in the text. Following the detailedtextual discussion,the secondpart of Risäla elaborates on the legitimacy of consensus(Ijma'), analogy (Qiyas), personalreasoning(Ijtihdd), juristic preference(Istil: sän) and disagreement(Ikhtiläf).

Regarding the development of the concept of maclalia in connection with nail, the divine texts, indeed Imäm Shäf(i's Risäla in particular, has contributed indirectly as well as directly through the form of Qiyäs. With regard to Imam Shäf(i's Risäla, the form of Istilisän is rejected if it is not confirmed by the authentic from the Qur'an and the Sunna unless if Qiyäs, (analogy) were abandoned narrative

on the basisno narrativehavefound, thus, it would be permissiblefor the Muslim jurists to exerciseIstilcsänin the absenceof a narrative'09.It is worthing to quote Khadduri'stranslationof Imäm Shä i's Risüla regardinghis point of view in this subject; `For if analogy were abandoned,it would be permissible for any intelligent man, other than the scholars,to exerciseIstilisän in the absenceof a narrative. But to give an opinion based neither on a narrative nor on analogy, as I have already stated in the discussion on the Qur'an and the Sunna, is not "10 [the permissibleaccording to rules of] analogy.

los duri, Islamic,p.22 1091bid, 304-305. p. 110Ibid, 305. p.

36 According to al-Büti, though Imam Shäfli rejected the form of Istilisan as law, is Islamic Maslalta Mursala, both there the of well as secondarysources as are of in idea Imam Shäfli to that the proof support and spirit of maslalta general accepted through the form of Qiyds (analogy) in which it is acknowledged apart from the Qur'an and the Sunnal1l.At this stage,the acceptanceof Qiyds by Imam Shäf(i and his abandonedto Istilzsän and Maclalza Mursala to be legalised as the principle of Islamic law was due to his consciousness pertaining to inexistence principles from the

Qur'än and the Sunna. Therefore, Imam Shäffi directly made his standsthat only Qiyas as a legal form to deal with the concept of maflalta that in accordancewith the

divine commandments.

Though Imam Shäf(i `s point of views are not confined as a final analysis in lalta development the the the connection of concept of ma, subject of regarding from it is Ghazäli believed Imam Imam the that particularly al-Juwayni and with nag, Shäffi school of law, were amongleading Muslim jurists in exposingand elaborating

Sunna. in Qur'an the the conceptof maclaltain accordance the the and with principle As both of them gavethe valuable views regardingthe subject of malla, a, their views

be in juristically discussed the separatetopic entitled `The Theoretical will Developmentof the Conceptof al-Maclalia wa al-Nalf

In conclusion,Imam Shäf(i as eponymof the Sh«f(i schoolof law accepted the form of Qiyäs as a legal principle apart from the Qur'än and the Sunna, in which some ways have connected with the concept of maclalta. His concerned with the existence principles in the Qur'an and the Sunna that must be followed without

111al-Buti, Dawäbi(, 378-380. p.

37 hesitating by Muslim jurists were part of indicating that the concept of maclaha juristically must be parallel with the God's commandmentsand the Sunna of the prophet.In addition, the following section will be discussedon the Hanbali school of law pertainingto the developmentof the conceptal Maclalca wa al-Nash.

1.2.4.4The Hanbau School of law

As the fourth Sunni school of law, the Uanbali School of law has been jurist, Ahmad b. leading Muslim its Imam IHanball12 a establishedsince eponym, was 13 in located Baghdad' He was disciple of Imam Shi fii, theologian and traditionist thus, Imam Ahmad b. IIanbal's approach was quite similar to that of Imam Shäf(i that attribute of Mutakallimün. Al-Musnad is regardedas an authentic book of Hadith that compiled by Imäm Ahmad in which he juxtaposed a number of narratorsincludes 'Ali °Umar, °Uthmän, Bakar, AbU Companions, the and endswith the and of principle narrator of the Ansär, the Meccans,the Medinians, the people of Kufa and Bacra, and

14 Syrians' the

As a leadingMuslim jurist at his age,Imäm Ahmadb. Uanbalwasconcerned law Qur'än Sunna Islamic the the the the supremacyof and with as primary sourceof as well as Qiyas ,a legal principle in Islamic legal theory. According to al-1351i,with respect to the concept of maslalia, Imam Ahmad b. Hanbal's view was nearest to Imam Mälik that regarded maclalta as a tool to interpreting the law but as not as a 112Imäm Abmad b. Hanbal's name is A1imadb. Moammad b. Ijanbal was born on 20th of Rabi alAwal in the year 164IV780CE in Marw, Baghdad. At the age of 75, he died in Rabi al-Awal 241H/855CEand he was buried in Magabir al-Shuhadä' (the Martyrs cemetery),near the }1arbgate in Baghdad. SeeIbn Kathir, al Bidaya, v.x, p.340., Ibn al-Jawzi,Manakib,p.418., Abü Zahra,An Hanbal,p. 15 113SeeE2, (artAhmad b. 1janbal ), vol. 1: A-B, p.272. I14Ibid

38 sourceof lawns To most of Ijanbali's jurists, maýlalia as a valid principle in Islamic legal theory was partly due to its connectionwith the juridical analogy(al-Qiyas)116.

To some extent, a validity of maslalia is referred to its compatible with the ultimate objective of Islamic law and its no contradiction with the texts of the Qur'än definition Sunna"7. juristic b. had Though Imam Abmad IIanbal the of and no such maclaha, his disciple, Ibn Qayyim in particular, claims that instead of the term by has been (compatible description) the term used maslaha, al-wasf al-mundsib Hanbali jurists as well as Hanafi's jurists that reveal its similar meaning in some way insists Qayyim Ibn the that the concept of maclaha must concept of maýlajta118. with be rational in the senseof its conformity with the objective of Islamic law and its 119 benefits of the people convenewith the needsand

In addition, the IIanbali Imam Ibn Taymlyya seemssceptical in regarding , but he law, as occasionally refers to the concept of mallalta as a source mallalta of

juristic views that havepredominantbenefit whilst haveno oppositesensewith the is believed law i. from Qur'än in It Sunna the the the texts and existing e. particular. his fear Muslim that Ibn Taymiyya'sscepticalof mallalta wasa consequence that of jurists attributeof ma.lalta would becomemore legislatorsratherthan interpreterof Islamic law12o

115al-BÜXT, I)awäbil,p,368. 116Ibn Taymiyya,Majmri v.xi,p.342. 117Ibid

118Ibn Qayyim,1°1äm,v.i, 31 p. 119Ibiclv. 3, 6 p. 120mit Taymiyya,Op.cit.,, iii, 371. v. p.

39, The application of the concept of maslalia to the principle of Islamic legal theory madeby Ijanbali scholarscan be found in their works, such al-Qawä id fl alFiqh al-Isldmi, written by Ibn Rajab al-Ilanbali121.In this regard, the case of requesting permission from a partner before selling any jointly owned property becomesan example of the application of mallalia in the area of transactional law (mu'ämala)122.According to Ibn Rajab al-Ijanbali, under contract of joint property, a partner must be aware of making any harmful by selling out the property. Therefore, permission must be taken from a partner due to respecthis right and interest before any transactionis made to the property. It is clear that this condition is formed due to the conceptof maclalia that concernswith the preservationof property that belongsto 123. in form It is believed that Ibn Rajab ala person although a of sharing property Hanbali formatted this type of principle particularly in the area of transactional law (muiämala), which conforms to the legal principles contained in the Qur'än and the Sunna.

The preceding paragraphsreveal that the Ijanbali school of law has contributed juristically to the early development of the concept of majlalia in

connectionwith the legal texts, particularly the Qur'än and the Sunna.Moreover, Hanbali jurists such as Najm al-Din al-Tüfi have involved academically in the , discussionon the legitimacy of maslalta having some supremacy over nac.y ( legal texts). Therefore, further relevant will take place in the following chapter, which is concernedwith the theoretical developmentof the concept of al-Mallalia wa al-Nall.

121Ibn Rajab,al-Qawa'i4 p. 111 '22 Jbld

123 Ibid

40 1.3 Summary

Within this chapter, the definition of the term al Maclalaa wa al-Nass with

introduction both literal brought have to technical significant and a regard arguments to the concept of al-Maclalia wa al-Nass. This concept has formed an Islamic legal principle on the basis of public interest or common good of people that always parallel with the Divine legal texts particularly the Qur'an and the Sunna.Within the framework of Islamic jurisprudence,the concept of al-Maclalia wa al-Nag meansthe interaction and dealing of mallaha, as Islamic legal principle with the Divine is in legal Qur'an Sunna, texts the the through the which termed and commandments asNaas.

The concept of al-Majlalia wa al-Nash is well acceptedas a valid and legal Islamic principle that emergedduring the period of the Prophet and continued during the era of his companions,particularly that of the khulafa-' al-Rdshidin or Rightly

GuidedCaliphs.In the periodof täb(icn or followers,particularlyduring the rule of the caliph °Umar °Abd 'Az;z, there was significant indication of the further developmentof the concept maclalta in accordancewith nalc. This growth continued

into filtered the four Sunni schoolsof law, who contributedboth directly and and indirectlyto the developmentof the conceptof al-Maclaliawa al-Nall

in termsof

defining and elaboratingthe latter in connection with the former. Their contribution to this conceptwas subsequentlywell developedby the disciples and jurists from their own schools of thought, particularly in the sphere of theoretical development. The

following chapterwill discussthe topic of the theoreticaldevelopmentof the concept of al-Maclalia wa al-Nass.

41 CHAPTER TWO THE THEORETICAL DEVELOPMENT OF THE CONCEPT OF AL-MA$LAHA WA AL-NAYS

2.0 Introduction

The term theoretical is being used as the main subject of this chapter as an jurists by Muslim designed developed the theories and examination elucidation of and be jurisprudence, framework Islamic the concerning the undertaken will within of Qur'än i. between legitimacy the the the e. of nasf correlation conceptof maclaha and frequently law. A Sunna, both Islamic being topic the the primary sources of and debatedamongstMuslim jurists regarding the concept of al-Maclalia wa al-Nafl, is the theory of the priority of maclalcaas a form of legal principle in Islamic law, over the legitimacy of nassin the Qur'dn and the Sunnain particular, as well as the Ijmä.

Apart from the theory above,Muslim jurists have formulated the theory of the

levelsof Darüriyya,Hdjiyya, andTalisiniyya,which arecloselyrelatedto the concept law in Islamic to the that they such as the of maylalla primary sourcesof relate Qur'än and the Sunna.In addition,the theory of Magdlid al-Sharia-cum-Maclaha has become popular discussion among Muslim jurists as a new approach to Islamic

jurisprudenceparticularlyin dealingwith the nail in the Qur'än andthe Sunna.It can Magdcid be held in by later jurists developed that the theoryof also al-Shari a, was order to-form a juristic legal principle dealing with the ultimate objective of Islamic law, which is to uphold the commandmentsof Law in the Qur'dn and in the prophetic life of the Sunna.

42 From the aforementioned,the main intention of this chapter is to deal with those three main theories regarding the concept of al-Maslaha wa al-Nash.The first section of this chapterdealswith the theory of priority of maclahaover the legitimacy of nass.This is disputedjuristically among Muslim jurists, particularly regarding the E). The theory of the levels view put forward by Najm al-Din al-Tüfi (d.716H11316C. of i arürryya, Iläjryya, and Tal:sinlyya in connectionwith the concept of al Ma. clalia wa al-Nall is discussedin the second section of this chapter. The final part of this chapter examinesjuristically the theory of Maga id al-Shari a in conjunction with Nass.

2.1 The theory of priority of Maflaha over the legitimacy of Napf

It is suggestedthat the juristic discussionregarding the theory of priority of

maslalcaoverthe legitimacyof nagscommencedhistoricallyduringthe life of Imäm Malik, the eponym of the Mäliki school of law, when he formed Maýlalla Mursala as

a legal principle in Islamic legal theory.This is shownby Mu*tafa Zayd in his Ph.D thesis(1964)in which he claims there were manyjuristic opinionsmadeby Imäm Malik himself andhis discipleswhich upholdthe theory of priority of ma.1claliaover the legitimacyof nasl'. Moreover,Mu*lafa Shälibi, in his book entitled Ta°lil alAhkäm,sharedthe sameview asMustafaZayd regardingthis theory;that is in some ways Imam Malik's legal opinions, (fatäwa) as well as the form of Mallalia Mursala that he designed and legalised, obviously contradict naW. The accusation made against Imam Malik and his disciples of giving some sort of priority to Ma.Flalta

Mursala in particular,over the legitimacyof nail, has subsequently beenjuristically 1Zayd, Maslalia, 128-136. al p. 2 Shälibi,Td iil, 367 p.

43 debated,particularly amonglater Muslim jurists suchas HusseinIlämid Hassanin his Ph.D thesis entitled `Nazaria al Maslaha fi al-Fiqh al-Islämi' (1981), as well as Yushau Sodiq in his Ph.D thesis entitled `Malik's Concept of Maslaha (The Considerationof The CommonGood): A Critical Study of This Method As A Means of Achieving The Goals and Purposes of Islamic law With Special Reference To Its Application At The Shari 'a Courts In Northern Nigeria (1991).

In addition, not only Imam Malik and his disciples have to be said formulated to the theory of the priority of maclalta over the legitimacy of nag, but Najm al-Din Tiffs Uanbali To this theory. a accepted point of some extent, al-Tüfi, scholar also issue, have become to theory to this appears a controversial view pertaining debate involves jurists. The later not only Tüfi's point of view on particularly among

this within the frameworkof Islamic jurisprudence,but also involves his life and credibility as a Muslim scholar. Some later Muslim jurists seem obviously to oppose Tüfi both as a legitimate Muslim jurist and also in his view on this theory, whilst

his him theory. For instance,al-Büti`s work entitled to seem and others support Qawäbi(al-Maclalla(1987)seemsjuristically to underminethe credibility of Tüfi asa Muslim jurist and particularlyhis point of view on this theory.However,°Abdallah M. al-Husayn al-°Amiri's work entitled At-Tufi's Refutation of Traditional Muslim Juristic Sourcesof Law And His View On ThePriority of Regard For Human Welfare As The Highest Legal Source Or Principle (1982) seems to support Tüfi's choice of life asjurist and encouragehis work as well as supporting his point of view pertaining to the theory of priority of maclalta over the legitimacy of nail.

44 In order to help clarifying the discussion about the theory of the priority of hypothetical legitimacy first the the this over examine maslaha of nass, section will form of this theory in the light of Islamic jurisprudence. Secondly, an analysis will be

has form by Mälik, Maylalta Imam the which of undertaken of al-Mursala suggested been claimed to give it some sort of priority over the legitimacy of nalc. Thirdly, this section will explore Najm al-Din al-Tüfi's point of view on the theory of priority of legitimacy the over maclalia of nass.

2.1.1 The hypothetical form

It is to be borne in mind that al-Maglaha wa al-Nast was a direct outcome of the theory of the priority of maclalta over the legitimacy of nasý. For Ahmad Raysnni, recent developments in Islamic jurisprudence explore the theory of the due is its This legitimacy the of nag as well as application. priority of maylalaaover to the theory can be openly interpreted and examined by all Muslim jurists as it has

beenexpressedin hypotheticalformsby Najm al-Din al-Ti fi in his analysisof the Hadith of the prophet;`You shouldneitherharmyourselfnor causeharmto others'6.

Accordingto Ahmad al-Raysüni,there was no juristic evidenceor absolute examplegiven by Tüfi in his analysisof the application of the Hadith of the prophet; `You shouldneither harm yourself nor causeharm to others'. The only exception that

3 al-Rayscini, al-Ijtihäd p.49 4Ibid p.37-38. 5Aid 6 The Ilafiith is categorizedas Hassan and narrated by °Amru b. YaI ya deriving from his father and from the Prophet. It is reported by Ibn Majah, Darruqutni and Imam Malik in his al Muwa; (ä'. See Zayd,al Maslaha, p.206.

45 Tüfi mentionedwas in the area of transaction(mucamala)and custom (adat), which in somecircumstancesis connectedwith the theory of the priority of maslahaover the legitimacy of na-yi.

For Mustafa Zayd, Tiff, himself wrote no specific work referring to the theory of maclalaaand he made no detailed explanation of mallalta except in his work about the explanationof the forty IHadith of alNawäwi in which he made a brief statement in his analysisof the 1Yadithof the prophet; `You should neither harm yourself nor harm to others'. Mustafa Zayd adds that at this stage,Tüfi claimed that this cause Hadith legalisesmaslalta as the objective of Islamic law, giving it priority over the (mucämala) (`adat). To in Ijmä transaction the the as area of well as and custom nalc, believed Jamal Mu*tafa Zayd that extent, al-DIn al-Qäsimi was a person who some quoted Tüfi's point of view theory until it became controversy particularly amongst later Muslim jurists8.

It is worth noting that MustafaZayd also claimedthat not only Tüfi had the theory of priority of maslalta over the legitimacy of nalc but Imäm Mä1ik had

previouslyheld the sameopinionsaboutthe theoryby meansof a form of Maclai a Mursala9.Therefore,later jurist such as Hussein Hämid Hassanhas juristically debatedon Mustafa Zayd's argumentsregarding Imam Malik's stand on the priority of Maclaha Mursala over the legitimacy of nag10. The juristic debatebetween both

7 a1-Rays-uni, al-Ijtihäd, p.38. $Zayd,al Mailalia, p. 113. 9Ibid 10Bussein,Nazaria, 108-183 p.

46 jurists pertaining to this theory clearly indicates its hypothetical form within the framework of Islamic jurisprudence. In the following section, the theory of Maslalia Mursala and its connection with nass is examined in order to elucidate the juristic debatedamongstMuslim jurists regardingthis theory.

2.1.2 The connection of Mallaha Mursala with the legitimacy of Nall

As has been discussedin the previous chapter, a form of Maclalta Mursala was designedby Imam Malik and extensively applied, particularly by Muslim jurists of the Mäliki school of law to establishtheir legal opinion of Islamic law. Imäm alShätibi, a leading scholarof Mäliki school of law, definesMallalra Mursala as a form " legal in Naffs (legal denies but Islamic that text) no specific of principle confirms or general,the maslalia itself is formed to securethe preponderanceof benefit for the peoplethat is in accordancewith the objectives of the Lawgiver12.At this stage,Imäm Shätibi employs the term al-munä,cib13that is synonymouswith Maclalia Mursala,

in which connectionwith the Magäsidal-Shari a, meansthe ultimate objectivesof Islamiclaw.

It is believedthat the abovedefinition of the conceptof MaýlalzaMursala is unanimouslyacceptedby the majority of Muslim jurists in the Sunni legal schools. The conceptof Ma.FlaltaMursala is interrelated with the objectives of the Lawgiver, although it does not necessarily conform to any specific legal text (Nall). At this

lt al-Shitibi, al-f1icäm, v.ii, p.362. 12al-Shätibi, Muwäfagät, ii, 2. al v. p. 13al-Shätibi,Op. cit.,v.ii, p.362.

47 stage,Muslim jurists of Mäliki school of law in particular, laid out the criteria of Maslalta Mursala in order to establishits validity as an Islamic legal principle.

To this effect, Imam al-Shätibi has set out three criteria of Maslalta Mursala in al-l'tiväm under the heading of the distinction betweenheresyand Mallalta Mursala, in or Arabic; Ti al-Farq bayna al-Bad° wa al-Masälili al-Mursala'. Imäm al-Shäiibi insists that the first criterion of Maslaha Mursala states that to be validated as an Islamic legal principle through the objectives of Islamic law (Magä. id al-Shari a) there should be no contradiction with any textual evidence,dalil or nag, juristically in to the Qu'ran, the Sunna and the Ijma'. According to Imäm al-Shätibi, the referred it is judged be Maslajia by Mursala that the can validity of second criterion which `ibäda. As has the no connection rational with and area of worship, concerns matters the third criterion, Imam Shätibi emphasizes the correlation between Mallalca Mursala and Maga. id al-Sharmaor the ultimate objective of Islamic law regarding the matters of Darüriyya(lit. necessities)that is to preserve the five safeguardsfor human beings; religion, life, lineage, intellect and property as well as the matters of raf al-haräj; alleviating hardship14.

Through these criteria, Imäm Shätibi seeksto validate Ma.FlahaMursala as a legal principle in Islamic law by developing the theory of Mallalta Mursala being

interconnected with Magdsidal-SharPain someway, which is referredjuristically to the legal principle that is laid down by the legal text or nalc. Though Ma.Flaiza Mursala has been legalised as a legal principle independent of legal texts of dalil,

be connected,or parallelwith, evidenceandnail, to someextentit must,nevertheless

14al-Shatibi, al-ftisäm, v.ii, p.375-379.

48 the basic legal principle of the theory of the Magäjid al-Sharma. Many of Imäm Malik's legal opinions were developedwith no opposition or contradiction of dalil or from the Qur'an, the Uadith or Ijmä, which meansthey follow juristically, the naffs line between Maslalta Mursala and Magdsid al-Shari`a mentionedabove. parallel

Moreover, Imam al-Shatibi gives ten examplesof Maslaha Mursala which he discussesin the light of Maliki's legal opinion's. It is interestingto note that in order to justify theseten examplesof Ma. lalta Mursala, Imam al-Shatibi draws on, usesas evidence someversesfrom the Qur'än and the Uadith that indirectly verify Mäliki's legal opinions on Ma.clalia Mursala16.It is believed that not only Imam al-Shätibi himself Maclaha Mursala, Imam Malik method used this employs of elaborating in legal form Majlalta the through the the of of opinions method which elaborating Mursala is undertaken.In al-Mudawwana, Imam Mälik emphasizesthe legal opinion in which the Qur'dn and the Iladith in particular, are silent on the new ruling that was formed by Maslaha Mursala. In other way, the connection of Maclalta Mursala with

Qur'an if the the legitimacyof nail is basedon principlesof non-existence whereby legal by lalta Vadith formed Ma. Mursala, the the that opinions are and aresilent on then they are valid.

The following point exemplifyhow Imam Malik andhis disciplesjuristically refer to principles of non-existenceof a concept in the Qur'än and the Hadith when forming their legal opinions through Maslaha Mursala, as follows;

is Ibidv. li, 364-384. p. 161bid

49 (a) The obligation of the husbandin providing the basic needs such as shelter, food his for his is based husband's the wife's social clothing and and wife capacity on status".

Pertaining to the legal opinion of the Mäliki school of law stated above, the consequencescan be cited in two examplesor casesas follows. In the first case,the husbandis incapableof affording the basic needsfor his wife; and in the secondcase, the wife is richer than her husband,therefore, shecan afford the basic needsincluding In her following husband. Thus, the these two the questions. casesaffect supporting former case,doesthe wife have full right to seekbasic needsfor the family? And does is it latter divorce from for her husband? have In the the to case, a right she appeal be husband her husband, from to thus, the to considering seek a refund wife's right indebtedto his wife?

In order to facilitate the acceptanceof those two casesas well as alleviate

Mälik his form Maclalia Imäm disciples from the them, and of arising used questions Mursala as the legal principle for their legal opinions.In the first case,the Mäliki jurists are in agreementthat the wife has two choices,either she remainswith her husbandand seeksthe basic needsfor the family, or she may appealfor a divorce from her husband'8.The form of Maclalta Mursala hasbeenappliedto this casein accordancewith the concept of Ma. laha itself, that no harm is causedon either party, therefore the wife is given a choice due to the incapability of her husbandto provide for the basic needsof the family191. According to Imam Malik, the form of Maclalia

Mursala appliesto this particular case,as the basicprinciple of the Qur'än and the 17a1-Dardir,al-Shari), v.11,p.729. 181bid, ii, 745 v. p. and al-Däsügi,Häshiya,v.ii, 517. 19Malik, al-Mudawwana, 2, 259. v. p.

50 Hadith is silent about whether the wife should remain with her husband,or whether In the secondcase,the wife has two choices.Firstly, she should leave her husband20. if the wife choosesnot to leave her husbandfor the sake of her marriage, then, she may choose not seek or a refund from her husband whether he is rich or poor. Secondly,the wife may leave her husbandand if the husbandis rich, the wife has the right to seek a refund from her husband, which makes him indebted to her21. According to Imäm Mälik, in the second case, the form of Mallalia Mursala is in applied consideration the interests of both parties as no evidence or nass exists either to up hold or to opposethis legal opinion in this particular case22.

The clarification abovemade by Imäm M51ik in his al-Mudawwana regarding this particular legal opinion, clearly indicates that in order to legalise the form of MaslaleaMursala in accordancewith the objectives of Islamic law, and Magäsid alShari`a, the considerationof legal principles from the Qur'än and the Hadith has to be undertakenas to whether they are silent or in opposition to the case in question.

HusseinHamidHassanclaimsthat it is incorrectto claim that mostof ImamMälik's legal opinionsare overruledby the legitimacy of nag. In fact, it is demonstrated clearly that the principles of non-existencethat are laid down by the Qur'än and the Hadith, are always utilized in forming his legal opinions through MaclalcaMursala23.

In more detail, HusseinHämid Hassancites ten examplesof Imam Mäliks' legal 4. he have legitimacy opinions that claims no priority over the nasj He also argues that apart from Mallalia Mursala, Imam Malik's legal opinions have been formed by

20Ibid 21Ibid 22Ibid 23Ilussein,Nazaria, 108-183. p. 24Ibid

51 °Urf (customary practices) as well as Manat al-Hukm (the cause of the ruling)25. However it should be borne in mind that it is not the main intention of this topic to further Ijussein Hämid Hassan'sargumentson the form of "Urfor the Manal al-Hukm that is concernedwith Imam Malik's legal opinions.

In conclusion,the Qur'än and the ljadith are always referred to in as far as no dalil or nassis either verified or opposedin forming Maslalta Mursala in connection with Magdsid al-Shari a. Consequently,the theory of Maslalia Mursala, which in some ways is indirectly interconnectedwith the legitimacy of nag has been proven from the juristic discussionabove. Furthermore, it can be seenthat the theory of alMa.Flalzawa al-Nass has been further developedby later Muslim jurists particularly by al-Tüfi, as he claims that in someways maslalta has priority over the legitimacy of juristically, In illustrate theory the following sectionwill discussalto this nalc. order Tufi's point of view regardingthe theory of priority of maclalta over the legitimacy of nags.

2.1.3 al-Tüfi's theory

In order to discussal-Tüfi's theory in the senseof academicanalysiswithin the frameworkof Islamicjurisprudence,asthe first stageit is importantto demonstrate its thereare originalityandauthencityfrom reliablesources.As far ascanbe ascertained, two reliable sourcesregarding al-Tüfi's texts on the theory of priority of mallalia over the legitimacy of nass. The first reliable source is Al-Maylal: a fi al-Tashri al Islämi Najm wa al-Din al-Tüfi (1964), written by Mustafa Zayd, in which al-Tüfi's analysis

25lbid, 116 p. and p. 127

52 regarding the Uadt-thof the prophet; `You should neither harm yourself nor cause harm to others' is set out as well as his controversial theory. The second reliable source is At-Tufi's Refutation of Traditional Muslim Juristic Sources of Law And His

View On ThePriority of Regard For Human WelfareAs TheHighest Legal Source Or Principle (1982) written by °Abdallah M. al"Husayn a1-°Amiri, in which al-Tnfi's analysis is translated into English from the Arabic texts in which again support alTüfi's authority. It is to be borne in mind that both are PhD thesises;the former was submitted to the University of Cairo in the year 1964 and the latter to the University of California, SantaBarbara, in the year 1982. Hence, in the first stageboth reliable sourceswill be referred to, particularly the latter, in order to presental-Tüfi's theory in its originality and authencity prior to the discussion and analysis in the second stage.

Before al-Tüfi highlights his theory concerning the priority of maclalta over the legitimacy of nass, previously he examined the significance of the Hadith of the

harm `You prophet; yourself nor causeharm to others', which it is shouldneither connectedwith the conceptof maýlalta.The full text of al-Tüfi's point of view in this is regard asfollows; `Its meaning is what we already have pointed out, namely the denial of harm and malicious acts by law. It is a general denial, except for such matters as [legal] argument has particularized. And this necessitatesgiving priority to the obligatory characterof this Tradition over all legal arguments,as well as particularizing them, accordingto its lights, as regardsthe denial of injury and the attainment of Ma.clalia [human welfare]. For if we assumethat some legal sourcesof the Law warrant the infliction of some form of harm, then to deny it on the strength of this Tradition would be to act according to two sources.And if we do not deny it according to it, then we render one of the two sourcesnull and void, namely this Tradition. There is no doubt, however,that harmonizing the texts when we act accordingto their lights is betterthan to nullify someof them' 6.

26a1=Amiri,At-Tuft, 144 p.

53

Tufi's statementabove clearly indicates that the Iladith of the prophet, `You should neither harm yourself nor causeharm to others' becomesdefinite evidence or dalil, which overrulesother evidencein giving priority to avoiding harm and to attain the maslaha.In other words, Tufi's theory concerningthe priority of maclahaover the legitimacy of nag is rooted in the basis of the Hadith of the prophet, which clarifies the denial of injury and the attainment of maclalzaor public interest. Moreover, in later discussion,Tnfi claims that there were nineteenlegal sourcesof Islamic law that are acceptedby Muslim scholarsas follows; `We say, on the basis of investigation,that the sum total of the sourcesof the law that are known to the c(lamä' (religious scholars) fall into nineteen categories, as no more. The first is the Book (al-Qur'an), the second is the Sunna, the third is the (Ijmac) (Umma), Community the forth is the Ijmaf of the people of the consensus of Medina, the fifth is analogy (Qiyds), the sixth is the recorded sayingsof the prophets companions, the seven is the unrestricted undefined public interest (al-Mallalca Mursala), the eight is the presumptive continued validity of past legal ruling (alIstiqhäb), the ninth is the presumptive exemption from judgment in the absenceof a is (al-barä'a the tenth specific ruling acceptedcustom (al-` awaid), the al-asliyya), is investigation (al-istigrd'), is the legally correct the twelfth eleven or examination contributory action (sadd adh-dharäi`), the thirteenth is demonstrationor deduction (al-istidläl), the fourteenth is preference(al-istillläb), the fifteenth is adoption of the least burdensome[solution] (al-akhdh bi al-akhaff), the sixteenth is the Ijmä of the is the people of al-Kufah, eighteenth the Jjmä of the members of the family of the F (al is itrah), the prophet -. nineteenth the Ijmac of the four Caliphs. Some of theseare [universally] agreed upon, others are disputed. However, knowledge of their limits, their prescriptions,the demonstration of their true meaning, and the details of their rulings are to be found in the sourcesof jurisprudence (Ucül al-figh). The saying of the prophet, "La clarar wa lä dirär", therefore necessitatesthat provision be made for the generalwelfare (masälih) by [an implicit] affirmation, and against evil-doing by [an exmplicit] negation.For harm is evil-doing, ad if the Law (al-Sharc) repudiatesit, the good, which is the general welfare (mallaha), is necessarilyaffirmed, for the two are mutually contradictory, with no possibility of reconciliation'27.

After listing nineteen legal sourcesof Islamic law, Tuft insists that some of those legal sources are juristically accepted, whereas some are accepted with 271bid,p. 144-145

54 Tüfi discussion, by At Muslim the claims the above end of scholars28. reservations harm `You Iladith yourself nor cause that the the neither should prophet, of yet again harm to others' is juristically significance concerningma.£lahain indicating that good is affirmative but harm must be refused;both are absolutely paradoxical and must be in the his begins the that At Tüfi theory ruling this seemingly stage, no compromised. following in lalla. Thus, the legalise Hadith of the prophet will the validity of ma. legal is the as Tüfi's sources the topic theory strongest of under elaborated section, follows; `The strongestof these nineteen legal sourcesare the [Qur'anic] text and consensus. Now both of them either agreeon showing regard for ma.Flalia or they are opposedto it. If they agreeon it, no conflict arises,and all is well, for the three legal sourcesare for being Consensus the text, in agreement in their judgment-they and regard harm `Do Prophet's from latter derived repay the nor the cause not saying, maslahafor Mallaha it, disagree if then But harm they regard with with another'. one by being] [other] [such two: of the way takes priority over priority necessarily denying their by them and them, way of suspending and not explaining and specifying by the Qur'an, the just Sunna takes explaining way priority over as the validity, do Consensus follow: is The text The determination [latter]. either not at and of this as in do do do. If they then they injury they are so, not or evil-doing and all necessitate do, however, for lalia. Ma. If they [the necessitate regard of with principle] agreement [the infliction ofj harm, then it [that is, the harm] is either their entire justification or into fall it the justification, it. it is then If category their must necessarily entire part of fixed d ", lä the "La irdr such as clarar wa of exceptions to the prophet's saying, lOdd-punishmentand the penalties for crimes. And if it is part of their justificationbe is to by that evidence then if it is renderednecessary a particular piece of evidence, followed; but if a particular piece of evidence does not render it necessary,then both Barar "La Prophet's the to the saying, restrictions of of them are necessarilysubject legal dirdr", 14 the sourcestogether'29. all encompassing wa

At this juncture, Tüll

Qur'an believes the that strongly

Ijmä the and

(consensus) are the strongest legal sources apart from the Hadith, which on the 1ü dirdr". Barar "La is Hadith the wa referred to the prophet; of subject of maýlajta From this point of view, Tüll claims that occasionally both the Qur'än and the Ijmä 28Furtherdiscussion in this regardcan be found in the scienceof Islamicjurisprudence.Seeal-Taib, al-Ijtihagp.5-S. 29Ibi4, p. 145-147

55 either agreeor disagreewith the subject of maslalia as,verified by the liadith of the prophet In the case of disagreement,Tüfi states that; `Mallalta necessarily takes priority

over the [other] two: [such priority

being] by way of explaining and

specifying them, and not by way of suspendingthem and denying their validity, just as the Sunna takes priority over the Qur'an, by way of explaining the [latter]'. In other words, Tüfi insists that the theory of priority of maclalaaover the legitimacy of is quite similar to the theory of priority of the Sunna over the legitimacy of the nall Qur'an by way of explaining and specifying the latter. Tüfi later addsthe discussion of priority areato which his theory is applied as follows; `We give priority to due regard for [their] well-being in matters of customs [`ada], intercourse [mu`ämala], and the like. For due regard for it in these matters is social the very pivot [qulb] of the Law's objective, as opposed to matters of worship [Cibdda],which belongsas of right to the Law, and whose exact formulation cannotbe known exceptthrough its authority, [as expressed]in text and Consensusi30

Matters of limitation concerning customs rada] and social intercourse [mu°dmala] with the exception of matters of worship [`ibäda], are given the priority of mallalza over the legitimacy of nafl, which clearly indicates the legal conditions

that are formed by Tuff, in his theory.He addsthat the priority of mallalzain the mattersof customs[cada]and social intercourse[muiämala]must be in accordance with the very pivot of the objectivesof Islamic law. Moreover,Tüfi has drawn up threereasonswhy in his theorythe priority to maslaltaover the nal.c as well as the Ijmä are undertakenas follows; 1. The first reason: `is that those who have rejected Consensushave upheld the regard for Maclalla, which makesthe latter an occasionfor harmony and Consensusan occasionfor disagreement; and holding to what has beenagreed upon "31, 30Ibid., p.150-151 311bid,p 175

56 2. The second reason: ' is that the texts are at variance and in contradiction (mukhnlafa muta`äricla). Thus they are the cause of disagreement in formulating judgments, which is legally blameworthy. Regard for Maslaha, however, is a real matter in itself that occasion no disagreement, and is, consequently, the cause of agreement, which is legally desirable, Exalted has Mighty follow. For the thus the to and and more appropriate do hold fast bond, 'And God's together, to not scatter. and said, you 'Those who have made divisions in their religion ad become sects, thou art be him) 'Do be he (May And in them said, not upon not of peace anything. Exalted And Mighty lest be hearts the and at variance your at variance. has said, in His praise of unanimity, 'And he brought their hearts together. Hadst thou expended all that is in the earth, thou couldst not have brought their hearts together, but God brought their hearts together'. And he (May God'32... brothers by him) 'Be peace and servants of said, as upon 321bid,p.175-181 If one reflects on the quarrels and mutual aversion, which have taken,place among the Imam of ..... Legal Schools,he will see the truth in what we have said Thefollowers of Malik took control of the West[i. e. North Africa], and thefollowers of Abu Hanifah of the East [i. e. east of Egypt], whereby We fashion. harmony in its live in token in the territory, with any other schoolscan own save neither of have beeninformed that when a Hanafite chancesto come among the Hanbalite people of Jilan, they kill him and takehis possessionsas booty,just as they do non-believers. Further, we havealso beeninformed about a single Shafi'ite mosquethat was in one of the Hanafite in Transoxiana.Seeingthat mosque,the governor of the town, who used to come out everydayfor the till (kinasa)? He in this 'Is it to this time manner close church went on prayer, not would morning say, he got up one day, and the door of that mosquehad beenwalled up with mud and clay bricks, which followers Imam Imam Moreover, the their the over any other pleased of each prefer greatly governor. in both their writings and debates,to suchan extentthat 1 have seena Hanafite write a compilation of Yusuf, Abu [compilation] his followers, boast in Abu Hanifah, this then as such the virtues of of and Muhammad Ibn al-Mubarak, et. al. Furthermore, in referring to the other schools,he has said; 'These in like, 0 When Jarir, together Can indeed, their gathered show me are we, my ancestors: you are Thus like These Jahiliyya ' the the many. are smacksof thepretentiousnessof council? and examplesof began to transmit Traditions exalting the merits of its imam. party each And so the Malikites transmitted[the saying]: 'Camelsmay be ridden [in all directions], without ever finding anyonemore learnedthan the scholar of Medina. Theysaid. And this is Malik. The Shafi'ites transmitted [the sayings]: 'The imams are from Quraysh, 'Seek knowledgefront Quraysh but do not vie in knowledgewith them. Or 'The scholar of Qurayshhasfilled the earth with his knowledge. Theysaid., 'No one of this description has emergedfrom Qurayshal-Shaft'i. The Hanafites have transmitted the saying; 'There will be in my community (ummati) a man by the in be lamp be And the my a man there also of my community. will name of al-Nu'man, who will Iblis. b. by Idris, Muhammad be harmful it than that the to community nameof who will more TheHanbalites have transmitted [the saying]: 'There will be a man in my communityby the name of Ahmad b. Hanbal who will follow my Sunna,in the manner of theprophet, or somethinglike thisfor I do not recall the exactwording. Abu Faraj al-Shirazi has said in the beginningof his book, alMinhaj; 'Know that these Traditions are either correct but not valid or valid but not correct. What has been transmittedabout Malik and al-Shafi'1 is good but does not provide any indication of their intended objective. For if [the expression] 'scholar of Medina' is a generic noun (ism]ins), the scholars of Medina are many,and there is no particular designation of Malik, apart from the others.Moreover, if it is a proper noun (ism shakhs), there is no reason to limit it to Malik, since the SevenLegists (alFuqaha' al-Sba'ah) as well as others were among the scholars of Medina who were the teacher of Malik, and who were more famous than he was at the time. The reason that led his adherents to interpret the Traditions as referring to him is due to the great number of his followers and the broad diffusion of his school throughout the lands. This is what instigated them to say what they did The samething applies to [the saying]: 'The imams are from Quraysh; there is no special designationof al-Shafi'1 in it. Moreover, it has beentaken to refer to the Caliphs, as argued by Abu Bakar on the Day of Saqifah. Likewise [the tradition]: 'Seek knowledge from Quraysh...'contains no particular

57

3. The third reason; 'is that it is well established that in the Sunna there are contradictory texts with reference to welfare and other such matters, in a number of cases, some of which [are the following]: Ibn Mas'ud's opposition to the text and Consensus as regards tayammum, in favour of the benefit of precaution in matters of worship, as was mentioned earlier33 designation of anyone. As for his saying: 'The scholar of Quraysh fills the earth with his knowledge. Ibn Abbas might well competer with AI-Syaf'1 over it, for the former si more entitled to it than the latter due to his seniority, his companionship [with the prophet] and the prophet's [s. a.w] supplication to God for him in his saying; '0 my God! Make him erudite in religion ad instruct him in its interpretation'. For he was called the 'Sea of Knowledge' and the Rabbin (hibr) of the Arabs. The motive that led the Shafi'ttes to interpret the tradition as referring to AI-Shaft'I was the fame of his schools and the great number to his followers. Novertheless, the school of Ibn 'Abbas is undeniably famous among scholars. 'As for what has been transmitted regarding Abu Hanffah and Ahmad b. Hanbal, it is a forgery with no factual basis. And as for the Tradition, He is the lamp of my community', it has been cited by Ibn alJawzi as among the among the forged [Traditions]. He [also] mentioned that when the school of AlShafi'ites becamefamous, the Hanafites wanted to discredit it. And so they conspired with Ma'mun b. Ahmad al-Salmi and Ahmad b. 'Abdullah al-Khushari, who were liars and forgers, ad they forged this Tradition in praise of Abu Hanifah and dispraise of A1-Shafi'i. But God refuses but to perfect His light. 'As for what has been transmitted concerning Ahmad b. Hanbal, it is definitely a forgery, for we have already submitted that Ahmad was the most assiduous od men in adhering to the Sunna, and the most rigorous of them in protecting it. It has been established that he has committed to emory a million traditions, and that he said: I composed my Musnad out of 750,000 Traditions, and I let it stand as a testimonial between me and God, sowhalever you do not find therein is as nothing [I value]. Now this Tradition, adduced by al-Shirazi in regard to the virtues of Ahmad, is not found in the latters Musnad; for if it were a genuine one, he would have been the most suitable of men to produce it anduse it as a his during it it to use and suitable as a probativeargument ordeal, even the of men most produce mention of which causes anguish

Observe,by God, sucha disposition that leadsthefollowers [of the Legal Schools] toforge Traditions, in exaltation of their imams and in dispraise of some others. The instigation for it can only be the rivalry among the Legal Schoolsin their preferencefor literal [meanings] and the like, as opposedto regard for Ma$14a, whose explanation is clear and whoseproof is obvious. For if they could have come to an agreementsomehow,nothing of what we have said aboveabout themwould have comeinto being. ) in what 'Know that someof the disagreementsamong the 'ulama' are due to contradiction (ta°äruc! has beentransmittedand the texts (al-riwayat wa al-nusus).Somepeople, however,allege that 'Umar b. al-Khattab is the cause of this, since his companionshad asked his permission to write down the Sunnaat the that time, and he had refused them this. He said, 'I write nothing besidesthe Qur'an, even though he knew that the prophet has said, 'Write for Abu Shah the Farewell Sermon, and also said. Recordknowledgein writing. [Thesepeople] say that if he had let each of the Companionswrite down whateverhe transmittedfrom the Prophet, the Sunnawould have beenaccurately recorded,and no one would have stood betweenanyone of the communityand the Prophet in every Tradition, save the Companionwho wrote what he had to transmit. Such written records would have been handed downfrom themto us in uninterruptedsuccessionin the sameway as thoseof Al Bukhari, Muslim and others 33Ibid, p. 181-184. Also, his saying to 'A'ishah: 'If your people were not recent converts to Islam, I would have ... demolishedthe Ka'bah and built it [a new] on thefoundations of Ibrahim, thereby indicating that its constructionon thefoundation of Ibrahim was the right thing to do. Nevertheless,he abandonedthe idea due to his regardfor the people's welfare. 'Also, whenhe bade them consider their pilgrimage (haü)as a 'umrah, they said: How is that possible, since we have stated [our intention of making] the haf ? And they abstained This shows a contradictionto the text by way of custom,which is similar to what we are considering. Also, what is related by Al Mawsili- concerning a man who entered the mosqueto pray, and whose appearancepleasedthe Companions-thatthe Prophet told Abu Bakar, 'Go and kill him. Whenhe went hefound him praying, so he let him alone. Then he bid 'Umar [do the same], but the two returned

58

The precedingcitation revealsthree reasonslaid down by Tuff, in justifying his theory of the priority of maclaha over the legitimacy of nass as well as of Ijma". In juristic he draws Tüfi to the three that with addition reasons also elaborates up, examplesand evidencesto support them. As the secondstageof this analysis, at this juncture, Tüfi's theory will be examined and discussed including arguments and juristic examples quoted from reliable sources.It is to be borne in mind that there are Tufi's jurists findings by later concerning many of examination and analysis made theory, however, these will not be referred to until the present writer concludes his findings. in bias is This to and prejudice that employed order any avoid approach own finding in Tüfi's the theory of should conclusion coincide with may occur analysing later jurists. In order to begin the examination and analysis of Tüfi's theory, there are

threemainpointsto be discussedon asfollows;

a)

The first point

The Hadith of the prophet;`You shouldneitherharm yourselfnor harm basis discussion Tufi's to the much others' on as cause of saying, How can I kill a man while he is praying?. The he bid 'Ali kill the man, but when he sought him he did not find him. Thereuponthe Prophet said. 'If he had been killed no two people of my Communitywould have disagreedwith one another.' Therefore,thesetwo companionsabandonedthe ordinance (nass)with no probative evidence[to back them up] than their approval of his coming to worship. It cannot be said that they ignored this ordinance to kill the man on the basis of his having said. 'I have beenforbidden to kill thoseengagedin prayer, for the latter ordinance is abrogated by the former, which is more recent and particular to this man. It seemsthat their refusal to kill him indicates nothing more than their discretionary concernfor equity (istibsän),which pertains to the matter concerning us here, [i. e] acting against prescriptive ordinances and the like by [invoking] ma$la$a.To be sure, the prophet did not rebuke them, but let themgo their own way and allowed them to exerciseindependentjudgment,for he recognised[the purity of] their intention and their sincerity. And so it is anyonewho gives priority to the mala$a of the people over the rest of the legal sources, for the solepurpose of improving their affairs, regulating their condition, and obtaining what God has granted them in the way of well-being, and bringing them into agreement out of their former disharmony.It is necessarythat this bepermissible, if not altogether obligatory. 'It is necessary,therefore, that the priority given to regardfor the mallaha over the rest of the legal sourcesbe one of thosequestionsrequiring independentjudgment (ijtihäd) at the very least, or else it is a weightyand obligatory [matter], as we have already said'.

59 debated theory of the priority of maclalia over the legitimacy of nag.

Within the framework of Islamic jurisprudence,the questionmay be raised as to how the connection is made between the former and the latter, particularly the theory of ma.cla,zaitself in terms of juristic discussion.In other words, doesTüfi have the juristic approach in correlating the Iladith of the prophet; `You should neither harm yourself nor cause harm to others', and the theory of maclalia. It is vital to clarify this point before further discussion concerning Ttffi's theory takes place. In deal Hadith Tufi's in to the this as question, approach elaborating order with interrelated with the theory of mallalta is examined in the light of Islamic jurisprudence.

The main principle arising from the prophet's Hadith ('You should neither harm yourself nor causeharm to others') concernsforbidding any actions and deeds that cause harm to one's own person or that of another. In conjunction with the

technicaldefinition of the term malla1zawhich refersto al-Ghazäli'spoint of view, To al-Ghazäli,the first appearance the mainprincipleof theHadith is synonymous. of laha is ma. an expressionfor seeking somethinguseful, whilst simultaneously indicating the removal of somethingharmfu134. In building up the legitimacy of maclalta, al-Ghazäli insists that it ought to link with the subject of Magälid alShari a, which concerns the preservation the five principles; religion, life, lineage, intellect and property35.To some extent, al-Sanäni also sharedthe sameview as TO concerning this subject in his analysis of the Hadith of the prophet; `You should 34al-Ghazäli, Mustaia, 1, 286-287. al v. p. 35lbid

60 neither harm yourself nor cause harm to others'. To al-San`äni, apart from the forbidding of harm indicated by the Iladith, it is also important to legalise maslalia as the Islamic legal principle in accordancewith averting from harm36

To someextent, the Ilactth of the prophet; `You should neither harm yourself nor causeharm to others' has been perceiveddifferently by IHadith scholarsin terms of analysis and study. To Imam Malik, the Hadith is examined under the topic of judgement (in Arabic; al-'Agcliyya) which interrelateswith the ruling of public utility, (al-Qadä' fi al-Mirfaq)37,whereas,in Ibn IIajar al°Asgaläni's analysisof the Hadith, it is studied under the topic of business transactions (in Arabic; al-Buyuf), which interconnectswith the issue of the developmentof barren lands, (Ihyä' al-Mawät)38. Juristically, both of the Iladith scholarsi. e. Imam Malik and Ibn Hajar al-°Asgaläni have examined the I adith of the prophet, `You should neither harm yourself nor harm in however, the the to with accordance subject of majla1ja; cause others', former has discussedthe Uadith under the principle of public utility, while the latter

has studied the Hadith under the heading of businesstransactionsunder the barren lands. discussed To the among of perspective of cultivation put anotherway, as Hadith scholars,the Hadith of the prophet,`You shouldneither harm yourself nor harm to others',is interconnectedwith the subjectof majlaha in which ways cause be from manyperspectives business judgement, transactionand can discussed suchas the like.

At this point, it can be concluded that Pfi's

approachin analysingthe Hadtth

of the prophet, `You should neither harm yourself nor causeharm to others' as 36al-$an°ani, Subul, n, 84. v. p. 37Malik, Muwattä , 134 p.

39Ibn Hajar,Bulügh Maräm, 272. al p.

61 interrelated with the subject of ma.lalta is juristically acceptedby many prominent Hadith scholarssuch as Imam Malik and Ibn Hajar al-°Asgaläniwho sharethe same approach. To some extent, Tufi's elaboration of the Ilad th of the Prophet s.a.w concerningthe conceptof maclahais in accordancewith Magacid al-Shari a.

b)

The second point

As Tnfi claims, the texts are at variance and in contradiction (mukhälafa muta°äricla). Thus, they are the cause of disagreement in formulating judgments, which is legally blameworthy. Regardfor is itself however, in that occasions no a real matter maslalia, disagreement,and is, consequently,the causeof agreement which is legally desirable,and thus the more appropriateto follow.

Thebasicideain the secondpoint, which seemsto be the subjectof dispute,is Tai's view that the texts are at variance and in contradiction (mukhalafa muta°äri4a).

This basicidea raisesthe following question;doesthe subjectof texts which are in is imagination is (al-Ta`druci) this really exist or a matter of conflict of evidence (conflict basis Ta`ärucl jurists? does Muslim Again, the of on what among subject of

evidence)stand? Thesequestionswill be discussedfrom the perspectiveof Islamic jurisprudencein order to reach an academicsolution concerningthe subject of Taýdruclor conflict of evidencebefore further examining Tüfi's view in this regard.

To return to the historical development of Islamic jurisprudence, the proper treatment of al-Ta°drucl (conflict of evidence) as well as its solution, TarjTl/9, has

39Baku, Conflict, 56 p.

62 been much discussedby Muslim jurists particularly Imam al-Shafi°i through his 40. lkhtiläf Malik Ikhtiläf valuable works such as wa al-Shall : al-Hadith and According to Imäm al-Shäfi'i`s work, Ikhtiläf al-Hadith, a large number of conflicting Hadith has been revealed relating to the category of the mubält (what is permitted) such as the Hadith of recitation in the prayer or tashahhicd,taking a bath on Friday, women going out to the Mosque and so on41.In order to deal with the conflicting Iladith in Ikhtiläf al-Hadith, Imäm al-Shäfi`i applies a particular method of reconciliation (tawfiq) and harmonization (jämf) by meansof specifying the general (takhsi.c alSamm) or by considering the differences between events (tagyid almutläq)42.It appears,then, that Imam al-Shäfi`i also applies the method of Bayän or explanation as well as Ta'wil or interpretation in dealing with the ambiguities surroundingthe Prophetictraditions, whilst not contradicting other Hadith43.

Moreover, the subject of al-Ta`ärucl wa al- TarjTji, the study of legal texts that refer to the Qur'an and the Hadith in terms of interpretation and the validity of is in jurists44. Hadith Muslim The controversy sources always a major amongst

is particular thereforecommonlyexaminedby a form 'of the Hadith criticism as to both its validity of legal text and chain of transmission(Isnäd)45.Therefore,the conflict of evidenceconcerningthe legal texts of Hadith as well as the chain of (Isnäd)of the 1tadithcontinuesto exist in the Islamiclegaltheory. transmission

40'AR, Imam al-Shäfi'i, p. 78 41a1-Shäfi°i, Ikhtiläf a1-Hadi1hp.43-48. 42Ibid; al-Khuli, Miftdh, p. 159. 43Ibn Khaldün,al Mugaddima, 63; p. al-Khatib, U. ül,p.283. 44al-Durayni, Maniihij, p.7-12. al 451bnIIazm, al-Ilikäm,v.i,p.85

63 In conjunction with his view concerningthe existenceof conflict of evidence legal texts, TO elaboratesthe effect of conflict on the validity and its chain of among authority of the Hadith, which took place particularly during his life. According to Tüfi, there were many facts concerningthe Hadith on the subjectof al-Ta°drud wa alTarjiii, due to the followers of each school such asMalikites, Shafi'ites, Hanafites and Hanbalites, which began to transmit invalid Hadith exalting the merits of its imäm. Furthermore,in order to support his point of view, Tüfi quotes in the secondreason Abu Faraj al-Shirazi's analysis, which reveals as forgery with no factual basis the HadTth, which each school of law exalts the merits of imam. At this stage, Tüfi's argumentson the existence of the texts which are at variance and in contradiction (mukhdlafa muta°drida) that specifically refer to the Hadith, (as has been elaborated in the secondreasonof his theory), is juristically proven by referring to the form of its Tarjili existence. al-Ta°ärud wa alas evidenceof

Tüfi's argumentcan be employedto rebut Büii46as well as Mu*iafa Zayd47on the point that Nuyüj or legal texts were never at variance and in contradiction

(mukhalafamutaiärida)."Bnti arguesspecificallythat the Nucüf of the Qur'an were in never disagreementand in contradiction(mukhälafamuta`aricla);he addsthat disagreementbetweenthe Nucü. occurs on only the basis of understandingand interpretation,never in terms of at variance and in contradiction (mukhälafa mutd

r

! a)48.

It shouldbe said at this juncture, that Bali overlookedTüfi's second

reasonelaboratingthe numbers of Hadith which were at variance and in contradiction (mukhälafa muta'ärida). In the second reason of his theory, Tüfi never mentions disagreementbetween the Nulal of the Qur'an, pointing out only numbers of Hadith 46a1-Büti,&wdbi4, p.186-187. 47Zayd,a1Maslaha, 145. p. 48Ibid

64 which were at variance and in contradiction. Therefore, Bühi's analysis clearly overlooksthe reliable sourcewhich Tüfi presents.

c)

The third point

Tüfi claims that in the case of conflict and disagreementbetween legal texts, the Maslalaa necessarily takes priority by way of explaining and specifying, not by way of suspendingand denying validity, just as the Hadith takes priority over the Qur'an, through explanation.

Tüfi's statementaboveindicatesthe analogybetweenhis theory of the priority laha Ma. over the legitimacy of Na$c and the condition of the Hadith which takes of priority over the Qur'än, by way of explaining the latter. Before further analysis of

the priority of Maýla1ja,it is importantto studythe legal texts as a subjectof analogy as Tufi claims in his theory. In Islamic legal theory, specifically by reference to

Tafsiral-Qur'än,it is unanimouslyacceptedby Muslim scholarsthat the Sunnaor the Hadith may necessarilytake priority over the Qur'an in terms of interpretation, Masan justification. In (d. 15711/774M) explanation and citing addition, as al-'Awzä°i b. °Atiya (d.13011/748M)states: `Revelation came to the messengerof God, and ,

Jibriel providedthe sunna,which explainsit'. He also adds; `The holy al-Qurän In orderto morefully needsthe sunnamorethanthe sunnaneedsthe holy al-Qurän49. understandthe function of al-IHadith as a commentary on the holy al-Quran, there

49Ibn °Abd. al-Barr,Jäm(, 1 234.

65 follows a brief summaryof the conclusion of Sunnaor al-Hadith rules of the holy alQurän50:

`There are at least five functions of the Sunna over the Qur'an. Firstly, the sunna details that which is generalin the holy al-Qurin, for example,the five times of prayer, the amountsdue for zakat, the beneficiaries of zakat, and the rule of pilgrimage. Secondly, the sunna clarifies what is obscure in the holy al-Qurän, especially the meaningsand applications of words and expressions. Thirdly, the sunna contains acts which demonstrate the meanings of the revealedtext. Fourthly, the sunna gives answersto questionsabout the rules of worship and behaviour.Fifthly, the sunna restricts that which is absolutein the holy al-Quran. For example, in Q. 5/38, it is said that the hands of a thief should be cut off as punishment. The sunna restricts that penalty to the amputationof the right hand'. The preceding points clarify how the Sunna as a secondarysourceof Islamic law takes priority over the Qur'än as the primary sourceof Islamic law by explaining the latter but not by suspendingor denying its validity. From this point, an important Qur'än Sunna does the taking the the arises; of analogy as over question priority legitimacy Nass Mallalaa to the theory the the of of where priority over apply of conditions conflict one with the other?

To addressthis question,in the third reasonof Tüfi's theory,thereis evidence is which advancedto supportthe theory of the priority of Ma$lalzaover the legitimacy

of Nagsas follows; The first piece of evidencerelatesto Ibn Mas°üd'soppositionto the text andconsensus asregardstayammum,in favourof the benefitof precautionin matters of worship. The second point of evidence pertains to the Hadith of the Prophet s.a.w which sets out the concept of demolishing the Ka`bah and building it anew on the foundations of Ibrahim should the people of Mekka refuse to convert to Islam. Eventually, the Prophet s.a.w abandonedthis concept due to his concern for the 50a_Sibäi, al-Sunna, p.344

66 Abü Maslaha. The the third of case people's welfare or piece of evidence concerns Bakar and cUmar who ignored the Prophet's order assigningpriority to the Maclaha in killed legal the the the the they at prayer a man people over of rest of sourceswhen by decision According Tüfi, Prophet the to the made mosque. eventually agreedwith his two companions on the basis of exercising independent judgment, for he recognised[the purity ofi their intention and their sincerity.

From the threejuristic evidencessuggestedby Tufi in his argumentto legalise his theory of the priority of Masla1zaover the legitimacy of Nass, the validity of each by is reliable sources.However, the evidence peace of evidence supported mostly `ibäda by that Tüfi, these the of not or as area of worship advanced categorises Mdämala and `Adat. At this stage,Tiff, seemsto contradict his previous statement that the only areaapplicable for his theory is that of Mu°ämala and `Adat.

In conclusion,for the most part, Tafi advancesevidencefrom reliable sources;

he thenconcludesthatjuristic solutionsareprovidedthroughthe theoryof the priority (mukhälafa in lalia Ma. Nall variance they the are at and contradiction over when of it debated behind Tüfi's If theory, the this would reasoning much muta°ärida). were be concludedthat the analogyhe madewith the priority of the Sunnaover the legal texts of the Qur'än is juristically acceptedby referenceto the specific casesof the Much Hadith which were at varianceand in contradiction(mukhälafamutaCärida). is it but has been levelled from this criticism at stage many aspectsand perspectives, not the main objective of this chapterto take part in this debate.Ironically, by way of acknowledgmentof Tüfi's theory, he did his best to develop a new theory as a Muslim jurist out of a senseof responsibility towards solving the critical phenomena

67 of the variance and contradiction of the Iladith, which occurred during his life. It is also important to note that many Muslim jurists have developed the theory of the levels of l?arüriyya, Häjiyya, and Talzsiniyyadue to its significance in the concept of al Ma. Flaha wa al-Naffs. The following section will therefore discuss the theory juristically.

2.2 The theory of the levels of Parürryya, IIäj yya, and Tahsiniyya and the concept of al-Mqlaha wa a1Naff.

The Muslim jurists are in agreementthat the theory of levels of Varürryya (lit. necessities),Häjiyya (lit. needs), and Tahsiniyya (lit, improvements) are originally rooted in the concept of Ma. lalta or Magäcid al-Shari a, designedand discussedby 51 followed in by in jurists Muslim then their works al-Ghazäli al-Mustasfa and many

52. levels in As Wael B. Hallaq the of as al-Shätibi such asserts, al-Muwafagat J arüriyya, Häjiyya, and Talisiniyya are very close to Ghazali's taxonomy, which is in

turn by al-Shätibias the existentialpurposeof the Shari a; to be the protectionand promotion of the three legal categories53.In other words, 4 arfiriyya, Iläjiyya, and

Talisiniyyaare threelevelsof legal categories,which havebeenexaminedunderthe headingof Maflalia or Magacid,alsodefinedasthe aimsof the law.

Notwithstanding Darüriyya, Häjiyya, and Talisiniyya as three legal categories in accordancewith the aims of the law, these have been classified as a medium or in vehicle achieving the aims or objectives of Islamic law. As Jamäl al-Din °Attiya claims, the levels of Darürryya, UdjTyya,and Tahsiniyya are not concernedwith the sl al-Ghazäli,al Mustasfa, v.i, 286. p. 32al-Shatibi, al-Muwäfagät,v.ü,p.4. 53Hallaq, A History, 168. p.

68 law but act only as a medium in achieving the objectives of the the objectives of

law54

Jamal al-Din °Attiya cites juristic examples to support his point of view regardingthe levels of Varüriyya, Häjiyya, and Talisiniyya as the medium to achieve 55. law, Islamic In order to elaborate his theory, food is seen as a the objectives of medium to achieve the objective of preservation of life, which is divided into three levels. The first is Darürryya, the basic necessity to eat the right kind of food to body be food, harmful healthy. body be deprived It to thus, the to a maintain would of food is a necessity (Darür yya). The second level is HäjTyya, the need to have a food is fresh The Taltsiniyya, 'improvement' third products. such organic or quality as in eating food; that is, one should demonstratejudgement, good manners,restraint and the like. This example suggeststhat food becomes a medium within three types of 56 life humankind level to achievethe objective of preservingthe of

In orderto correlatethe theory of al-Mallalia wa al-Naýcwith the levels of Darüriyya, Häjiyya, and Taijsiniyya, an important question arises; what basis, juristically (Miýyär) be inter-related the theory with the could criterion or standard 57, °Attiya threemediumsto achievethe objectivesof Islamic law? For Jamalal-Din therearetwo typesof M:Cyärwhich accordwith the correlationbetweenthetheoryof al-Maclalia wa al-Nafi and the levels of Parüriyya, Häjiyya, and Talisiniyya.

54°Attiya,Naltw f f ii, p.51 al-14, " Ibid., p.51-52. 56ibid. 57Ibicl, p.59-60.

69 The first type of Mi'yär refers to the nature of al-Hukm al-Taklifi (defining law) which defines rights and obligations. Should al-Hukm al-Taklifi constitutes the type of wäjib (obligatory) or the type of muharräm (unlawful), it could be possibly referred to as Darüriyya. Alternatively, should al-Ijukm al-Taklift constitutesthe type be (commendable) it (reprehensible), the type referred could of mandüb or of makrüh to as Häjiyya. Finally, should al-Hukm al-Taklifi constitutes the type of mubdh (permissible), it could be referred to as Talisinryya.To Jamäl al-Din °Attiya, this type 8. between Shakli In M(ydr be M(yär the the termed addition, correlation could as of theory of al-Maslalia wa al-Nag and the type of Mi ydr Shakli is proven by the dealing in in Qur'än Iladith the the and existence of enormous numbers of verses with al-IHukm al-Taklffi directly; this constitutes the ruling of wäjib, muharrdm, mandüb,makrüh and mubälý9.

The secondtype of M(yär in this regardhas beentermedM(yär Mawdu'F, degree degree Ma, level Mafsada, level to the the whereby of refers or of claha which both levels interconnect with al-Hukm al-Taklifi. Should the level degree is high in

Mallal: a or Mafsada,it couldpossiblybe referredto as1 arfiriyya; However,if low, it couldbe definedas TalLsiniyya. The middle level of degreeeitherin Mallalta or in Mafsada could be referred to as UdjTyya60. In the case of M(yär Maw(IüT, the indicators common of al-Hukm,al-Taklifi such as wajib, multarräm, mubäh, mandüb and makruh will not be included in the justification of every single level in M1`yär Mawda'T. However, the indicator of Maýlalca or the indicator of Mafsada will important. In this regard, as al-Shätibi asserts,the typical indicator of Maclalia is the form of 'awämir, (commandments)particularly from the Qur'an and the Sunna. On 58Ibid. 591bid 60Ibid.

70 the other hand,the typical indicator of Mafsada is the form of nawähi, (forbiddances) form 'awämir found in Qur'än Sunna61. Thus, the the the of particularly as and (commandments)and the form of nawdhi (forbiddances)derived from the Qur'än and the Sunnademonstratecorrelation betweenthe theory of al-Maslalia wa al-Nass and the type of M(yär Mawdü i.

It is important to point out that the two types of Mfyär (including Shakli and Mawd fl are two indicators signifying the correlation between the levels of Darieriyya, UdjTyya,and Tahsiniyya and the theory of al-Maclalia wa al-Nag. For Imäm °Izz al-Din °Abd al-Saläm62,the concept of ma,clalia as it accordswith al-Hukm degree level into be divided ifi to the three of categories, which could refer al-Takl lalia, as follows; firstly, Majälilt al-Mubdliät; secondly, Ma.Fälili al-Mandabat; ma. thirdly, Majillih al-Wäjibät. He adds that the level degree of Mafsada could be

divided into two categories,as follows; firstly, Mafäsid al-Makrühät;and secondly, Mafsid alMuharramät63.

These categorizations drawn up by Imam °Izz al-DIn °Abd al-Saläm, as

examinedabove,obviouslyemploytwo typesof MPyär; that is, ShakilandMawclüi, two conceptswhich could be applied simultaneously.Furthermore,in his effort to collateMtyär Shakliwith Mt'yär Mawdi i, new terminologieshavebeendeveloped whereby the five terms ( Malälilc al-Mubähät, Macdlilt al-Mandübät, Ma.Fälili alWäjibät, Mafäsid al-Makrühdt, and Mafüsid al-Muliarramät) are introduced with specific reference to the theory of al-Maglalia wa al-Nall. These terminologies clearly indicate the connection between al-Hukm al-Taklifi and the concept of 61al-Shatibi,al Muwäfagät, v.iii, 153. p. 62`Izz al-Din, QawaCidv. i,p.8-9. 63Ibid.

71 Mallaha and also with Mafsada. Nevertheless,Imäm °Izz al-Din °Abd al-Salam's categorization of levels of Darüriyya, Häjiyya, and Talisiniyya or Takmili appears °Izz he For Imam further somehow unclear until elsewhere al-Din adds explanation.

°Abd al-Saläm,the level of Darürryya can be divided into two categoriesas follows; firstly, al-Darürry al-Ukhrdwi, whereby the Muslim submits by carrying out stated obligations and avoiding unlawful actions, and secondly,al-Darürry al-Dunydwry, the basis of daily life such as food, drinks, clothes,house,marriage and the like. He also claims that the level of IläjTyya can be attained by carrying out al-Sunan alMu'akkada,(commendableactions) and al-Sha"ä'ir al-7ahira, (extemal rituals)65.For the level of Talisinryya or Takmili, he advocatesit by actions such as eating good food, drinking quality water, living in a luxury houseand the like.

The foregoing represents a juristic discussion on the development of the theory of the levels of Qarüriyya, Häjiyya, and Tahsiniyya designedby Muslim jurists . in their analyseswithin the framework of the concept of al-Maflalta wa al-Nag. This

juristic discussionhas also examinedjuristic terminologiesbasedon elaborationof the termsDarüriyya, Udjiyya,and Talisiniyya,suchas that undertakenby Imäm °Izz °Abd highlights discussion To the the al-Din al-Saläm. some extent, also present theory of the levels of Darüriyya, Häjiyya, and Talzsiniyyain dealing with juristic methodssuchMfyär Shakli and Mt'yär Mawclif 1in that both are interrelated with the ,

ultimateobjectivesof Islamiclaw (Magd id al-Sharia).

In addition, in Islamic legal theory, discussion on the five constituentsof the levels of Darüriyya is of interest to Muslim jurists. Some, for example are concerned 64°Izz al-Din, al-Fawä'id p.38-40 63 jbia.

66ibid.

72 with the order of priority the five constituentsare placed, and the limitations either five or six constituentsin the levels of Darürryya. Discussion in this respectis based juristic jurists legal Islamic developed by Muslim the through theories of on principles jurists Muslim jurisprudence. Islamic Eleven approachwhich accord with views of have therefore been tabulated for close analysis.It will be seenthat there are five or light in levels be Darüriyya, the therefore of six priority examined of eachviews will the concept of al-Maslalia wa al-Nags.

73 2.2.1 The Priority Levels of Darürryya ; The Views of Muslim Jurists Levels

1

2

3

4

5

6

Jurists

Ghaz5li67 Religion Life

Intellect

Lineage

Property

Al-xazi a)

Life

Property

Lineage

Religion

Intellect

b)

Life

Intellect

Religion

Property

Lineage

Life

Lineage

Intellect

Property

Lineage

Intellect

Property

Al-Arnidi69 Religion

Religion Life

Ibn Hajib

A1-Qa'af, Life

Religion

Lineage

Intellect

Property

AI-Baydäwl

Life

Religion

Intellect

Property

Lineage

Ibn

Life

Property

Honour

Intellect

Religion

Life

Intellect

Lineage

Property

Religion Life

Lineage

Property

Intellect

Religion Life

Intellect

Lineage

Property

Religion Life

Lineage

Intellect

Property

AI-

Life

Lineage

Religion

Intellect

Ibn "Ashur

Religion Life

Intellect

Property

Lineage

Taymiyya73 Ibn SubkV4 Religion

Honour

Honour

Shatibi

a) b) c)

Property

67al-GhazZM, al Mustasfa,v.ii,p.258.

69al-Räzi, Mahsül, ii, 220 a1 v. p. and p. 612. 69al-Amidi, Ahkäm, al v. ii, p. 252

70Ibn Hajib, Häshia, ii, 153 v. p. 71al-Qaräfi,Sharli, 391 p. 72a1-Baycäwi, Minhäj, p. 59

73Ibn Taymiyya, Majma, 343 p. 74Ibn Subki, Jam°, ii, 281 v. p.

75al-ShMXibi, al Muwäfagät, v.i,p.38,v. 3,p.47 andal-1'Iti4äm,v.ii,p. 189. 76al-Zarakshi, Bal: r, v.v,p.206 al 17Ibn °Ashür,Maga. k 89. p.

Honour

74

Diagrammatic representationas shown clearly indicates that religion and way of life have been chosenby the elevenjurists as the first level of Varüriyya, beginning with cAshür. Ibn followed by Shätibi Subki, Ijajib, Ibn Ibn and al-Ghazali, and al-Amidi, This can be explainedby the concept of mallalia which preservesfirstly religion, and in believing life. jurists This that most thus group of are unanimous subsequently Islamic rulings are concernedfirstly with religion and then life78.The legitimacy of Jihäd, and the punishmentof ltudüd and Qicäf are among factual examplesof this; in from derives This juristically the theory of al-Ma.Flaha wa al-Nall. with accordance the fact that there are an enormousnumber of verses or legal texts from the Qur'än life Vadith the the particularly through preservation of religion and and concerning 79, form Jihäd the punishmentof budüd8°and QiW1 the of

It is interesting to note here that five jurists namely al-Räzi, al-Qaräfi, alBaydäwi, Ibn Taymiyya and al-Zarakshi, have agreed upon life as the first level of Qarüriyya instead of religion, although without justification. Given this lack of

justification, it is assumed(basedon the argumentsof al-Ghazäliand °Izz °Abd al-

7$Seeal-Ghazäli,al-Mustasfa,v. l, p.481. 79Exemplifiedas follows; In Sura A1-Baqarah:190; Allah s.w.t says;`Andfight in the Way of Allah thosewhofight you,. but transgressnot the limits. Truly, Allah likes not the transgressors 8°The exemplifyin this regardsas follows; Narrated °A'isha r.a; Allah's Messenger s.a.w said; `Are you interceding regarding one of the punishmentprescribed by Allah? He then got up and gave an address saying, '0 people, what destroyedyour predecessorswasjust that when a person of rank among them committeda theft, they left him alone; but when a weak one of them committed a theft, they inflicted the prescribed pýunishmenton him 1The exemplifyin this regardsas follows; In Sura Al-Baqarah: 178; Allah s.w. t says; `0 you who believe! AI-Qisas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother (of the relatives, etc.) of the killed against blood-money, then adhering to it with fairness and payment of the blood-money to the heir should be made in fairness. This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i. e. kills the killer after taking the blood-money), he shall have a painful torment

75 Saläm) that under particular circumstances,it is permitted to give priority to life instead of religion, such as, permission to use the words of riddah (apostasy)under ß2. the circumstancesof compulsion In addition, Ibn Taymiyya's ruling on life as the first level of 1 arürryya has brought significance to studiesin this subject. According to Dr. Muhammad°Ammära, during Ibn Taymiyya's life there was political instability life decided has Mamälik Ibn Taymiyya the thus, as the upon perhaps emperor; under first level of Darüriyya due to the necessityof preserving the life of ummah during . that timeß3.Juristically, Ibn Taymiyya's ruling clearly indicates the application of the theory of Maslalta in preservinghuman life, thus demonstratingthat the objectives of Islamic law (Magäsid al-Shariyya) are always parallel with evolution and priorities life. human of

As shownby diagram,opinionsof Muslim jurists differ upon third and the fourth levels of Darüriyya. Al-Ghazäli, al-Bay4äwi,and Shälibi for example,have levels fourth interchangeably intellect lineage the the third of as and and chosen Qarürryya. The justification of the intellect as the third level of I?arüriyya basically

due is intellect to the the to the theory preservationof refers of ma.Flaha,whereby itself dysfunction intellect human the to that the as a manifests and prevent efficacy of Thus, disruption by drinking kind the alcohol. of particularly, consequenceof any

intended deterrent the in is law for to Islamic avert a punishment alcoholconsumption disruptionof humanintellect84.On the otherhand,thejustification of lineageas the fourth level of I?arüriyya is due to its lesser importance comparedwith the intellect. Though the preservationof lineage meansto conservethe quality of Muslim lineage, the preservation of intellect is however much more important; this is due to the 82Ibid., i, p.258. and °Izz al-Din, v. al-Fawä'ic4p. 58-64. 83°Afliya, Nahw Taf il, p.46.

84al-Ghazäli, Mustasfa,v.i,p.286. al

76 basic becomes intellectual faculty individual, the the the criterion which conceptof of of taklif, (i. e. the law concerns itself with circumstancesthat affect the sanity and interdiction, intoxication, individual duress, the error capacity of such as minority, and insanity85).

Instead of the intellect and lineage being interchangeableas the third and fourth level, honour has been chosenas the third level of VararTyya.As can also be honour however, third from Ibn Taymiyya the tabulated as chooses opinions, seen level of Darür'ryya,although no justification is made for this. Again, honour has been is it by Subki Ibn I? level and al-Zarakshi; al-Qaräfi, of arüriyya, chosenas the sixth hadith; due is level 1)arüryya the to honour the that as sixth of ruling upon assumed "So he who guards against doubtful things keeps his religion and honour A6 blameless! In this regard,honour has a similar position with religion as a result of doubtful Thus, by Muslim the conceptof maylalca things. against made a good a stand in the preservationof religion as well as honour is evident through the Hadith.

It can alsobe seenfrom the diagramthat propertyis chosenas level five of I?arüriyyaby manyMuslimjurists suchas al-Ghazäli,al-Amidi, Ibn Hajib, al-Qaräfi, Ibn Subkiand Shätibi.basedon the Vadith; `Hewho died in defenceof his property is a martyr'87,it is clearthat theseMuslim jurists are in agreementthat propertyhas become level five of Parüriyya after religion, life, intellect and lineage.

$sKamali,Principles, p.351. 86The text of the Hadith;

All

I_ ,

!

Mj

This Hadith narratedby Bukhäri, $'a4ili,no:50, Muslim, $alüli,no:2996 and Tirmidhi,Sunan,no:1126. 87The text of the Hacith:

":Al 4- üsaLrAü a,

i.

ýº:

ýuºJ'ý

t-i cesui"JW

Ail

This Hadith narratedby Bukhäri,$aliI i,no:2300, Muslim,$'ajuji,no:202 and Tirmidhi,Sunan,no.:1339.

77 Consequently,one may learn that if a person dies in the effort to preserveproperty, that person is classified as a martyr. In this regard, the preservationof property is obviously within the theory of maclalia that in accordance with the level of l? arüriyya.

To sum up the discussionabove,juristic opinion as tabulated is divergent on öf five levels i arüriyya. This takes the which constituent priority within or six indicates interpretations by the made phenomenon variety of and choices of priority Muslim jurists concerning these levels of Varüriyya.

Importantly, one may also

concludethat al-Ghazäli's point of view on the five levels of Qarürryya is a basis and foundation for associatedjuristic discussion.' In other words, the priority of the five levels of Darüriyya i. e. religion, life, intellect, lineage and property as laid down by

in jurists basic framework for becomes Muslim the al-Ghazälisubsequently many their worksconcerningthe theoryof mallaha or Magä.cid al-Sharýiyya.As the theory of Magälid al-Shar°iyya becomes a juristic concept in this regard, therefore, the following sectionwill discussits connection with nall as the Islamic legal texts. w

2.3 The theory of MagäJidal-Shariyya in connectionwith Nag.

Juristically,the term Magäýid al-Shar`Fyyais interchangeable with the term Mallaha. Muslim jurists have discussedboth terms in the light of Islamic legal theory. At this stage,their main concern is how both terms deal with Nall as Islamic legal texts. Therefore, the concept of Magäcid al-Shariyya in connection with Nass

will be discussedon in order to examine how the former has been developed juristically by Muslim jurists in dealing with the latter. This examination is vital in

78 terms of the theoretical development of Magacid al-Shariyya in connection with Nass,as an integral part of the main concept of al Maslaha wa al-NaIc.

According to al-Shatibi, theoretically, this connectionis significanceto freeing humanity from the grasp of its own notions and desires, it justifies Magäsid alShariyya by referring to Naffs that effect to be the servant of Allah by preference88. To someextent, al-Shatibi insists that the interest of humanity becomesa top priority in legislating to establishthe legal principles of Islamic law that in accordancewith the purposesof the Hereafter set apart from the purposesof the world89.

In understandingthe theory of Magäcid al-Shariyya in connectionwith Naýc, be juristic developed to Muslim jurists have applied a can method which many identify the legal texts (Nall) (particularly in the Qur'an and in the Uadith) in

harmonywith the conceptof Magäsidal-Shay)ya

follows; as

legal from literal texts9o Identifying Magä. id the of meaning al-Shariyya a)

As the bulk of the legal texts in the Qur'än as well as in the Hadith have been is legal in literal texts these meaning, the significance of revealed the sense of therefore to deliver the messageof Magäsid al-Shariyya, (the ultimate objectives of Islamic law) directly and definitively to humanity91.To Imam al-Shäfi°i, every single Hadith revealedin the literal and generalsensecan be understoodper se except where

88al-Shäfibi, Muwäfagät, v. ii, 168. al p. 89al-Shätibi, Op.cit.

90al-Juwayni,aJBurhän, v.i,p.280 91Ibid.

79 there is an ambiguity92.Additionally, Imam Bayhaqi insists that priority must be given to the literal meaning in the Hadith rather than interpreting any ambiguity93.To illustrate this method, someversesor legal texts (from the Qur'an and in the Uaaith) now follow; i). Allah s.w.t. says; `Allah intends for you ease,and He doesnot want to make things difficult for yoü'94. ii). Allah s.w. t. says; `He has chosen you (to convey His Message of Islamic Monotheism to mankind by inviting them to His religion of Islam), and has not laid upon you in religion any hardship'95

iii). Narrated (Ibn `Abbas) r.a.: Allah's Messenger s.a.w said, `You should neither harm yourself nor causeharm to others'96 To Nu'man Jughaim, the verses in (i) and (ii) clearly signify the ultimate for (particularly is, Sharfa Magasid that to al-Shayiyya; create ease or objectives of the Muslim) in practising the Islamic religion as the way of life and, therefore, to

further in (iii); difficulties hardships97. Moreover, Hadith the signifies avoid any and harm is Magdcid Shari to that circumvent a or al-Shardryya, ultimate objectives of

both to ourselvesand to others. In this sense,the three legal texts above are legal be direct definitive texts that can understoodas conveying categorisedas and literal meaning.This elaborationthus showsthe significanceof the study of legal texts which are revealed as direct and definitive in the senseof literal meaning in

(the Magd$id the subject of al-SharCiyya ultimate objectivesof accordancewith Islamiclaw).

92a1-ShWi,al-Risäla,p.341.

93al-Bayhägi, Manägib, v. ii, p.30. 94 al-Bagara; 185

93al-Hajj; 78 96 This Hadith is reported by Al mad and Ibn Majah. Ibn Mäjah reported something similar to, the aforesaidHadith from Abü Sa'id's narration;it is found inAl Muwal(d' in a Mursal form. SeeIbn Ijajar al=Asgaläni,Bulügh alMaräm, p.324. 97Nu°man,Turuq,p.65

80 b) Identifying Magäsid al-Shariyya

through the form

of awämir

(commandments)and the form of nawdhi (forbiddances)that derive from the Qur'än 98 Hadith and the .

Thus, apart from the literal meaning of legal texts in the Qur'an and the hladith in identifying the concept of Maqa. id al-SharCiyya,the form of awämir (commandments)and the form of nawähi (forbiddances)that derive from the formers can also be acceptedto identify the latter. To Imam al-Shätibi, the great part of the form of awdmir (commandments)and the form of nawähi (forbiddances)both from the Qur'än and the Hadith have conveyedthe significance of Magäjid al-Shar°iyya in delivering the commandments and the forbiddances from the Lawgiver to humanity. In this respect,there are two types of the form of awämir (commandments) form Hadith, (forbiddances) from Qur'än the the the and revealed and of nawähi both illustrate indirect99. following The legal direct types; termed texts and which are

i) Direct type of awdmir (commandments)and nawdhi (forbiddances); Allah s.w.t. says; `O you who believe! Fear Allah (by doing all that He has be from has forbidden) He by He that ordered and should as all abstaining feared. [Obey Him, be thankful to Him, and remember Him always], and die not except in a state of Islam' [as Muslims (with complete submission to Allah)]'

Allah s.w.t. says:`And kill not anyonewhom Allah has forbidden, except for a just cause(according to Islamic law). This He has commandedyou that you may understand't01.

98a1-Shatibi, iii, Muwäfagät, v. al p. 153 99Ibid iooAli-`Imrän: 102 101Al-'An°am:151

81 ii) Indirect type of awdmir (commandments)and nawähi (forbiddances); Allah s.w. t. says; `So whoever of you sights (the cresent on the first night of) of the month (of Ramadan i. e. is present at his home), he must observe Saum (fasts) that month's°2.

Allah s.w.t. says;`And forbids Al-Falcsha' (i. e. all evil deedse.g illegal sexual acts, disobedienceof parents,polytheism, to tell lies, to give false witness, to kill a life without right), and A! Munkar (i. e. all that is prohibited by Islamic law: polytheism of every kind of evil deeds),and AI-Baýoh (i. e. all kinds of oppression).He admonishesyou, that you may take heed. The first verse of type one above clearly highlights the objective of Islamic law in living as good believers; to fear Allah and die in a state of Islam. This form of commandmentby Allah is direct form in order to elaborate the way of life which should be lived by good believers in Islam. To Nu'man Jughaim, this direct form of fear To for believers'04. Allah Muslim this the to commandmentsignifies clearly way end, good Muslim believers must fear Allah by implementing all Islamic principles

laid downby Him andby abstainingfrom all forbiddancesasHe hasdirected.Good believers are also directly ordered to keep their lives in the way of Islam until death. Thus, it can be seenthat this directive by Allah is revealedas a definitive objective of

Islamiclaw for the way of goodbelieversin Islam.

The sameapproachis seenin the secondverse of type one; it is by way forbiddento kill anyoneexceptfor a just causein accordancewith Islamic principle. The directiveby Allah in this regardis to signify the killing is forbiddanceexceptfor justified causes'os Juristically, then, one of the main objectives of Islamic law (Magäcid al-Shariyya) is clearly highlighted to preserve the life of humanity. The 102al-Bagara: 185 103al-Nah1:90 104Nu°man,Turuq,p.65 103 IblcL

82 importanceof the preservationof life is shown in directive commandmentsof Allah, such as in verse 151 of Sura Al-'An"äm. The juristic approach thus justifies the connection between the theory of Magdcid al-Shariyya and Naffs (the legal texts) through the direct form of nawdhi (forbiddances).

The first verse of type two above shows the indirect form of awdmir (commandment).It concernsobligatory fasting on sight of the crescent on the first fasting for Ramadän. Thus, the the of commandment obligatory night month of Muslim through the month of Ramaclänis conveyedby indirectly; via first sight of the crescent moon. On one level, juristically, the main objective of Islamic law in fasting is Ramadan through the to preservereligion obligatory prescribing month of 106 is life it indirectly, Though is Muslim the as well of commandment revealed cleared that the objective of Islamic law in this respect is juristical. This elaboration thus demonstratesthat the concept of Magä. id al-Shar`iyya (the objectives of Islamic law) always in connect with Nall (legal texts) although by the way of the indirect form of awämir (commandments)such as is exemplified in the Sura al-Bagara:. 185.

The indirect form of nawähi (forbiddances)is shown abovein the second is This type two. verse of verse categorised as the indirect form of nawähi

(forbiddances)throughthree terms; i.e, al-Falisha', al-Munkar and al-Baghy.This indirectform illustratesthat the ultimate objectivesof Islamic law in forbiddingalFalisha , al-Munkar and al-Baghy are to preserveexactly the five constituentsintegral to Islam i. e.; religion, life, intellect, lineage, property, and simultaneously to prevent all things harmful to Muslim life. To Nu'man Jughaim, this indirect form of

106 ibid

83 forbiddance also signifies the need to avoid any harmful activities in Muslim life, such as al-Fahsha, al-Munkar and al-Baghy. He claims that the significance of this forbiddance is interrelated with the ultimate objective of Islamic law in terms of preventivestepslo7

To sum up the above discussion, two approaches are used to examine juristically the theory of Magdýid al-Shariyya as it connects with Nam; firstly, by analysingthe former in the light of the literal meaning of the latter, and secondly,by form form (commandments) former the the the through of of analysing awämir and (forbiddances) derive from the Qur'än and the Hadith. These two that nawähi approachesshow the juristic methods that can be applied to illustrate the ultimate (Magdcid law legal Islamic texts such as the through objectives of al-Shariyya) Qur'än and the Hadith. Because of this 'significance of study, Muslim jurists have

designatedthe juristic processas `ratiocination'of Islamic law (Tatlil alAhkäm alShar°iyya). That is, this process has evolved as a consequenceof the theory of Magäcid al-Shar`iyya as it connects with Nall, in which logical and linguistic

analysisis usedto identify the exact reasoningbehind the Divine commandments. for discuss Ahkdm The subsequent Ta°lil therefore the significanceof chapterwill al the conceptof al-Mallalia wa al-Nall from the standpointof Islamicjurisprudence. Howeverprior to this discussion,it is useful to concludethis chapterwith a brief summaryas follows.

107 IbicL

84 2.4 Summary

Through this chapter, the theoretical development of the concept of alMallalza wa al-Nall

has been examined via juristic discussion of three theories;

firstly, the theory of the priority of maclalia over the legitimacy of naffs,secondly,the theory of the levels of Parüriyya, Iläjiyya, and Talisiniyya, and thirdly, the theory of Magäcid al-Shari a.

The main finding to emergefrom discussionof the first theory is the effort of Muslim jurists to link the concept of public interest (Mallalia) with the Divine legal texts (Nall) suchas the Qur'än and the Hadith. To this end, someMuslim jurists have formed a legal principle of Maslaha that doesnot complete with any textual evidence, dalil or nasl. This form of legal principle is termed al Mallalia

al-Mursala,

developedby Imam Malik. Also TO hasdrawnup as a hypotheticalform thetheory its because legitimacy However, the the of priority of maclalia over of nail. of from jurists have Muslim this theory various many controversial nature, examined

light jurisprudence. in Islamic Despitethe multiplicity the of perspectives andaspects Tüfi it least be theory, this that the critical can of stated very views regarding at to juristic crisesof his age. contributeda newtheoryin response

It can be seenfrom the foregoingthat Muslim jurists have developedthe theory of the levels of Parüriyya, Häjiyya, and Talzsiniyyato incorporate the basic human area of needs,particularly the preservationof religion, life, lineage, intellect,

propertyandhonour.Of greatsignificancehereis the priority of legal level in Islamic law;

that is, in order to apply Islamic law to humanity, the priority levels of

85 Darüriyya (lit. necessities),Udjiyya (lit. needs), and Ta#siniyya (lit. improvements) law, law is be into it Islamic To to taken are always prescribed account. put simply, but is neverthelessflexible in its application to humanity.

The main conclusion to emerge from this study of the theory of Magäsid alShari a as it connects with Nags is the significance of every single legal text from both the Qur'än and the Hadith, and of their ultimate objectives for humanity. This demonstratesthat Islamic law (as the Divine law given to humanity) is a civilised law that has at its heart sound objectives which accord with the human capacity for reason,as can be examinedthrough the legal texts of the Qur'än and the Iladith. This be in the next chapter. elaborated will

To bring this chapter to a close, it is worthy of note that the theoretical

developmentof the conceptof alMaclaha wa al-Nall illustratesthat Islamic law is its its law, humanity living Divine to through rules. purpose evolving and protect an

86 CHAPTER THREE THE SIGNIFICANCE OF TA`LIL AL-AHIKÄM FOR THE CONCEPT OF ALMA$LAAIA WA AL NA$S

3.0 Introduction

Apart from the ultimate objectives (Magagid) as one of the featuresof Islamic law, ratiocination (Ta`lil al Ahkäm) also highlights Islamic law as a dynamic law for humanity. That is, every single legal text from the Qur'dn and the Iladith can be in examined order to identify ultimate objectives (Magälid) as well as `ratiocination' (Taclil al Ahkäm). This processof Ta`lil al A)ikäm becomesa crucial subject in the due its in determining Islamic jurisprudence, the ultimate to of significance science (Magäsid interest (Maclaha) law Islamic and the objectives of al-Shari a), public wisdom at the heart of each Divine commandment(liikma). Indeed, Ta`lil al Ahkäm

in has become process al-Sharia an essential establishingthe theoryof Maclalta,as °Abdullah al-Kamäli demonstratesin the Arabic version, al-UUiülal-Mabniyya `ala alboth in is Ma älilzl. In other words, the processof Tad1T1 Abkam clarifying al critical

Magä.id al-Sharia andMaslaliathroughthe conceptof al-Mallalia wa al-Nag.

This beingso,this chapterwill analysethe significanceof Ta`lil alAliknm for the conceptof al-Mallalia wa al-Nall. As a first stepto analysethe processof Ta`lil Alzkäm juristically, it is importantto examineits definition in the frameworkof al Islamic jurisprudence. For this reason,the views of Muslim jurists on the subject of Ta°lil al Ahkdm will be discussed, followed by a consideration of the concept of

Taibbudiyyaas it connectswith Ta`lil alAbkam The main focus will be uponthe . 1al-Kamali,Min Fiqh,, 79 p.

87 significance of the process of Ta`lil al Ahkäm as it relates to the concept of alMaslaha wa al-Nash.

3.1 Definition of Ta`r! alAhkicm

Juristically, the term Taclil al Ahkäm is rooted in the concept of cilia (ratio legis), which is at the heart of Qiyäs2(analogical deduction). The Muslim jurists are in `ilia jurisprudence. in is Islamic the that effective cause unanimous agreement Shawkänihas drawn up three alternative definitions of the term `illa3. Firstly, `ilia is `ilia `cause'; is referred to as manäl al-liukm, to secondly, referred as sabab, meaning cause villa (liukm); is law thirdly; the the referred to as amärah al-Ilukm, meaning of villa Alikäm becomes (liukm). When Ta°lil law the term the the alal sign of meaning

Shari a, it is definedas the processof seekingthe effective causeof Islamic law, in IHadith4. Qur'an the the and particularly

Many attemptshave been made by later jurists to translate Ta`li1al Alikäm alShari a into English. Muhammad Khalid Masud, for example, takes the term Tt 111 al Alikäm

to mean `the determination of the cause of Divine commandmentsby

logical and linguistic analysis's. Again, Mohammad Hashim Kamali tends to define TaClilal Ahkdm as ratiocination whereby searchingfor the effective causeof a ruling6

is-undertakenin Islamic law. On the face of it, thesetwo approaches are apparently similar; however, Khalid Mas°ud's definition is more juristic in that he uses the

2Mu$tafa,Tcflil, p. 112-128,and al-'Ungar, Ta°li1, 34 p. 3 al-Shawkäni,Irshä4 p.207. 4 al-`UnganOp. cit, p.33. s Masud, Shatibi's Philosophy, 284. p. 6Kamali,Principles, p.420.

88 method of logical and linguistic analysis in determining the cause of Divine commandments.

3.2 The Views of Muslim Jurists On Ta`lil alAhkäm al-Shari a

There is considerablecontroversyamongMuslim jurists on ways in which of Ta`lil al Ahkdm al-Shari a is applied to the Qur'an and the Iladith7. Nevertheless,it be borne in mind that the Qur'dn and the Iladith in particular, are in fact legal must texts and documentsof Islamic legal theory. As Wael B. Hallaq asserts,the Qur'än is recognizedas a legal documentwhich contains some 500 verseswith many legal and quasi-legalstipulations, such as the legislation of selectedmatters of ritual, alms-tax, property and the treatment of orphans, inheritance, usury, consumption of alcohol,

divorce, intercourse, adultery,theft, homicideand the like8. It can marriage, sexual. thus be seenthat the legal and quasi-legal stipulations of the Qur'än deal explicitly implicitly be discussed in the subject ofMaslajia, as and with will a later topic.

Apart from the holy book of the Qur'an, the Sunnaor Hadith is unanimously acceptedasthe secondsourceof Islamic law andaslegal doctrinesthat arevalidated by tradition.It is the primaryfountainof knowledgeafter that of the Qur'an. Indeed, it hasbeencompiledwith numeroustexts that deal explicitly and implicitly with the 9. Maclalta Furtherelaborationon the way the Sunnaor Ijaaiith dealswith subjectof the theory of al-Mallaha wa al-Nashwill therefore take place in part B.

7 See°Iywäni, Td`lil, p. 169. $Hallaq,A History, p.3 9Zayd a1MaF1alia p.13.

89 A different view among Muslim jurists appearson the subject of TaClil alAhkäm al-Shari a in accordancewith the primary sourcesof Islamic legal theory i. e. the Qur'än and the Iladith or Sunna.There are three differing Islamic legal schoolsof thought on the subject of Ta°Iil al Alikäm al-Shari a. The first group totally reject any be Taflil basis Ta`lil Alikäm to that the could no attempt undertake al al-Shari a on Ibn (af Divine Lawgiver's Allah) the al the commandments. on made and action Hazm, for example, assertsthat `al-Qiyas wa al-Ta°lil al Alikäm Din Iblis'. This meansal-Qiyäs and Ta`lil al Ahkdm is the way of the Devil10.The samepoint of view is held by al-Jahmi»a 11and madhhabal- 'Ash`ariyya12.

The secondgroup takes al-Mittazila's point of view, which holds that MITI is Divine (the Ahkäm Lawgiver's Allah the il commandments action) and on of al

`ilia, Alikäm is in Ta°lil They the that al a major element processof obligatory. argue (also called waif dhdti or identical attribute) as a meansby which the Divine it is Thus, the seeking when absolutely necessary commandmentsare understood. senseof maýlalia in afäl

13. Allah

The third groupcouldbe describedasholding a liberal opinionon the subject between fall Ta`lil based Alikäm, the two points of on rational view which of al fundamentalIslamic legal schoolsof thought.This groupacceptsthe significanceof Ta°lil alAlikäm in Islamicjurisprudence,particularlyits contributionto the processof Ijtihäd(lit. exertion), which is the highest accomplishmentin Islamic legal theory. It is noteworthy that this third point of view became the most prominently held among lo SeeIbn Hazm,al-lhkäm, v.viii, p. 113 il See Ibn Taynffyyah,Minhäj, i, 463; Ibn v. p. aI-Qayyim, Shf, i,p.312 v. ,12

Sharp, Ibn 186; and p. al-Najar,

Seeal-Bagilani, 50; Samira,Mu`jam,p.313; al-Amidi,Ghäya,p.224 al-Tamhic4p. 13Seeal-Sharastani, alMilal, p.63; andal-Juwayni, alIrshä 4 p.287.

90 Muslim jurists14including IIanafi's juristsl5, Ibn al-Qayyim'6 and Ibn Taymiyya'7. As the majority of Muslim jurists fall in the third group, Ahmad al-Raysüni, therefore applies the term Ijmä or consensus18.

In the light of this consensusthe present writer will elaborate on T flil

al-

Ahkdm as it applies to al-Maclaha wa al-Nall. This application gives rise a number `ilia, for jurists. law have (the in Muslim Does Islamic of questions many every ruling `ilia has in ? Qur'an If Hadith the the no effective cause)and maclalia any ruling and deal does it and mavlaha, with ta`bbudiyya (worshipping or strict obedience)19, only leading thereby to the process of Ta°lil al Ahkäm

being rejected by a number of

Muslim jurists? What is the best solution for theseparticular questions?

As steptowardsfinding this solution,the following sectionwill focuson the light in in framework TaClil but Alikäm, the the ta`bbudtyya of alof of concept al Maclalia wa al-Nafl.

3.3 The concept of Ta`bbudiyya in conjunction with Ta`!i7 al Ahkdm

It is significant that The Encyclopedia of al-Fiqhiyyah, applies the term al-

Firstly, to the activitiesof al-`ibäda, (worship) ta!bbudiyyainto two circumstances. andal-tanassuk,(piety and devotion).Secondly,to any Islamic ruling, which has no

14al-Jurjani, Sharlt, iii, p. 162, v. 15 al-Tiftazani, Shari,, v. ii, p. 63

16Ibn al-Qayyim,Shy, p. 186; and Ibn al-Najar,Sharh,v.i, p.8330 17Ibn Taymiyya,Minhäjv. i,p. 143,Majmu-, v.vili, p.81. 18al-Raysüni,Naaariyya,p.226-227. 19Literally, MuhammadKhalid Mas'ud defines ta'bbudryya as strict obedience.In English, obedience meansdoing what is told to do or willing to obey. SeeMasud, Shatibi's Philosophy, p. 196; and Homby, Oxfor4p. 796.

91 addedmeaning of liikma, (wisdom), but only the senseof ta°bbud, i. e., worship per se. One who obeysthe Islamic ruling would deservereward from the Lawgiver, while disobediencewould meanpunishment20.

In the first application of ta°bbudiyya, it is unanimously acceptedby Muslim jurists that the application of Islamic law in Muslim life meansworship (`ibada) and piety and devotion (tanassuk)to the Lawgiver, Allah, the Lord of the universe. Every law single such as offering prayer (joldt), fasting, performing lzajj (pilgrimage), the punishmentof ltudüd, Islamic transactionsin banking and the financial sector and the like, is focusedon the path of ta`bbudryyato the Lawgiver. The secondapplication is deny it to the existence of Itikma in any Islamic law and complex more as appears allowing only for the senseof ta`bbud(worship)per se. However, does (as Abdullah

does Islamic law (worship) the tacbbud argues) al-Kamäli or origin of only consistof liikma it also consistof the processof Ta`JT1 Alikäm, finding the al which would entail for any Islamic ruling?21.In addition, the presentwriter would arguethat if the second is ta°bbudiyya accepted,why is it that the concept of izikmaper se application of

shouldnot be applicableto many Islamic rulings particularly in the Quran and the Hadith? And why is the conceptof tatbbudiyyaoccasionallyconjoinedby some Muslimjurists with the conceptof hikmawhich in turn becomesthe main impetusin the theoryof al-Maflalia wa al-Nall?.

This apparentspilt between tatbbudiyya with reference to Ta`iT!al Ahkäm in the framework of Islamic jurisprudence has exercised Muslim jurists since the

20al Mawsü'a al-Fighiyya,,v. 12,p201 21al-Kamäli,Min Fiqh,,p. 103

92 beginning of the 7th century A.H22. Many prominent Muslim jurists such as the Shäf(is jurists, Ibn Taymiyyah, Ibn Qayyim, al-Zarkashi, al-Shätibi took part in the debate, as well as later jurists such as Ahmad al-Raysüni, Khalid Masud and MohammadHashim Kamali.

Sa°ad al-Din al-Taftazani of the Shäfl is jurists claims -that originally, the Islamic ruling appliesonly to ta'bbudiyya, and there is no senseof al-tatlil unlessit is A Hadith23. by from Qur'an dah-1, (evidence) the the and particularly supported paradox occurs later with Ibn Taymiyyah and his student, Ibn Qayyim who contends that every single Islamic ruling has a senseof al-taClil. It is therefore bälil (invalid) Ibn false because Islamic takes to that tdbbud rulings. place only of and claim Qayyim adds that the Shari a is not only a question of legal rulings but rather of Ilikma or the existence of intellectual activity24.In order to support his claim, Ibn .

Qayyimhasprovidedevidencein the form of ten examplesof Islamic rulingswhich have a senseof Itikma. This contradict the Muslim jurists who allege that Islamic rulings have no senseof liikma. Ibn Qayyim arguesthat Qiyäs al-$'alült can be applied

to the Shari a without conflict, becauseit is always parallel with the Divine He adds that intellectual activity has been elevatedthrough the commandments. processof Qiyäsal-Salifli as well as TaClilalAl: käm, and this (he asserts)becomes the majorevidencethat its applicationto nagtestifies to the valueof al-ag125.

22Zayd, Mallab ala, p.21. 23a1-Taftazani, Sharh,v.ii, p.64. 24Ibn al-Qayyim,fläm, v.ü, p.51. 25Ibid, u, 40. v, p.

93 Muslim jurists are agreed that Ibn Qayyim's arguments form the juristic division of Ahkäm al-Shari a into two categories26. The first categoryinvolves hikma, liikma, does by to Ta`lil A1ikäm. The not refer secondcategory supported nag and al MITI is there to any reference nassand al-A6kaM27. neither

The term hikma as used by al-Zarakshi has become the main indicator in jurisprudence. in definitions Islamic leading Ahkäm to two categorising al-Shari a, Based on The Encyclopedia of Fiqhiyyah, the first definition of ltikma is mallalta alCabd;that is, the public interest of humankind in preserving religion, life, lineage, intellect and property. The second definition of hikma is maclalia al-akhTrat, (the in the hereafter) process the necessary purity are obedience and whereby mallaha of Lawgiver28. to the ta`bbudiyya of

Juristically, the two categories of Ahkäm al-Shari a created by al-Zarakshi intellectual legal in in Islamic final theory terms the research of endeavour were not by Muslim jurists. Al-Sh5libi's research in al-Muwäfagät made a tremendous Aijkäm the to al-Shari a as of on subject particularly contribution academicanalysis,

it accordswith the conceptof ta`bbudiyyaandthe processof

29 TaC1i1Alikäm.

al

26al-Zarakshi,al-Bal:r, v.v, p. 127. 27Ibid. 28al Mawsu"a al Fighryya, v.xii, p.201 29 al-Shälibi's work entitled al Muwafagat ft UFül al-Shari a has been unanimously acceptedby Muslim jurists due to these particular characteristics;Firstly; the reconciliationbetween Maliki's legal thought and Hanafi's legal thought directly and indirectly on some points of Islamic legal principles. Secondly;the introduction of the theory al Magä. id al-Shari a, which employsthe concept ofMagla is in corroboration of the primary sources of Islamic law, i. e.Qur'an and Sunna,Thirdly; the four into discussion been divided Islamic has legal the on academically theory, which comprehensive parts consisting of four book i. e ahkäm (Islamic ruling), magäfid (objectives), adilla (sources) and Utihäd (legal reasoning). See al-°Ubaydi, al-Shätibi,p.104-112; and Masud, Shatibi's Philosophy, p.120-124.

94 For al-Shätibi, Ta°lil al-alikäm is part of the processistigrä' bi al-nujiij, (the induction into legal texts) in justifying the concept of ma.Flaha in Islamic legal theory30.The main function of the processof Ta°lil al Alikäm, is seekingand finding the Magdcid al-Shari a (the ultimate objectives of Islamic law)31,despite differing jurists, later its in legal Islamic Again, theory32. such as many opinions on validity Muhammad Abn Zahra, are agreed that Ta`lil al Ahkdm is the major cause in `Ilm for Hammädi Magdsid33. id, the the al-°Ubaydi, establishing scienceof al-Maga for is Alikäm Ta`iT! the that condition states example, process of a necessary al °ind from (Dawäbil al-Shätibi's perspective al-Ma1laha al-Shälibi)34. maclalla

Al-Shätibi adds that Ta`lil al Alikäm may be applied in various contexts including Cibädaand mu`dmala, as both these conceptsare referred to in the Qur'an and the «adith where the sense of tafbbüdiyya exists35.In this way al-Shätibi

highlights the universality of the concept of tacbbudiyya,as MuhammadKhalid Masud observes:"tacbbud and ma°na/maclalia (...... ) are not opposite terms for Shätibis36.Thus, ta°bbud, is parallel with maclalta; the processof Ta`lil alAltkäm

thereforebecomesoneof the most authoritativemethodsof seekingthe magcüdand lUkmain textual evidence.The,conceptof al-Mallalta wa al-Nall is thus seento 30al-Shätibi,al Muwäfagät, v.ii, p.315 31I bid.,,v.iii, p.146 32Ibid., v.ii, 391 p. 33Abü Zahra, Ucül,p.293. 34 There are five qualifications of maslaha from al-Shatibi's point of view: a) al Majill al-Zamäni meansthe scope of maslaha which covers wordly and hereafter, b) al Majäl al Mawduci meansthe applicationof the concept al-Intijä , utility in Islamic legal theory, 3) The authority of Magä. id alShari a, 4) Tctlil al Ahhdm, 5) The priority of universalityinto ma. laha. Seeal-cUbaydi,al-Shdtibi p. 139-147. 31al-Shälibi,Op. v.ii,p.51. cit., 36On this topic, Khalid Masud brought four characterizationsof ta'abbud by various statements, which were madeby Shatibi. Firstly, "al-ruju' ila mujarrad ma haddahu al-Shari' " (recourseonly to what the Lawgiver has determined); Secondly, "al-Ingiyad li awamir Allah" (being bound by the commandsof God); Thirdly, "ma huwa haqqun lillah khassatan" ( that which is the exclusiveright of God; Fourthly, "raji'un ila 'adami ma'quliyat al-ma'na (that which refers to the non-intelligibility of its reason).SeeMasud, Shatibi's Philosophy, 202 p.

95 (together lzikma in Alikäm) Tadlil the the apply with processof magýüdand seeking al with specialreferenceto textual evidence from the Qur'än and the Iladith.

Pendingdetailed discussion,it is worth noting here that most of the Mäliki and Hanbali jurists seem to agree that there is no distinction between the `ilia and the hikma37 In other words, the terms of cilia and ltikma are virtually interchangeable. From this perspective, the process of T flil al Al: käm has as its main purpose the identification and justification of villa or hikma by means of two indicators; firstly, the indication given by nass,(or textual evidence from the Qur'än and the Iadith38) be justified by indication (consensus). Ijtihäd Ijmä Here the will and, secondly, `ilia) (isolating from distinct through the other two the tangih applied as al-manä( `ilia) (extracting the to takhrij al-manäl methods referred as

and tahgiq al-manä(

(ascertainingthe `ilia) respectively39.

The scopeof this study will limit detailed considerationto the first indication, that is the purpose of identification and justification of `ilia or lakma within the

(textual by Qur'an Alikäm Ta`lil the and the of given nalc evidence) of process al Hadith.The secondindicatorjustified by Ijmacwill thereforenot be referredto in this chapter.

In examining how the processof

TaCli1alAlzkäm is applied to textual

evidence in the Qur'än and the Hadith, specific factors must be taken into consideration,especially the use of certain Arabic particles, such as kay-la (so as not to), li-ajli (becauseof), li, fa, bi, anna, inna, li-all, min ajli, la'allahu kadha, bi-sabab 37AbilZahra, Usül,p. 188. 38al-Shawkäni,Irshäd,p.210-212. 39Jbid;, andKamali,Principles Islamic, 213. of p.

96 kadha, etc., all of which are key terms in the processof Ta°Iil al Alikäm40. Also to be is legal induction (the bi texts) which to the istiqra' considered application of al-nas, is also associatedwith the process of Ta`li1 al Alikäm41. As Ibn Qayyim42and alShatibi argue,in caseswhere the `ilia is not indicated by textual evidence, the process of istiqra' using the indications of al-kulliyät al-istigrafiyya43(universal rules known inductively)44may be applied to seekthe ma.Flalzaor the ltikma.

3.4 The significance of Ta`lil alAhkäm as in relation to the theory of alMallalia waalNafl

To give a clear example of how the processof Ta`li1al Alikilm can be applied to the textual evidenceof the Qur'än and the Hadith in order to seekthe `ilia and the hikma in the light of the theory of al-Maclaha wa al-Nall, the paradigm below.may be helpful.

40al-Shawkani,Op.cit, p.211. 41al-Shatibi,al-Muwäfagät,v.ii, p.3. 42According to Iianunädi al-°Ubaydi, al-Shäibi was not the only jurist who introduced the processof istigrä' into the textual evidencebut also Ibn Qayyim in his work 1°läm al Muwagiin, emphasizes istigrä' as a method of istinbdl al-ahkäm, (inferring or deducing a somewhat hidden meaning of Islamicruling from a given text) in seekingthe maslalia or the hikma. Seeal-°Ubaydi,al-Shälibi,p. 139. 431bid 44Masud, Shatibi's Philosophy, 279. p.

97 The Process of Ta`ll-I al Ahkdm from the Nass of the Qur'än or the Hadith

a) Nall from the Qur'än or 1/adilh

b) Identification

villa through; of

b.1) certain associatedArabic particles. or b.2) The application of al-kulliydt al-istigrä'iyya. or b.3) Seeking the hikma. c) Justification of the hukm or ruling.

d) Finding the magcüd /magäüid or maclaisa

The paradigm above showsthe significance of the processof Ta`1i1al Altkäm;

Stepa) beginswith the selectionof a it operateswithin a four-stepjuridical sequence. Hadith, Qur'dn from the then movestowardsthe processof the or particularnag Ta°lil al Alikäm

in step b. There are then three alternative processesof Tadlil al-

Alikäm wherebyidentificationof Ciliais: i) throughthe associationof certainArabic 10kma. iii) ii) the the seeking applicationof al-kulliyät al-istigrä'iyya, or particles,or At this stage,the ruling or Izukmfrom a particular nall can normally be justified by

the precedingprocess.When the `ilia or the Itikmahasbeenidentified in stepb, the processcontinuesto the final step d, which is the finding of the maqýüdor magä.Fidor maclaha.

98

It can be seen that there are many instances of nass (particularly from the Qur'än or the Iladith) to which the processof Ta°lil al Alikäm may be applied in the framework of the steps above. As an example, these steps and processescan be applied to the Quranic text (al-Mdi'da: 5:38) as follows; a) Nqc from the Qur'än : (al Mdi'da: 5:38)

:ýlý Ml ý UM UZ tom, 1" ý 1:4;4 sf, i jjýºn; (emphasisadded) Translation; "As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in Power. Full of Wisdom."

b) The processof ta`lil al-ahkamby usingb.1), which is the identificationof `ilia through certain associatedArabic particles. From the aboveverse, the s 1, fa in term the particle

indicates two things; firstly, lil-ta°gib (the

`ilia lil(the cause)45. In this case,the particle punishment)and secondly, fa indicatesthe causeof the punishmentwhich logically follows the theft;. thus the theft itself is the causeof the punishmentto cut off a thief's hand

legislation hudüd law. it To to the of according put clearly; The `ilia: the theft itself is the absolutecauseaccordingto the Quranictext (al Mäi'da: 5:38). c) The Justification of hukm or ruling; this is obligatory for the

punishmentof cutting off a thief's handin the applicationof Itudiüdlaw to be carried out. d) Finding the magfüd Imagdfid or maflaha: The liudiid penalty and punishmentfor theft is to protect the lives and properties of the people46

asal_KWy al-Dalälät, p.216 46Kamali,Principles, p.208.

99

Many Muslim jurists are unanimousin agreeingthat a greatnumber of Hadith have been compiled which deal both directly and indirectly with the subject of Maclaha47From the perspectiveof the processof Tadlil al Alikäm in the framework of the concept of al-Maslalta wa al Nall,

it would therefore be useful to apply'the

paradigm to at least one example from the Iladith, as the secondarysourcein Islam Qur'än. the after

a) Nags from the Hadth

: This Hadith is narrated by Bukhari: 5147,

Muslim: 3733 and Tirmidhi: 1784.

r .ý .ý

3 ý ýý Jýý r-mau,, _. .ý .

JJ

Translation; The Prophet said," Every intoxicant is wine and every intoxicant is forbidden".

b) The processof Ta`lil alAl: käm throughthe Hadith aboveis clearlyshown by the term muskir (intoxicant) which becomesthe obvious cilia in the prohibitionof alcohol.

c) The Justification of hukm or ruling; that it is forbiddento drink any kind of alcoholaccordingto the clearnall of the Hadith andfrom the obvious`ilia, which is statedasmuskir (intoxicant).

d) Finding the magfüd /magä id or maslaha; the ruling which forbids the

drinking of alcoholor anykind of intoxicantderivesfrom both the wisdomof

47Zayd, alMaslalia, p. 13.

100 preserving of the efficacy of the human intellect and of preventing the dysfunctionalbehavior that manifestsitself as a consequenceof alcohol 48.

Thus, applying the paradigm to these two examples demonstratesclearly how the in interlocks Ta`lil Alikdm the of process concept of al-Maclaiza wa al-Nall al with the juristic processdesignedby Muslim jurists to seek the effective cause('ilia) the ruling (hukm) and finally in finding the ultimate purposeor objective of Islamic law (termed variously as magäcid, Itikma and mallalia). The significance for Islamic jurisprudenceof Ta°lil al Alikam as it relatesto Malaa

be thus seen. can

3.5 Summary

The juristic discussionon the significance of the process of Ta°lil al Alikäm

for the conceptof al-Maclaliawa al-Nag, examinedin this chapterhighlightsIslamic law as a dynamic law for humanity. Every single injunction of Islamic law deriving from the Qur'an and the Hadith has rational and reasonablesense.This conclusion has been reachedthrough the processof Ta`lil al Alikäm or ratiocination; it can thus

be seenthat the applicationof Islamic law as Divine rule is basedon the five constituentsnecessaryto preserveand protect humanity. Therefore, Islamic law decreesnot only correct modesof worship, but also providesthe basis of human fulfilment in daily life.

Although Muslim jurists differ on the acceptanceof Ta`lil al Afikäm as a valid processof ratiocination, it appearsto be a significant method in justifying effective

48a1-Ghaz51i, al-Muslasfa, voll, p.286.

101 causes,ultimate objectives and the wisdom of Islamic law. Over and above this, however, the application of Ta`lil al Alikdm

to the Nass of the Qur'än and the

Iladith will highlight Islamic law as a systematiclaw with featureswhich differ from all other forms of law.

In order to demonstrate the systematic nature of Islamic law through the (part B) following Altkäm Nass, Tdlil the to the will section processof applying al focus on the Hadith and its connection with the concept of al-Maclaha wa al-Nag. The authenticity of the Hadith or the Sunna as one of the primary sourcesin Islamic law apart from the Qur'an will be examined. In part C the paradigm previously

developedwill be appliedto the book of Bulügh al-Maräm, as one of the authentic books of the Hadith in the framework of the concept of al-Maclalia wa al-Nall.

PartB now follows, entitled`The Authenticityof Hadith andIntroductionTo The Book of Bulügh al Maräm'.

102 PART B THE AUTHENTICITY OF THE «ADITH AND INTRODUCTION TO THE BOOK OF BULIIGHAL-MARfiM

Introduction

to Part B

The Hadith as a primary sourceof Islamic law after the Qur'än has generated a great deal of discussionamongstMuslim scholarsas well as Western scholars.Its authenticity has been juristically much examined and criticized particularly by Western scholars; viz. Ignas Goldziher, Guillaume, Sachau,Wensinck, Schacht and Robson'. Nevertheless,later Muslim jurists such as Mohammad Mu*tafa °AZmi2who has devoted a book to this subject does refute such criticisms and has verified the beyond juristic doubt3.Thus, attempts to disprove the Uadith the authenticity of as Hadith as a primary source of Islamic law after the Qur'än definitely proven as false bogus in the light of juristic discussion. and

Moreover, the authenticity of Hadith to some extent meansthe quality of the

chain of narrators(isndd) and the validity of the text (matn)4,which are both in IHadith. fact In the the traditionists classified as are main elementsof most agreementthat these two elementscan be divided into at least three levelss; the first

is Säziz (lit. validity), the secondis Hasan (lit. fairness) and the third is 1?a`if (lit.weak)6.

1 See °AZmi, Studies, 5-10 p. 2jbjd

3lbici 4Ibid. 5Ibn Uajar,Nukhba,p.39 6lbid

103 As the first and highest level, $alali meansthat the Iladith has a continuous chain of narrators(isndd) made up of the most trustworthy narrators("adil), possessed in Simultaneously, (ddbfq). terms the most accurateand greatestpowers of memory of of validity of text, the Hadith has neither,irregularities (shudhiidh) nor defects (`ilia). This is a definition which has beenjuristically drawn up by traditionists, viz. Ibn alSalat (d.643H11245A. D)7, al-Nawäwi (d.676H11277A. D)8, Ibn Iiajar al-°Asgaläni (d.852H11449A. D)9,

al-Suyüti

(d.911H11505A. D)1°

and

al-Qasimi

(d. 133211/1914A. D)11.At the same time, the above definition also demonstratesthe featuresof ,Sahib.In order to discussthese featuresof $ahilz, the following IHadith is exemplified as well as its explanation; The prophet is narrated as having said; "My people will come on the Day of Resurrection with bright faces, hands and feet from the traces of Wudü' (ablutions or cleansing). If any of you can lengthen his brightness, let him do So"j2.

This Hadith is derived from the two authentic books of the Hadith, the first book (namely Jams` al-$d1ü1i)is compiled by Bukhän, and the second (namely al$abTli)is compiled by Muslim, and is classified as $ä1ji t because it has the following

features; with a) TheHadith hasa continuouschainof narrators(isnäd),in accordance 13; below theparadigm The Prophet: Abü Huraira4Nacim+Sa°id4 Khälid b. Yazid4. Laith b. Sa°ad+ Yahya4Bukhäri.

7 Ibn al-$aläb,Muqaddima p. 10. 8 al-Nawäwi, al-Tagrib,p.2. 9 Ibn IIajar, Op.cit.,p.39 lo Shäkir,Sharh,p.3 11al-Qäsimi,Qawä k4p.79 12SeeBukhäri, Sahili,no.133 and Muslim, $aliih, 362 no. 13SeeCD Mawsü a: al-Kutub al-Tita

104 b) Every single narrator of the Hadith is juristically identified as trustworthy (`adlo and possessedof the most accurateand greatestpowers of memory

((Iabit)14 c) The Uadith is juristically identified as having neither irregularities (shudhüdh)nor defects(`illa)ls

The featuresanalyseddemonstratethe strict criteria in identifying the quality of the chain of narrators(isnäd) and the validity of the text (matn). It can be seenthat the main objective is thus to securethe authenticity of Hadith as a primary source of Islamic law after the holy Qur'an16.

The second level is Hasan (fairness), means the Uadith which have a

continuouschain of narrators(isnäd), made up of the most trustworthynarrators . (`adil) but possessed less däbi() (khaftf and accuracy powerof memory compared of with Sähih. Simultaneously, in terms of validity of texts, the Hadith has neither irregularities (shudhüdh)nor defects (`ilia). The main difference between $äl:ilj and

Hasan is in the area of accuracyand power of memory (cläbif) of the narrators, is first level f if althe the more accuratewhile the secondis less so (kha, whereby dabl)17.This secondlevel of classificationis also known as Hasanlidhätih; that is, even though Hasan lighayrih refers to the narrator who has inaccuratepower of memory,this narratoris nevertheless acceptedas narratorof the Hadith. An example is as follows;

14Ibn Iiajar, al-Icäba,v.iv,p. 112. is Op.cit., CD MawsüCa: al Kutub al-Tts`a, 16Ibn Hajar,Nukhba,p.42 17Ibid, p.63 andal-Suyüi, Tadrib,p.42

105 The prophet is narratedas having said; "Whatever (portion) is cut off from an 18. it is is dead (meat)" animal when alive The IHadith above is derived from two other but lesser authentic books of Hadith, the first book (namely Sunan) is compiled by Abü Däwüd and the second book (namely Sunan) is compiled by Tirmidhi. The following points elaborate and clarify the featuresof Hadith Hasan as discussed; a) The Hadith has a continuouschain of narrators (isndd) in accordancewith 19. below the paradigm The Prophet :°Anf b. a1-I.Iarith4°Atä'

b. Yassar4Zayd b. Asläm4cAbd. Al-

Rahman4Salma b. Rajä'+Muhammad 4 Tirmidhi. b) These narrators of the Hadi'th are juristically identified as trustworthy (`adil) and possessedof the most accuracyand greatestpowers of memory

(däbit); two of them, however,are juristically identified as having less °Abd. Al-Rah. i. (khajIf man accuracyand powersof memory al-ciabt), e. due is Hasan b. Thus, Hadith Rajä'20. to this Salma the and categorizedas feature21. specific

irregularities identified is juristically having Hadith neither c) -The as (shudhüdh)nor defects(`illa)22.

This elaborationdemonstratesboth the juristic processof determiningthe authenticityof Hadith, andthe applicationof strict classificationcriteria suchasthose of $a zi1zand Uasan.From this processit can be seenthat the authenticityof the Hadith is verified only at the levels of Sähilt and Hasan, which are consideredas the , 18Op.cit., CD Maw0a : al-Kutub al-Tis`a 19Tirmidhi, Sunan,v.5, p.215 20Ibn liajar, al-If ba,v.3.p.45 21Ibn Ijajar, Bulügh al Mardm, 15. p. 22Op. CD Mawsa`a : al-Kutub cit., al-TWa

106 primary source of Islamic law after the holy Qur'an23. Thus, every single 1Iadith categorized as FdltTb and Hasan is also considered as a Divine ruling of Islam, derived from the prophetic life of Muhammad s.a.W24.

have The third level (Da`if lit. Iladith the to which a weak) refers discontinuouschain of narrators, made up of the least trustworthy, lacking in powers of memory. Simultaneously,in terms of validity of texts, most of the Hadiths have either irregularities (shudhüdh)or defects (`illa)25. To put it simply, lea`f meansthe Hadith which have no features such in Sdhih and Hasan. The level of I)aif

(in

describingthe prophetic life of Muhammad s.a.w) exhibits a multiplicity of narrators

has levels but features the their those of chains no of and of narration, verified suchas Sälüli and Hasan26.

Juristically, traditionists have drawn up many categoriesof 1)a`if, based on the levels of discontinuity of the chain of narrators,discrepanciesin levels of memory

drawn levels has defect27. (d. Hibban 354H/965A. for Ibn D)28, al-Busti of and example 49 levels Da`if. Juristic of up scholarsassertthat under specific or categories be if level I)aif Hadith Hasan to the the supported can circumstances, upgraded of On the other hand, if the level of defectis juristically by the quality of narration29. identified as high, it will be categorizedas Mawdü (Fabricated)30. This kind of is typically employedin the scienceof Hadiith.However,manybooks categorisation

23Ibn Hajar,Nukhba,p.46. 24lbid 25al-Nawäwi,Tagrib,p.5; a1-Suyuj Tadrib, 'v.i, 179 `Ulüm 165 Subbi, p. and al-Ilafith, p. , 26Op.cit., Ibn Iiajar, p. 48 27Ibici, Ibn Ilajar, p.49 281bnal-$alä, Mugaddima,p.37. 29Op.cit., a1-Suyüti,v.1,p.53 30al-Sakhäwi,Fatli, v.i, p.99.

107 of the Hadith are not only compiled with numerousnumbersof the Hadith $ä1i1 and the Hadith Hasan, but also numbers of the Uadith Qa`if. This phenomenonraises important questions. If the Iladith

Sa ffli and the Hadith Hasan are the only

authenticsourcesof the Hadith, then why are the Hadith pacif are also included?

Traditionists and Muslim jurists are in agreementthat the Had th 1?aif is not the authentic Hadith - the primary source of Islamic law after the holy al-Qur'an31. Only the Hadith Sdhih' and Hadith Masan are acceptedas the authenticHadith in the light of Islamic jurisprudence32. Nevertheless, the Hadith Da`if

is considered

acceptablein limited areas,but within strict conditions, as follows; a) The level of Da`if

does not approximate to the level of fabricated or

forgery33.

b) The ruling or injunction derived from Qaif must be parallel with $00 andIlasan34. c) It is forbidden to believe in I?aif as derived from the prophet Muhammad

s.a.w35. d) Referenceto Hadith Qaif is allowed only in the areaof motivation for doinggoodandpreventionfrom doingevi136

despitethesestrict conditions,Hadith PdTf havebeencompiled Nevertheless, togetherwith Hadith Sä zi z and Hadith Hasan in many authenticbooks such as Musnad Ahmad, Sunan Abi Däwüd, Jam( Abi °Isa al-Tirmidhi, Sunan al-Nasä'i and

31al-Nawäwi,Taqrib,p.5; al-Suyuli, Tadrib, 1, 179 Mugaddima,p.165. v. p. and Ibn al-$a1AJ , 32Ibid. 33al-Sakhäwi,al-Qawl,p.4 asIbid 35Ibid 36Op.cit.,al-Nawäwi,p.8.

108 SunanIbn Mäja. Yet there are also authentic books in which only the Hadith Sältilt and the Hadith Hasan appear,such as Säldlt al-Bukhäri and Sältih Muslim. However, some traditionists make the accusation that even these are compiled with small numbersof the Hadith Da`if.

Again, a book exists where Iladith $dItTli, Iladith Hasan and Hadith I,)a`if are compiled together, and which also refers to those many authentic books of the Hadith previously listed. This kind of book is entitled Bulügh al-Maräm -a summary of authentic books of the IHadith, compiled with the Hadith $dIt li, the liacdith Hasan and the Hadith Daif.

In accordancewith the scienceof Hadith, part B will examine analysesof the authenticity of the Hadith in accordancewith its main references.The main points of

have This its discussed. B been introduction highlighted through part as previously part B consiststwo chaptersi. e. chapterfour and chapterfive. Chapter four focuseson the sevenauthenticbooks of the main references,while the book of Bulügh al-Maräm

formsthe core of the study.Chapterfive thereforeintroducesthis work of reference, it its C part while analyses contentas connectswith the main topic of this thesis- the conceptof al-Maclalia wa al-Nan.

109 CHAPTER FOUR THE MAIN REFERENCE SOURCES FOR THE BOOKS OF, (IADITH

4.0 Introduction

In the science of Iladith (`Ulüm al-Iladith), there are numerous references works for the books of Uadl-th.Most traditionists agreethat there are sevenbooks of Hadith which are classified as main reference sources(viz. Saliilt al-Bukhdri, Sahib Muslim, Musnad Alimad, Sunan Abi Däwüd, Jam( Abi `Isa al-Tirmidhi, Sunan alNasä'ie and Sunan Ibn Mäja)', compiled during the third century of Hyra2- the golden ageof Islamic civilization3.

Their classification as the principal reference sources is based on certain

juristic features,in accordancewith the levels of authenticity of the Iladith as features discussed. juristic These previously will now be examined in detail through

out this chapterto highlight the quality and value of theseworks of referenceas primary sourcesof Islamic law apart from the Qur'an.

The analysiswill alsoincludea brief discussionof eachauthor'sbiographyas well as the featuresof eachbook, focusingon incorporatedlevels of the Hadith $ald1z, the Hadith Hasanandthe Hadith I Cif.This analysiswill be cross-referenced book the with of Bulügh al-Marämin orderto validateits authenticityasa definitive work of referencein this field.

1 Ibn IUajar,Bulügh Maräm, al p.3. 2 al-Zuhräni, Tadwin, p.271.

3Hitti, History,

p. 138

110 4.1 ýFathi alBukhäri

The author of Faltih al-Bukhäri is 'Abü °Abd Allah Muhammad b. Ismäil b. Ibrahim al-Mughirah al-Bukhäri4.He was born in 19411/910Mat Bukhara and died in 256H/870M at Samarqand5.His best-known name is Imam Bukhäri6. Imam Bukhäri is acknowledgedas one of the greatestscholars in the science of Iladith due to his in mastery the area of memorization, knowledge of the chain of narrators of the Hadith and the variety of their sources7.At the time when he lived memorization identify highly his to were authentic texts amongthe multiplicity ability skills valued; by Ijadrth the therefore a number of tests8.He showed a remarkable verified of was between differentiate to successfully ability authentic and non-authentic Hadith9. Indeed, it is reported that Imam Bukhäri was able to memorize one hundredthousand

authenticHadithsandtwo hundredthousandnon-authenticffadithslo.

The title of FajiT#al-Bukhüri was assignedby traditionists to acknowledge Imam Bukhäri's efforts to compile authentic Hadith ($aliils) in one single bookll. While Imäm Bukhäri himself names his book al-Jam:' al-$altili al-Mukhtar min

'umür RasülilLahf. "a.w wa sunanihi wa ayyämihi'2,the easierand shortertitle of $aliili al-Bukhäri is preferredby mosttraditionists.

4 Ibn Ilajar, al-I. i, v. 1cäba, p.47, al-Baghdädi,Tärikh,v.i, p.6 and Ibn Khallikan, Wa yat, v.i,p.455. Ibid 6Ibid 7Ibid Ibn }{ajar, Huda,v.i,p.6 Ibid. lo Ibid 11Ibici 12ibid

111 The book of FaItTlial-Bukhdri is juristically recognizedas a main referenceof Hadith dueto the following features; a) All narrators of Uadi-thare juristically identified as having a continuous chain of narrators(isndd) through disciples of the prophet (s.a.w) and their successors,culminating in Imam Bukhäri himself. All are recognized as trustworthy (`adil) and possessedof the most accurateand greatestpowers of memory (däbfq)'3. b) It was the first book of Hadith to be compiled as chapters and sub topics14.It is suggestedthat there are 7,275 jadith'5 .

divided which are

into 77 chaptersand 3,888 sub topics. by has been The book Sahib c) al-Bukhäri analyzedand commented many of traditionists. It contains analysesand commentariesby many traditionists, sevenin all, in which every single Vadi-this analyzedfrom every possible viz. 'Elam al-Sunan (Khailäbi Abi Sulaiman), alscholasticperspective16; Kawkab al-Daräri

,T

Shari Faliili al-Bukhäri (al-Häfi? Shamsuddin

Muhammad), Fatli al-Bäri (Imam Ibn I ajar al°Asgalani), cUmdaal-Qäri

(al-Häfiz Badruddin Abi Muhammad, Irshäd al-Säri (Shihäbuddin Ahmad), Fay4 al-Bäri (Sheikh Mul}ammadAnwär al-Kashmeri),Lämf al-Darüri (IIäjj Rashid Alhmadal-Kankuhi) .

Though traditionists are mostly in agreementthat the book of $al:ili alBukhäri is juristically recognizedas a main referencefor the Hadith, somescholars doubtthe validity of sometexts. One of thesewas Imam Daraqujni who formally 13Ibn Hajar,al Isaba, v.ii,p.70 14Ibn Hajar,Huda,v.i,p.8. 15Ibn a]-$aläla,°Ulüm,p. 16. 16al-Zuhräni,Tadwin,p. 122.

112 its in fraudulent doubtful few he chain and narrators, which classified as criticized a 7. in the Asgaldni turn Consequently, Hajar Ibn Imam examined transmission' al-' of in lacking both his by Imam Daraqutni, as arguments rebutting accusations made judgment and evidence's. He thus strongly defended the validity of narrators in Sulnli al-Bukhnri19.

The importance of Sahi/i al-Bukhnri as the principal source for the Hadiih is further upheld by many other reference books such as Bulügh al-Marnm.

For

from derived AhOdilh in 557 Buliügh from Ahddith 1,572 are al-Murdrn, example, Suhih al-Bukhnri,

is in This 16 to cross-referencing chapters. and are referred

illustrated in the diagram below (557); The Numbers of Ahadith from Sahih a4Bukhari in Bulugh alMaram : 557

160

140

120

136

jfl, ll

100

80

60

20

0

16 Chapters

13 Purification

® Prayer

® Business Transaction O Marriage IN Oaths and Vows

0 Judgement

O Funerals Offenses 0 Emancipation

of Buluyh

NAai. un

O Zakat

Fasting

© Prescribed Penalties O Jihad

13 Pilgrimage O Foods

Comprehensive Book

" Ibn Hajar, Huda, v. i, p. 13. 'x Ibid. 19 Ibid. This kind of detailed examination books found in he traditionists many and analysis can books in those seven particularly of the commentary of Sa/iih al-Bukheirias listed above.

113

4.2 ýFahihalMuslim

The author of Sahih al-Muslim is Abü HusseinMuslim b. al-Hajjäj b. Muslim al-Qushairi al-Naiysäbüri20.He was born at Naysabnr in 204H and died in his homelandon Sunday,in the month of Rajab, 261H21.His best-known name is Imam Muslim. He was a gifted disciple under Imam Bukhäri, and was endorsedas such by 2. himself Imam Thus, Imäm Muslim's approachand methods followed those of the Imam Bukhäri very closely.23

Imäm Muslim is thus acknowledged as one of the greatest scholars in the science of Hadith apart from Imäm Bukhäri24.He is well known for mastery in the area of memorization of the Aliädith, establishingthe chain of fadith narrators and

the varietyof their sources,the scienceof criticizing its narrators,anddistinguishing betweenthe valid and the weak amongstthem25.

The title of Sahilt al-Muslim was assignedby traditionists to acknowledge

ImamMuslim's effortsto follow Imäm Bukhäri's work in compilingthe numbersof authenticAhädith in one single book26.Nevertheless,Imam Muslim himself entitles

his book al-Musnadal-$ajtTi27. The book is compiled from 300,000of AlOdith

20Ibn al°Imäd, Shadhara, ii, 144; v. p. and Ibn I5ajar,al-lF ba,v.x,p. 126. 21Ibid. 22Ibid 23Ibid 24Ibid 25Ibid 26a1-Zuhrani,Tadwin,p. 125. 27Muslim,Mugaddima, 3. p.

114 by directly Muslim Imäm the authentic narrators of the to which were passedorally Hadith28.

The book of Salzih al Muslim is recognizedas a main referencesourcefor the book of Hadth after $a iili al-Bukhäri due to the following juristic features;

having identified juristically All Hadith a continuous chain as are narratorsof a) (s. disciples (isnäd) the through the a.w) and their prophet of of narrators successors,culminating in Imam Muslim himself. All are recognized as trustworthy (cacl) and possessedof the most accurateand greatestpowers of memory (däbiq)29. b) It was the secondbook of Uadith to be compiled as chaptersand sub topics30 Scholarshave estimatedthat there are 5,362 numbers of Jladi-th31which are divided into 56 chaptersand 1,423 sub topics. by has been Muslim book The Fahili analyzed and commented upon al c) of many traditionists. There are six books of commentariesin which every single

Hadith of $aYOal-Muslimhasbeenanalyzedfrom everypossiblescholastic ;viz. al-MuffahimfT Sharli Muslim (°Abd al-Ghäfirb. Ism5i1 alperspective32 Färisi,d.529H), alMuCallimft Shari Muslim (Abi °AbdullahMuhammadb. °Ali,d.536H), Ikmäl al-MuCallimbifawai'd Sharli ýaliili Muslim (Al-Qädi Abi °IyaO, °Amrü °Uthmän b. d. b. (Abi 544H Shari Muslim Salzih alal-Fadl , Silah,d.643H), al-Minhäj ft Sharh $alülhMuslim (Abi Zakariyya Ya1ya b.

281bid 291bn al-$alab,Siyäna,p.76. 30Ibn liajar, Hud4v. i,p.8. 31al-Suyüii,Tadrib,p.104. 32a1-Zuhräni,Tadwin,p. 122.

115 Sharp al-Nawawi, d.676H), Ikmdl al-Ikmdl (Abi al-Rüh °Isa b. Mas°üd alZawäwi al-Mäliki, d.744H).

As a second main reference source for the book of Hadith after $ahih alBukhdri, $ahili al-Muslim's work has also generateda great deal of discussionas well as criticism amongst traditionists. Imam Abü Zar°ah al-Räzi was one of those who juristically criticize some narrators disqualified by Imam Muslim, such as °A11ä' b. °Amrü °algamah33. Daruqutni b. Imam b. Muhammad But and surprisingly, al-Sa°ib who vociferously criticizes some narrators validated by

$alüli

al-Bukhari,

neverthelessacknowledges Imam Muslim's judgement concerning the quality of all his narrators.34As a result, a later scholar, Dr. al-Fadhil Rabi° b. Hadi al-Mudakhali has in turn undertakenresearchon the quality of all narratorsin ýalffli al-Muslim. His lead him to conclude (controversially) that all narratorsof $alüli al-Muslim are studies

by including disqualified held level 95 $altili, the some qualifiedat narrators as of traditionists3s

As the importancemain referencesourcefor the book of Hadith, $al ii alMuslim hasbeenreferredto more recentlyby many othersbooksof Hadilh, suchas Bulügh al Maräm. For example, from 1,572 AlOdTlh in Bulügh al-Maräm, 745

Alaädithare derivedfrom $ahili al-Muslim, and are referredto in 16 chapters.This is illustratedin the diagrambelow (745): cross-referencing

33al-Nawäwi,al i, 10. v. p. -AMrnhäj, 34lbid 35al-Mudakhali,Bayna,p. 15

116

Ahadith Cross-Referenced

Between Sahih aMuslim

and Bulugh alMaram

184 180

180

140

120

100

80 60 40 20

0

0 Purification

0 Prayer

O Business Transactiorß Oaths and Vows

O Funerals Offenses

Marriage Judgement

0 Emancipation

O Zekal 0 Prescribed

PenaltiesO

0 Comprehensive

Fasting

0 Pilgnmage

Jihad

0 Foods

Book

4.3 Musnad Ahmad b. ttanbat

b. Ahmad is The author of Pv1u. IUanbal AN 5'nad Muhammad b. Hanbal b. Hiläl Izuhiuluwwul,

cAbdullah Ahmad b.

al-Shaybäni36. He was born in the month of'

164H at Baghdad and died on Friday, 120' Ruh(ulawwa/, 24111iß.I lis

best-known name is lm-im Alunad b. Hanbal. Ile is acknowledged as one of the greatest scholars in the area of theology, Islamic law and in the science oC/Iadiih.

'° al-Baghdädi, Tärikh, v. iv, p.412; and Ibn Khalikan, ZW'u%uyüt, v. i, p. 17. 37Ibid.

117 He is also known as one of the four foremostImams of the Islamic juristic school due to his contribution as the founder of the Hanbal's juristic school (Madhhab AlHanbaliya)38.

In the science of IHadith, Imam Ahmad showed remarkable skill in memorizing one million Ajtadith39.Furthermore, his work of compiling the Aliädith (the Musnad) using his unique methods of classification - highlights his expertise in the areaof the history of Iladith's narrators.

The book of Musnad Ahmad b. Hanbal is recognized as one of the main due features; for book Hadith following juristic to the the of referencesources

a) The narratorsof the Hadith arejuristically divided into $älüli (lit. validity),

by Ibn al-Jawzi Hasan(lit. fairness)andJ a`if (lit. weak)40.It is suggested that Musnad Ahmad b. Hanbal also contains some fabricated narrators (Muwdui)al Nevertheless,most traditionists agree that Musnad Abmad is

still recognizedas the foremostreferencesourcefor the book of Hadith due to the large numbers of authentic narrators in its chain of 42. transmission

b) It was the first book of Hadith to be compiled in which every single narratoris classifiedinto many levels of disciplesof the prophet(s.a.w)

3sIbid 391bicL 40 al-Jazri, al Musdactp. 34.

41Ibn Taymiyya,Majmu",v.xviii, 26. p. 42al-Zuhräni,Tadwin,p. 107-108.

118 and their successors. Furthermore, some narrators are classified by the 43 belonged name of the place to which they are by The book been Musnad has Ahmad upon commented c) of analyzed and many traditionists, viz. Khasd 'is al-Musnad (Abi Müsa al-Madini), AlMusu`ud

(Shamsuddin

al-Jazri),

Al-Musnad

al-Musaddad

Ji al-Zib

(Shamsuddin

al-Alnnad al-Jazri)

and Al-Qawl

ul-A unad 'an Musnad

Alamad (Ibn Hajar al-°Asgaläni)44

The importance of Musnud Abmad b. l lanbal as one of the main references for the book of HudTih is further upheld by many other reference books such as Bulügh 259 A in from 1,572 Ahüdith For Bulicgh ,ädiih are al-Muräm, example, al-Muräim. derived from Musnad Ahmad b. Hanbal, and are referred to in 16 chapters. This

in diagram illustrated below (259); is the cross-referencing Ahadith

Cross-Referenced

Between

Musnad Ahmad b Hanbal and Bulugh a4Maram

so 70

60

50

40

30

20

10

U 16 Chapters

O Purification

0 Prayer

® Business Transaction 0 Marriage ® Oaths and Vows

43 ibid. 44 Jhid

0 Judgement

O Funerals Offenses 13Emancipation

of Buluyh

Maram

O Zakat

Fasting

© Prescribed Penalties 13 Jihad Comprehensive Book

0 Pilgrimage O Foods

119 4.4 Sunan Abü Däwüd

The author of Sunan AbU Dawüd is Sulaiman b. al-Ash°athb. Ishak al-Azdi al-Sijistani. He was born in Basrah in 203H/817M, where he lived until his death on Friday in the month of Shawwal 275H/888M45.He is best-known as Abü Däwüd, and also studiedunder Imäm Al mad b. IIanbal along with al-Bukhän. He later becamea Iladith scholar,teachingmany scholarssuch as al-Tirmidhi and alNasäi'ea6.

As one of the great scholars at that time, Abü Däwüd collected 5,000,000 Ahädith but he compiled only 4,800 Alzädith in one single book entitled al-Sunan47 The book of SunanAbü Däwüd is juristically recognized as a main referencesource of Uadith due to the following features;

a) The narratorsof Iadith are juristically divided into $ä si t (lit. validity), Hasan (lit. faimess) and 1?a`if (lit. weak)48.Though Abü Däwüd himself referred to many narrators authenticated by Imam Bukhäri and Imam

Muslim, it is arguedby Imäm Ibn IIajar al-°Agalänithat smallnumbersof these are juristically identified as having discontinuity;that is, certain members of the chain of narrators should be categorized as the least

trustworthyand as lacking in powersof memory.At the sametime, in terms of text validity, the Hadiths concernedhave either irregularities (shudhüdh)or defects(`illa)49.

45aI-Sam°ani,al-An äb,v.ii, p.29; al-Nawäwi, Tahdhib, ii,, 709; Ibn Kathir, al-Bidäya,v.xi,p.55; and v. p. Ibn Khalikan, Wafa-yal, v.i,p.271.

"6 Ibid. 47

Ibid asal-Jazri,al Musa°a4p. 34. 49Ibn Hajar, al-Nakt,v.i,p.435.

120 b) Scholarshave estimatedthat there are 4,590 Aliädith in the book of Sunan Abü Däwüd, which are divided into 35 chaptersand 1,879sub topics. c) The book of Sunan Abü Ddwüd has been analyzedand commentedupon by many traditionists, viz. Sharh Mddlim al-Sunan (AbU Sulaiman IHamd b. Muhammad b. Ibrahim al-Khattabi,d.388H), Murgat al-Su°ud ila Sunan Abi Däwüd (al-Suyüli,d.911H Fath al-Wadüd °ala Sunan Abi Ddwüd , (Abu al-HassanMuhammad b. °Abd. al-Hädi al-Sundi, d. 1139H),`Awn alMa`büd Sharh Sunan Abi Ddwüd (Sheikh Shamsuddina1-'Aim Abädi,

d.1329H),Bazl al-Majhüdfi Hal Abi Däwüd (SheikhKhalil Abmad alSaranguri,d. 1346H)so

The importance of SunanAbi Däwicd as one of the main referencesourcesfor

the book of Hadith is further upheldby many other referencebookssuchasBulügh al-Maräm. For example, from 1,572 Al: ädith in Bulügh al-Maräm, 444 AliädTth are derived from Sunan Abi Däwud, and are referred to in 16 chapters. This crossis illustrated in diagram below (444); the referencing

50a1_Zuhräni, Tadwin,p. 136.

121

Ahadith

Cross-Referenced

Between Sunan Abu Dawud and Bulugh a4Maram

140 120 100 80

60 40 20 0 16 Chapters of Bulugh aNaram O Purification

O Funerals

0 Prayer

0 Business Transaction O Marriage 0 Oaths and Vows

Offenses

0 Judgement

® Emancipation

O Zakat

Fasting

D Prescribed Penalties O Jihad

O Pilgrimage 0 Foods

0 Comprehensive Book

4.5 Jämi Abi `lsa al-Tirmidhi The author of Juni

Abi CLsuul-Tirmidhi

`Isa b. b. b. Süra Müsa b. Muhammad was

al-Dhahak al-Sulma al-Bughi al-Tirmidhl51. He was born in the town ul"Tirmºdh,

Uzbekistan in 209H, where he died on 13`x'of Rujub 2791152.1 Ie is most commonly known as al-Tirmidhi.

As a student of Imam Bukh5ri, aI-Tirmidhi

his showed

book in by 4,000 Ahäädii/i scholastic attainment compiling approximately one single namely ul-JjInii`53. Most importantly, al- firmidhi

pioneered a juristic methodology to

determine in Hudith the level of Hunan (lit. fairness)54. l le also analyzed the level of Du`Ff'(lit. weak) in his book on the subject of al-`IIU155

The book of Jdmi` Abi `Isu al-Tirmidhi

is juristically

recognized as a main

reference of Hudith due to the following features; 51 Ibn Khalikan, Wafdyat, i, 278; v. p. al-Dhahabi, ladhkira, v. ii, p.635, Ibn `Imsd, S wdhtzra, v. ii, p. 174 and al-Zirikli, al- A`Inm, v. 7,p. 213. 52Ibid. 53Ihid. saIbid. 55Ibid.

122 (a) The narrators of Hadith are juristically divided into $dIIT#(lit. validity), Hasan (lit. fairness) and Daif

(lit. weak). Though al-Tirnüdhi himself

referred to many narratorsvalidated by Imam Bukhän and Imam Muslim, Imäm Ibn Hajar al-°Agaläni assertssome of thesearejuristically identified as having a discontinuous chain of narrators, made up of the least 56 lacking in trustworthy and those powers of memory. (b) Scholarshave estimatedthat there are 3,965 Aliädith in the book of Sunan Abi! Dawüd, which are divided into 47 chaptersand 2,036 sub topics. (c) The book of Jam: Abi "Isa al-Tirmidhi has been analyzedand commented C b. by (al-HäfiZ Allwäzi traditionists, al-°Aräbi alupon many viz. rida al Mäliki, d.546H), Sharp al-Tirmidhi (Ibn Rajab a1-Hanbali,d.795H), Tuhfa al Ahwiizi (°Abd a1-Rahmanal-Mubarakfuri)57.

Theimportanceof Jämi°Abi `Isa al-Tirmidhi asoneof the mainreferencesfor the book of Hadith is further upheld by many other referencebooks such as Bulügh from 1,572 in For Altäaith Altadith 298 Bulügh are example, al-Mardm. al-Maräm, derived from JämP Abi °Isa al-Tirmidhi, and are referred to in 16 chapters.This cross-

referencingis illustratedin the diagrambelow (298);

56Ibn Ilajar, i, v. al-Nakt, p.435. 57a1-Zuhräni,Tadwin,p. 140.

123

Ahadith Cross-Referenced Between Jami al-Tirmidhi and Bulugh al-Maram 140

120

100

80

60

40

20

0 16 Chapters

DPurification

a Prayer

0 Business Transaction

O Marriage

Oaths and Vows

Judgement

[]Funerals Offenses OEmancipation

of BL I yh . d-M, uam

DZakat

[]Fasting

Proscribed Penalties DJihad

[]Pilgrimage 0Foods

ComprehensiveBook

4.6 Sunan al-Nasn'i The author of Sunan al-Nasd'i

'Ali b. Ahmad b. Shu°aib was

Sinan Abü °Abd.

Rahmaual-Nasä'i5x.He was born in the city of Nisä' in Khurasanin 21511,where he died in the year 3031-1at Makka59. He is most commonly known as a! As a -Nasa'1. student of Abü Däwüd, al-Nasä'i

is acknowledged as a 1kuliih scholar due to his

mastery in the area of memorization and his methodology of analysis of the i Iadi1Ii. Al-Nasd'i's famous book of Hudith is entitled Sunun al-Nastä'i.

The book of Sunun al-Nusä'i is juristically

recognized as a main retcrcnce of

HudTlh due to the following features; (a) The narrators of HudTIh are juristically Husun (lit. fairness) and Dui/'(lit.

divided into SiMil (lit. validity),

weak). "Though u1-Nusra'i himself referred to

many narrators recognized as authentic by Imam ßukhäri and Imam Muslim,

58Ibn l1ajar, Iahdhib, v. i, p.266, Ibn Khalikan, Wufüyat, v. i, p. 77, and al-Dhahäbi, l4dhkiru, v.ii, p.270. 59Ibid.

124 here as elsewhere,a small number of narratorsarejuristically identified as the leasttrustworthy and also lacking in powers of memory60. (b) Scholarshave estimatedthat there are 5,662 Ahadith in the book of Sunan al-Nasä'i, which are divided into 51 chaptersand 2,535 sub topics. (c) The book of Sunan al-Nasa'i has been analyzedand commentedupon by traditionists such as Sharh (al-Sheikh Sirajuddin cUmarb. "Ali b. al-Mulgin alShäfi°i,d.804H) and Sharli (a1-HäfiZJaläluddin a1-Suynxi, d.911H)61

The importance of Sunanal Nasä'i as one of the main referencesfor the book of Iladith is further upheld by many other referencebooks such as Bulügh al-Maräm. For example,from 1,572Ahädith in Bulicgh al-Maräm, 271 Aliddith are derived from Sunan alNasä'i,

is in 16 This to and are referred chapters. cross-referencing

illustratedin the diagrambelow(271);

60Suyap,Sharli,v.i, p.3-5. 61al-Zuhräni,Tadwin,p. 143.

125

Ahadith Cross-Referenced Between Sunan al-Nasa'i and Bulugh al-Maram 80

70 60 50

40 30 20 10 0 16 Chapters of Bulugh al-Maram 13Purification

OFunerals

DZakat

Fasting

OPilgnmage

® Business Transaction U Marriage

Offenses

DPrescribed Penalties

13JIhad

13Foods

0Oaths and Vows

©Emancipation

Comprehensive

13Prayer

Judgement

Book

4.7 Sunan Ibn Mäjah Ehe author of Sunan Ibn Mnjuh

`'`, Muhammad b. b. Maja Yazid was al-Qizwini

born in the city of Qizwin in 207H. There he died in the month of Rama(lüün27311" . He is best-known as Ibn Mäjah. As a student or Imärn W lik and other scholars, Ibn Majah is acknowledged as a Hudith scholar due to his skill in

memorization,

the

history of narrators and analysis of the Nadilh. I-Fismost Famousbook of lIachilh is entitled Sunan Ibn Mäjuh.

The book of Sunan Ihn M«juh is juristically

recognized as a main reference

for source the HuaTthdue to the following features; (a) The narrators of Haditli are juristically

divided into Sühih (lit. validity),

Hasan (lit. fairness), Duff (lit. weak) and Muwihi ' (tit. fabricated). Nevertheless, many scholars argue that the book does have a discontinuous chain of

62Ibn al-`Imäd, SIIadhara, ii, 164; Ibn Khalikan, Waf v. p. yat, v. iii, p.407. G3Ibid. and al-Suyriti, 1abagal, v. ii, p.279.

126 in deficient least the the trustworthy powers of most and narrators,madeup of

irregularities by is At the time, text memory64. same validity marred either (Shudhüdh)or defects(`Ills). (b) Scholarshave estimatedthat there are 4,333 Aliädith in the book of Sunan Ibn Mäjah, which are divided into 33 chaptersand 1,536subtopics. (c) The book of SunanIbn Mäjah has been analyzedand commentedupon by °Abdullah °Ali b. Abi (al-°Alamah Sharlt traditionists many al-Hassan such as b. Ni°mah al-An*äri,d.567H), Micbäl: al-Zujdjah `ala Sunan Ibn Mäjah (alIiäfiz Jalaluddin a1-Suyüti,d.911H) and al-Dibäjah Sharli Sunan Ibn Mäjah (Sheikh Kamaluddin Muhammadb. Müsa al-Damri al-Shäfi'i, d.808H)65.

Despite the defects described,Sunan Ibn Müjah is upheld as one of the main in Bulügh al-Maräm, book Hadt-th. 1,572 Altädith From for the of referencesources for example,240 are derived from SunanalNasä'i, and are referred to in 16 chapters. This cross-referencingis illustrated in the diagram below (240);

64a1-Bägi,Diräsc4p. 1519. 65al-Khaiifa,Aladrasa,p.345-346.

127

Ahadith

Cross-Referenced

Between Sunan Ibn Majah and Bulugh aMaram

60 50 40 30 20 10 0 18 Chapters

O Purification

0 Prayer

® Business Transaction

O Marriage

® Oaths and Vows

Judgement

O Funerals Offenses 0 Emancipation

of Bulugh

al -Maram

O Zakat D Prescribed

Fashng Penalties

Comprehensive

O Jihad

0 Pilgrimage O Foods

Book

Thus, in comparison with the other five books of Hucri{h, (viz. Ilusnad Almnut!, Sunun AT Ddwüd, Jinni` AT `Isu al-Tirmidhi,

Sunun al-NusiVie and Sunan Ihn

Müjuh), it can be seen that Suhih al-Bukhnri and Suhtlº al-Mus hin have the most books five juristic features Nevertheless, the as source references. other authentic discussed are also juristically recognized as important relerence sources, although to a lesser degree.

There is, however, much cross-referencing between Bulfigh al-Murn, n and the books seven of Hudi-th examined, as well as reference to other existing source

been book This have Bulügh that the material. suggests of al-Mari-im could not drawing compiled without upon the wealth of other extant and juristically

accepted

be For in this reason, additional works. source material used compilation will now briefly investigated.

128 4.8 Other Reference Sources

Of those reference sourcesfor the books of Hadith judged as supplementary, most were written in the second, fourth and fifth centuries of Hyra66. Their classification by traditionists was according to their juristic features; that is, a less acceptable quality of narration and narrators compared with the seven books of Hadith67as previously discussed.However, although this latter material is classified as supplementary,it neverthelesscontinues to be of importance for reference. It is therefore useful to highlight the following juristic features;

4.8.1 Muwa((a' al-Imam Malik

The author of Muwalld' al Imam Malik is Abu °Abdullah Malik b. Anas al-

Asbahi68.The book of Muwallä' allmäm Malik is juristically recognizedas an importantreferencesourcefor the Hadith. Indeed,beforethe emergence of the works of $allili al-Bukhäri and $aliile Muslim, Muwallä'

by judged Malik was al-Imam

Imam al-ShäfiCito be the most authenticreferencesource for the gadith after the holy al-Qur'än69.However,most scholarsnow agreethat Muwaltä' al-ImamMalik shouldbe rankedas only supplementary referencematerialsincejuristic featuresare of lowerquality70.

66al-Zuhräni,Tadwin,p.271-276. 67Ibfd 68He was born in 84H and died in 179H. He also known as one of the leading Imams of the Islamic juristic schooldue to his role as the founder of the Mäliki school (Madhab al Mälikiyya). 69Ibn al-$a1ä1,1, `[ lüm,p. 14 70al-Zuhräni,Op. p.93. cit.,

129 The book of Muwatlä' al Imam Malik is also drawn upon for authentication by important reference books such as Bulügh al Maräm. This cross-referencing revealsthat in the book of Bulügh al Maräm, 24 A1tädith are derived from Muwatd' al Imam Mal ik .

4.8.2 ,yahih alImäm Ibn Kizuzaima

The author of Sa1dltal-Imäm Ibn Khuzaima was Abü Bakr Muhammad b. Ishak b. Khuzaima al-Nisaburi7l. The book of

$aliili al-Imäm Ibn Khuzaima is

juristically classified as one of the supplementarysourcesfor the Hadith together with many other references,as suggestedby Ibn al-$aläb72,given that its juristic features are much more similar to the sevenmain referencesourcespreviously discussed.

In addition, the works of $alüli al-Imäm Ibn Khuzaima are further referred to by many sourcebooks such as Bulügh al-Maräm, where 20 Aliädith are derived from SajtTjial-Imam Ibn Khuzaima.

4.8.3 ºjahThIbn Hibban

The author of $aliili Ibn Hibban is Abü Hatim Muhammadb. H.ibban b. A1? As anothersupplementary madb. Hibbanal-Busti73. referencesourcefor the book of Iladith, $alül: Ibn Hibban has juristic features which are in many ways similar to those discussed.Nevertheless, the book of $a1jili Ibn Hibban emphasizesthe strict

71al-Dhahabi,Tadhkira,v.ii, 720. p. 72Ibn a1-$alä, `Ulüm,p. 17. 73 al-Dhahäbi,Tadhkira,v.iii, p.924.

130 book feature kind For the this of renders classification of altädTth74. of a1-Suyüli, $ahilt Ibn IIibban distinctive7s.This distinction is further upheld by referencebooks Ibn Hibban. from Sahili derived Bulügh 20 Ahddith suchas al-Mardm, where are

4.8.4Sunan al-Daraqu(ni

The author of this reference source was Abü al-Masan, 'Ali b. °Umar b. Ahmad b. Mahdi al-Baghdadi76.One of its main juristic featuresis the explanationof the three levels by which eachHadith which is judged (i. e. $ällile [lit. validity], Hasan [lit. fairness] and paff [lit. weak])77.For this reason, 19 of its Aliädith are found in the book of Bulügh al Maräm.

4.8.5 Sunan al-Kubra al-Baihag!

The author of Sunanal-Kubra al-Baihagi is AbU Bakr Ahmad b. al-Husseinb. "Ali al-Baihaqi78.Like the preceding reference source, Sunan al-Kubra al-Baihagi

for determining 1Iadith79. levels the the each within also examines strict criteria Sixteenof its Aliädith arethereforefound in the book of Bulüghal-Maräm.

74al-Suyati,Tadrib,,v.i,p. 109. 7sIbid 76al-Baghdadi,Tärikh 77al-Zuhräni,Op.cit.,p. 173. 78al-Dhahäbi,Tadhkira,v.v,p.345 79al-Zuhräni,Op.cit.,p. 175.

131 4.9 Summary

The foregoing examination of main referenceand other supplementaryHadith underlines their authenticity as the primary source of Islamic law apart from the Qur'än on the basis of juristic evidence as shown, in line with the three juristic measures(i. e. $ältih [lit. validity], Hasan [lit. fairness] and I?aif [lit. weak] ).The books seven of Hadith can thus be termed the most authentic compared principle with other supplementarysources with lesser juristic features. Nevertheless,these supplementarysources are alluded to at length in later works such as Bulügh alMaräm, along side referencesto the principle sevenvolumes.

Indeed, a cross-referencingbetween the later work of Bulügh al-Maräm, the

supplementarysourcesand the sevenmain books of Hadith highlights the lesser juristic textsas an importantsourcewithout which Bulügh alMaräm could not have been compiled. The juristic featuresof this work and its connectionwith the reference for sources the book of Hadith will therefore now be discussedin chapter five under the headingof `introduction to the book of Bulügh al-Maräm'.

132 CHAPTER FIVE THE INTRODUCTION TO THE BOOK OF B UL UGH AL-MAR"

5.0 Introduction

The book of Bulügh al Mardm is classified by many scholars as the most It in book by Iladithl, Ibn Ilajar only. one volume al-°Asgaläni concise of compiled therefore differs from other works of Iladith in this, and in its divisions into 16 Kutüb (chapters)and 93 Abwäb (sub-topics)- one of its juristic features.

Why Bulügh al-Maräm has been collected in one single volume is interesting question of methodology -a

following in be the question which will addressed

for °Asgaläni discussion the brief Ibn Hajar together author an as of al a analysis, with book of Bulügh al-Maräm.

5.1 The author's biography

The author of Bulügh al-Maräm was Ahmad b. °Ali b. Muhammadb. Muhammadb°Ali2. He is best-knownasIbn Ilajar3 a1°Asgaläni4.He wasborn in the 28th Qaherah, he died Saturday Sha'bän5,773H of of night at where on month of Zulhi ah, 852H11449M6.

1Khalifah,Madrasa,v.i,p. 193 2 Ibn Hajar,Raf al-°Asr,p.36; Anbä'al-Ghumar, 1-3; 10. lawähir, 15; p. p. al-(aaw, al al-Sakhäw% p. 3 Ibn Hajar was a nicknameinherited from his grandfather, Abmad. Seeal-Sakhäwi,Ibid, p. 15. 4 Geographically,°Asgalanrefers to the highlandsby the Bayt between Gaza located the and strip seas, Jibrin in Palestine.Al- °Asgalini indicates the name of the place belonging to the descendantsof Ibn Ilajar. SeeYaqut,Mu°jam,v.iv,p. 122. ' Historiansdiffer on the birthdate Ibn l a A1-Shawkäni of arguesfor the 2d of Shd`bän77311,walar. and Ibn °Imad al-Hanbali for the 12thof Sha`bän773H, and Ibn Taghri Bardi for the 22id of Shcfbän773H. See al-Shawkäni,al Badr, p.88; al-SuytXi, al-Munjam,p. 130; Nazm al- Igyän,p.45; Ibn

133

Ibn Iiajar al-°Asgalänilived in and absorbedan environmentof knowledge during his childhood. He entered primary school when he was six years old and memorized the Qur'an at the age of nine, under the supervision Sadr al-Din al-Sufti (d.845H1144M)7.At the age of twelve, he went on a pilgrimage to Mecca with his guardian,al-Kharrübi in the year 784H/1382M, where he stayedfor two yearsto learn the

book

of

Sahib al-Bukhäri

with

Sheikh °Afif

al-Din

al-Nishäwari

(d.790H/1388M)8.

In the year 790H/1392M, under the tutelage of Mu1iammadal-Qaflän a1-Mi*ri (d.830H/1410M), Ibn Hajar al°Asgaläni learned Islamic jurisprudence, linguistics and mathematics9.When he was nineteenyears old, he developeda great admiration for literature and wrote many volumes of poetry in anthology entitled Diwän Ibn Hajar1°.

At the age of twenty, in the year of 795H/1392M, Ibn Hajar al-°Asgaläni

becamea scholarof Islamicjurisprudence,logic, philosophy,literature,mathematics, later linguistics According to rhetoric, and calligraphyll. al-Sakhäwi, a year (796H/1393M), he started his learning in the science of Iladith from Zainuddin al-

cIragi(d.80611/1404M)12. He took ten yearsto finish his studiesin the areaof Vadith andhewaslaterknownasa leadingscholarin this field, ashe wasin others. °Imad al-Iianbali, Shadhra,p.380; Ibn Taghri Bardi, al-Nujüm, v.xv,p.533. See also Suliaman,Ibn Hajar al-`Asgaldni,p. 1-12. al-Sakhäwi,allawnhir, p.277; al-IPaw,v.ii, p.40 and al-Dhahäbi,Shadharc4v. vii, p.273. 7 al-Sakhäwi,Ibici, p.22 81bid 91bid io Ibid 11lbid 12Ibid

134

Many books were thus written in the area of history (Inba' al-Ghumar bi Anbä' al-`Umr, Rat` al-Isr `an Qudät Misr and al-78äm fi man walla Misr fi alIslam), literature (Diwdn al-Sha`ir and Diwän Khutb), Tafsir (a Quranic exegesis which includes al Alikäm Ii bayän mä fl al-Qur'an min al Aliknm) and the Uadi-th itself. Here, amonghis important Worksare Bulagh al Mardm min Adillah al Ahkdm, Muqaddimah Fath al-Bäri fi Sharli FaltFbal-Bukhäri, Nuzhah al-Nazr fi Tawdlli

Nukhbahal-Fikr, Tahdhibal-TahdhTb,Tagribal-Tahdhib,al-Icäbahfi TamyizAsmä' al-$ahäbah,al Algäb al-Ruwät.

The prolific nature of Ibn Hajar a1=Asgaläni's writings in this area point to his masteryof the specialisedknowledge necessaryin the scienceof Vadith. For this reason,his particular expertisewill be examinedthroughout this chapter.

5.2 Meaning and significance

ThetermBulüghal-Marämhassomesignificance,asindicatedin the author's introduction; `I have named it (this book) Bulügh al-Mardm min Adillat al-Alikäm; and I pray to Allah not to render what we have learnt a calamity against us; but may He 13 Him Glorified to Exalted One' the guide us act accordingto what pleases and -

13SeeEnglish Translationof Bulügh Maräm, 1996, Dar al al-Salam,Saudi Arabia,p.9. It is referredto this chapterafter this asEng. Trans B.M.

135 In Arabic, the term Bulügh is derived from the verb balagha, meaning; to reach,getsto, attain, arrive at and come

Bulügh to14.Thus, the term can be translated

from the word ramy, `achieving"5. `attainment' The term originates or al-Mari m as 16. in its The totality intention, title target, goal and aim objective, purpose, meaning; (Bulügh al-Maräm min Adillat al Abkam) therefore translates as `Attainment of the 17. Ordinances' Holy the to the of guidelines ultimate objectivesaccording

The significance of Bulügh al-Maräm for its intended readership is also introduction; highlighted in the clearly `To proceed;this is a concisebook comprising the Hadith evidencesourcesof it Shari have I that the the one who memorizes compiled meticulously so a which learned beginner it his the the one seeking and student excels among peers, may assist indispensable" knowledge it find may more .

Thus, one of Ibn Hajar a1=Asgaläni's `ultimate objectives' is seen to be to law19. Islamic learn divine Hadith level to the the sourceof as a of student assist early The work is written in a concise manner and in only one volume for this reason.

Nevertheless,despiteits brevity, the book of Bulügh al-Maräm has valuedjuristic featuresas follows.

14al-Ba°albaki,al Mawria p.247. is Ibid 161bidp.1014. 17The term Bulügh al Maräm min Adillat al `Attainment of the been has translated as also -Abkam Objectiveaccordingto Evidenceof the Ordinances'.SeeEng. Trans.B.M. is Ibid 19Suliaman,Op.cit.,p.134.

136 5.3 Juristic features

As indicated elsewhere,the Aliddith of Bulügh al Maräm are central to this study. For this reason, a principle aim is to determine the quality of the book of Bulügh al Maräm as a definitive source of Hadith20.This will be done by applying the paradigmdevelopedto establishthe three authentic levels of the Hadith i. e. FdjtTji (lit. validity), Masan(lit. fairness)and I)a`if (lit. weak).

5.3.1 Hadith 4'äM1:

Analysis of Iladith $dIdIt in the book of Bulügh al-Maräm will therefore focus on the numbers of aliddith ýahT in every chapter and sub-topic to determine be The validity. method of calculation will applied to all 1,572 Aliädith. Reference

for be identify in the variety of to also materials aliädith , alüli will examined order their sources.

In terms of validity, then, from 1,572Aliädith in the book of Bulügh alMaräm,it is calculatedthat thereare 1221Aliädith $61dit from 16 Kutüb (chapters) and 93 Abwäb (sub-topics). The following chart shows the numbers of Aliädith

$äldli from eachchapterin greaterdetail:

20Suliaman, Op. cit., p.204 -208.

137

The Numbers of Hadith Sahih in Bulugh alMaram 350

300

250

200

150

100

50

0

0 Purification

0 Prayer

® Business Transaction O Marriage ® Oaths and Vows

0 Judgement

O Funerals Offenses 8 Emancipation

O Zakal

®F asting

13 Prescribed Penalties Q Jdiad

0 Pilgrimage 0 Foods

Comprehensive Book

The above chart highlights that the chapter of prayer has the highest numbers Ahüdith, 308 due Hudi-th Suhih, as perhaps to the seventeen sub-topics calculated of therein. It can thus be said that its juristic validity is thereby increased. In contrast, the lowest numbers of "adith

Suhl!, are found in the chapter of emancipation. This

from Sulrih Ahndiih 15 the total calculated as chapter contains only one sub-topic, numbers of 19 uhddith.

The numbers of Hudith Suhilr in Bulügh al-Mart-nn as juristic evidence are

'these hooks in both [Judith in the to are seven of and reference sources. other referred tabulatedin greaterdetail below. Ibn Abu Others Majah Chap./Ref. Ahmad Bukhari Muslim Dawud aI-Nasai'e al-Tirmidhi 16/31 21/29 26138 13/24 40/54 Purification 45 69 28/48 52/63 50154 52/77 27137 79199 Prayer 139 76/95 182 5/8 9/10 8/131 Funerals 8 12/161 23 13/17 35 214 13119 Zakat 4/4 5/8 8 419 9 1118 Fasting 9/10 912 12114 11113 8/10 34 10/14 32 518 10/15 Pilgrimage 11113 37 10/11 4111 45 12/17 IBusiness Transaction 28/44 71 28/35 24131 2 3/39 45/73 74 36/50

138 Marriage 28/37 Offenses 5/8 Prescribed Penalties 4/14 Jihad 4/9 Foods 10/11 Oaths and Vows 4 Judgement 7/9 Emancipation 3/6 Comprehensive Book 2/7

Total:

191

71 16 21 27 17 12 13 9 37

74 20 24 25 23 14 12 10 63

40/62 10/17 7/17 12/20 14/16 4 10/14 2/5 9/14

24/35 10116 6/17 8 6 1 6/7 2/5 9/12

24/34 6/10 5/11 6 6/7 2 7/8 2/3 12/29

580

711

294

205

200

29/39 39/64 5110 11/19 5/13 5/14 1 14/19 7/8 9/11 1 5 4/5 10/16 1/3 3/5 -17/27 9/14

156

315

As can be seen,juristic evidence in terms of numbers is highest in Muslim (711) and Bukhän (580), and lowest in Ibn Mäjah (156) and Imam Ahmad (191). It is suggestedthat thesehigh figures are due to the validating work of Imäm Bukhäri and Imam Muslim as against a smaller degree of such work in the books of Sunan Ibn Mäjah and Musnad Imäm Ahmad. Numbers for Abi! Däwüd (294), alNasäi'e (205), al-Tirmidhi' (200) and others (315) can also be found in the book of Bulügh al-

Maräm, which can thereforebe seenas supplementaryreferencesourcesof Hadith $ahila apart from the main works i. e. $allili al-Bukhäri and $a1ff1iMuslim.

Importantly,also found in the book of Bulügh al-Maräm are threemodesof classifyingHadith $aldh as referencesources.The first of thesewas coinedby Ibn Hajar al°Asgaläni as a definitive classificationmeaning`agreedupon' (Muttafaq `alaih ) with particularreferenceto $alüli al-Bukhäri and $a1d1iMuslim, as in the following exemplar;

`NarratedAnas r. a.: Allah's Messengers.a.w usedto supplicate frequently: "Our Lord, give us good (things) in this world and good (things) in the Hereafter, and defend us from torment of [the] fire[s of hell]". [Agreed upon]'21.

21Ibn liajar, Bulügh Maräm, (no: 1563). al

139

The secondmode of classifying Uadi-th$allih in Bulügh al-Maräm is based on the direct condition of Sahib (validity), which is regularly used as a criterion to verify ahädTth.This is demonstratedin following Hadith;

`NarratedJäbir r.a.: Allah's Messengers.a.w said, "If a[large] big amount of anything causesintoxication, a small amount of it is prohibited". [Ahmad and al Arba°a reported it; Ibn IIibbän gradedit $'a1ýT1t (validity)]22.

The third method of classifying Hadith $ahih in Bulügh al Mardm is an indirect version of Fai iz (validity), very occasionally used as a criterion to verify following demonstrated instance; in the ahddith, as `Narrated°Aisha r.a.: Allah's Messengers.a.w usedto divide visits to his wives equally and say,"0 Allah, this is my division concerningwhat I possess,so do not blame me concerningwhat You possessand I do not". [Reportedby al Arbafa; Ibn Hibbän and al-Häkim gradedit $'a1ti1i(validit1?, but al-Tirmidhi preponderatedthat it is Mursal (non-continuouslinkage)] .

Although the above Hadlth is juristically

identified as $'aldli by two

traditionists(i.e. Ibn Hibbänand al-Häkim) it is neverthelessarguedby al-Tirmidhi to be invalid dueto the conditionof non-continuouslinkage(Mursal) to the Prophet indirect Under $alüh be these the s.a.w. circumstances, cited can classifiedas an in $aldiz betweentraditionists. versionof accordance with the disagreement

Thus, given the sheernumber of referencesto the Yadith $'alzili in Bulügh al-

Maräm, togetherwith the three classificationmodesdiscussedwhich are used as validity criteria, it can be statedconclusivelythat the book of Bulügh al-Maräm is 22Ibn Ilajar, Bulügh alMaräm, (no: 1248) 23Ibid., (no: 1056)

140 proven to be authentic. These criteria, together with those examined elsewhere, will now be applied to the large numbers of Hudith

Hasan which exist aside from the

Hadith Sahih in Bulicgh al-MaMm.

5.3.2 Hadith Hasan

There are 253 uhdclith Husan referred to in the book of Bulicglh alMart-im - obviously a small figure compared with the numbers of Hudilh Suliili (1221 uhddith). Indeed, this contrast between numbers of references within these two levels of authenticity does suggest that it was the author's priority to seek juristic validation through compiling many ahddilh suhl{l rather than numbers of u/:ädRh husun.

These 253 uI, äa7lh /iascm are divided into 16 Kulrrh (chapters) and 93 Ahw h (sub-topics), as highlighted in the following chart; The Numbers

of Hadith Hasan in Bulugh

alMaram

50 44,

45

n

40 36 35

_.. _.........

30 2r, 25 20 15 lil

10

§_----Ll

5 0 O Puntication

® Prayer

® Business Transaction[] Oaths and Vows

Marriage Judgement

Q Funeials Offenses ® Emancipation

Lekdr

11

Fasting

0 Prescribed Penalties Q Jihad 0[

omprehensive Book

O1 iiynmape 13 F oode

141

As shown, the chapter on marriage contains the highest numbers of Hadi-th Hasan (44) as against other chapterssuch as the chapter on prayer (36), on business transactions(33), on comprehensiveethics (28) and on purification (26); there are, however, no Masan referencesin the chapter on oaths and vows. The lowest number (only one) is found in the chapter on food. The chart also illustrates the samepattern (6) low fasting (3), Hasan in the and on of chapter on emancipation on content in Uasan low (7). This the the prescribedpenalties phenomenonunderlines priority of importance the mind writer's as against of Hadith $al:ih.

Despite the small numbers of Iladith Hasan (253) in Bulügh al-Maräm, it is neverthelesshelpful to tabulate the variety of referencesto other Hadith sourcesas

follows,

Abu Ahmad Bukhari Muslim Dawud

Chap./Ref.

Ibn al-Nasai'e al-Tirmidhi Majah

Others 9 8 10 4 4 1 4 2 2 2 2 2

8 7 3 4 1 4

0 0 0 0 0 0

0 0 0 0 0 0

12 11 4 10 11 4

4 8 0 3 2 1

12 5 4 3 2 5

Business Transaction

11

0

0

11

6

5

7

19

Marriage Offenses PrescribedPenalties Jihad Foods

9 3 10 0 0

0 0 0 0 0

0 0 0 0 0

20 7 10 6 1

11 6 11 0 0

9 4 6 0 1

9 5 5 0 1

23 7 9 1 0

Oaths and Vows

0

0

0

0

0

0

0

0

Judgement Emancipation ,ComprehensiveEthics ,

2 3 4

0 0 0

0 0 0

4 3 5

1 3 3

1 1 14

1 1 5

4 1 9

69

00

Purification Prayer Funerals Zakat Fasting Pilgrimage

Total:

119

59

72

53

104

142

It can be observed from the above table that the highest number of Hasan referencesare to AbU Däwüd (119), to `others' (104), to al-Tirmidhi (72), to Abmad (69), to al-Nasäi'e (59) and to Ibn Mäjah (53). Interestingly, the table also highlights the absenceof Masan references to al-Bukhäri and Muslim, the most juristically authenticcompilers of Iladith.

Although the small numbersof Hadith Hasan (253) suggesttheir low priority in terms of material, accordingto the three modes of internal classification described, significant juristic featuresdo occur. For example, the first pattern of Hadith Hasan is a cross-categorybetweenMasan and Sabi z, as illustrated; . `NarratedAnas bin Malik r.a: Allah's Messengers.a.w was askedabout by [Reported is He "No (it making vinegar out of wine. said, prohibited)". Muslim, and al-Tirmidhi and the latter gradedit Hasan-$a1ii1t(fairnessvalidity)']24.

Muslim assigns to this pattern the term of $al:i :, while al-Tirmidhi downgradesthe material slightly to Hasan-$a1ti1:,thus creating this type of juristic

level is in juristically Vadith The this which at a way authenticated cross-category. but $alzi to that of nearlyapproximates z, not quite.

The secondmodeof classificationis not an indirect, but a direct versionof Hasan,which is exemplifiedasfollows; `NarratedAbü Huraira r.a.: The Prophet s.a.w said, "A believer's soul is attachedto his debt till it is paid on his behalf'. [Reported by Ahmad and al-Tirmidhi who gradedit Hasan]25.

24Ibn Vajar, Bulügh al-Maräm,(no: 22) 25Ibid, (no:529)

143

Apart from this direct type, Bulügh al-Maräm also applies a third indirect verifying criterion of Hasan, which is illustrated in the following example; `NarratedMuadh bin Jabalr.a.: Allah's Messengersaid; "If anyonedisgraces his brother for a sin, he will not die before committing it himself'. [AI-Tirmidhi reported it sayingit is a Hasan but a Munga(i' (disconnected)]26.

This type of Hadith is firstly juristically categorized by al-Tirmidhi as authentically Hasan, but nevertheless disconnected in its chain of transmission (Mungatf). Secondly,Bulügh alMaräm downgradesthe Hadith to the level of Pa°if (weak). Thirdly, the science of Hadith regards the occurrence of Mungafc' as a disqualifying factor. This means that the Hadith will be unanimously rejected by traditionists as neither FaItT6nor Masan. Fourthly, al-Tirmidhi does suggestthat the Hadith hascertainjuristic featureswhich at least qualify it for the level of Hasan. For

thesereasons,this patternof Hadith canbe classifiedasan indirectversionof Uadith Hasan.

The book of Bülügh alMaräm is therefore shown to be of the most importance as a reference source of Hadith, as it provides a sophisticated Hadith level legal the the text to of classificationmodel grade quality of each within Hasan. Apart from Hadith Hasan,small numbersof Vadith pa`if are alsofound in ., this book,which will now be discussed.

26Ibn Ilajar, Bulügh al Maräm, (no:1516)

144

5.3.3 Haditlz Daif

The numbers of Iladith Dueif (99) in the book of 13uliüghal-Muriirn are very small indeed compared with those of Hudith Husun (253) and Huch{ Su1ii i (1221), underlining their lesser importance in terms of juristic validity. These 99 uhnuºith Da`if are scattered throughout 16 Kutub (chapters) and 93 Abwüh (sub-topics), shown schematically as follows;

Q Purification

35

0 Prayer 0 Funerals

30

D Zakat 25

® Fasting 0 Pilgrimage

20

..................... ....

® Business Transaction D Marriage

15

Offenses O Prescribed Penalties

10 5D 5

3ý0 0

Jihad Foods ®Oaths and Vows

0

® Judgement Chapters

® Emancipation

The bar chart form shows clearly that only three chapterscontain more than 10 uliacith Duif;

18 in the chapter on purification, 29 in that on prayer and 15 in that on

business transaction. In other chapters, numbers of Qu`if are even smaller, in that on funeral rites only 1, zukat 2, fasting 1, pilgrimage 3, marriage 3, prescribed penalties 3, jihad

6,

food 3,

judgement

3,

1, offences

emancipation

comprehensive ethics 5, yet none at all in the chapter on oaths and vows.

1,

145 Thus, it can be inferred that in terms of juristic validity IHadith i?aif are relatively unimportant in the book of Bulügh al Maräm, as is reflected throughout all other volumesof Ijadith. The table below showsthis pattern diagrammatically;

Abu Ahmad Bukhari Muslim Dawud 8 0 0 3 0 0

Chap. /Ref. Purification Prayer

Ibn al-Nasale al-Tirmidhi Ma ah 7 9 0 7 13 0

Others 7 4 11 2

Funerals

0

0

0

0

0

0

0

1

Zakat

0

0

0

0

0

2

0

2

Fasting

0

0

0

0

0

0

1

0

Pilgrimage Business Transaction Marriage Offenses Prescribed Penalties Jihad Foods Oaths and Vows

1 5 0 0 0 5 1 0

0 0 0 0 0 0 0 0

0 0 0 0 0 0 0 0

1 3 2 0 0 2 1 0

0 1 0 0 0 0 0 0

2 2 1 0 0 0 0 0

0 9 1 0 3 0 0 0

1 9 2 1 0 4 2 2

Judgement Emancipation ComprehensiveEthics

2 0 1

0 0 0

0 0 0

4 0 0

1 0 0

1 0 0

1 1 0

4 1 1

26

00

Total:

29

2

28

25

45

This patternhere is from highestto lowest, beginningwith the categoryof `others' (45) throughto Abü Däwüd' (29), al-Tirmidhi (28), Al mad (26) and Ibn Majah (25). Only two Hadith I?aif are referred to in alNasäi'e, and none at all in

eitheral-Bukhärior Muslim, confirmingtheirjuristic validity.

146 Within these Ilaarth Daif, there are three internal modes of classification (identified elsewhere).The first of theseis definitive and is exemplified as follows; `NarratedIbn °Umar r.a: Allah's Messengers.a.w said, "Two types of deadanimals and two types of bloods (sic) have beenmadelawful for us, the typesof deadanimals are locusts and fish (seafood),while the two types of bloods are the liver and the spleen". [Reportedby Alimad and Ibn Mäjah, and this Hadith has someweakness.] 127 The secondmode of classifying is based on a multiplicity of factors, among which is quality of narration, as the following example shows: `NarratedUbai bin °Imara r.a.: I asked,"0 Messengerof Allah, may I wipe over the Khuffain (leather socks)?" The Prophet s.a.w replied, "Yes". I asked,"For one day?", He replied, "For one day". I again asked,"And for two days?" He replied, "For two daystoo". I again asked,"And for three days?", He replied, "Yes as long as you wish". [Reportedby Abn Däwüd, who said, "It is not strong"]'2S

According to Imam al-Nawäwi one of the multiple classifying factors here is

the untrustworthynature of narrators,juristically identified by traditionists as `disqualified'. For this reason,the content itself is juristically classified as invalid and unsound29.

The third classificationmodeis basedon indirect conditions,as demonstrated in the following instance:

`Narrated`Abdullahbin Abu Bakr r.a: The book written by Allah's Messengers.am for °Amr bin IIazm alsocontained:"None except

a pure personshould touch the Qur'än". [Reported by Malik as a Mursal and by al-Nasäi'e and Ibn Hibban asMawqül. And it is gradedas Ma`lül (defective)]30

27Ibn Uajar,Bulügh al Maräm, (no: 11) 28Ibid, (no : 64) 29$an°äni,Subul al-Saläm,v.i, 34. p. 30Ibn ljajaz, Op. cit., (no: 75)

147 Here traditionists identify the indirect condition as `non-continuouslinkage of narrators' (Mursal) between the reporting disciple and the Prophet s.a.w. Himself. Nevertheless,al-Nasäi'e, Ibn I;iibbän and Haithami grade this Uadi-thas Maw. ül `connectedlinkage' as well as qualified narrators31.Aside from this difference of opinion, the majority of traditionists agreeon a classification of VdTf, with defective 32. in the narrators chain of transmission

Analyses here (and indeed throughout this thesis) demonstrate how the instrument by developed be to the classification model writer can used as an determinethe quality of eachHadith. Thus, while the low juristic priority of I,)aif is despite their small number these Ijadith do have complementaryvalue as affirmed, referencesources,along with the Hadith $'ahi# and the Hadith Hasan.

As discussedpreviously,the concisenatureof the book of Bulüghal-Maräm To interesting the the a of raises question author's compilation methodology. discussionof this, the writer now turns.

5.4 Compilation methodology

In this slim volume, Ibn Hajar al°Asgaläni has laid down a defining in compilationmethodology termsof thoseHadith selectedfor inclusion33;the clear arrangementof general topic chapters (16) and sub-topic divisions within those chapters(93); and, thirdly, a specific and highly economical system of referencing

31San°äni,Op.cit.,, v.i,p.70. 32Ibid 33Suliaman,Op.cix, p. 170.

148 across all volumes of Hadith. Each of these compilation elements will now be

discussed in turn.

5.4.1 Numbers of Vlant h

Unusually, Ibn Hajar al-°Asgaläni doesnot appearto regard either numerical sequencingof Hadith or their actual numbers as significant, unlike previous and more recent compilers. Perhapsthis was considered unimportant at that time. A personal Kutüb (sub-topics). (chapters) Abwäb 93 16 however, there that shows, count are and

For many later traditionists, as for compilers prior to Ibn H.ajar al°Asgaläni, in features juristic both Hadith to the the sheernumbers of would point quality and book have in Bulügh al-Maräm Hadith. Thus, the some calculated each of aliädith

for Khalifah Muhammad Rashad their example using own method of calculation. Hämid Abü 1,40035, Muhammad 1,373 Zahw total claims a of aliädith34and whereas al-Fiqi has come up with 1,56936.

Why, then, does this discrepancyexist? It seemsthat different calculating depending by different scholars, systemsare used on what they wish to proveon the basisof eitherinclusionor omissionof Hadith37That is, someIjadith arerepeatedin will manychaptersandsub-topics,while othersarenot. For this reason,discrepancies occurwhenrepeatedHadith areincludedin somefinal numbersbut not in others.

34Khaüfa,Madrasa,p.447. 33Abü Zahw, al-Iladrth, p. 347 36Ibn Ilajar, Bulügh al Maräm, p.214. 37Suliaman,Op.cit.,p. 170.

149 However, in order to specify exact numbers of IHadith in Bulügh al-Mardm, every IIadith should be calculated within each chapter and sub-topic regardlessof just, fair be The to since no single repetition. and writer considerssuch methodology Hadith is in this way ignored. By way of illustration, this methodologyhas been used to tabulate the numbers of Hadith $aItTli, Masan and I)aif

in Bulügh al-Maräm,

shownbelow.

Chap./Numbers

Overall

Sahih

Da`if

Hasan

Purification

147

103

26

18

Prayer

373

308

36

29

Funerals Zakat Fasting Pilgrimage Business Transactions Marriage

65 49 58 75 191 195

53 34 51 63 143 148

11 13 6 9 33 44

1 2 1 3 15 3

Offenses PrescribedPenalties Jihad Foods Oaths and Vows Judgement Emancipation ComprehensiveEthics

46 56 62 41 22 36 19 132

Total

:

1572

35 35 49 37 22 25 15 991

1220

10 18 7 1 0 8 3 28

1 3 6 3 0 3 1 5

253

99

It will be seenthat eachchapterandsub-topichasbeenanalysedto showtotals of IIadith $aliih as againstIjasan and1?a`if . Out of the total numberof Ijadith of 1572, the very high figure of 1220areHadith $alalt, whereasonly 253 areHasanand 99 are Da`if. Percentage-wise, thesefigures are calculatedas 77.6%, 16.08%and 6.29% respectively. The dominance of Hadith $61JIt thus demonstratesconclusively the juristic value of Bulügh al-Maräm as a reference sourcefor the IIadith, while the small numbers of Hasan and I?aif reference.

provide important supplementary variety of

150

Aside, then, from the unusual disregard for both numbering sequencesand actual numbersof Iladith, the succinct arrangementof chaptersand sub-topicswithin them is another unique aspect of Bulügh al-Mardm and of its compilation methodology.To an analysisof this the writer now turns.

5.4.2 Arrangement of chapters and sub-topics

A significant feature of the compiler's layout methodologyfor the 16 chapters and '93 sub-topics is that of terminology. Firstly, each chapter topic is assignedthe term Kitäb (meaning `book'); within these, all the aliädith are categorized into specific sub-topicsor Bib. Thus, as an example, Kitäb al-Tahärafi Kitäb BuliüghalMaräm would translate literally from the Arabic as `Book of Purification in the book

of Bulüghal-Maram. In the writer's opinion,however,academicspecificitydemands the term `chapter' rather than `book', since the latter implies too much generality.

As for the interestingterm `Bab', the compiler usesthis as a kind of frame within whichto groupsub-topics;a metaphoricalor symbolicdimensionis thusadded to the conceptof `door'. This literary device is notedby al-$ancani,for whom the termBib is a metaphorwhich indicatesthe launchpoint for discussionof a particular juristic themewithin eachchapter38. Put anotherway, the `door' actsas a `portal' or `doorway',leadingthrough into a kind of discussionforum. However,in line with academicspecificity,the term Bab can perhapsbestbe translatedas `sub-topic'.An

38a1-$an°äni, Subulal-Saläm, v.i, p. 14., Suliaman,Op.cit., p. 171.

151 how demonstrate is below, this `Kitab' to 'Bab' this and structure shown example of methodologyworks in practice: The Chapter on Purification Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic

:

1. Water 2. Utensils 3. The nature and cleansing of impurities 4. Ablutions 5. Wiping of leather socks 6. The nullification of ablutions 7. The manner of dealing with natural body functions 8. Taking baths and precepts regarding sexual impurity 9. Purification with soil

Sub-topic 10. Menstruation

Secondly,each of these chaptersand sub-topics is set out in accordancewith kind in down Qur'an laid for holy living the of as a and worship as principles basic instructions instruction Further, the these most start with manual. practical its 10 life, `purification', for Muslim that the sub-topics. of with way of requirement 'Prayer' then logically follows, containing 17 sub-topics39.Next comesthe discussion forum on `funerals'; here (interestingly) there are 65 Hadith, yet no sub-topic arrangementao

Anotherimportantpracticalareaof the Muslim way of life thenfollows - that 49 for financial for Here instructions Zakät the within poor. out assistance of setting Hadith,only 24 al:ädith are categorizedinto 3 sub-topics;i.e., ýadagat al-Fi(r, 39The following list is 17 sub-topicsof the chapteron prayer; Sub-topic1. The times of prayers Sub-topic 10.Prayer in congregationand the imamate Sub-topic2. The call to prayer Sub-topic 11. The prayer of a traveler and a patient Sub-topic3. The conditionsof prayer Sub-topic 12.Al-Jumu'a (Friday) prayer Sub-topic4. Sutra (screen)in prayer Sub-topic 13. Prayerin the time of fear Sub-topic5. Humility in prayer Sub-topic 14. The prayersof the two 'Eids Sub-topic6. Mosques Sub-topic 15. The prayer at an eclipse Sub-topic7. The descriptionof the prayer Sub-topic 16. Prayerfor rain Sub-topic8. Prostrationdue to forgetfulnessin prayer Sub-topic9. Voluntary Prayer Sub-topic 17. The mannersof clothing 40SeePart C for full analysis.

152 voluntary alms and the division of

Fadaqat.As for the remaining (unclassified) 25

ahädith, thesecan be divided in terms of known juristic areas;the obligatory Zakät41, the measurementof seedsand plantations42and inherited wealth43.

The chapteron fasting then follows Zakät, consistingof 58 aliädith. 22 only of these are divided into 2 sub-topics; i. e., firstly; voluntary fasting and the prescribed days of prohibited fasting, and, secondly; keeping vigil in the mosque to offer voluntary prayers during the nights of Ramadan.The remaining 26 aliädith are noncategories, but

do concern matters such as sighting of the crescent moon of

Ramadän44,prohibited fasting on non-sighting days45,intention to fast46and Sahür (taking a meal before fasting)47. 41The exemplifiedHadith as follows; `NarratedIbn `Abbasr.a.: The Prophets.a.w sentMu'adh r.a. to Yemen- he mentionedthe rest of theHadith which has:"Allah hasmadeobligatory for them, in their wealth, a Sadaqato be takenfrom their rich andhandedover to their poor. [Agreed upon andthe versionis of Al-Bukhari]' SeeIbn Hajar, Bulügh al Maräm, (no: 586) 42The exemplified1fadith as follows; `NarratedSahlbin Abu Hathmar.a.: Allah's Messengers.a.w orderedus, "When you estimate(the Sadaqaof fruits like dates)take them leaving a third; and if you do not leavea third, leavea quarter (of the estimatedSadaqafor the owners)". [Reportedby Al Khamsa exceptIbn Majah. Ibn Hibban andAl-Hakim gradedit $ahih]. Ibid, (no : 604) 4nThe exemplifiedIHadithas follows; `Narrated`Amr bin Shu`aibon his father's authority from his grand father r.a.: Allah's Messenger s.a.w said,regardinga treasurewhich was found by a man in a wastedplace- "If you find it in an inhabitedvillage, a fifth is payableon it and on buried treasure". [Ibn Majah reportedit through a a good chainof narrators]. Ibid, (no : 611) 44The exemplifiedHadith as follows; `Narrated Ibn `Umar r.a.: The peopletried to sight the new moon and he informed the Prophet s.a.w that he had seenit, so he fastedand commandedthe peopleto fast. [Abil Däwtd reportedit and al-HakimandIbn Hibbän gradedit $'alüh]. Ibici, (no: 639) 45The exemplifiedIladith as follows; `Narrated`Ammarbin Yasir r.a.: He who fastson a day that (the starting of Ramadan)is doubted hasdisobeyedAbu al-Qasims.a.w. [Al-Bukhari mentionedit as a Mu'allaq, but al-Khamsatraced it backto the Prophet s.a.w as a Mawfal and Ibn Hibban gradedit $alüh]. Ibid, (no: 636)

153

Next comesthe doorway into `pilgrimage', with its 75 ahädith within 6 subtopics48,followed by the chapter on `businesstransaction' (191 aliädith). The 22 subtopics in this latter chaptercauseit to be consideredas the biggest sub-topicin Bulügh 49, Maräm al although the discussion forum on `marriage' has 195 aliädith - the highestnumber comparedwith other chapters.

46The exemplifiedIladith as follows; 'NarratedHafsar.a., Mother of the Believers:The Prophet s.a.w said,"No fastingis acceptedfrom the onewho doesnot commit his intention to fast before dawn". [Reportedby Al Khamsa, Al-Tirmidhi and alNasä'i preponderate (sic.) it as Mawqüf, Ibn Khuzaima and Ibn Ilibbän authenticatedit asMares. Ibid, (Hadith: 641) 47The exemplifiedHadith as follows; `NarratedAnasbin Malik r.a.: Allah's Messengers.a.w said,"Take a meal (just) before dawn, for thereis a blessingin Sahür (taking a meal) at the time". [Agreed upon]' Ibid, (Hadlth: 645) 48The following list is 6 sub-topicsof the chapteron pilgrimage; Sub-topic 1. Its merit and the definition of those to whom it was prescribed Sub-topic2. Mawägit (time and location) Sub-topic3. Mannersand natureof the Ihrdm Sub-topic4. The Ihram and its relatedactivities Sub-topic5. The natureof the pilgrimageand enteringMakka Sub-topic6. Missingthe pilgrimageandbeing detained 49The following list is 22 sub-topicsof the chapteron businesstransactions; Sub-topic1. Conditionsof businesstransactionsand thosewhich are forbidden Sub-topic2. Conditionalbargains Sub-topic3. Usury Sub-topic4. Permissionregardingthe saleof al °Aräyd and the saleof trees and fruits Sub-topic5. Paymentin advance,loansand pledges Sub-topic6. Bankruptcyand seizure Sub-topic7. Reconciliation Sub-topic8. The transferof a debt and surety Sub-topic9. Partnershipand agency Sub-topic10. Confession Sub-topic11.al-'Aariya (the loan) Sub-topic12. Wrongful appropriation Sub-topic13. Option to buy neighbouringproperty Sub-topic14.al-Qird4 Sub-topic15. al-Musaqat and al-Ijara (tendingpalm-treesandwages) Sub-topic16. The cultivation of barrenlands Sub-topic17. Endowment Sub-topic18. Gifts, life-tenancy,and giving property which goesto the survivor Sub-topic19.Lost andfound items Sub-topic20. Bequests Sub-topic21. Wills and testaments

154

`Marriage'has 14 sub-topics50,although 31 alzddith within these are nonfor logical A be motivation categories. arrangement would sub-topics such as 53, dowryss the the the marriage51,choosinga wife52, engagement54, marriage sermon conditions of marriage56and the temporary marriage57. Sub-topic22. Trusts soThe following list is 14 sub-topicsof the chapteron marriage; Sub-topic1. Equality in marriageandright of choice Sub-topic2. Relationswith wives Sub-topic3. Thejointure (Mahr) Sub-topic4. The weddingfeast Sub-topic5. Division of visits to eachwife Sub-topic6. Separatingfrom a wife and compensation Sub-topic7. Divorce Sub-topic8. Al Raja Sub-topic9. Al-'lyla', al-Zihar andal-Kaffara Sub-topic10. Invoking curses Sub-topic11.Al-'Iddah, al Ihdad, Al-Istibra, and other pertainingmatters Sub-topic12.Al-Rida' Sub-topic13.Maintenance Sub-topic14. Guardianship sl The exemplifiedIladith as follows; `Narrated(Aras bin Malik) r.a.: Allah's Messengers.a.w usedto commandus to marry and forbid severelycelibacyand say,"Marry womenwho are very prolific and loving, for I shalloutnumber the Prophetsby you on the Day of Resurrection." [Reportedby Ahmad and Ibn Hibbangradedit Sahih).The aforesaidHadith hasan authority by Abu Dawud, al-Nasa'ieand Ibn Hibbanfrom Ma'qal bin Yassar's Iadith. SeeIbn Iiajar, Bulügh al Maräm, (no: 962&963) 52The exemplifiedIladiith as follows; 'Narrated Abu Huraira r. a.: The Prophet s.a.w said,"A woman maybe marriedfor four qualities,for her property,her rank, her beautyand her religion; so get the religious one and prosper." [Agreed upon;with the rest of al-Sab°a]. Ibid, (no: 964) 53The exemplifiedIladith as follows; 'Narrated 'Abdullah bin Mas'ud r.a.: Allah's Messengers.a.w taught us al-Tashahhüdin caseof someneed,which is: "Praiseis due to Allah Whom we praiseand from Whom we ask help and pardon.We seekrefuge in Allah from the evils within ourselves.He whom Allah guideshasno onewho canlead him astray,and he whom He leadsastrayhasno one to guide him. I testify that " And recited thereis no god but Allah, and I testify that Muhammadis His slaveandMessenger. threeverses.[Reportedby Ahmad and al Arbd°a; al-Tinmidhiand al-Hakim gradedit Hasan]. Ibici, (no: 966) saThe exemplifiedHadiith as follows; 'NarratedIbn'Umar r.a. Allah's Messengers.a.w said,"One of you must not ask a woman in marriagewhenhis brother has done so already,until the suitor giver her up beforehim or gives

155

This chapterthen leads into that on `offences' consisting of 46 aliädith within 4 sub-topics; i. e., types of blood money, accusationsof murder and taking oaths, killing of transgressorsand fighting againstoffenders and killing apostates.Here, the 16 ahädith which are non-categories could be arranged into sub-topics such as Q4dc58,rulings on offences59and reconciliation in QiW o him permission. "[Agreed upon. The versionis of al-Bukhän]. Ibid, (no: 971) ssThe exemplifiedHadith as follows; `Abü Däwüd reportedthis Hadith from Abu Huraira r.a.: He asked,"What do you memorize?" He replied, "Sura al-Baqara and the onethat follows it." He then said,"Get up and teachher twenty verses." Ibid, (no: 972) 56The exemplifiedHadith as follows; `NarratedAbu Burda bin Abu Musa on the authority of his father; Allah's Messengers.a.w said, "There is no marriagewithout a guardian." [Ahmad and al Arbd°a reportedit; Ibn al-Madini, al-Tirmidhi and Ibn IHibbängradedit $ahih, but it was regardeddefectivefor beingMursal]'. Ibid, (no: 975,976) s' The exemplifiedHadith asfollows; `Narrated`Ali r. a.: Allah's Messengers.a.w forbadethe temporarymarriagein the year of Khaibar. [Agreedupon]'. Ibid, (no: 991) 58The laws of equalityin punishmentfor wounds etc. in retaliation.The exemplifiedJIadith on this regard asfollows; `NarratedIbn Masud r.a.: Allah's Messengers.a.w said,"The blood of a Muslim who testifiesthat, `thereis no god but Allah andthat I am Allah's Messenger'may not be lawfully shedbut for one three reasons:a marriedmanwho commitsfornication; a life for a life; and one who turns away from his religion and abandonsthe community." [Agreed upon].' Ibid, (no: 1156) 59The exemplifiedIladith asfollows; 'Narrated Samurar.a.: Allah's Messengersaid,"If anyonekills his slavewe will kill him, and if anyonemaimshis slavewe will maim him." [Reportedby Ahmad andal Arba'a; al-Tirmidhi gradedit Hasan, and it is from Hasanal-Basri's version on the authority of Samura,but it was disagreedupon whether he hasheardfrom Samuraor not]. ' Ibid, (no: 1159) 60The exemplifiedHactth as follows; 'NarratedAnasr.a. : al-Rubaiyi' daughterof al-Nadr his paternalaunt broke the front tooth of a girl andthey (the peopleof al-Rubaiyi') askedthe girl's peopleto pardonher, but they refused; then they offered a fine, but they refused,and they went to Allah's Messengers.a.w but they refused anyoffer but retaliation. So Allah's Messengers.a.w orderedretaliationto be taken. Then Anasbin al-Nadrsaid,"0 Allah's Messenger,will the front tooth of al-Rubaiyibe broken?No, by Him Who hassentyou with the Truth, her front tooth will not be broken." Allah's Messengers.a.w then replied,"0 Anas,Allah's Decreeis retaliation." But the peopleagreedto pardon her, so Allah's Messengers.a.w said,"Among Allah's slavesare thosewho, if one adjuredAllah, He would Consentto it." [Agreed upon; the wording being of al-Bukhäri]'.

156

`Offences' then into connectswith `prescribedpenalties' which has 56 aliädith divided into 4 sub-topics;i. e., prescribedpunishmentfor committing fornication, for foul accusation,for theft and for drinking of alcohol, followed by explanation of the terms `intoxication' and flogging and ordinancesregardingassailants.

The discussionforum on `Jihäd' then follows consisting of 62 aliddith, which incorporate 2 sub-topics; i. e., head tax and truce, and racing and shooting. The 43 in be which ahädith are non-categoriescould perhaps arranged sub-topics such as hostages Jihäd6l, and the war methods of war63, obligatory categories of war62, Jihäd as its appliesto women65

Ibici, (Hadth: 1168) 61The exemplifiedHadith as follows; `NarratedAbu Huraira r.a: Allah's Messengers.a.w said,"He who dieswithout having goneor ' by Muslim]. [Reported kind hypocrisy. " die for Jihad thought of going out of guilty of a will Ibid, (no: 1258) 62The exemplifiedIiadith as follows; `NarratedAnasr.a.: The Prophet s.a.w said,"Use your property, your selvesandyour tonguesin ' it Sahih]. it; Al-Hakim " [Ahmad graded and al-Nasa'iereported striving againstthe polytheists. Ibid, (no: 1259) 63The exemplifiedHadith as follows; 'Narrated Sulaimanbin Buraida on his father's authority (from `Aishar.a.): WheneverAllah's Messengers.a.w appointeda commanderover an army or a Sariya, he instructedhim to fearAllah Himself andconsiderthe welfare of the Muslims who were with him. He then usedto say,"Go out For Jihad in Allah's Name in Allah's Path and fight with thosewho disbelievein Allah. Go out for Jihad anddo not indulge in Ghulu (stealingthe war booty before its distribution), or be treacherous, to them kill When the summon or mutilateanyone,or a child. polytheists, you meetyour enemyCall leave them threethings,and acceptwhicheverof them they are willing to agreeto, and alone: themto Islam, and if they agreeacceptit from them, and summonthem to leavetheir abodesand transferto the abodeof al-Muhajirin (the Emigrants).But if they refuse,then tell them they will be like the desertArab Muslims, thus they will haveno Ghanima or Fai' unlessthey participatein the Jihad with the Muslims. If they refuseIslam, demandthe Jizya from them. If they refuseseekAllah the Most High's help againstthem and fight with them.When you besiegea fortress, andits people wish you to grant them the protection of Allah andHis Prophet,grant them neitherbut grant them Allah it is break for less that break than to of your protection, seriousto your guaranteeof protection And if they offer to capitulateand havethe matter referredto Allah's judgement,do not grant this, but let themhavethe matter referredto your judgement,for you do not know wheteheror not you will concurwith Allah the Most High's Judgementregardingthem." [Muslim reported it]. ' Ibici, (no: 1268)

157

The chapteron `foods' which follows has 41 aliädith and 3 sub-topicswithin these; i. e., hunting and animals which may be slaughtered,sacrifices and al 'agiqa. The 12 alzddith which are found as non-categoriesin this chapter could be divided into 2 supplementarysub-topics; i. e., food which are suitable or unsuitable67for human consumption.

`Oaths and vows' then follows, with 22 aliddith (here without sub-topics) leading to the doorway into `judgement'. This consists of 36 altädith divided into 2 i. 13 For the testimonies, ahildith sub-topics; e., and claims and related evidence. which remain as non-categories,new sub-topics are suggestedsuch as the specific judge68, the legal reasoning of judges69and the suitability of women as role of judges70.

64The exemplifiedHadith as follows; 'Narrated'Imran bin Hussainr. a.: Allah's Messengers.a.w exchangedtwo Muslim men from captivity with a Mushrik man." [Al-Tirmidhi reportedit, he gradedit $ajdh (sound).Its origin is in $ahih Muslim].' Ibid, (no: 1284)

65Theexemplified liad 1h asfollows;

'Narrated'Aisha r.a.: I said,"0 Allah's Messenger,is Jihad prescribedto women?" He replied, "Yes", a Jihad which is without fighting; it is the pilgrimage(Haj) andthe 'Umra', [Reportedby Ibn Majah andits origin is in $ahih al Bukhäri]'. Ibid, (no: 1260)

66Theexemplified Iladith asfollows;

'Narrated Ibn Abu Aufa r. a.: We went on sevenexpeditionswith Allah's Messengers.a.w andwe ate locuts. [Agreedupon]'. Ibid, (no: 1323) 67The exemplifiedHadith follows; as 'NarratedJabirr.a.: On the day of Khaibar, Allah's Messengers.a.w forbadethe flesh of domestic asses,but permittedhorse flesh. [Agreed upon]. A versionby al-Bukhari has:"He gavepermission". Ibid, (no: 1322) 68The exemplifiedHadith as follows; 'NarratedBuraidar.a. Allah's Messengers.a.w said:"Judgesare of three types,two of whom will go to Hell and oneto Paradise.The one who will go to Paradiseis a manwho knows what is right and givesjudgementaccordingly;but a man who knows what is right and doesnor give judgement accordinglyandactsunjustly in his judgementwill go to Hell, and a manwho doesnot know what

158

`Emancipation' is next introduced with 19 aliädith consistingof only one subtopic; i. e., matters pertaining to Mudabbar, Mukätab and Umm al-Walad. Since 9 for the as priority are such non-categories,new sub-topics are suggested ahädith freedom of slaves7l, provisions for freeing slaves72,and wealth due to freed children73.

The final discussion forum is on `comprehensiveethics', with 132 ahädith integrating 6 sub-topics; i. e., good behaviour, kindness and joining the ties of relationship, ascetismand piety, cautioning againstmischievousconduct, exhortations to good character,remembranceof Allah and supplications.

is right andjudges peoplewith ignorancewill go to Hell." [Reportedby al Arba'a, and al-Hakim gradedit $ahih]'. Ibid, (no: 1383) 69The exemplifiedIladith as follows; 'Narrated `Amr bin al-'As r.a.: He heardAllah's Messengers.a.w says,"When a judge gives a ruling havingtried his bestto decidecorrectly and is right, he will havea doublereward; andwhen he givesa ruling havingtried his best to decidecorrectly and is wrong, he will havea singlereward" [Agreedupon]'.

Aid, (no: 1386) 70The exemplifiedIjactth as follows; `NarratedAbu Bakar r.a.: The Prophet s.a.w said,"A peoplewho make a womantheir ruler will neverprosper." [Reportedby al-Bukhari]'. Ibid, (no: 1395) 71 The exemplifiedIHadlthas follows; 'Narrated Abu Huraira r. a.: Allah's Messengers.a.w said,"If a Muslim man emancipatesa Muslim man,Allah will set free from Hell an organ of his body for every organ of his (the emancipated man'sbody)". [Agreed upon]'. Ibid, (no: 1419-1421) 72The exemplifiediiadith as follows; `NarratedSafinar.a.: I was a slaveof Umm Salamar.a., and shesaid,"I shall emancipateyou, but on conditionthat you serveAllah's Messengers.a.w aslong as you live." [Reportedby Ahmad, Abu Dawud, al-Nasa'ieand al-Hakim].' Ibid, (no: 1428) 73The exemplifiedHadith as follows; 'Narrated `Aishar.a.: Allah's Messengers.a.w said,"The right of inheritancefrom an emancipated slavebelongsto the one who set him free." [Agreed upon, in a long Hadith]. ' Ibid, (no: 1429)

159

The significant question addressedthroughout this chapter,then, has been that of `selection'. That is, in selecting specific topics and sub-topicsfrom the wealth of Islamic jurisprudence,Ibn IIajar al-°Asgalänihas clarified the order of priority for the basics of Islam. At the same time, he has introduced a standard compilation he for inclusion This in Uadt-th the achieves methodology one volume. of many through the metaphor of a `portal' or `doorway' leading through into a kind of discussionforum on a theme.

An important part of this method is its sheer economy.Not only an economy of selection,but also an economyof crossreferencingbetweenthis and other volumes of Hadith. That is the author of Bulügh al-Mardm' has coined specific terms to refer to specific groups of narrators, thus eliminating the need for elaborate individual

At the sametime, this extensivecross referencingmarks out acknowledgement. Bulügh al-Mardm as the most authentic compilation of Hadith in terms of authenticity.To a discussionof this the writer now turns.

5.4.3 The specific terms of reference sources

For the first ever in the scienceof HadUh,Bulügh al-Maräm initiates the specifictermsof referencesourcesfor the Hadith74.There are six specifictermsthat havebeenintroducedby the authorto demonstratethe referencesourcesfor most of the IHadithin Bulügh al-Maräm'. The six specific terms are al-Sabca,al-Silta, al-

74Suliaman,Op.cit.,p. 190.

160 Khamsa,al Arbaca, al-Thalatha, al-Muttafaq `alaih. In the introduction of his book, the author clarifies the significance of thesespecific terms as follows; `I haveindicated at the end of every Iladith, the Imam who collected it, in order to be honestto the (Muslims) Umma.And therefore,al-Sab/a (the Seven)standsfor Ahmad, al-Bukhäri, Muslim, AbU Däwüd, al-Nasä'i , al-Tirmidhi and Ibn Mäjah. AI-Sitta (the Six) standsfor the rest excluding Ahmad. Al-Khamsa (the Five) standsfor the rest except al-Bukhäri and Muslim or I may sayAl Arba`a (the Four) and Abmad. I meanby AI Arbaca (the Four) the rest except the first three (i. e. Ahmad, al-Bukhäri and Muslim), and by Al-Thalatha (the Three) I meanthe rest except the first three and the one. I meanby al-Muttafaq `alaih (the Agreed upon) al-Bukhäri and Muslim, and I might not mention with them anyoneelse and any other thing 75 is from theseclarifications clear'. apart

Importantly, eachterm showsthe referencesourcefor the Hadith and clarifies it level of authenticity of Hadith. For thesetwo reasons,the examination will be made in line in Hadith Bulügh al Mardm, as follows; term the each on which with

5.4.3.1Al-Sab`a

The term al-Sabrahas been used by the author to illustrate the reference sourcefor 10ahädithin Bulüghal-Maräm.In provisosof validity of the Hadith,the term al-Sabraverifies the most authenticitydue to the collectiveagreementbetween seven narrators i. e. Imam Alimad bin IIanbal, Bukhäri, Muslim, Abü Däwüd, al-

Tirmidhi, al-Nasä'i, Ibn Mäjah. There are two patterns of al-Sab°awhich are in Bulüghal-Maräm. established

The first patternis called as a definitive al-Saba. In terms of numbers,there are9 ähadithin this pattern,which canbe exemplifiedasoneof thembelow;

75Ibn Hajar,Bulügh Maräm, 3. al p.

161 `NarratedAnas r.a.: The Prophet s.a.w on entering the lavatory usedto say: "0 Allah, I seekrefuge with You from devils - males and females(or all offensive and wicked things, evil deedsand evil spirits, ect.)". [Reported by al-Sab`a]76. The second pattern is termed as indirect al-Sabra which indicates only one Hadith as follows; `Narrated`Ali r.a: At the battle of Khaibar, the Prophet s.a.w forbade the temporarymarriage of women, and eating the flesh of domestic asses.[AI-Saba exceptAbü Däwüd reportedit]. '" Although the above Hadith is referred to al-Saba, the author nevertheless be Abü Däwüd. In the to this made exception of reference provision can general, understoodthat without the reference to Abü Däwüd, it will therefore six narrators only for the Ijadith (al-Sitta). However, the author does mention in the above is the regarding quotation stand of al-Sitta for the rest of sevennarrators excluding

Ahmad.For this ground,the statementof 'al-Saba exceptAbü Däwüdreportedit' is not the sameasthe term al-Sitta.

5.4.3.2Al-Sitta

Accordingto Ibn Hajar al-°Asgaläni,the term al-Sitta is appliedto the Iadith , ' which is referred to the six narrators of Hadith i. e. al-Bukhäri, Muslim, Abü Däwüd,

al-Nasä'i, al-Tirmidhi and Ibn Mäjah. This term can be seenas the secondmost authenticityafter al-Sab`adue to the collective concurrencein terms of narration. However, none at all of the Hadith in Bulügh al-Maräm is referred to the term Al-

761bid, (no: 86) 771bid, (no: 992)

162 Sitta. At this stage,the author can be seenas ignoring to demonstratethe IHadith of alSitta althoughit is mentioned at a first place in his introduction.

5.4.3.3 Al-Khamsa

The term al-Khamsa meansthe narration of Uaath which is referred to the five narrators i. e. Ahmad, AbU Däwüd, al-Nasä'i, al-Tirmidhi and Ibn Mäjah. Two narrators are excluded in this term i. e. Bukhäri and Muslim. In terms of numbers, there are 60 altadith that are in line with the term al-Khamsa, which can be divided into 3 patternsas follows;

The first pattern is classified as definitive al-Khamsa which is exemplified in

the following HadTth; `Narrated(°Aisha) r.a.: When the Prophet s.a.w came out of the privy, he usedto say,"Ghufranaka (0 Allah! Grant me Your forgiveness)." [Reportedby al-Khamsa.AbU Ilätim and al-Hakim gradedit $alzili].i78

Thesecondpatternis indirectof al-Khamsathat is illustratedbelow; `Narrated°Aisha r.a.: The Prophet s.a.w said, "The prayer of a woman, who has reachedpuberty, is not acceptedunlessshe is wearing a Khimar (cover)." [Reportedby al-Khanna except al-Nasäi'e. And Ibn Khuzaima gradedit Sahih].'79

The third patternis basedon disapprovalal-Khamsaas demonstratedin the following instance: `Narrated(Abü Huraira) r.a.: Allah's Messengers.a.w said: "When the (month of) Sha°bänis halfway, do not fast." [Reportedby al-Khamsa. Ahmad disapprovedit]. '80 78Ibid, (no: 98) " Ibid, (no: 204) 8° Ibid, (no: 676)

163

5.4.3.4AI Arba`a

AI Arba`a is a term which has been used to indicate the ahädith that are Ibn Mäjah. four i. Abü Däwüd, to the and al-Tirmidhi al-Nasä'i, referred narrators e. In this term, three narrators are eliminated i. e. Ahmad, Bukhän and Muslim. For the term al Arbaca, there are 59 aliddith which are referred to and they are classified into two patternsas follows;

The first pattern is classified as definitive al Arba°a, which can be exemplified in the following Iladith; `NarratedJäbir r.a.: Allah's Messengers.a.w said, "If anyonesayswhen he hearsthe Adhän : `0 Allah! Lord of this perfect call and of the regular prayer which is going to be established!Kindly give Muhammad s.a.w. the right of intercessionand superiority, and sendhim (on the day of Judgement)to the best and the highest place in Paradisewhich You promisedhim', he will be " intercession. [Reportedby al Arba"a] '81 assuredof my The second pattern in based on indirect version of al Arba`a, as in the

following exemplar; `NarratedIbn °Abbasr. a.: The Prophet s.a.w usedto saybetweenthe two prostrations:"(0 Allah, forgive me, have mercy on me, guide me, heal me, and provide sustenancefor me)." [Reported by al Arba`a except al-Nasä'i, is this the version of Abü Däwüd and al-Hakim gradedit $aldlj]. '82 and

5.4.3.5Al-Thalätha

For the author,the term al-Thaläthameansthe Hadith which is referredto the three narrators i.e. Abü Däwüd, al-Nasä'i and al-Tirmldhi. Four narrators are 11Ibid, (no: 202) 82Aid, (no: 299)

164 disregardedin this term i. e. Ahmad, Bukhän, Muslim and Ibn Mäjah. There are 14 allädith which are in accordancewith the term al-Thaldtha that has one pattern only in terms of narration. The pattern is called as definitive al-Thalätha which is exemplified as follows; `Narrated AbU Said al-Khudri r. a.: Allah's Messenger s.a.w said, "Water is pure and nothing can make it impure. " [Reported by al-Thaldtha, and Abmad 83 it, ' graded Sahih].

5.4.3.6al-Muttafaq `alaih

The term al-Muttafaq calaih means the reference source for the Uadith is agreedupon only by the two most respectedscholars i. e al-Bukhäri and Muslim. The Hadith which is referred to this term is juristically considered the most authentic Hadith. In the book of Bulügh al-Maräm, there are 435 aliddith which are in line with the term al-Muttafaq °alaih.

In terms of pattern, there is only one pattern in the term al-Muttafaq `alaih

is which exemplifiedas follows; `NarratedHudhaifa bin al-Yaman r.a.: Allah's Messengers.a.w said, "Do not drink in silver or gold utensils, and do not eat in plates of suchmetals, for suchthings are for them (the disbelievers) in this worldly life and for you in the Hereafter." [Agreed upon].)84

Apart from the term al-Muttafaq`alaih, the authorregularlyreferseitherto al-Bukhäri or Muslim in separateterm, which demonstratesbelow; `Bukhäri's version adds:"Then perform ablutions for every prayer".85 `In the version of Muslim: "I usedto scrapeit (the semen)off the garment of Allah's Messengers.a.w and then he offered prayer with it" 86 831bid, (no: 2) 84lbid., (no: 14) g5Aid, (no: 66)

165 The coining of the six specific terms in line with the referencing across all important books of Hadith can be stated conclusively as the remarkable compilation have terms Bulügh Importantly, these six specific methodologyof some of al-Maräm. been referred and utilized by many latter jurists in their books particularly in terms of book be the Iladith. It that therefore concluded referencingacrossall volume of will of Bulügh al-Maräm can be considereda first model of concisebook of Uadith which hasbeen followed by many other books later on.

5.5 Summary

This chapterjuristically shows the author's biography of Bulügh al-Maräm and more importantly the significance and featuresin which the book is consideredas a concise book of Hadith. The analytical approach has been applied to examine the

threeauthenticitylevels of Hadith i. e. ýa1dli,HasanandDa`if. As a result,the book of Bulügh al-Maräm authentically consists of 77.6% ,Saldli, 16.08% Hasan and 6.29% Daif. These figures of percentage-wiseprove the quality and significance of

Bulügh al-Maräm as the importancereferencesourcefor Islamic legal texts of the Hadith.

The examination of compilation methodology of Bulfigh al-Maräm academicallyverifies a definingapproachwithin threemain elementsi.e. numbersof Hadith, arrangementof chapters and sub-topics and specific terms of crossreferencing.Moreover, this pattern of compilation methodology has been followed by many later jurists as a benchmark approachto compile the legal texts of Ijadth.

86lbid, (no: 25)

166

To further analysisof Bulügh al-Mardm, the next part C will examinethe legal texts of IHadith in the framework of juristic concept of al-Maýlaha wa al-Nag. This analysepart will explore conceptually the significance of public interest through the Islamic legal texts of Uadlth. To a discussionof this the writer now turns.

167 PART C ANALYSIS OF THE HADITH Introduction to Part C The Ahddith of Bülügh al-Mardm have been analysedand commentedupon by many jurists. Muhammad RashadKhalifa, ' for example, statesthat there are at least seven jurists who undertookthis task. The most well-known of theseis al-Imäm Muhammad b. Ismäil al-San°äni (d.1182H), who entitles his book Subul al-Saläm. The six (al(d. 1119H), Sharfuddin include jurists works whose al-Husein al-Qäcli remaining Badr al-Tamam) were written in manuscript, al-Sheikh Abü al-Khayr Mir al-Hasan Khan, who wrote a commentary of Bülügh al-Maräm (Fatly al °Alläm) and al°Alläma Abü 'L'aib $adiq HassanKhan, whose analysesof the Ahädith of Bfilügh alMaräm were written (interestingly) in Persian.As yet, there is no known title for this later work. al°Alläma Ahmad Ijasan al-Dahläwi has produced two volumes of Muntakhab, while other commentatorsare al-Sheikh Mut ammad °Abidin Al mad alAnýäri (d.1257H) and al-Sheikh Muhammad °Ali Ahmad, lecturer in UUüluddinat alAzhär University, for whose works there is also no title, perhapsdue to unavailable or unpublishedmaterial.

Significantly, these sevenbooks mostly have a very similar pattern in terms of definitions instance, into falls For Subul three parts: analytical methodology. al-Salim of terminologies used in the Uadith, followed by a biography of each narrator, then juristic discussionon Islamic rulings contained therein. This threeconcluding with a part pattern can be classified as the classical approach

1Khalifa,Madrasa, v.2, p.202

168 Methodology of Analysis

In part C, the writer will apply the contemporary approach to analyse the Allädith in Bülügh al-Maräm, particularly that chaptertermedKitdb al-Buyuc,because of its central importance to the focus of the present study. Nevertheless, those classical commentaries already discussed will be referred to in this analysis, particularly the book of Subul al-Saläm, written by al-$ancani.The contemporary

approachsuggesteddiffers from the traditional method in that the conceptof alMaflaha wa al-Nash will be applied to this analysis. That is, the Hadith will be examined through the `juristic themes' as set out in the book of Bülügh al-Maräm. This examination aims to pinpoint the significant principles of public interest (Ma. laha) which emergefrom the Islamic rulings enclosedwithin it.

More specifically,theseprincipleswill be determinedthroughthe processof ratiocination(Tacit!alAhkäm). That is, the examinationwill focus on the effective causesof Islamicrulings,applyingboth linguistic andinductivemethods,followedby simpleandconciseelaboration.

In other words, this section will analyse the objectives of Islamic rulings as

laid down in the AllädTthof al-BuyTI'in Büliüghal-Maräm For example,in the sub . topic of `usury',the discussionwill single'out thoseobjectiveswhich are in line with the concept of public interest (Maýlajta). Each Hädith in turn will then be scrutinised for those rulings and teachings which are in accordancewith the principle of public interest (Maýlaha). In order to do so, the process of ratiocination (Taflil al Ahkäm) identify be to the main objectives of Islamic law, also termed in Islamic will applied

169 jurisprudenceMagd$id al-Shari a. For somejurists, these objectives are synonymous with the term hikma, the wisdom of the Divine Commandments.To this analysis, the writer now turns.

170 CHAPTER SIX KITAB AL-BUY(f : APPLICATION OF THE CONCEPT OF ALMA, LAIIA WA AL-NAFF TO THE A. JÄDITH OF AL-BUY(f 6.0 Introduction

This chapter forms the heart of the present study, building a specific (alin legal interest juristic framework texts the methodology within of public Maclaha wa al-Nass) for the analysis of Kitäb al-BuyüCaccording to the practical principles drawn up from the 22 juristic `themes' or sub topics therein. The processof law is identify Islamic (tadlil to the of applied ratiocination main objectives al-ahkäm)

in Kitäb al-&04'. set out as

Prior to this analysis, the definition and significance of al-Buyi

be will

its both justifying first this the topic the of sub chapter,with aim of examinedas inclusion and the way in which rulings and teachings are set out in accordancewith the juristic principle of public interest (al-Ma. lalia wa al-Nag). In addition, juristic

featuresof the Addi-th from eachsubtopic of al-Buyi will be highlightedto verify their authenticity .

6.1 Definition and Significance of al-Buyuc

In termsof a literal definition,the book of Subulal-Salämdefinesthe termalBuyüY(sing.al-Bay") as (tamlik mal bi-mal) or `conveyancingproperty by property"

where the term `conveyancing'is translatedfrom the Arabic `tamlik'. In the alMawrid dictionary, the term tamlik is translated literally as `investmentwith 1al-San°äni,Subül,v.2,p.449

171 (of in (of transfer property), ownership, putting possession ownership), conveyance its demonstrates delivery alienation, making over, assignment, and cession'2,which strong connection with the subject of property. As further verification of this strong link, Collins Cobuild Learner's Dictionary defines conveyancing as `the process of transferring the legal ownership of property'3, which underlines the sense of `ownershipof property' to which the term tamlik refers.

In the English language,the term al-Buyu' (sing.al-Bay`) translatesin several `the is defined in is for Rayner4, this the term contract as where ways; seen, example, of sale' in a comprehensive discussion in the chapter entitled `The Theory of Contractsin Islamic law'. Kitäb al-Buyu' is thus translatedby Rayner as `Chapter on Sales'. Interestingly, however, scholars do translate this differently. The English translation for the book of Bulügh al-Maräm, as a further example, defines Kitäb al-

Buyuf as `The Book of BusinessTransactions'.At this stage,the term al-Buyii business book. is Kitab literally transaction the term the translated means and as

Selectingan accuratetranslationfor the two terms discussedis thus not an in listed However, business task. the types transaction easy view of numerous of in heading it is the topic within eachsub under of al-Buyü , clearly preferable the contextof this studyto choosethe term `businesstransactions'ratherthan `sales'.As for the term Kitab, althoughthe meaninghere is literally `the book', to translateas `the book of businesstransactionsin the book of Bulügh al-Maräm' nevertheless seemsstrange.For this reason,`chapter' is preferredto `book' for the term Kitäb.

2 al-Ba°albaki, Mawri4p. 372. al 3 Cobuild,Learner's Dictionary, 239. p. 4 Rayner,The Theory,p. 103-143.

172 Accordingly, from hereon `chapter on businesstransactions' will refer specifically to Kitäb al-Buyuf.

In juristic terminology, the term al-Buyuc is defined as `offer and acceptance include does however, two types transaction this type not on of property'; of donations or gifts, and specifically excludes the context of `dealing and giving'5. Elsewherethe term al-BuyüCis defined as the `exchange' of property (as against`offer

for both donations Importantly `giving'6. and acceptance')which also excludes and this study, the first of these definitions (the condition of `offer and acceptance')is in line with the principle laid down in the Qur'an which insists on `mutual consent' as a fundamental ethic when engaging in trading or in business transactions7. The interpreting definition Islamic the thus preferred embodies a classic principle when term al-Buyü, on which manyjurists are in agreement8.

Furthermore,manyjurists agreethat the principle of `offer and acceptance' fundamental the ethic of mutual consentas applied to the contract of al-BWf within

is equallyapplicableto other contracts,particularlythosein areassuchas marriage, family, descendants, finance and court judgements9,as arguedfor exampleby In °Ashür10. The main objectiveof this legal principle is thus to preservethe rights of interestedpartiesinvolvedin any contractor transaction.It is for this reasonthat the sectionconcerning al-Buyu' is chosenfor analysis,since it embodiesa vital legal principle (that of `mutual consent') laid down between contracting parties. 3 Op.cit., al-San°äni,p.449. 61bid Allah s.w.t says;`O you who believe! Eat not up your property amongyourselvesunjustly except it be a trade amongstyou, by mutual consent.(Al-Nisa': 29). 8 al-Jaziri,Kitäb al-Figh,v.2, 147. p. 9Ibid 10Ibn °Ashhir,Magdsid,p.302.

173

This view is upheld by the book of Subul al-Saläm as the definitive textual is importance for Alzädith Bulügh Maräm, the the of al-BuyüY analysis of where al highlighted as forming a fundamental part of human life. For al-$an°äni, business transactions act as a medium through which human objectives are legitimately into in incorporated In this attained other words, a straightforward manner". important areaof human activity are principles and methodsfor businesstransactions as laid down by the Prophet s.a.w in many authentic Altädith, with the objective of humanity dealing in business legally transactions12. towards guiding uprightly and These significant principles of business transactions will thus now be further discussedwithin the framework of juristic concept of al-Ma. lalia wa al-Nall.

6.2 Chapter on BusinessTransactions

In the book of Bulügh al Maräm, the chapter on businesstransactions is the largest compared with others, particularly in terms of sub topics. There are 22 sub topics, including specific numbers of the Aliäth

business follows; conditions of as

transactionsand thosewhich are forbidden (44 alt dith); options of transaction(3 CAräyü (17 the ahädith);usury alaädith);permissionregarding saleof al andthe sale fruits (7 ahädith);paymentin advance,loansand pledges(8 aliddith); trees of and bankruptcyandseizure(8 al:ädith); reconciliation(3 aliädith); the transferof a debt andsurety(4 aliddith); partnershipand agency(8 aluädith); confession(1 aliddith); loan (4 allädith); al-Ghasb (5 aliädith); option to buy neighbouring property (5

ahädith);al-Qiräd (2 ahädith),tendingpalm-treesandwages(9aliädith), developing 11al-San°äni,Subul,v.3,p.3-4 12Ibid

174 barren lands (9 ahädith); endowments (3 ahädith), gifts, life-tenancies and giving property for the recipient's life time (11 aliädith); lost and found items (6 ahädith); sharesof inheritance (13 aliädith); wills and testaments (5 aliädith) and trusts (1 aliädTth).

175 6.2.1 Conditions of businesstransactions and those which are forbidden As the first sub topic in the chapter on al-Buyuf or businesstransactions,this is the largest sub topic becauseits consistsof 44 Aliddith that are encompassed37 $alii z,4 Hasan and 3 Datif. In terms of reference, this sub topic is referred to authentic (narrated 18 Bukhäri (narrated Alzädlth), Hadith Ahmad 14 the narratorsof such as Ahddith), Muslim (narrated 18AhäaCth),Abü Däwüd (narrated 11Alaädith),al-Nasä'i (narrated 9 Aladdith), al-Tirmidhi (narrated 10 Aliddith), Ibn Majah (narrated 10 Ahädith), and others' (narrated 16Aliädith).

This sub topic hastwo interrelated main points to highlight i. e. i) conditions of businesstransactionsii) those which are forbidden to deal in businesstransactions. There are 35 Ahädith in line with the conditions of business transactions and 9 Ahädith in connection with the particular items which are forbidden to deal with

businesstransactions. However,the former andthe latter areinterrelatedto eachother in specific topic.

To begin with, those 35 Aliädith in conjunction with the conditions of business

be transactions will examinedwithin the frameworkof juristic conceptof al-Maylalia wa al-Nass.

The first Hadith that in line with the conditions of businesstransactions his best i. two types that the emphasises on of work are earning e. a mans'swork with

1 In this chapter, the term `others' is referred to scholars of «adith such as Mälil, al-Shäfi`i, Abil Hätim, Ibn Khuzaimah,Ibn Hibbän and al-Häkim.

176 hand and every businesstransaction which is approved2.For a1-$an°äni3, this Hadith is a proof on the reward of the effort of work. Since there are only two types of work laid down in the Hadith, somejurists differ to interpret a type of profitable work and to determinewhich is the best one. For al-Mawardi, a type of profitable work refers to farming, businessand manufacturing. At this stage,al-Nawäwi highlights farming is the best profitable work becauseit would gain a senseof reliance to Allah almighty. However, Shäfi°i's scholarsprefer businessas a profitable work comparedwith the juristic is be These that a practical work understood simply others4. argumentscan is best The to either physical work or of practical work cause gain profitable. business.In line with juristic concept of Mallalza or public interest, both physical for benefit life humanity. In business the terms of profitable of would work and humanity, businessis the best becauseof its feature that can be related to many areas industrial business business, business, and so on. educational as such agricultural

However,thosetypes of businessmust in line with Islamic principle that aims to been has buyer. both This the condition parties either seller or preserve right of in Hadith by Prophet third the the s. a. w of this sub topic. underlined

In the third IHadith,theProphets.a.w underlinesa solutionfor two peoplewho between business disagree is transaction to there arearranginga and no proof arbitrate them,the seller'sword is final, or they may breakthe deals.For the authorof Subul al-Saläm,this Hadith is a proof to endorsethe authorityand right of seller eitherto 2 1) NarratedRifä-°b. Räfi°'. At +1-j: The Prophet tLi was asked,'What type of earning is best?' He replied, "A man'swork with his hand and every businesstransactionwhich is approved." (Reportedby al-Bazzär;al-I3äkimgradedit $a1uüi(sound)). 3 al-$an°äni,Subul,v.2,p.452. 4Ibid, 3 3) Narrated Ibn Masud eLj 1r At "When heard two I Allah's Messenger 446 'uj: saying, ß, people who are arranging a businesstransaction disagreeand there is no proof to arbitrate between them, the seller'sword is final, or they may break the deal." (Reported by al-Khamsa and validatedby al-Hakim).

177 disagreement deal break in for the transaction as persist or a particular reason such in interest buyer6. is in the This line the which public of with concept provision with his is damage from loss wealth or property. of right of ownership preserved and Furthermore, in the case of disagreement between seller and buyer, the Islamic for both justice be to and right gain principle of claims and proofs must applied lies `the is in line This Uadith Prophet the the on the proof s.a.w, parties. of with juristic The be by him taken the the claim'7. plaintiff and oath must who rejects in justice for both in lVadi-th this are parties who and right clearly provides principle disagreementby proving the proof for plaintiff and confessingthe oath for defendant. This juristic principle is in line with the basic fundamentalnecessityof public interest in Islam whereby the preservation of wealth is undertaken by implementing the business for justice both the and right parties who are engaging principle of transaction.

Within the fifth Iadith of this sub topic, the Prophet s.a.w demonstrateshow to deal with a sale that binds within the condition of al-Istithnä' or exception. In the fifth Hadith, the Prophet s.a.w has returned the camel and its price of which he bought from the buyer who gave a condition in the transaction that the camel should be home8. jurists it his In Hadith, Muslim to to the this allowed ride examination of

6 Op.cit., al-$an°äni, 2, 457. v. p. 60 a-

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8 5) NarratedJabir b. Abdullah 1-+IrýAl J: I was travelling on a camelof my own which had grown jaded and I intendedto let it off. The Prophet for AI followed 44me and madesupplication tUi me and struck it, then it went as it had never done before. He then said, "Sell it to me for one Uqiya." I replied, "No." He again said, "Sell it to me." So I sold it to him for one Uqiya, but conditionedthat I shouldbe allowed to ride it to home. Then when I reached(home), I took the camelto him and he paid me its price in ready money. I then went back and he sent someoneafter me. (When I came),he said, "Do you think that I askedyou to reduce the value of your camel'sprice to take it? Take your camel andyour coins;for it is yours." (Agreed upon; and this is Muslim's version).

178 differ on the legality of condition of al-Istithnä' that includes in the contract of sale. For Imäm Abmad and Mälik, the contract is legal and valid if the buyer knows clearly on the condition of al-Istithnd' that is dealt with9. However, mostjurists of Shäfi°i and Hanafi reject the contract that binds with the condition of al-Istithnä' due to its uncertain and doubt10.This Hadith and its rulings form a legal choice for the buyer either to proceedthe transactionwith the knowledge of the condition of al-Istithnä' or to cancel this type of transaction. In line with the concept of public interest, either

seller or buyerwould havea legal choiceof transactionthat dealswith this type of contract.

In dealing with the buyer of sale, the sixth Hadith11 of the Prophet s.a.w underlines a bankcruptcy is a particular characteristic of buyer that is not allowed to invole in the sale12.However, a leader or government of state can be appointed as a

for a bankcruptcyin dealingfor any transaction.It is obviousthat the representative behind this is to preservethe interest of seller from loss in the transaction with reason a bankruptcy buyer. A detail discussion on this regard and its connection with the conceptof public interest will take place in the sub topic six.

The seventh,eighth and ninth Hadith in this sub topic deal with the topic of

animalsin connectionwith food andbusinesstransaction.In the seventh"andeighth

9 al-$an'ani,Subul,v.2,p.459. 'o Ibid 116) Narrated (Jäbir bin Abdullah)1. x. Al be A declared his that a would man us slave own -a. of of free after his death,but he had no other property. The Prophet AI him for AAand sold sent ] Ulhim. (Agreedupon). 12al-$an`ani,Subul,v.2,p.461. 137) NarratedMaimuna4c 4 Al m: A mousefell into some the wife of the Prophet rl-A .,, eLi Prophet q gheeand died. The r- Al L l- was askedabout it and he replied, "Throw it and what is surroundingit away and eat it (the ghee)." (Reported by al-Bukhäri; A$mad and al-Nasal added:"into a solid ghee.")

179 Iladith, both discussthe mousethat falls into gheewhich is solid, must be thrown and what is surrounding it away; but if it is in a liquid state do not go near it. In connectionwith the chapter on al-Buyuc or businesstransactions,these two aliädith have no significant at all. In the analysis of these two ahdaCth,the book Subul alSaläm has no elaboration that relates'to the topic on al-Buyü However, al-$an°ani . doesrelate the seventhHadith to the juristic concept of public interest.For al-$an°ani, this Hadith emphasiseson the application of attaining benefit for humanity in caseif a solid ghee is entered by a mouse, thus, the mouse should be thrown and what is surroundingit away. Accordingly, the solid ghee is safety to eat. However, the eight Iladith underlines the application of avoiding harmful to humanity whenever the Prophets.a.w disallows to eat a liquid gheeif it is enteredby a mouse1s

Many jurists discussboth aliäcith in reasonablechapters such as chapter on

food and chapteron purification.None of primary sourcesfor the book of Hadith book in in Hadith16 the the the of arranges aforementioned chapter on al-Buyü except

Bulügh al-Maräm. Only Ibn Hajar al°Asgaläni as an author could give reasonable reasonson why both seventh and eight ahädith are arranged in the chapter on alBuyuc.

148) NarratedAb« Huraira Al uX Allah's Messenger ., into lc, falls "If said, a mouse 91gheewhich is solid, throw the mouseand what is surroundingit away; but if it is in a liquid state do not go near it. " (Abmad and Abü Däw«d reported it; al-Bukhäri and Abii Hätim ruled it to be misconceived). is al-$an°äni,Subul,v.2, 461. p. 16The aforementionedHadith has been arranged by al-Tirmidhi, Ab« Däwud and al-Därimi in the chapteron food. Al-Därimi also categorisesthis Hadith in the book on purification (831).

180 In the ninth IHadith17,a topic on cats and dogs have been highlighted by the Prophet s.a.w by which it is not allowed to sale except for domestic purposesuch as hunting and the like. Somejurists such as Abü Hurairah, Täwüs andMujähid statethe in fourth19 Hadith is forbidden'8. dog The for encompasses also or cat selling ruling for domestic both is it jurists to However, this regard. permissible sale most agreethat is in line the hunting This principle of with ruling guarding20. and reason such as juristic concept of public interest in which the interest of humanity is preservedand the benefit of animals are utilised for sensiblereasons.

Further discussion on the preservation of the life of humanity has been detailed within six-separatedAliädith but interrealatedto eachother regardingspecific topic on the sale of slave.Thesesix Allädith are the tenth, eleventh,twelfth, sixteenth,

thirtieth andthirty-first.

Prior to the prohibition of slave in Islam, those four A10dith discuss on the legitimacy The Hadith21 tenth the the of recorded or rules slave. sale of condition of 179) NarratedAbi3Zubair' $cj: I askedJäbir (k Al Le;-J) about the paymentfor cats and dogs Lu 4 Al he "The Prophet A-. rebuked that." (Reported by Muslim and al-Nasä'i; the and replied, latter added:"excepta hunting dog.") 18al-$an°äni,Subul,v.2,p.464 194) Narrated Abü Mas°üd al-An1äri L Aº'j: Allah's Messenger 4l Al ,L- prohibited the ,, (Agreed " for dog, to to the the soothsayer. gift given a price paid a paymentmade a prostitute, and uon).

20Ibid

21 10) Narrated °Aisha 4kc-Al freedom buy had her "I Baraa to to my arranged and said, came j: for nine Uqiya; one to be paid annually, so help me." °A'isha 4.'---Al Lj replied, "If your people are do I inherit from I have I that them the to shall to them, you, should count right willing out and shall back her " it, Barira but When to the told they came them about she offer. so. people and went refused but Allah'sMessenger (, u446Al "I they house). She (in them, to that the said, offered was sitting Al insistedthat the right to inherit from me shouldbe theirs." The Prophet heard that and A46 . °A'isha 4:- Al "Take her on the condition that told him about it, so he saidto °A'isha t Al -) the right to inherit from her will be yours, for the right of inheritancebelongs only to the one who has Al did so. Allah's Messenger ý-,, then among set a slavefree." °A'Isha 4k,- Al uj up stood ulthe people, and after praising and extolling Allah, he said, "To proceed;what is the matter with some in is Any Book? in High Allah's Most men who make conditions which are not condition which not Allah's Book is worthless. Even if there are a hundred conditions, Allah's Decision is more valid and Allah's Condition is more binding. The right of inheritancebelongsonly to the one who has set a slave

181 For his for liberation by those to master. paying money of a slave written contract For Imam inheritance have for liberation the they slave. of right of of a slave, who pay Abmad and Mälik, this ruling is classified permissible if both parties satisfied on the it is for However, Abü Hanifa not permissible to sell a slave written contract22. becauseit would lose the ownership of master23.

Regardingthe right of inheritance of freed slave, in the sixteenth24Hadith, the Prophet s.a.w reminds that the inheritance is forbidden to be sold or gifted becauseby lineage. be learned its It that this stipulation was applied can part slave's analogy of inheritance freed time the that to of slave. of wealth preserve on

The specific discussion on ' selling a salve and its conditions has been In Ijadith. in terms twelW6, thirtieth27 thirty-first28 of the and prolonged eleventh25,

forbidden borne had Hadith the rulesas children, eleventh sellinga slavewomenwho For Hadith the the twelfth ruling of constitutes al-$an°äni, as permissible. whereas forbidden in the eleventh Hadith has been abrogated by the ruling in the twelfth free." (Agreed upon; the version is of al-Bukhari). A version by Muslim has: "Buy her, set her free and makethe stipulationthat the right to inherit from her will be yours." 22al-$an°ani,Subul,v.2,p.466-467. 23Ibid 2416) Narrated (Ibn 'Umar) At At forbade sellingor giving j Allah's Messenger ] awaythe right of inheritancefrom a freed slave.(Agreed upon). 2511) Narrated Ibn *Umar L At 'Umar (4-%r.ºI Le,;-J) forbade the saleof the slavewomenwho j: have given birth to children (of their owners) and said, "She is not to be sold, bestowed as a gift or inherited; but he (the owner) enjoys her as long as he lives and when he dies, she becomesfree." (Reportedby Malik and al-Bayhägi). 6 12) Narrated Jäbir At -j. We used to sell our slavewomenwho had borne children when the L,,: At Prophet ,4 was alive and he saw no harm in that. (Reportedby alNasä'i, Ibn Mäjah and al-DaraqutniandIbn Hibbän gradedit $alüh (sound)). 2730) Narrated Abu Ayyüb al-An4ari At , Lm saying, At I heard Allah's Messenger ] "If anyoneseparatesa mother from her child, Allah will separatehim from his beloved oneson the Day of Resurrection." (Reportedby Al}mad; al-Tirmidhi and al-Hakim gradedit $ahih (sound)). 2831) Narrated 'AH b. Aba Talib At to Allah's Messenger e4 me commanded u-. sell two youths who were brothers. I sold them and separatedbetweenthem. When I madementionof At back; do that to the Prophet them he "Find them them sell not j and get and said, out ul. m, but together." (Reported by Abmad) And the narrators of this version are reliable, and indeed Ibn Khuzaima,Ibn al-Järüd,Ibn IIibbän, al-Hakim, alTabarani and Ibn Qattängradedit $alüli (sound).

182 Iladith in which it is permissible to sell a slave women who had borne children. It suggeststhat this ruling would give freedom for a slave from slavery and he would gain the rights as humanity. However, in the thirtieth Iladith, the Prophet s.a.w rules that it is forbidden to separatea mother from her child in the caseof selling a slave women. The same principle applies into the thirty-first Hadith in which the Prophet s.a.w underlinesthe prohibited of selling separatelytwo slave youth of brotherhood. This ruling is applied on that time in order to preserve the lineage and humankind. The discussion on slavery transactions in this topic is changed into discussion on selling transactionthat regardson the significance of measurementand weighting of foods, or goods which takes place in the eighteenthHadith.

The condition of measurementand weighting of goodsor foods must be given by priority seller prior to the sale. This condition has been emphasisedby the Prophet

is in IIadith The the this topic. this s.a.w of sub condition to eighteenth29 purposeof give quality and quantity value of goodsor foods for purchaserin the sale. This juristic is in line the purpose with conceptof public interestin which the right of purchaseris preservedto buy the goods or foods with theirs quality as well as quantity. Furthermore, the Qur'an reminds the punishment in the Day of judgement for thosewho deal in fraudulent transactions3o.

29 18) Narrated (Abü Huraira) ' L,,:-j. Allah's Messenger fL u4 At jL- said, "If anyonebuys grainhe must not sell it till he weighs it. " (Reportedby Muslim). ° Allah s.w.t says; `Woe to Mu(affrfun (those al who give less in measureand weight). Those who, when they haveto receiveby measurefrom men, demandfull measure.And when they have to give by measureor weight to (other) men, give less than due. Do they not think that they will be resurrected (for reckoning),On a Great Day?'. (1-5 : Sura al Mulafffin).

183 In connection with fraudulent transactions, within the nineteenth31and twentieth32Hadth there are four types of fraudulent transactionsi. e. i) the condition iii) the transaction, loan ii) to two one conditions relating of a combined with a sale, is in iv) in is from not what selling something which not one's charge, profit arising fraudulent four transactions This types are of conditions or possession. one's four juristic types deal The these of to on reasons of prohibition with. prohibited transactionsbecausethe interrelated featuresto uncertainty conditions of contract that have four for These transactions loss damage no unlawful one party. may cause and its in fraudulent interest due to elements unfair and senseof preservationof public transactions.Furthermore,the Islamic transaction emphasiseson the condition of alQabd or certainty of delivery of good of purchasewithin the contract of sale. The third and fourth conditions of the above fraudulent transactionsclearly indicates the delivery or of good of purchase. certainty absenceof al-Qabd

The discussionon the condition of al-Qabcl or certainty of delivery of good Hadith in this has been twenty-second the twenty-third of and extended of purchase indicate is the Ijadith For to twenty-second33 topic. the void a proof al-$an°ani, sub selling of which the commodities such as oil or fruits to be sold on the spot where 3119) Narrated(Abü Huraira) ur- At -a: Allah's Messenger ei At forbade transactions two c, it''ahtli by in A1mad (Reported Ibn, 11ibbän graded combined one. and al-Nasäi, al-Tirnüdhi and (sound)). Abü Dawüd has: "If anyonemakestwo transactionscombinedin one be must confirm that of a lower 'rice, or he is involved in committing usury." 2 20) Narrated °Amr b. Shu°aibon his father's authority from his grand father ( Allah's At Messenger j Aý- At said, "The condition of a loan combinedwith a saleis not lawful, nor two in is from to transaction, one's the not one conditions relating somethingwhich profit arising nor " (Reported by al-Khamsa. al-Tiirnüdhi, Ibn charge, nor selling what is not in your possession. Khuzaimaand al-HAkimgradedit $ahih (sound)). 3322) Narrated Ibn 'Umar L it, At I in to I bought the receive market and when came someoil u- J: a man met me and offered to give me good profit for it; and when I was about to seizethe price from him, a man caught hold of my hand from behind. So I turned and found that he was Zayd b. Thäbit ( it "Do He it it from, in have bought to your take till said, the not -C- At sell ý). you place where you dwelling;for Allah's Messenger L, 14- At be sold on the spot where forbade to the commodities uLthey were bought from, till the traders take them to their dwellings." (Reported by Atmad and Abu Däwüd;the versionis of the latter; Ibn Ijibban and al-IW. äkim gradedit $ahi z(sound)).

184 they were bought from, till the traders take them to their dwellings34.It appearsthat this type of commodities needs a proper place before selling as requirement of alQabd. However, in the twenty-third Iladith35, the Prophet s.a.w underlines the valid for this dinars, dirhams, takes exchange provides versa, and vice selling silver golden is concludedat the current rate. For Sh5fi°i's jurists, this transactionis in line with the condition of al-Qabcl becausethe featuresof dinar and dirham currency are certainty delivery and transferable commodity36.This provision is in line with the juristic is j in to the interest the applied condition al-Qab of which concept of public transactionthat aims to preservethe right of ownership for purchaser.

Another discussion on condition of transactions takes place in the twentyHadith, Hadith In twenty-seventh37 this topic. the twenty-eighth sub of seventh and the Prophet s.a.w emphasiseson unethical manner of broker who takes advantage

from village supplier who are unawareof the market price of their merchandise. However, in the twenty-eighth38Hadith, the Prophet s.a.w warns unethical.manner of

by to the takes supplierwho advantage manipulate marketprice controllingthe terms be it for demanding If the the this purchaser, would case and supply. were of In form by deal the transaction. to the of al-Khiyär or option canceling suggested with this Hadith, the preservation of traders is given priority at this stage by which the 34al-$an°Ani,Subul,v.2,p.481-482 3523) Narrated (Ibn 'Umar) I At I "0 Allah's Messenger, I sell al-Bägi°. at sell camels j: said, for Dinars and take Dirhams (for them), and sell for Dirhams, and take Dinars (for them), I take this for in harm is "There taking that and give that for this." Allah's Messenger rL,, 4ti At replied, no them at the current rate so long as you do not separateleaving somethingstill to be settled." (Reported by al-Khamsaand al-Häkim gradedit $ahi z(sound)). 3 Op.cit., al-$an°ani, p.481.

3727) NarratedTAwüsfrom Ibn °Abbäs L1,, "Do A' At Messenger Allah's Aj6 not said, A uLgo out to meet riders (to conduct businesswith them), and a towner must not sell for a man from the desert." I askedIbn 'Abbas At "What did he meanby 'A towner must not sell for a man from the desert."' He replied, "He should not act as a broker for him." (Agreed upon; the version is of alBukh5ri). 3828) Narrated Abü Huraira At "ý j: Allah's Messenger 3 46 4. to "Do out go not said, ý, meetwhat is being brought (to market for sale).If anyonehas met so and someof it is bought, when its owner comesto the market he hasthe choice (of cancellingthe deal)." (Reportedby Muslim).

185 suppliers should not manipulate the price of market because of over demanding factor. At this stage,the priority of public interest goes to the traders or purchasers and not to the suppliers.

Furthermore,in the thirty-third IIadith39, the Prophet s.a.w forbade al-I ztikär Abü Yussuf, for future by For this or storing goods profit particularly made suppliers. interest is leads harmful the to types to that may effects of ruling applied all of goods of humanity40

In the analysis of the twenty-seventh Hadith, Muslim jurists differ to determinethe ruling of unethical manner of broker who takes advantagefrom village supplier who is unaware of the market price of his merchandise. For Imäm alHaramain, the ruling is forbidden for the broker to practice with such unethical

broker for However, Abü it is for Hanifah Imam manner. and a1-Awzäci, permissible to deal with the market price of merchandisefrom village supplier within the condition of unharmed effect to the consumers. For Hadäwiyya and Shäfi°is, this

dealingis bondedwith the condition of al-Khiyär or option of transaction;either to cancelor proceed.Importantly,al-$an°änihighlightsthe significanceof the concept of public interest in dealing with the rulings of both aliddith. The twenty-seventh

Hadith signifiesthe preservationof consumersas well as village suppliersfrom the unethicalmannerof broker who takes advantageto set high price of goodsin the market.

3933) NarratedMadmarb. °AbdullahA.*- Al Allah's Messenger e goodstill the price risesbut a sinner." (Reportedby Muslim). al-$an°äni,Subul,v.2,p.498.

Al

keeps "None uL- said,

186 The discussion on unethical manner of transactions has been extended and forbade five Uad44 Prophet in In Hadith. the this the twenty-ninth41 s. a. w asserted types of transaction or criteria of dealer of which few of them have been discussed iii) iv) ii) bidder, i) broker, follows; of overbidding, sale unethical unethical above as have her to to to sister to proposean engagement engagedwomen, v) a woman ask divorced for the purposeof wealth. The ruling of forbidden is applied to those types deceit, injustices due juristic to transaction cheating, peril and such as reasonsof of loss for one party in such transactions. The ruling of those types of transactions harmful for the one party, whilst simultaneously prevention of effects verifies This justice for both interest transactions. the of parties of and preservation affirming in interest Islam. to the theme obviously of public refers principle

In line with the preservationof consumers,the thirty-fourth42IIadith also highlights in this matter by applying the form of al-Khiyär or option within three days to return the goods because of their defects. In returning the defected goods

fadith in dairy the thirty-fifth43 the the rules purchase of a cattle, particularly (2.6 Sa' be for the the a amountof seller on paymentshould madeas compensation kg.) of any kind of grains. It suggeststhat this is becausethe dairy cattle may be

buyer its is by Thus, the to the seller returning. prior entitled to get utilised

At 4129) Narrated(Abt1Huraira) 4- At forbade, a towner to sell Allah's Messenger ý-j for a man from the desert; one to bid against another; a man to buy in opposition to his brother, to his brother has done have her in divorced to to after so, or a woman ask woman z sister order propose to depriveher of what belongsto her. (Agreed upon). Muslim has: "A Muslim must not offer a price by Muslim. " that another offered above eLi At At LA: 4234) NarratedAba Huraira The Prophet said, "Do not tie up the udders -j. for he has buys been done) (has him them that two to who after goats, and choices after open camels of keep if he he " Sa' dates. them them them: may wishes, or return along may with of one milking (Agreedupon). Muslim has: "He has three days in which to decide whether to keep them or by Muslim has: "He Mu`allaq A termed " which al-Bukhäri as must return with it one Sa' version not. (al-Bukhäri " is "One Sa' dates" in but said, of mentioned wheat. any many ahddTth). grain any of a' 35) Narrated ibn Mas"üd Cc AI ui if anyonebuys a goat whose udder has been tied up and he it Sä'. (Reported by he it, return with one must al-Bukhäri). Al-Ismaili added: "of dates." returned

187 in down laid Sa' the thirty-fifth Haath. In that compensationsucha certain amount of in last defected Hadith" this sub topic the the the accepting returning of goods, highlights the blessing and forgivenessfrom Allah almighty for the seller who sticks to the contract of sale. However, during the time given of returning the purchase, the buyer entitles to get any profit of the goods and take responsibility of any loss. This is is in juristically Hadith Daif the thirty-eighth45 classified ruled of which provision the weak quality of authenticity of the Hadith.

For Sanhüri 6, the thirty-fourth Hadith also indicates the fraudulent transaction on the sale of Mucarrdt (animals whose udders have been tied). For Hana.fis, this type of transaction is forbidden whereas Shäfi`is and Ijanbalis consider Theseprovisions are ruled to preservethe interest of that to be deception(Ghushsh)47.

in dealing consumers with the fraudulenttransactions.This principle also appliesto the transaction of al-Ghish or cheating of which the Prophet s.a.w describesthis as forbidden in the thirty-sixth48 Hadith of this sub topic. In line with the fraudulent

twentytwenty-firstsl,twenty-fourthS2 transactions,in the fifteenth49,seventeenth50, 4444) Narrated(Abü Huraira) Aºý Allah's Messenger ý-j 46 At said, "Whoever accepts back what he had sold to a Muslim, Allah will forgive his fault." (Reported by Aba DAwud and Ibn Majah andvalidatedby Ibn Iiibban and al-I;läkim). 4338) Narrated°A'isha 10. At At Allah's "Any Messenger to the '4c said, goes profit j: c ,. bears " (Reported by it Abi? DawtId responsibility. who al-Khamsa; and one al-Bukhäri graded L)a if, alTirmidhi, Ibn Khuzaima, Ibn al-Järüd, Ibn Ijibbän, al-Ij5kim and Ibn al-Qattän graded it ýajiTli bound)). Sanhüri,Masädir,v.2,p. 183. 47Ibid 4836) NarratedAbd Huraira At _: Allah's Messenger fL., -46 Aº LL- once cameupon a heapof his he hand inside it, his fingers felt some dampness,so he asked the owner of the put when and grain, is "What this, 0 owner of the grain?" He replied, "Rain had fallen on it, 0 Allah's Messenger." grain, He said,"Why did you not put it (the damppart) on the top of the foodstuff so that peoplemight seeit? He who deceiveshasnothing to do with me." (Reportedby Muslim). 4915) Narrated (Ibn 'Umar) 141c.At ý-j At Allah's Messenger forbade 14rthe transaction -_: c,: uL,. Habala' Habalal which was one entered into in the Jahiliya era, whereby a man bought a shecalled be to the' offspring of a she-camelwhich was still in its mother's womb. (Agreed was camelwhich is this of Bukhäri). version g on, and upon, At i"ý: Allah's Messenger e'i -46 At 4. forbade a transaction Narrated Abü Huraira ý, t, ß determinedby throwing stones, and the transaction which involves some uncertainty (or cheating). (Reportedby Muslim).

188 fifthS3and twenty-sixth54Hadith, the Prophet s.a.w forbade the transaction of al-,Uabl al-Habla, Ilasät, al-Gharär, al-Najsh, Muhagala, Muzäbana, Mukhabara, Thunya, Mukhadara, Mulämasa, and Munäbadha.

In the analysis of those types of fraudulent transactions,it is interesting to highlight the work of Ahmad Hidayat, a later scholar who examinesthe prohibiton of its The the transactions. and connection examination of with above prohibited gharär literal meaning of the term gharär covers some adjectives of negative elements such deceit, loss55. danger, destruction lead For to that cheating, and as peril and risk might Ahmad Hidayat, the prohibition of ghardr that derives from the Hadi-thcan be divided into two categoriesi. e. i) incorporated the element of gharär with the gharnr sale Habl the as al-Habla sale and the Ilasät sale, ii) incorporated the element of such Mukhädara, Muläsama, Munäbadha, Thunya, without sale such gharär as gharar

Mukhäbara,MuzäbanaandMuhägala.However,the transactionof al-Najshis found be in both to categorised categoriesof the prohibition of gharär. not

The prohobitionof IHablal-Habla can be deducedfrom the explanationof Ijadith in which indicatesthe absolutefuturity anduncertainty text of the seventeenth delivery For Imam juristic Malik, Jama°a, the Shäfi°i the of contract. of and causefor this typeof Jahilryyatransactionis the ignoranceof definitetime of delivery,whereas 5121) Narrated CAmr b. Shu°aibon his father's authority from his At grand father j): Allah's forbade the type of transaction in which earnest money was paid. Messenger eLi 46 Al (Reportedby Malik, who said, "I was told on the authority of °Amr b. Shu°aibthat" i. e., the aforesaid Hadith). 5224) Narrated (Ibn 'Umar) At eLi qrAl u Allah's Messenger forbade bidding against j: one another.(Agreedupon). 5325) Narrated J bir b. Abdullah eLi At At The Prophet forbade Muhägala, j: -. L,,: UIMuzäbana, and Mukhäbara. He also forbade Thunya making an exception unless it was explicit. (Reportedby al-KhamsaexcludingIbn Mäjah; al-Tirmidhi gradedit $alüh (sound)). 4 26) NarratedAnds At u, j: Allah's Messenger., At forbade Muhägala, Mukhädara, ulMulämasa,MundbadhaandMuzäbana. (Reportedby al-Bukhäri). 55Buang,TheProhibition, p. 131-132.

189 Imam Ahmad, Ishäk and Jamä°aindicate the sale of nonexistent goods and the sense S6. juristic for Although the transaction this the as of ghardr causes prohibited transactionof Habl al-Ilabla physically different with Hagdt by which literally known as pebblethrowing trade, but both is having the samejuristic causes.

In the contract of Thunya Munäbadha and Muldmasa, the same juristic , reason of prohibition is applied to these contracts that is the unknown of knowledge regarding the nature of the object of the sale. In terms of practice of Jahilliyya, Thunya is referred to the sale of goodswith the exemptedpart of it is unknown. The difference between is degree former The Munabadha Muldmasa of acting. only a and is dealt with the act of throwing somethingwhereasthe latter by touching the object. In dealing with both transactions,the purchaserhas no right to inspect thoroughly the

objectof sale.

For the prohibited transactions such as Mukhädara, Mukhübara, Muzäbana

andMuhagala,it appearsthat the generaljuristic causefor the prohibition is want of knowledge in the quantity as well as quality. Although the practice of those transactionsdiffer to each other but they have the same causeand effect in terms of

transaction.In the practiceof Mukhädara,the purchasercannotbe guaranteedby the because the the the contract is agreedprior to the time of quantity of goods seller The the transaction of Mukhäbara refers to a lease contract of goods57. consumption land lessee the agricultural where of cultivates the crops for himself and for the lessor58.The conflict might occur betweenboth parties if they got differently in terms

of the quantity and quality of the crops. In the transactionof 56al-$an°äni,Subul,v.2,p.474. 57Shawkäni,Nayl,v.5,p. 151and Sa°ati,al-Fa4, v. 15, 43. p. 5smit Daqiq °Id, lhkdm,v.3,p.131.

Mu äbana and

190 Muhägala, both refer to the barter sale of the crops which are still on the tree59.The former refers to barter sale of dried datesfor fresh dates whereasthe latter refers to barter saleof harvestedcrops with crops.

The observation on those prohibited transactions clearly indicates theirs juristic causeis want of knowledge in the quantity as well as quality of the goods lessee is due From the transactions, those the contract. purchaseror prohibited within to have loss, damageand injustice.

The same degree of injustice exists in the transaction of al-Najsh of which increase bidding to the value of price of the that to auction or purely aims similar bidder is Baxläl, For Ibn to the them60. not and genuinely sell unethical goods

in disobedient is the considered and sellingof al-Najsh classifiedvoid the perspective for is bonded Multaddithün. However, Mäliki, the transaction of auction with the of intention bidder61. (al-Khiyär) is justified juristically the that of option of on condition Importantly,unethicalbidder signifiesthe senseof deception(khidii) and deceiving (gharür)62.The prohibition of this transactionaims to preservethe interest of bidders. interest, Apart from the their the as purchasers well as ethical preservationof

Iladith verifiesthe preservationof the interestof traders. thirtieth-second

In connectionwith the interest of traders, the thirtieth-second63 J-ladith interest imposing by the the traders preservation of of underlines unfixed price of the

59Sa°ati,al-Fath,v. 15,p.44. 60al.$an°ani,Subul,v.2,p.473. 61Aid 62Ibid 6332) NarratedAndsb. Malik At u When prices were high in Medina in the time of The Prophet .) 4, "0 Allah's have Messenger, become high, so fix them for us". the people said, prices j t1..

191 injustice is fix indicates that Hadith For an price a proof al-San°äni,this market. However, is forbidden. injustices for Thus, under the ruling of traders. particularly for is fix for Malik, Imam the particularly price permissible reasonablecircumstances, basic necessitiesof humanity such as foods. This ruling is applied to prevent the harmful effect of humanity due to high price of basic necessities.At the meantime, the interest their is the as well to as this of consumers preserve provision application of life.

The preservationof wealth of fundraiser and its interest has been affirmed in the thirtieth-ninthM Ijadith in this sub topic. This Uadi-thalso rules the principle of to This from aims the to principle the selling. owner of property prior approval Hadith Furthermore, from in this loss also the selling. such wealth of owner preserve from be the animals, sacrificial of selling that could gained no personal profit rules be to from it is The type charity this given must selling of profit permissible. although or public purposes.

Apart from the preservation of interest of humanities such as consumers, importance the Hadith the thirtieth-seventh of the underlines traders and suppliers, Prophet In Hadith6S, in business the this transactions. the preservation of religion

At is the One Who fixes prices, Who withholds, gives "Allah 446 Allah's Messenger replied, e Lllavishly and provides, and I hope that when I meet Allah the Most High, none of you will have any by for injustice (Reported blood " an al-Khamsa excluding alregarding or property. claim on me Nasä'i; Ibn Hibbängradedit ,Sahib(sound)). Lm At buy 6439) Narrated `Urwa al-Bärigi Al him Dinar The Prophet 44rto a gave a i: ] c him for bought it, Dinar brought He them two a a goat sold one of goats with and sacrificeor a goat. dealings, he if he had invoked blessing him in his business he So Dinar. that and was such a on and a bought dust he would have madea profit from it. (Reportedby al-Khamsaexcept al-Nasä'i; al-Bukhüri its it Iladith did another version). within and not report alsorecorded 6537) Narrated Abdullah b. Buraida on his father's authority U*."- At At Allah's Messenger -: LL. 4-1' said, "Whoever hoards grapes in the vintage seasontill he sells them to those who get wine knowledge. in it hastily himself into " (al Hell-fire has Tabaräni thrown them, clear with reported out of al-Awsatwith a good chainof narrators)

192 s.a.w warns the punishment of Hell-fire for those who involve in the transaction of selling grapesto make wine. Most jurists in agreementthat this kind of transaction is forbidden due to the consuming of alcohol or the like such wine66.There are two juristic causesfor this ruling; firstly, al-Khamr or alcohol is classified impurity and secondly,the effect of intoxicant of consuming alcoho167.In line with the concept of interest, the application of this ruling will preservethe interest of religion, life public intellect. and In the secondpart of this sub topic, the examination will focus on nine aliädith that relate to the ruling of forbidden in dealing with particular types of transactions. There are four types of transactionsthat can be divided in this regard as follows; i) prohibited contracts related to animals and theirs goods, ii) prohibited contracts

humanity, iii) iv) to to transactions, related prohibitedcontractsrelated agricultural prohibited contractsrelated to natural resources.

Under the type of prohibited contractsrelatedto animalsand theirs goods, there are eight transactionsthat have been highlightedby the Prophets.a.w in the fourth69, fourteenth70, fortieth7l, fortieth firs92,fortieth second73 second68, andfortieth

" al-$an°äni,Subul,v.2,p.504. 671bid. 682) NarratedJäbirb. Abdullah I-a-Ir.At At I heard Allah's Messenger .,, sayingin the Conquest he in Makka, "Allah and His Messengerhave forbidden the We of the when of was year dead idols. " He was asked, "0 Allah's Messenger,what about the fat of a animals, swine and wine, dead animalfor it is used for caulking ships, greasingskins, and making oils for lamps?' He replied, "No, it is unlawful." Allah's Messenger j A464 ý-" then added: "May Allah curse the Jews, when Allah the Most High declaredthe fat of such animalsunlawful they melted it, then sold it and enjoyed the price they received." (Agreed upon). 694) Narrated Abü Mas°üd al-An*äri 1 At j: Allah's Messenger riº+. 446 At Lm prohibited the price paid for a dog, the paymentmade to a prostitute, and the gift given to a soothsayer." (Agreed upon). Al uaJ: Allah's Messenger ý-J -tiL At I- forbade the 14) Narrated Ibn 'Umar sale of a , stallion'ssemen.(Reportedby al-Bukhari). 7140)Narrated Abü Said al-Khudri Al The Prophet e1-i 146 ºt forbade buying what is .y in the wombs of domestic animals till they give birth, or selling what is in their udders, buying a

193 iii) ii) follows; i) dead the price paid Hadith third74 animals, selling swine, as selling for a dog, iv) the sale of a stallion's semen,v) buying an animal's fetus, vi) selling the back fur in the that the that the on still of an selling still uddersof an animal, vii) milk buying fish in the that the water. still animal, viii)

The juristic reasonsof the prohibited of eight transactions can be concisely juristic dog dead follows; impurities the the reasons as swine and animals, of statedas However, for three transaction two type above7s. as mentioned and one, of prohibited for Ibn IHajaral°Asgaläni and al-Nawäwi, the exemption is given to the utilization of has been type dead transaction to the tanned that of one76. skin animal's as refers a The uncertainty of delivery in terms of quality and quantity is a common juristic five, four, for the transactions type six, seven and eight as prohibited of reason

mentionedabove".

The abovediscussionon juristic reasonsof the prohibited of eight transactions

that laid downby the aliädith of the Prophets.a.w highlightsthe reasonableapproach believers. Conceptually, life Muslim the Islamic to the of rulings of of application by Islamic is interested business transaction given priority parties of preservationof

law to ensurethe achievementof justice andrightswithin its applicationto humanity. before buying booties before divided, buying $'adagat they are receivedand the they slave, are runaway lucky strokeof a diver. (Ibn Mäjah, al-Bazzärand al-Daraqutnireported it with a weak Isnäd). 7241) Narrated Ibn Mas°üd A$ Allah's Messenger CL. A46Al Lý- said, "Do not buy fish for it involves it Mawquf in by A$mad is is " (Reported the who said water, uncertainty. correctly which untraceable)). 3 42) Narrated Ibn °Abbäs Al Al forbade the j. Allah's Messenger eLAj selling of a uLfruit till it becomesripe, or the selling of fur which is (still) on the back (of an animal) or milk which is (still) in the udder. (Reported by al-Tabaraniin al-Awsat. AI-Daraqutni reported it too. Abi? Däwid reportedin the Marasil of'Ikrima and al-Bayhägiendorsedit). 7443) NarratedAbu Huraira' eý Al 11 forbade in is The Prophet the the sale of what . c is in body (Reported domestic by al-Bazzärand the that the animal stallion. or semen of a a of womb thereis weaknessin its Isnäd ) 75al-$en`ani,Subul,v.2,p.454. 76Ibid

77IMd

194 Under the type of prohibited contracts related to humanity, there are two transactionthat have been underlined by the Prophet s.a.w in the fourth78«adith as follows; i) the paymentmade to a prostitute and ii) the gift given to a soothsayer.The juristic reasonof both prohibited transactionsis the immorality of prostitution and the falsification of the activity of soothsayer79. In line with the concept of public interest, both transactionsare prohibited becausethe harmful effects to the religion, life and honour of humanity.

The type of prohibited contract related to agricultural transactionsthat can be has in is fruit that trees this topic the still on sub which selling of unripe examined been underlinedby the Prophet s.a.w in the fortieth second8°Hadith. The main juristic is because fruit the this that trees still on of selling prohibited of unripe reason

have delivery in The terms of quality and quantity. purchasermight uncertaintyof damageand loss of the fruits on the day of delivery. This provision may prevent the deceptionof such transaction and whilst simultaneouslypreservesthe ineffective cost

of purchaser.

In this sub topic, the prohibited contract related to natural resourcesrefers to

the sellingof excesswaterthat hasbeenverified by the Prophets.a.w in the thirteenth S1ofHadith in this subtopic. The prohibition of this transactionappliesto the activity 784) Narrated Abu Mascudal-An$äri L$ Allah's Messenger ý-., 46 Al ul- prohibited the dog, for the paymentmade to a prostitute, and the gift given to a soothsayer." (Agreed a paid price upon). 79al-$anäni, Subul,v. 2,p.458 8° 42) Narrated Ibn 'Abbas AI --: Allah's Messenger 1.ß forbade the selling of a Al *46 L,: k, fruit till it becomesripe, or the selling of fur which is (still) on the back (of an animal) or milk which is (still) in the udder. (Reported by al-Tabaraniin al-Awsat. Al-Daraqutni reported it too. Abil Däwtld in Marasil the of'Ikrima and al-Bayhaqiendorsedit). reported 8113) NarratedJabir b. Abdullah Al sah's Messenger ] 446 Al L. prohibited the sale .,

(Reported by Muslim).In a version,he added:"And hiring a camelto impregnatea of excesswater. " she-camel.

195 it from than sources a well or needed whether of withholding or selling surpluswater it is land However, the the permissible of sources. spring and regardless ownership of to sell personalstoredwater82.The juristic reasonof this prohibited selling of surplus of is its feature life83 basic human to which obviously in as a water refers necessity line with the theme of the concept of public interest in Islamic law of which to life humanity. the of preserve

In dealing with the sub topic on conditions of businesstransactionsand those forbidden, framework 44 the the of above examination on ahädith within which are the juristic concept of al Maclalta wa a1Nan conclusively signifies a dynamic living in line Qur'an, law Holy Hadith Islamic the the after of as primary source of source interest the the preservation of of humanity. The significant principles of public with

interestin the conditionsof businesstransactionshave been identified through the 35 35 Those this topic. on of ahädith sub aliädith clearly signify the analysis

interested in business transactionssuch as traders,sellers, of parties preservation buyers,brokers,suppliers,consumersand the like. Furthermore,the prohibition of fraudulenttransactions, which hasbeendiscussedwithin those35 aldidith, highlights its juristic reasonsthat have been identified by jurists of which demonstrate their

interest. the with concept of public connection

The examinationon the remaining 9 al0dith of this sub topic juristically underlinesthe prohibitedtransactionsrelatedto particularpartiessuchas animalsand theirs goods, humanity, agricultural transactionsand natural resources.In terms 3 9 although of aluadithare classified .Pa`if (weak) but their juristic rulings narrations, 82al-$an°äni,Subul,v.2,p.471. 93 1bki

196 Hasan in Saldlt Iladith to the and particularly such as are similar numbersof authentic the examination of prohibited transactions. The prohibition on those particular transactions indicates the relation between the preservation of religion and the preservationof life of humanity.

To some extent, this first sub topic demonstratesan introduction and general themes of the chapter on businesstransactions.Further discussionwill focus on the discussed been has topic transaction also of al-Khiyär or options of which particular in generally this sub topic.

197 6.2.2Al Khiyär or Options of transaction

The subtopic of al-Khiyär consistsof 3 aliädith that are encompassed2 $ajdji and 1 Masan. In terms of reference,this sub topic is referred to many authentic narrators of the Iladith such as Ahmad (narrated 1 Uadith), Bukhäri (narrated2 aliädith), Muslim (narrated 2 ahädith), Abn Däwüd (narrated 1 Hadith), al-Nasä'i (narrated 1 HadTth), (narrated Ibn Khuzaima 1 Hadith), (narrated 1 Hadith), a1-Däraquuni al-Tirnüdhi (narrated 1 Iladith) and Ibn al-Järüd(narrated I Ijadtth).

In the figh literature, the subject of al-Khiyär has been discussedjuristically by jurists particularly in terms of its categorisations.There are at least five categories i. of al-Khiyär e. Khiyär al-Majlis, Khiyär al-Shar(, Khiyär al-'Aib, Khiyär al-Ru yat

be defined Khiyär definition, In a unilateral can al-Ta`yin. simple a al-Khiyär and five (Faskh) (Imdä') For the to either cancel or ratify a contract of sale'. choice definition is the of al-Khiyär, concise referredto their categorisations categories For Rayner2,the concisedefinition of the five categoriesof al-Khiyür can themselves. be demonstratedas follows; Khiyär al-Majlis (option of contractual session),Khiyär (option defect), (option Khiyär Khiyär of condition or stipulation), of al-Shari al-'Aib

(option inspection) yat of andKhiyär al-Ta°yin(option of determination). al-Ru

In line with the threeahddith of this sub topic, al-San°ani3indicatesthat the first4 and secondsIladith are referred to the category of Khiydr al-Majlis (option of

I Rayner,The Theory,p.305. 2Ibici, p.380. 3 al-$an°äni,Subulv. 3,p.6-9. 4 692-1 Narrated Ibn 'Umar 1-4:- Al uJ: Allah's Messenger ' u1.ß said, "Both parties in a rýAj' businesstransactionhave a right to annul the bargain, so long as they have not separatedand are together;or one of them tells the other to exercisehis right and he does it, then they make the bargain

198 in Khiyär Majlis highlights firstHadith The the of al condition contractual session). Khiyär The is between bonded of category the transaction purchaser. seller and which i) in long both they two they to conditions; either are as as parties applies al-Majlis have not separatedand are togetherin a contractual session,or, ii) they separateafter having made the bargain and none of them' has annulled it. However, in the second Hadith, the Prophet s.a.w reminds that it is forbidden to rescind the contract because the This to buyer between the preserve the aims the ruling seller. and separation of interest of both parties in terms of loss and damage of goods of purchase. In JJadith Khiydr the third underlines an the al-Majlis, objective of connection with (in is `deceiving declare for both not allowed to parties a statementof ethical manner in the contract to avoid any element of ghardr or the religion)'as a reminding fraudulent transaction'.

Basedon three aliädith in this sub topic, it can be concluded that the notion of its indicates Khiydr to connection al-Majlis clearly al-Khiydr with particular reference both interest interest the to that parties of aims preserve with the concept of public in involve the contract. who

having becomes binding; transaction then the they to that, made the separate after or when according bargainand none of them has annulledit, the bargain becomesthen binding." (Agreed upon, and the is Muslim). of version 3 693-2 Narrated °Amr bin Shu°aibon his father's authority from his grandfather ( Al j): The Prophet rL. '41--Al said, "The two partiesin a businesstransactionhave a right to annul it so long it, has it; it is bargain have to the to they not right annul attached one separated unless with and not a as the right to separatefrom the other for fear that he may demand that the bargain be rescinded." (Reportedby al-Khamsaexcept Ibn Mäjah, al-Daraqutni, Ibn Khuzaima and Ibn al-Järüd reported it too). Anotherversionhas: "till they separateat their place(of transaction)." 6 694-3 Narrated Ibn 'Umar Utk- Al he was At that i: A man told Allah's Messenger fLi UL. being deceivedin businesstransactions,and he replied, "When you make a bargain say, 'Deceiving is (Agreed (in the religion)'" upon). not allowed 7 al-$an°äni,Subul,v.3,p. 10-11.

199 The discussion on the preservation of the interest of related parties in the contract of transactionwill further detail in the next topic that regardswith al-Ribä.

200 6.2.3Al-Ribd or Usury

This sub topic consists of 17 aliädith within variation on numbers of the authentic (1 Hadith). In I? (2 Uasan (14 follows; Sahili Iladth as and cfif aliädith) ahädith), Hadith the have such as terms of narration,those ahädith many authentic narratorsof (narrated 9 Muslim (narrated 5 Bukhäri 4 (narrated Ahmad aliädith), aliädith), 2 (narrated (narrated 5 AbU Däwüd al-Tirmidhi a#ädith), al-Nasä'i aliddith), ahädith), (narrated 3 ahddith), Ibn Mäjah (narrated 2 aliddith), al-Hakim (narrated 3 aliddith), (narrated 1 Hibbän Ibn 1 Uadith), (narrated Bayhägi (narrated 1 Hadith), Qattän Ibn Hadith), Ibn al-Madini (narrated 1 Iladith), Isbäq (narrated I Hadith), al-Bazzäz 1 (narrated Ibn I Hadith) (narrated Khuzaima 1 Hadith), Ibn (narrated al-Jar5d and Hadith).

For al-Sancäni,those 17 alzädithcan be divided at least into two specific topics in involve individual the the to the who cursed that relate subject of al-Ribä namely transactionof al-Ribä and the prohibited transactionsof al-Ribä.

In the first specific topic of the cursed individuals who involve in the first', i. in 4 the this there second`, regard e. are ahädith transaction of al-Ribä, is it 4 to HadTth. Prior to those thirteenth4 vital aliädith, twelfth3 and analyses of

1 695- 1 Narrated Jäbir At Allah's Messenger L, 46 At ul- cursed the one who accepts it, it, it "They the to two the the all are the witnesses saying, one who records and gives one who usury, from Abii Iiadi-th. by Al-Bukhäri Juhaifa's Muslim). (Reported " something similar reported same. 2 696-2 Narrated Abdullah b. Mascid AJr.At has Prophet "Usury The A46 : said, ] .. Lj least in is his the that of a man who marries one sin as categories, mother, and the very seventy-three is honour " (Ibn it Muslim. Mäjah in the the violation of a male of a short reported of usury essence form andal-Hakimin a completeone. The latter also gradedit $alüli (sound)). 3 706-12 Narrated Abu Umäma At -j. The Prophet ý-., 4*6 At ul intercedes "Whoever said, L,,: for his brother and that one gives him a presentwhich he accepts,becomesguilty of a serioustype of its by but Abmad Aba Däwüd, doubted). (Reported has been " of narrators' reliability and some usury.

201 highlight a literal and standard definition of al-Ribä in the perspective of Islamic transaction.Literally, the term al-Ribd is defined al-Ziyäda or increasein capital5. In interest' `excessive `usury', is literally Islam', `Dictionary translated as of al-Ribä a `Encyclopedia is interest'6. definition `usurious The to referred standard of al-Ribd or for in increase it is defined `any Islam' which no of capital which unjustified as of it be is definition From this can of al-Ribä, and standard given'7. simple compensation is forbidden. the obviously ruling of al-Ribd understoodupon why

In line with the above definition of al-Ribd, those 4 al0dith emphasise on because by Prophet individuals have been the of their s. a. w who cursed particular involvement in such activities of al-Ribä. In the first Hadith, the Prophet s.a.w. follows; i) four degree individual have types the as of curse same of who classifies

iv) iii) ii) one who records usury, one who acceptsusury, one who gives usury, four Prophet for In the those to transaction. categories, usury's addition witnesses indeed has highlights in Hadith the that seventy-threecategories. usury w second s.a.

However,at this stage,no detail explanationis givenregarding73 categoriesof usury its highlights least Prophet the the category. s.a.w and very essenceof except According to the Hadith, the least category of usury is that of a man who marries his

is honour the the the and very essence of usury of of a maleMuslim. mother violation

The discussionon the categoryof usury has been prolongedin twelfth and thirteenthHadith of this sub topic. From the both al:adith, juristically, the Prophet

4 707-13NarratedAbdullah b. °Amr b. al-'As Le. A+' j Allah's Messenger U-cursed r1""j c,-:. . the one who bribes and the one who takes bribes. (Reported by Abii DAwüd and a]-Tirmldhi, who it $ahi4 graded al-Shirbini,Mughni al Muhtäj, v. 2,p.21, andNihäya al Mulitäj, v. 3,p.39. 6Hughes,A Dictionwy, p.230 Schacht,`Ribs', E2,v. 3, p. 1148.

202 For transaction bribery of usury. type of prohibited as another s.a.w. underlines the Uadith that gift thirteenth the accepting rules example,

after making

by Prophet type is for bad deed the serious w as a of s. a. classified recommendation a (al-Rdshi) individuals involved This the or one to as such ruling also applies usury. have individual bribe. Those (al-MurtashO types bribes of or one who takes and who been cursedby the Prophets.a.w in the thirteenth Hadith.

The abovediscussionclearly highlights the element of injustice and corruption line In bribery. the in juristic transaction with the of prohibited causes as main bribery to interest, any transaction prevent this aims of prohibited of public concept fraudulent element in such transaction that may leads to injustice and corruption to in fraudulent discussion The usury elements particularly on particular parties.

in this by Prophet has been detailed sub of the of numbers aliadilh w a. s. transaction topic.

Thereare 13 of 17altadithin this subtopic that havebeendiscussedregarding fraudulent elementsof usury transactions.From 13 alta th, 9 of them highlight the fifth1°, i. fourth9, Ribä Ribä the third8, sixth", seventhi2, type of al-Fadl e. al-BuyüYor

fifteenth15 Uadith, sixteenth16 and ninth14, eighth13,

Al $ 697-3 NarratedAbil Said al-Khudri Al "Do The Prophet said, not sell gold j: U crlfor gold unlessit is sameamountfor the sameas amount, and do not make one amount greater than the do is for it do and not make one amount greater than the same silver amount silver unless sell not other, later. (Agreed it for be " do to upon). sell ready money some of given not other, and ý-j 9 698-4 Narrated'Ubäda b. al-$ämit'l is Al Allah's Messenger "Gold to said, E c'j. 4,1. be paid for with gold, silver with silver, wheat with wheat, barley with barley, dateswith dates,and salt for If being for the payment equal equal, same spot. and on quantity quantity made same salt, with is " (Reported if by Muslim). differ, the spot. sell as you made wish on theseclasses payment 10699-5 Narrated Abü Huraira Al i: Allah's Messenger rLAj 4j6 -1t uL. said, "Gold is to be both being for of equal weight and of same quantities; silver is to be paid for with gold, with paid it, it If being for both anyone of equal weight quantities. gives more and of same or asks more of silver, is thenusury." (Reportedby Muslim).

203

In a standarddefinition of Ribd al-Buyuf or Ribä al-Fadl, its definition refers to the exchangecontractsthat applies to six items i. e. gold, silver, date, raisin, wheat is based like barley The this the them'7. contract on the prohibition of and of and inequality in in fraudulent terms that of element may occur particularly potential delay in items in between the those potential and a exchange quantity and quality delivery. This juristic causeor villa for the prohibition of Ribä al-BuyüCor Ribä alFadl has been termed by Hanafis jurists as al-Kayl (measurement) or al-Wazn (weight)18.Numbers of ahadith highlight in this regard such as the third, fourth, fifth, fifteenth Hadith. eighth, seventh, ninth, and sixteenth sixth,

In contrast with the juristic cause of the prohibited of Ribü al-Buyii, the

Prophets.a.w affirmsthat if the contractappliesto the equalityin quantityandquality in the exchangebetweenthoseitemsand immediatedelivery,thus,the transactionis 11700-6 NarratedAbi! Said al-Khudri and Abil Huraira At Allah's Messenger 4a At L. he brought fine Allah's Messenger Khaibar him dates a man over and appointed of a very quality. eLj At by dates like " "I Allah "Are Khaibar He that they this? the replied, swear asked, all of ulfor So kind for 0 Allah's Messenger. We Sa' three. two, take this even not, and one of are certainly 1- At Allah's Messenger said, "Do not do so. Sell the mixed datesfor Dirhams,then buy the .]{; by dates " And he fine Dirhams. the things that the are sold weight. with said sameapplieswhen very (Agreedupon).Muslim has: "and so is the weight." 12701-7 NarratedJabir b. Abdullah > At Lr-:-j. Allah's Messenger L. 446 Al forbade selling a Lldates of whosemeasurewas unknown for a specificquantity of dates.(Reportedby Muslim). g3uantity 1 702-8 Narrated Ma°mar b. Abdullah IJ- At 4 hi hear Allah's Messenger I to used i: el-,, vL. for food, by food "Food " Our barley. (Reported that time of same quantities. consisted at of say, Muslim). 14703-9 Narrated Facjälab. °Ubaid Al': I bought a necklacefor twelve Dinars at the battle of Khaibar and there were gold and gems in it, so I consideredthem separatelyand found that it was At Dinars. I Prophet twelve than told the more about that and he said, "It must not worth el-j be soldtill the contentsare consideredseparately." (Reportedby Muslim). is 709-15NarratedIbn 'Umar At -=-: Allah's Messenger c,., A46At forbade al-Musdbanur, L, LIfiuit that the a man sells means of his garden, if it consistsof palm-trees(fresh dates), for dried which datesby measure;or if it consistsof grapes,for raisins by measure;or if it is corn, he sells it for a forbade He all that. (Agreed upon). corn. measureof 16710-16Narrated Sa'd b. Abü Waqqas st I heardAllah's Messenger tUj Aý6 At being uLdry dates buying for fresh fresh He "Will dates ones. replied, about asked get diminishedwhen they becomedry?" They answered,"Yes." So he forbade that. (Reportedby al-Khamsaand graded$'alüli by Ibn al-Madmi,al-Tinm1dhi,Ibn Hibbän and al-Hakim). 17 Monzer Kahf, Types of Riba, in lam: 1Avww.islamonlinVe fatw,all n (ish/Fahý aDý 1 Sp? HfatwalD=22659,13/08/2004. 18al-Zuliayli,Fiqh al-Islämi, v. 5, p.2706.

204 in by Prophet the third, laid down been the has lawful. This s. a. w legal and provision fourth, fifth, eight and ninth Iladith of this sub topic.

At this stage,the preservationof equality is given priority by the Prophet s.a.w items, but between those in the to the exchange quality and quantity applies only not This in involves transaction. objective of to such who party particular moreover benefit for for interest to is in line which gain transaction with the concept of public life. harmful to their humanity, whilst simultaneouslyto prevent effects

highlights interest, topic this line In sub with the above theme of public is Ribä termed al-NasTa. transaction type which of al-Ribä, of prohibited another There are at least 3 aliädith in this regard i. e the tenth'9, eleventh20and seventeenth21

Hadith.

in loan Ribä to the The prohibited transaction of contract of al-Nasia refers

late because loan the is the of to the the premiumof added amount additional which Ribä type jurist Most of that this transaction a also covers agree time of payment22. for juristic debts23. A this Ribä prohibited cause main of well as as al-Fadl

Prophet in Yadith, is Thus, the tenth the the transaction chargeof additionalamount. At. forbade 19704-10Narrated Samurab. Jundub The Prophet 4ti oj: sellinganimals +I ] for animalswhen paymentwas to be madeat a later date. (Reported by al-Khamsa)Ibn al-JärtIdand alTirnüdhi gradedit ýahili (sound). st 20705-11 Narrated Ibn cUmar 14- At ui: I heard Allah's Messenger say, "When ,j lower it for buy back the that to price, a condition you will you will sell anything on credit anyoneon follow the cattle, prefer agriculture and give up Jihad. Allah s.w. t. will make disgraceprevail over you from by " (Reported Abü it from Däwtd the till to religion. off you you return your strip not and will in 'Umar 4 its but is Ibn there Näfi° the an narrator unreliable on authority of version of "A, Ibn Its from 45'. Abroad the and of narrators similar reliable something version are reported chain. it. (sound)). alüh graded al-Qaflän At be 21711-17Narrated Ibn 'Umar At forbade debt The Prophet to a selling u -46 uldebt. by for i. for (Reported Is$äq debt date future another a and al-Bazzärwith a weak e., a paid at a Isnäd). 22Op.cit., Monzer Kahf. 231bicL

205 be for forbade to payment was made at animals when selling animals s.a.w obviously in date. later It that the suggests chargeof additional amount this transaction would a difference Hadith, damage in loss for debtor. However, the the the eleventh and effect For former in the terms the al-$ancäni, the of contract. condition of emergeswith in `Aina indicates Hadith transaction the which the selling also of prohibited eleventh is madeby credit on the condition that the seller will buy it later at lower price24.It buyer for leads loss injustice the to that this transaction at the and particularly appears end of the stageof transaction.

In the seventeenthHadi-th of Dd f, the Prophet s.a.w highlights a type of transactionin which selling a debt to be paid at a future date for another i. e. a debt for its For has been Da`if, debt. Hadith äni, the still a proof al-San although categorised a is it Ahmad However, Imäm that transaction25. not suggests of such prohibited be debt for behind debt26. The to this ruling can engage a a reason permissible

debt is burden for debtor. To engageanother that clearly a considereda understood debt will thereforeincreasea degreeof burden for debtor.This solution obviously interest harmful the that to concept effectsand with of public aims remove contrast benefit for life humanity. to the gain of simultaneously

Hadith in this subtopic dealswith the legal transactionof alThefourteenth27 Qard.For al-$an°äni,this Hadith is a proof to indicatethat no al-Ribs transactionon but is formed in the the transaction of al-Qarcl To put it simply, alternative animals 24al-San°äni,Subul,v.3,p.24. 25Ibid, p.31 261bid 27 708-14 Narrated (Abdullah b. °Amr b. al At ' The st Prophet rLi .ý -'Aas) U" him but insufficient, he commandedhim to keep to the equip an army, when camels were commanded back the young camelsof Sadaga. He said, "I was taking a camel to be replaced by two when the " (Reported by al-Häkim and al-Bayhägi;its narrators are reliable). $adaga came. camelsof

206 investor is between al-Qarcl or al-Mudäraba a contract of equity sharing and trader. Further discussionon this regardwill take place in the specific topic of al-Qiräd.

In conclusion, this topic has significantly discussedthe principles of public interestthrough the juristic causesof ruling from numbersof altadith that relate to the subject of al-Ribä. The prohibition of al-Ribd's transactionsclearly aims to prevent harmful effects to the life of humanity and simultaneouslywould preservetheir basic necessitiesof life.

207 6.2.4 Permission regarding the sale of al-`Aräya and the sale of trees and fruits

This sub topic consistsof 7 ahädith Salüli. In terms of narration, those aliddith have (narrated Bukhäri (narrated 1 5 Iladith), Ahmad narrators authentic such as many Hadith), 1 (narrated (narrated 6 Abü Däwnd Muslim al-Tirmidhi allädith), ahädith), (narrated 1 Hadith), Ibn Mäjah (narrated 1 Iladith), Ibn Hibbän (narrated 1 Hadith) (narrated 1 IHadith). and al-Hakim

In thefigh literature, the sale of al cAräya refers to the exchangecommodities that have same measurementin terms of quantity and quality'. For al-$an%ni, this in is because by Prophet the the transaction permitted of principle of equality s.a.w The the the that sale of alapplication of applies and within contract2. quality quantity

cAräyato the legalbusinesstransactionverifiesthe conceptof al-Tarkhii that aimsto facilitate the transactionof commodities such as dates,grapesand grains. In line with this concept, there are at least two ahddith highlight on this particular sale of al-

`Aräyai.e.the first3andsecond4Hadith.

In the first and second UaXth, the Prophet s.a.w emphasiseson the basis of

dry basic for the permissionof the saleof of commodities as a condition computation CArdya instance, in For HadTth, the the applies to second permission of al al-`Aräya.

1al-$anäni, Subul,v.3,p.32. 2Ibid 3 712-1. Narrated Zayd b. Thäbit A:- Al -j: .l Allah's Messenger i LI- gave permission °Aräya for its basis the sale on al of a calculationof what the dates would be when dry by regarding measure.(Agreedupon). Muslim has: "He gave permissionregarding the al-°Aräya for its sale in which the householdbuys its fruit on the basisof a calculation of what the dateswould be when dry, yet they could eat them when fresh." 4 713-2. Narrated Abu Huraira At Allah's Messenger ý -j 146 At gave permission ulfor the of al-`Aräya sale a computation of their amount when dry on the condition that they regarding be lessthan five Awsuq, or amountingto five Awsuq. (Agreed upon).

208 dry dates on the condition that they would be less than five awsuq (more than eight is behind five The to Awsuq. this to give a standard reason amounting or quintals), benefit for dry traders the of as well as measurement of commodities equal and consumers.

In the sale of al `Aräya, the measurement of quality and quantity of loss is by Prophet their to the possibility of avoid s.a.w commodities given priority delivery. In damage the caseof the absenceof quality the of particularly at stage and This forbade Prophet the thus, the provision sale. s. a. w and quantity of commodities, has beenunderlined in the thirds, fourth6, fifth7, and sixth8.

Those four al0dith underline the prohibited sale of fruits unless they are in

At in Hadilh. the term highlighted it been this has third the of stage, condition as good blight. from Most fruits that the to the safe were condition good condition refers jurists agreethat this condition aims to avoid any fraudulent element in the sale of a! -

cAräya9.Furthermore,the restthreeHadith signify the bad conditionof fruits that are forbadeto be sold suchas colourful of reddishandyellowish (in the fourth Ifadi h), black of grapesand hard of grains (in the fifth Hadith) and affected fruits by blight (in s 714-3. Narrated Ibn 'Umar st uJ : Allah's Messenger ] -46 4 forbade the sale of fruits till they are clearly in good condition, forbidding it both to the seller and to the buyer. (Agreed upon). At A versionhas:"When he was askedaboutwhat is their good condition?" He replied, , -446 "Till they were safefrom blight." 6 715-4.Narrated Anis b. Malik 4 At -j: yº fruits forbade The Prophet Lj till the sale of ulthey become colourful. He was asked what that meant, he replied, "Till they become reddish and yellowish." (Agreedupon and the version is of al-Bukhäri). At forbade 716-5.Narrated (Anäs b. Malik) A:- 4L,,: -j The Prophet 4l the saleof grapes j c. sLm till they becomeblack and the sale of grain till it becomeshard. (Reported by al-Khamsaexcept alNasä'iand graded$ah by Ibn Ilibbän and al-IHäkim). 8 717-6.Narrated Jäbir b. Abdullah At ui: Allah's Messenger ] A* At ß said, "If you sell j1. brother it by blight it be lawful fruit for you to take anything to and your would not was smitten some from him. Why shouldyou take your brother's property unjustly?" (Reported by Muslim). A version by 1At Muslim has: "The Prophet j -46 L, commandedthat unforeseenloss be remitted in respectof blight. by " is what affected 9 al.$an°äni,Subul,v.3,p.35-36.

209 the sixth hladith). However, in the sale of pollinated tree, the fruits belong to the seller buy has buyer them together with the to them the sold makes a condition unless who tree. This provision has been laid down by the Prophet s.a.w in the last1° Hadith of this subtopic.

In line with the concept of public interest, the permission of the sale of alCAräya demonstratesthe flexibility of Islamic transactions in the sale of dry `Aräya dates, However, the contract of al grapes and grains. commodities such as in be line must with the condition of measurementof good quality and quantity of in interest highlights This the theme which of public condition clearly commodities. the interest of buyers as well as consumersis preservedfrom fraudulent elements in such transaction.

10718-7.Narrated Ibn %Jmar1"eß Al The Prophet '96 -j. Le-: -41tjL- said, If anyonebuys a palm tree after it has been fecundated,the fruits belong to the seller who has sold them unless the buyer makesa condition." (Agreedupon).

210 6.2.5 Payment in advance (al-Salm), loans (al-Qar41)and pledges (al-Rahn)

This sub topic consists of 8 ahädith within variation on numbers of the authentic Hadith as follows; ,Sahn: (6 aliädith), Hasan (1 aliädith) and IVa`if (1 a1ädith). In terms of narration, those ahäctth have many authentic narratorsof the Hadith such as Bukhäri (narrated 4 alzddTth),Muslim (narrated 2 ahädith), Abü Däwüd (narrated 1

Iladith), al-Häkim (narrated 2 alzädith), Bayhägi (narrated 1 Hadith), al-Däraqutni (narrated 1 IHadith)and al-Iiärith (narrated 1 Hadith).

There are three transactions in this sub topic i. e. al-Salm, al-Qar¢ and alRahn. From 8 ahädith of this sub topic, 2 aliädith relate to the transaction of al-Salm, i. e. the first' and second2Hadith. For the transaction of al-Qard, 4 aliädTthof this sub

2 The JJadith. i. fourth4, the third3, to, rest topic arereferred seventhsand eighth6 e.

1 719.1 Narrated Ibn °AbbäsL (+u - c. A) At Medina, When Prophet they to the came u-=u: (j qr. 4 in )said, "Those he ( in for fruits, paid two who so one advance and years were paying vI(Agreed " for for fruits do for time. a specified so a specifiedmeasurementand weight must advance in for " has: Al-Bukhäri "Those anything. who pay advance upon). 2 720.2 Narrated °Abd. al-R,*man b. Abza and °Abdullah b. Abu Awfa At -j "We used to get w.: Syria At from to booties along with Allah's Messenger , those of used some peasants and , has: A "and in barley " for to to them raisins. version and and us we would pay advance wheat, come "We for fixed " They have " It "Did time. they replied, specified standing crop? was asked, a oil olive were not askingthem aboutthat." (Reportedby al-Bukhäri). 3 721.3Narrated Abü Huraira Air-At At The Prophet 46 said, "If anyoneacceptsother j. . him; but if back for back, belongings Allah to anyone accepts them meaning pay will pay people's by him. (Reported Allah " Most High to them, the al-Bukh .ri). squander squander meaning will 722.4 Narrated °A'isha 43- At j: I said, "0 Messengerof Allah, so-and-sohas brought clothes from Syria, how about if you sent someoneto him and you get from him two garmentson credit till it is easy for you to repay?" So he sent someoneto him but he refused. (al-) äkim and al-13ayh5gi its it, narratorsare reliable). and reported 3 725.7NarratedAbü Räfi° Ak- Al At borrowed from The Prophet camel a a L' young uz-j ulAt to pay the man his man,and when somefadaga camelscameto him he orderedAbü Räfi° ( him find (. He "I told only an excellent camel in its seventhyear." camel. can -46 "t), young He said, "Give it to him, for the best person is he, who dischargeshis debt in the best manner." Reportedby Muslim). u At At Allah's Messenger A46 726.8 Narrated°Ali said, "Every loan which leadsto j: tUi (al-Iiärith b. " is Abia Usämareported it, but there is omission in its chain of narrators). benefit usury. a The aforesaidHadith has a weak citation on the authority of Fadäla b. cubayd A by alJ -1r. Bayhägi.It hasalso anotherMawquf version reported by Abdullah b. Salam At L,.:.j and al-Bukhäri reportedit.

211 i. fif& the in line transaction the topic e. this of al-Rahn, and sub are with ahddithof Hadlth. sixths

The definition of al-Salm is equivalent to an advance payment for future delivery. Technically, the sale of al-Salm refers to a contract in which payment is date9. later In delivered in for the the a concurred are at goods which made advance first and secondHadith, the Prophet s.a.w verifies the transaction of al-Salm by stated the condition of specified measurementof goods in terms of quantity, quality and delivery. This condition is applied to the terms of contract of al-Salm. Furthermore, Muslim jurists are in agreementthat this transaction can be applied to any type of goodsor productslo.

In line with the conceptof public interest,thetransactionof al-Salmwithin the in their terms quantity, quality and of measurement of goods of specified condition

deliverywould preservethe interestof buyerfrom gettinglossandbeingthe victim of fraudulentelements.

For the juristic themeof al-Qard, literally it can be defined as interest free loan or gratuitous loan" of which it has been ruled by the Prophet s.a.w as

line is laid down in In fourth Hadith. this type This the of with ruling permissible. 7 723.5 Narrated Abtt Huraira Al -=.j: Allah's Messenger eLj 44- +$ul- said: "An animal may ., be riddenfor spendingon it when it is in pledge and the milk of a camelmay be drunk for spendingon it when in pledge. And the responsibilityof caring for it is upon the one who rides ('it) and drinks (its by " (Reported " al-Bukhäri). milk). eLi qr- ýº 8 724.6 Narrated (Abü Huraira) '' does Allah's Messenger "A said: pledge u,its increase it in lost Any him he does in its become to time. to owner when not redeem goes value not be borne by him. by " (Reported loss must al-Däraqutniand al-}Iäldm. Its narrators are reliable, and any but it is Mursal accordingto Abü DAwüd and others). 9 al-$anani, Subul,v.3,p.41 and www. rnuamalat.com.my (19.8.2004). lo Aid 11Razali,al-Qard al-Masan, in http://slamic-world. net/economic,19/08/2004.

212 loan, al-$an°änisuggeststhat the third 1Yadithof this sub topic highlights an ethical 12. manner for borrower to deal with the transaction of al-Qar4 In this .Uadt-th,the Prophet s.a.w reminds the importance of good intention of borrower that will be borrower. by Allah for bad intention In the case t the s.w. and vice versa of rewarded that the borrower kindly gives somethingelse or pays someprofits to creditor with the in his Prophet thus, the money, s.a.w praise principle giving as underlines the sixth Hadith. At this stage,both aliädith clearly emphasison an ethical manner of intention borrower in dealing with the transaction of al-Qarcl and the way to appreciate the of between This lead transaction relationship ethical manner of would a good creditor. borrower and creditor as part of the way to preservethe interest of both parties in the transaction of al-Qard. Furthermore, the last Hadith of this sub topic which is Da`if classified

signifies the transaction of loan that leads to a benefit which

is by particularlymade creditor usury.

Regardingthe transactionof al-Rahn or pledgeor pawn, for al-$an°äni,the fifth Iladith rules the right of pledgeeor pawnbrokerto utilise the belonging or 13. borrower during the time of possession the of with sense of responsibility property However, Muslim jurists agree to impose the condition of permission from the

borrowerprior the utilisation of his belonging14. In line with the responsibilityof belonging,the sixth Vadith signifies that the increaseand decreaseof its value be borrower responsibility of owner or and not to pawnbroker. The reason would behind this is to give equal right for both pawnbroker and borrower. Since the borrower would get benefit from the value of property in the transaction of al-Rahn, therefore it is equal right for the pawnbroker to utilise the property within the period 12Op.cit.,al-$an°äni.

13Ibid 14Ibid

213 of possession.The application of equal right in this transaction would preserve the interestto both parties as part of the principle of public interest.

In conclusion, these three types of transactionsi. e. al-Salm, al-Qarci and alRahn mostly highlight the principle of transparencyof transaction between creditor highlighted has been debtor. The for both as significanceof ethical manner parties and line In fundamental transaction. to the transparency of condition achieve principle of a interest, the the significant principle of ethical manner aims to conceptof public with in devastating humanity types those that of occur might any effect of prevent transactionssuch as bankruptcy and seizure. Further discussion on such devastated transactionswill take place in the next topic.

214 6.2.6 Bankruptcy and seizure or al-Tafts wa al-IIajr

The sub topic of al-Taflis wa al-Hajr consists of 8 ahddith ,sa1zilc. In terms of Alhmad Hadith have the those such as many authentic narrators of ahddith narration, (narrated2 ahädith), Bukhäri (narrated3 ahddith), Muslim (narrated 4 aliädith), Abü Däwüd (narrated4 alzädith), al-Nasä'i (narrated 3 ahädith), al-Tirmidhi (narrated 1 Hadith), Ibn Mäjah (narrated 2 aliädith), Ibn Hibbän (narrated 2 ahddith), al-Hakim (narrated 4 aliddith), al-Däraqutni (narrated I Hadith) and In Khuzaima (narrated I Hadith).

The first' Iladith of this sub topic highlights the right of creditor on debtor's becomes the declared bankrupt. At if is the debtor this the creditor stage, a property his dies, debtor Shall debtor. his bankruptcy the due to the of owner of the property bankruptcy. debtor's because is belonged the to the creditor condition of of property is juristically by Prophet laid down jurists the Many s.a.w observethat this regulation °Abd Ibn instance, Imäm interest. For in light aljustified the of the concept of public Salam argues that in the case of bankruptcy, the interest of the creditor is given

1 1. Narrated Abü Bakr b. °Abd. al-Aaliman on the authority of Aba Huraira Air. Al Le;-.x We heard debtor o his Al finds "If who Allah's Messenger a very property with say, a creditor ]4 becomesbankrupt,he is more entitled to it than anyoneelse." (Agreed upon). Abis Dawüd and Malik reported the aforesaidHadith from Abtl Bakr b. °Abd. al-Raliman's version in a Mursal form with this wording: "If anyone sells some goods (on credit) and the one who buys them becomesbankrupt and doesnot repay any of the price to the seller who then finds his very goods (with him), he is more entitled to them (than anyoneelse); if the buyer dies, the owner of the goods is then it (al-Bayhägi it full " but weak the chain of to narrators graded creditors. reported with other equal Abü Däwad's to narration). according Abil Däwüd and Ibn Mäjah reported the aforesaidiiadith from `Umar b. Khalda's version and it has: Al "We went to Abü Huraira regarding a friend of ours who was bankrupt. Ile said, 'I shall judgement judgement him in Messenger Allah's the accordance with about of pronounce certainly becomes dies he Al bankrupt finds If his the the A41-owner of or and goods anyone actual goods Flat . has most right to them."' (al-IIäkim graded it $ahfh (sound); Abd Däwad proved it to be weak, and be death to the the this termed of weak). mention addition regarding also

215 is interest In debtor2. the this the the priority given to the respect, priority over of debtor's back his the through to the of seizure property. credit solution pay creditor as

In line with the seizure of debtor's property, the second3Hadith affirms the for dishonour is lawful, to this the and punish seizure although would effect ruling of the Iladith also highlights the ruling of forbidden to debtor the debtor. For a1-San°äni, late deliberately delays It that the the payment of payment of credit4. appears who For difficulties by debtor this to the the reason, creditor. made effect many will credit in the thirds JIadTth,the Prophet's.a.w allows the creditor to take debtor's property through the process of legal action or by court permission. The third HadTth also is debtor is to bankrupt that accept seizure allowed of a who undertaken underlines demonstrates donation donors. the from This the of application provision cadaga or by is debtor bankrupt the in life interest the preserved of of public which concept donors. of assistance

Regardingthe discussionon seizureof bankrupt'sproperty,the fourth6JJadTlh back legal to legality that the a through aims pay action processof of seizure rulesthe debtof bankruptto creditor.The legality of seizurealsodependson the legal capacity

2'Izzi Dien, Qawacidal Ahkam, v. 1,p.79. At 3 2. Narrated °Amr b. al-Sharidon the authority of his father: Allah's Messenger ]4 ul- said, "Delay in paymenton the part of one who possessesthe meansmakesit lawful to dishonourand punish him." (Abü Däwüd and al-Nasä'i reported it, al-Bukhäri reported it without Isnäd, and Ibn Ijibbän (sound)). it Sahib graded , 4a1-$an'äni,Subul,v. 3, p.54-55. Al Allah's Messenger In 3. Narrated Abti Said al-Khudri the time of j: fl -Ai ul- a man large fruits he had bought, debt and became bankrupt, so Allah's loss a affecting owed suffered Messenger ] 14- At u said to the people, "Give him . adaga." They did so, but as that was not qrAt in his debt full, "Take Allah's Messenger to to the said what repay creditors, enough tLi have by " (Reported Muslim). find, than that. and you will nothing other you can 6 4. Narrated Ibn Ka' b b. Malik A:- At -=,j on the authority of his father: Allah's Messenger At L, uAit in for debt Mu%dh (alhe indebted for. the 46 sold return property and a of seized was t1"yj Däraqulnireportedit, al-Hakim gradedit $ahil: (sound); Abü Däwüd reported it through a Mursal form andpreponderatedit asMursal).

216 is fifteen bankrupt fifth7 Hadith the the maturity age of as underline of and sixth8 indicates fifth Hadith in For the that the al-San°äni , years. context of vice versa, below fifteen yearsis disqualified legal capacity of businesstransactions9.Thus, it can be learned that the provision of the age of maturity of businesstransaction aims to discrimination harmful fraudulent the and element effects of contract such as prevent that might occur in such contract. This preventive objective is related to the concept interested interest for to the party of the of which preserve right and equality of public contract.

In line with the preservation of right and equality, the seventh10and eight" Hadith highlight on this respect.The seventhHadith rules the right of women to deal inherited like dowry, her the without permission of wealth such as property and with

her husband.In the conceptof public interest,this ruling will preservethe right and interest. her In best for for deal her the to of married women with property equality its highlights Hadith the permissible of this topic the with and ruling, eight contrast

beggingfor those who are in one of three conditionsas follows; a man who has L. 7 5. NarratedIbn 'Umar is A$.. j: I was brought before the Prophet l Day Aj6 the of on . .c Ubud when I was fourteen years old but he did not give me permission to fight. I was afterwards brought beforehim on the Day of al-Khandaq(the battle of Trench) when I was fifteen and he gave me fight fight. (Agreed Al-Bayhägi's has: did "He to to upon). give me permission not version permission and did not find me having attainedpuberty." (Ibn Khuzaimagradedit $alülj (sound)). 8 6. Narrated°Afliya al-Qurazi'. Al the on j: We were brought before the Prophet )4A, ulm day of Quraiza.Those who had beganto grow hair (on their private parts) were killed, but those who had not, were set free; I was amongthose who had not begunto grow hair so I was set free. (Reported by al-Arba°a.Ibn Hibbän and al-Häkim gradedit $alüli (sound)). 9 al-$an°äni,Subul,v.3,p.60. 107 Narrated °Amr b. Shu°aibon his father's authority from his grandfather ( A, Allah's Messenger i 44- Al said: "It is not lawful for a woman to give a gift without her husband's " permission. A version has: "It is not lawful for a woman to disposeof anything regarding her property when her husbandis responsiblefor her." (Reported by Al mad and the authors of al-Sunan except al-Tirmidhi andal-Hakimgradedit $ahih (sound)). 11 8 Narrated Qabisab. Mukhariq al-Hiläli l -:-x Allah's Messenger tLj ,4b Al said, L, "Beggingis allowableonly to one of three (people): a man who has become a guarantor for a payment, to whom beggingis allowed till he gets it, after which he must stop begging; a man whose property has beendestroyedby a calamitywhich has smittenhim, to whom begging is allowed till he gets what will support life; and a man who has been smitten by poverty, the genuinenessof which is confirmed by threeintelligentmembersof his people." (Reportedby Muslim).

217 become a guarantor for a payment, a man whose property has been destroyed by a by has has been him smitten poverty. Those calamity which smitten and a man who three conditions can be seenthe juristic causesof permissibility of begging. The main life is for this to the of those who are of objective provision very clear which preserve in one of three conditions above. In connection with the seventhHadith, it suggests that a wife who has wealthy ownership should help her husband who is in predicamentas discussedin the eight IladTth. The assistancefor those who are in such for is juristically humanity those particularly obligation classified as a predicament who have material capability. In such predicament situations, a solution of al-$'ulh or

best is between the two way to achieve part of parties contract reconciliation of life harmful to of as the effects understanding simultaneously whilst prevent mutual discussion interest. Islamic Further on al-$ulh or principle of public main

in take will place next topic. reconciliation

218 6.2.7Al- ulh or Reconciliation

This sub topic of al-Sullzconsistsof 3 ahädith Salüh. In terms of reference, this sub topic has referred to authentic narrators of the Hadith such as Bukhäri (narrated 1 Iladith), Muslim (narrated 1 Hadith), al-Tirmidhi

(narrated 1 Vadlth), Ibn Hibbän

(narrated 2 aliädith) and a1-IIäkim (narrated 1 Uad4h).

In the fiqh literature, the term al-Sully can be literally defined peace or divide jurists Muslim However, the subject of ani, to according al-$an' reconciliation. based its defined into technically on upon which severalcategories,which are al-$ulh in is defined truce treaty For the term and as example, al-$ull: subject and category'. the subject of political such as a treaty betweenMuslim and non-Muslim, and a truce

in the subjectof marriage betweenrebelsandgovernment,whereasasrapprochement financial husband In between the of subject andwife. suchasa rapprochement between be defined two partiesof the term transaction, as reconciliation al-$ulii can disagreement terms. particular on who were contract

In line with the above definition, the first2 ffadith of this sub topic underlines

between js Muslims. However, the the ruling of permissibleof al-Sul particularly Hadith rules the permissibilityýof al-$ulh in generalterms and does not refer to financial Primarily, Hadith the as so on. rulesthat contract such contract and specific 1al,$an°ani,Subul,v.3,p.63. 2 1. Narrated °Amr b. 'Auf al-Muzäni 4I Allah's Messenger ý aj Aj3z . said, "Reconciliationis allowable between Muslims except such which makes unlawful somethingwhich is lawful, or makeslawful somethingwhich is unlawful; and Muslims must keep to the conditions they have made, except for a condition which makes unlawful somethingwhich is lawful, or makeslawful is unlawful." (al-Tirmidhi reported and graded it $alth! (sound), but the Iladith somethingwhich him 'Auf because °Amr disagreed Kathir b. is Abdullah b. b. the with narration of weak, scholars it for its considered reliable many ways of narration). Ibn IUibbandeclared the al-Tirmidhi perhaps Al be from Abis Huraira. Vadith Akto the sound version of aforesaid, .-, j

219 the contract of al-Sully must not against any basic principle of Islamic law while simultaneously must not change unlawful into lawful and vice versa. Furthermore, jurists many agree to affirm that the mutual consent of ethic must be taken into for both account parties in the contract of al-,Sul1i3.This condition clearly in connection with the theme of public interest that aims to preserve the right and for interested partiesthat involve in such contract of transaction. equality

In the context of social right of community, the mutual consent of ethic that applies to the contract of al-Sully must be practiced by each person.The second and third Hadith rule the condition of mutual consent of ethic as a basic principle in the line In of with this principle, the second° al-Sulk a specific within example. contract Hadith demonstratesa specific example whereby one must not prevent his neighbour

from fixing a beamon his wall. At this stage,the mutual consentof ethic must be by Shall this to the social right of community. practiced each neighbour achieve is is be ignored by it Prophet to the that each s. a. w rules unlawful to person, principle

take somethingfrom someonewithout permissionand have no senseof mutual in in been has Vadith This thirds the which the provision ruled consentof ethic. Prophets.a.w affirmsthat it is unlawful to takehis brother'sstick exceptwith his good will.

3 a1-$ancani, Op.cit., p.65. The Prophet 2. Narrated AbtsHuraira ] 4- +ºu1 said, "One must not prevent his from fixing beam in his l " Abis Huraira'do I "Why then a wall. neighbour said, seeyou turn w-'j it? by from I Allah that I will alwaysnarrateit to you." (Agreed upon). swear away s 3. Narrated Abü IIumayd al-Sa°idi Al uj: Allah's Messenger f ""j A46Al I. said, "It is not , lawful for a person to take his brother's stick except with his good will. " (Ibn IIibbän and al-Ijakim in books). it Sahih their two, reported

220 In the perspectiveof public interest, the concerning on mutual consent of ethic between each party who involve in a contract would lead the social right for each party as well as community as a whole. The stability of social right in community will basic life humanity the peace and of principles of the prosperity of preserve of as one interest. concept of public

The topic of al-$ullz will be further detailed in the subject of financial transactionwith particular referenceto the transaction of al-Hawäla wa al-Pamän in debt focus is the transfer the the and surety. of of examination given on which

221 6.2.8 The transfer of a debt and surety or alIIawäla wa al--amän This subtopic of al-Hawdla wa al-IDamdnconsistsof 4 aliddith that are encompassed 3 Sahih and 1 Daif.

In terms of narration, mostly, those a1:ädith have authentic

Ahmad (narrated 2 ahädith), Bukhäri (narrated 2 aliädith), Muslim such as narrators (narrated 1 Hadith), Abn Däwüd (narrated 1 hladith), al-Nasä'i (narrated 1 Hadith), (narrated 1 Hadith), Ibn Hibbän (narrated 1 Hadith) and al-Hakim al-Bayhägi (narrated 1 Uadl-th).

The first' Hadith of this sub topic rules two injunctions regarding the transaction of al-Hawäla or the transfer of debt. For a1-$an°äni,the Hadith highlights the injunction of forbidden for a rich man to delay the payment of debt becausethis

lead The injunction injustice for be deduced to the that creditor2. second can would from the Hadith is the permissibility of transferringdebt to other creditor. This injunction would help the debtor to pay back a debt to the creditor by transferring the debt to other party. This type of transaction can be applied to the critical situation in

debtor debt. has Prophet At the to the the this s.a.w no capability pay stage, which insiststo acceptthe transferof debt from critical debtoras the way to help him out from such predicamentof debt. Somejurists agreethat at this stageit is obligatory to

debt from debtor3. the transfer of accept critical

The importance of payment the debt through the transaction of al- fawüla in debtor's death has been emphasisedby the Prophet s.a.w in the case of particularly 1 1. NarratedAbil Huraira Alk-Al Allah's Messenger rLj A46Al by in "Delay payment uLm said, a rich man is injustice, but when one of you is referred for paymentto a wealthy man he should accept " (Agreed upon). A version by Abmad has: "And if anyoneis referred to another, let him the reference. acceptthat." 2 al-$an°äni,Subul,v.3,p.69. 31bid

222 the second41Yadith.In the analysis of that Hadith, Muslims jurists agree that the transactionof al-Daman or surety is applied to debtor's death for which his relatives free debtor from debt burden the the to to the the take as way pay must responsibility in line debts. In the third Hadith, the Prophet s.a.w underlines the this topic, with of his debt dead body However, to to creditor. of of pay vital responsibility relatives a the Hadiith rules the responsibility of government to take over the payment of debt in the case of one dies and leaves nothing to pay his debt. This provision is clearly interest for to the significance of public which the authority parties such as related help leaders to take social responsibility needed should governmentand community debtor. hopeless as and poor such people

The discussion on the transaction of al-I?amän or surety is closed with the

fourth?Iladith of 1)aif in which the Prophets.a.w rules the exemptionof Itudüdor Although in the ruling that the application of al-Pamän. prescribedpunishment includes in the Haduh can be deduced as invalid, but the question of why no al-

Damanin the liudüd is worth interestingto be discussedhere. It is suggestedthat liudüd laws. is between distinguish the transaction the there simple of al-Buyd and 4 2. NarratedJäbir Al him; A died, then we man of embalmed and shrouded us so we washed, uZ6j: Al L- and ask him to pray over him, he went forward brought him to Allah's Messenger j A4+lc i, he but "Two Dinars. " Abfl "Did " We Ile turned away, and asked, owe anything? replied, some steps At ( himself ) him bearing We Qatäda(Alr-Al then them. to took the came upon of )) rL-j u1, Al c-Al " Allah's (, Dinars. Messenger Qatada "I discharge Abi! A46 two the said, shall )) and uL. thereupon said, "Will you be responsiblefor paying them as a right to the creditor; and the dead , by be free from him. Alamad, " (Reported He "Yes. " So He them? then over replied, prayed man will Abü Däwüd and al-Nasä'i.Ibn Hibbän and al-Hakim gradedit $alüli (sound)). s al-$an ni, Subul,v. 3,p.70-71. 6 3. Narrated Abu Huraira 1-k-4$ had died in debt would be brought to Allah's man who ,yA Messenger j 14- 4 and he would ask, "Has he left anything to dischargehis debt?" If he was told that he had left enoughhe would pray over him, otherwisehe would say, "Pray over your friend." But when Allah brought the conquestsat his hands he said, "I am closer to the believers than their if dies leaving a debt I shall be responsiblefor repaying it. " (Agreed upon). A so anyone ownselves, versionby al-Bukhärihas: "If anyonedies and leavesnothing to dischargehis debt." 7 4. Narrated °Amr b. Shu`aib on his father's authority from his grandfather (4 Allah's cr; -j): Al Messenger said, "No suretyis allowed regarding a prescribedpunishment." (Reported -46 by al-Bayhägiwith a weak Isndd).

223 The simple distinguish between both of them is referred to the juristic concept of public interest. In terms of the application of benefit to humanity, the transaction of is al-Buyzf seenmore applicable comparedwith the #udüd laws. Although both are in line with the concept of public interest, but the former has more interactions and benefits to humanity whereas the latter is seen has little interaction but more humanity. to punishments

Further discussionon interaction and benefit to humanity in the transaction of in take place the next topic of partnership and agency or al-Shirka wa al-Buyu` will

al-Wakäla.

224 6.2.9 Partnership and agency or al-Shirka wa al-Wakäla

This sub topic consists of 8 aliddith within variation on numbers of the authentic Hadith as follows; ,Sahib (6 ahddith) and liasan (2 aliä ith). In terms of narration, (narrated 1 Ahmad Hadith have the such as those ahädith many authentic narratorsof Abü Däwüd 3 (narrated Muslim 3 (narrated Bukhäri aliädith), Iladith), ahädith), 1 Uaalith) (narrated Majah Ibn (narrated 1 Hadith), 3 and (narrated ahädith), al-Nasä'i (narrated 1 Hadith). akim al-I

The first' IIadith of this sub topic verifies the significance of al-Shirka or (partner) two becomes third the Allah in of t s.w. partnership a contract of which Prophet The in fraudulent the long s. a. w contract. exist elements no as partners as bless from is the and fraudulent mercy the away that the contract of elements affirms deserve business in would For the Allah partnership smart al-$ancäni, almighty. of In the fraud for words, the other partnership2. profit and reward and vice versa between be transparency of contract transactionof al-Shirka must applied within the two parties.

In line with the transaction of al-Shirka, the second3Uadith can be classified Arab before Islam to historically indicate that al-Shirka was applied as a proof to life Prophet during legalised been it has the but the s. a. w. of and endorsed community

1 1. NarratedAbü Huraira At -,j: Allah's Messenger eu., 44- At vL- said, "Allah the Most High L,,: but does his long (partner) them I two companion, one of third as not cheat of partnersas said, am the (sound)). it $alJji by Abil Däwild from "' (Reported depart I he them. and al-HAkim graded when cheats 2 al.$anCäni, Subul,v.3,p.74. Lu 3 2. Narrated al-Sä'ib al-Makhzümi I Prophet the Ai',- At UI +º j: was a partner with before the Prophethood and when the day of Conquest (of Makka) came, he said, "Welcome my brotherandmy partner." (Reportedby Abmad, Abü Däwüd and Ibn Mäjah).

225 In terms of practice during the life of companions, the third Hadith signifies the has been in termed of which non-businessactivities permissibility of partnership Shirka al-abdän. For Imäm Abi! Hanifa and al-Hadäwiya, this type of transaction is However, if legal knows terms the al-ShäfiCi of contract. and every party allowed differs on this transactiondue to fraudulent elementsthat may exist in the transaction is in the considered uncounted aspect of measurementof profit, which particularly in At this stage, a1-Shäfi°i'sargument can of profit non-business activitiess. measure be rebuttedas the profit of non-businessactivities can be defined and clarified by be fraudulent in the the terms thus, avoided. can elements of contract, eachparty

Regardingthe transactionof al-Wakdla, there are five alzädith of this sub topic jaaith. i. fourth6, fifth', the transaction this eighth1° e. sixth8, seventh9and verify . Those a(iädith rule the permissibility of al-Wakäla or agency in many forms such as

distributing (sacrificing the and tadldyya animals), collecting the worshippingof .

be lzudüd laws. (alms The that must main condition poor), punishmentof adaga

4 3. Narrated Abdullah b. Mas°üd °Ammär, Sa°d,and I agreedto be partnersin whatever A' 'j: llactth day " booties Badr. The the the the which quoted rest of on of reporter get of we would 'Ammar by brought " (Reported brought but I Sa°d "Then two nor anything. captives, neither concludes: alNasä'i and others). s al-$an°äni,Op.cit.,v.3,p.74 6 4. NarratedJäbirb. Abdullah At Prophet intended Khaibar, I I to the to to so go went e: him. dates) from " st he fifteen (of "When Wasq Khaibar take said, you meet my agent at and eLi ýAbüDawüd reportedand gradedit $'ahili (sound)). ' 5. Narrated%Trwaal-Barigi'At j: Allah's Messenger j -46 At ul- sent him with a Dinar to buy a sacrificialanimalfor him. (The reporter mentionedthe rest of the Iladith. Al-Bukhäri reported it in the context of anotherpreviouslymentionedHadth). 8 6. Narrated Abu Huraira ' At eLi At "Allah's Messenger Umar Ai6 to collect -: sent uiSadaqa." The reporter mentionedthe rest of the Hadith. (Agreed upon). u At "The Prophet 7. Narrated Jäbir ' At ui: slaughteredsixty three (sacrificial) , At " 'Ali The