Our Words

All praise belongs to Allah, the Almighty, our Creator, Sustainer, and Lord. His mercy and grace upon us are infinite and unceasing. Blessings and peace be upon our leader and guide, the final Prophet, Muhammad, the Messenger of Allah (peace and blessings be upon him).

By the boundless mercy of Almighty Allah, the Syed Abul A‘la Maududi Research Academy is publishing, for Bengali-speaking readers, this work, Fiqh us-Sunnah, authored by the renowned jurist and Shariah expert of the modern age, al-Ustadh Sayyid Sabiq, after completing its translation from Arabic into Bengali and its editing. The work is published in three volumes.

This work is an immortal achievement in the science of fiqh. Al-Ustadh Sayyid Sabiq composed it at the request, encouragement, and advice of the martyr Hasan al-Banna. In the modern world, this work is a guidebook for teachers and students who follow Islam (Practicing Muslims).

This work will remain a milestone in the history of fiqh. Until now, fiqh works have generally been written on the basis of particular madhhabs. But this work’s character is different from and more distinguished than those works. In brief, the features of this work are as follows:

01. It is not a fiqh work based on any particular madhhab.
02. It is a fiqh work based on evidences.
03. In discussing the rules and regulations of the Shariah, the relevant self-explanatory verses have been mentioned first.
04. Secondly, the relevant Sunnah of the Messenger of Allah (peace and blessings be upon him) has been mentioned in discussing the rulings. The relevant hadiths have been cited.
05. The reports of the Companions have been mentioned.
06. In matters of ijtihad, analogy, and the interpretation of verses and hadiths requiring explanation, the explanations and opinions of the Successors, the Successors of the Successors, and the mujtahid scholars have been mentioned.
07. The opinions of later mujtahid jurists have been mentioned.
08. The opinions of various madhhabs and their imams have been mentioned.
09. Where applicable and available, the rulings and observations of various Islamic courts have been mentioned.
10. In some places, guidance has been given regarding the preferable opinion and course of action.

Overall, this work is an extraordinary book worthy of being followed by ordinary Muslims, Ahl al-Hadith, Ahl al-Ra’y, and the muqallids (followers) of the various madhhabs alike.
I believe that every educated Muslim needs to read this work and that it should be present in every home, for the pure and correct observance of Islamic Shariah.

If anyone notices any error in the translation or printing of this work, and informs the publisher in writing or by telephone, it will be corrected in the next printing, God willing.
Our thought, planning, and overall effort will have been worthwhile if the followers of Islam benefit from this work. I pray to Almighty Allah to accept this humble effort of ours.

Abdus Shahid Nasim
Director
Syed Abul A‘la Maududi Research Academy, Dhaka

Foreword by the Martyr Imam Hasan al-Banna

In the name of Allah, the Most Compassionate, the Most Merciful

All praise belongs to Allah Most High. Blessings and peace be upon our leader Muhammad (peace and blessings be upon him), and upon his followers and Companions.

ومَا كَانَ الْمُؤْمِنُونَ لِيَنْفِرُوا كَافَّةً، فلولا نَفَرَ مِن كُلِّ فِرْقَةٍ مِنْهُم طَائِفَةٌ لِيَتَفَقَّهُوا في الروسي ولِيُنذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحل رون.

“It was not necessary for all the believers to go forth together. But how good it would have been if a group from each of their factions had gone forth, gained deep knowledge of the religion, and, upon returning, warned their own people so that they might be warned.” (Surah 9, al-Tawbah: verse 122)

One of the finest means of attaining nearness to Almighty Allah is to spread knowledge of Islam and its da‘wah, and likewise to spread Islamic laws, especially the rules of fiqh, so that people at every level may gain clear knowledge about their worship and deeds. The Messenger of Allah (peace and blessings be upon him) said:

“When Allah Most High intends good for someone, He grants him deep understanding of the religion. Knowledge is acquired through learning. The Prophets (peace be upon them) did not leave behind money and wealth in the world; they left behind only knowledge of the religion. Whoever acquires this knowledge should acquire it in abundance.”

The simplest, most beneficial, appealing, and intellectually engaging way to study Islamic fiqh, especially the rules related to worship and the general Islamic subjects presented for Muslims at every level, is to free fiqh from specialized technical and scholastic terminology and invented minutiae. At the same time, fiqh should be connected as simply as possible with the sources of the Qur’an and Sunnah, and, whenever possible, readers should be made aware of Islam’s rationality and beneficial aspects, so that students of fiqh may realize that through this study they are developing a close relationship with Allah and His Messenger, and that it will bring them immense benefit in this world and the Hereafter. This will encourage them most strongly to acquire greater knowledge of Islam.

Allah Most High inspired the distinguished senior scholar, al-Ustadh Sayyid Sabiq, and granted him the ability to tread this path. He therefore authored this work, containing abundant theory and information, with simple and fluent references to its sources, and analyzed the rules of fiqh in it by an exceptionally beautiful method. If Allah wills, through it he will receive an excellent reward from Allah and will likewise impress Muslims throughout the world who take pride in Islam. May Allah suitably reward him for this magnificent service to the religion and the Ummah and for this valuable contribution to the da‘wah of the religion; may He benefit people through him and bring benefit to him and to the people through his hands. Amin.

Hasan al-Banna

بسم الله الرحمن الرحيم

The Author’s Words

All praise and gratitude belong to Allah, Lord, Sustainer, and Director of the universe. Blessings and peace be upon our guide Muhammad (peace and blessings be upon him), the leader of all peoples, past and future, and upon his followers, as well as those who follow his path until the Day of Recompense is held.

We present the third volume of Fiqh us-Sunnah to our honored readers. We pray to Allah, Glorified and Exalted is He, to make this work beneficial for its readers and to make it a means solely of attaining His pleasure. He alone is sufficient for us, and He is the best disposer of affairs.

Sayyid Sabiq

Contents

Subject

Chapter Twenty: War and Peace in Islam

– Islam, the religion of peace
– Islam is the ideal of peace, not force
– Relations among people
– Mutual relations among Muslims
– Taking up arms against rebels
– Relations between Muslims and other religious communities
– Preserving the religious freedom of non-Muslims
– Prohibited friendship
– Recognition of the rights and dignity of the individual
– Punishment for violating rights
– When war becomes lawful

Chapter Twenty-One: Jihad

– How jihad became lawful in Islam
– How and when jihad became obligatory
– When jihad becomes individually obligatory
– Upon whom jihad is obligatory
– Permission of parents
– Permission of creditors
– Seeking the help of disbelievers and sinners in war
– Seeking the help of weak people
– The merit of jihad and martyrdom
– The merit of jihad
– The mujahid is the best of people
– Paradise is for the mujahid
– The mujahid rises one hundred درجات in Paradise
– The merit of martyrdom
– The merit of remaining at the frontier in Allah’s path and confronting the enemy
– The merit of shooting an arrow with the intention of jihad
– Necessary qualities of a commander
– The responsibilities and duties of soldiers
– Inviting to Islam before battle is obligatory
– Supplicating to Allah on the eve of battle

Chapter Twenty-Two: War and Truce

– Remaining steadfast during war is obligatory
– Fleeing from an enemy force twice one’s size
– Mercy and compassion in war
– Night attacks on the enemy
– The end of war
– Truce and ceasefire
– The dhimmah treaty

Chapter Twenty-Three: Jizyah

– Proof that jizyah is sanctioned by the Shariah
– The rationale for instituting jizyah in the Shariah
– From whom jizyah is taken
– Ibn al-Qayyim’s opinion
– Conditions for accepting jizyah
– The amount of jizyah
– Additional jizyah
– It is unlawful to take anything burdensome for the People of the Book
– Jizyah is waived upon accepting Islam
– A dhimmah treaty is valid with both those living together with Muslims and those living separately
– When the dhimmah treaty is annulled
– Consequences of violating the treaty
– The entry of non-Muslims into mosques and Muslim areas

Chapter Twenty-Four: Ghanimah, or War Booty

– Ghanimah is lawful only for the community of the final Prophet
– Recipients of ghanimah
– Method of distributing ghanimah
– An additional share of ghanimah is also ghanimah
– The weapons found with a slain soldier belong to his killer
– Those who have no share in ghanimah
– Workers and non-Muslims receive no share
– Ghulul (stealing from the booty)
– Ghulul is unlawful
– Benefiting from foodstuffs before distributing the booty
– Any property a Muslim obtains from the enemy is considered the enemy’s property
– If a fighting disbeliever accepts Islam

Chapter Twenty-Five: Prisoners of War

– Treatment of prisoners of war
– Chapter Twenty-Six: Enslaving People
– Treatment of slaves
– Methods of emancipation

Chapter Twenty-Seven: Lands Recovered from Warring Disbelievers as Booty

– Lands seized by force
– When inhabitants abandon an area out of fear or by agreement
– When one is unable to cultivate land subject to land tax
– Inheritance of land received as booty

Chapter Twenty-Eight: Fay’

– Distribution and allocation of fay’

Chapter Twenty-Nine: Security Agreements

– Who has the authority to grant security
– The effects of granting security
– When the right to grant security or asylum takes effect
– Granting security collectively
– An envoy is included among those granted security
– Musta’min (a person seeking protected asylum)
– The rights of the musta’min
– The responsibilities and duties of the musta’min
– Islamic law applies to the musta’min
– Confiscating the property of the musta’min
– Inheritance of the musta’min

Chapter Thirty: Promises and Treaties

– Upholding the honor of promises
– Conditions of a promise
– Breaking a promise or treaty
– Notice of treaty cancellation is necessary to avoid treachery
– Several treaties of the Messenger (peace and blessings be upon him)

Chapter Thirty-One: Oaths

– Definition of an oath
– An oath is not valid without mentioning Allah’s name or attribute
– Various forms of oaths
– Taking an oath that makes one regarded as a non-Muslim or outside Islam
– It is prohibited to swear by anyone other than Allah
– When there is no intention of venerating the one by whom the oath is sworn
– Swearing by created beings
– Conditions and elements of an oath
– The Shariah ruling concerning oaths
– Types of oaths
– Thoughtless oaths and their ruling
– Deliberate oaths and their ruling
– False oaths and their ruling
– An oath is based on intention and customary practice
– Expiation for an oath

Chapter Thirty-Two: Vows

– Definition
– Vows in the Age of Ignorance
– Vows are lawful in Islam
– When a vow is valid and when it is invalid
– A permissible vow
– Conditional and unconditional vows
– Vows made in the name of the dead
– Vowing to perform worship at a particular place
– Vowing in the name of a particularly righteous person
– If one vows to fast and is unable to fulfill it
– A vow to give financial charity
– Expiation for a vow
– If one dies before fulfilling a vow to fast
– Chapter Thirty-Three: Trade
– Setting out at dawn in search of livelihood
– Lawful earnings
– It is obligatory to know the Shariah rulings concerning buying and selling
– Definition of trade
– The place of trade in the Shariah
– The rationale for the lawfulness of trade
– The consequences of validly completing a trade
– Elements of trade
– Conditions of offer and acceptance
– Concluding a sale contract in writing
– The sale of a mute person
– Conditions for a valid trade
– Conditions relating to the buyer and seller
– Conditions relating to the commodity
– Meaning of taking possession
– Having witnesses to a sale contract
– Selling over another sale
– If sold to two people, the commodity belongs to the first buyer
– Credit sales and cash sales
– Brokerage is lawful
– Sales resulting from coercion
– Sale by a person in distress
– Sale out of fear of oppression
– Selling a commodity while excluding a specified part
– Correcting weights and measures
– It is recommended to give extra weight on the scale
– Kindness in buying and selling
– Fraudulent sales
– Prohibition of selling after determining the area of land by throwing a stone
– Prohibition of selling on the basis of a diver’s dive
– Prohibition of selling an unborn animal in its mother’s womb
– Prohibition of sales based on touch
– Prohibition of sales based on throwing
– It is unlawful to sell seized, usurped, or stolen property
– It is unlawful to sell grapes to a wine producer and weapons during civil disorder
– Selling an adulterated forbidden substance
– Prohibition of excessive swearing
– Buying and selling inside a mosque
– Selling at the time of the Friday prayer call
– The validity of tawliyah, murabahah, and wadī‘ah sales
– Buying and selling the Noble Qur’an
– Selling and renting houses in Makkah
– Selling water
– Selling on the condition that the commodity may be returned if the price is refunded
– Buying goods manufactured to order
– Conditions for the validity of a contract
– Selling fruits and crops
– Selling to the original owner or landowner
– How can maturity be recognized?
– Selling fruits that ripen gradually
– Selling wheat while it is still in the ear
– Waiving liability for damage caused by calamities
– Conditions of sale
– The second type of condition: an invalid condition
– Bai‘ al-‘urbun (earnest-money sale)
– Selling on the condition of being free from liability for all defects
– Disputes between buyer and seller
– Ruling on an invalid sale
– Profit from an invalid sale
– If the commodity is destroyed before possession
– If the sold commodity is destroyed after possession
– Price regulation
– Prohibition of price regulation
– Price regulation is lawful in times of need
– Hoarding
– When hoarding becomes unlawful
– When the right of cancellation lapses
– Khiyar al-shart, or the option for a specified period
– Khiyar al-‘ayb, or the option due to a defect
– It is unlawful to conceal a defect in a commodity at the time of sale
– Ruling on selling with defects
– Dispute between buyer and seller concerning a defect
– Buying rotten eggs
– Income from liability
– The option against deception in a sale
– The option due to being cheated in buying and selling
– Buying goods while they are in transit
– Pretending to buy in order to raise the price
– Iqalah, or rescinding a sale
– Bai‘ al-salam
– The validity of bai‘ al-salam
– Its compatibility with the rules of the Shariah
– Conditions of bai‘ al-salam
– Conditions relating to the capital
– Conditions relating to the commodity
– The condition of a specified term
– In bai‘ al-salam, it is not a condition that the commodity be with the seller
– Failure to mention the place of delivery does not invalidate the contract
– Bai‘ al-salam involving milk and ripe dates
– Accepting a different commodity in place of the specified commodity in bai‘ al-salam

Chapter Thirty-Four: Riba, or Interest

– Ruling
– The rationale for prohibiting interest
– Types of interest
– Interest due to delay
– Interest due to increase
– The reason for its prohibition
– Selling an animal in exchange for meat
– Selling dates in exchange for dried dates
– Selling on credit at a price greater than the actual value
– Chapter Thirty-Five: Qard, or Loans
– Its validity in the Shariah
– The loan contract
– The condition of specifying a term
– What things may be loaned
– A loan that brings profit is interest
– Urging repayment of a loan before death
– A rich person’s delay is wrongdoing
– It is recommended to grant an extension to an impoverished debtor
– Waiving part of a loan before its term expires

Chapter Thirty-Six: Rahn, or Pledging

– The validity of rahn
– Conditions for the validity of a pledge
– The pledgee’s benefiting from the pledged property
– The expenses and benefits of pledged property
– Pledged property as a trust
– The pledge remains in force until the debt is repaid
– Loss of the pledged property
– Stipulating the sale of the pledge when the term expires
– When is a pledge cancelled?

Chapter Thirty-Seven: Agriculture

– The merit of agriculture
– Partnership farming or sharecropping
– The validity of partnership farming
– Answering the hadiths concerning the prohibition of partnership farming
– Renting land in exchange for money
– Invalid sharecropping
– Cultivating uncultivated land
– Conditions for cultivating uncultivated land
– The ruler’s permission
– When does ownership lapse?
– A person who cultivates another’s land without the owner’s knowledge
– Allocating land, water bodies, and mines
– Taking land away from one who leaves it uncultivated

Chapter Thirty-Eight: Ijarah, or Leasing

– Definition
– The validity of ijarah or leasing
– The rationale for the validity of ijarah
– Essential elements of a lease contract
– Conditions relating to the lessor and lessee
– Conditions for the validity of ijarah or leasing
– Paying remuneration for acts of worship
– A barber’s earnings
– Stipulating immediate or deferred payment of remuneration
– When remuneration or rent becomes due
– When the relevant object is destroyed in a contract for hiring a worker
– Hiring a midwife
– The validity of hiring in exchange for food and clothing
– Renting land
– Renting animals
– Renting a house for residence
– Subleasing a rented object
– If the rented object is lost

Chapter Thirty-Nine: Workers or Employees

– Private employees
– Joint or collective employees
– Cancellation or termination of a lease or employment
– Returning a rented object

Chapter Forty: Mudarabah

– Definition and ruling
– The rationale for mudarabah
– Essential elements of mudarabah
– Conditions of mudarabah
– The entrepreneur as trustee
– If the entrepreneur transfers the capital to another person
– The entrepreneur’s expenses
– Cancelling mudarabah
– What the entrepreneur must do if the capital owner dies
– The capital owner’s presence as a condition at the time of distribution

Chapter Forty-One: Hawalah

– Definition
– The validity of hawalah
– Whether the order is obligatory or merely recommended
– Conditions for the validity of hawalah
– Does hawalah discharge the transferor’s liability?
– Chapter Forty-Two: Shuf‘ah
– Definition
– Validity
– Rationale
– Shuf‘ah for non-Muslim citizens
– Seeking a partner’s permission before a sale
– Resorting to trickery to nullify the right of shuf‘ah
– Conditions of shuf‘ah
– When there is more than one claimant to shuf‘ah
– Inheritance of shuf‘ah
– The buyer’s intervention
– If the buyer builds something on the purchased property before the shuf‘ah claim
– Settlement to nullify shuf‘ah
– Chapter Forty-Three: Wakalah, or Representation
– Definition
– The validity of wakalah
– Essential elements of wakalah
– Conditional and unconditional wakalah
– Conditions of wakalah
– Conditions relating to the muwakkil, or appointing principal
– Conditions for becoming an agent
– Conditions relating to the task for which an agent is appointed
– Matters in which representation is valid
– The agent is responsible
– Appointing an agent or lawyer to recover a claim
– The lawyer’s admission on behalf of the principal
– A lawyer appointed to recover a claim is not an agent for taking possession of property
– Appointing an agent to exact qisas
– An agent for selling
– An agent buying for himself
– Appointing an agent to purchase
– Termination of the agency contract

Chapter Forty-Four: Lending for Use

– Definition
– How a loan for use is made
– Conditions of lending for use
– Relending and renting out a borrowed object
– When the lender may demand his property
– When returning it becomes necessary
– The borrower’s liability

Chapter Forty-Five: Deposited Property

– Definition and ruling
– Compensation
– The trustee’s statement is accepted together with his oath
– If he claims that the deposited property was stolen
– If the custodian of the deposited property dies

Chapter Forty-Six: Usurpation

– Definition
– The Shariah ruling concerning usurpation
– Building or farming on usurped land
– It is prohibited to benefit from usurped property
– Safeguarding property
– Whoever finds his property with another person has the greater right to it
– Opening the door of a birdcage

Chapter Forty-Seven: Foundlings

– Definition and ruling
– Who has greater entitlement to a foundling
– Maintenance
– Inheritance of a foundling
– Claiming the lineage of a foundling

Chapter Forty-Eight: Lost or Abandoned Property

– Definition
– Ruling
– Lost property in the Sacred Precinct
– Publicizing lost property
– Exceptions for food and insignificant items
– Lost goats and sheep
– Lost camels, cattle, horses, donkeys, and mules
– Expenses for a lost animal

Chapter Forty-Nine: The Lawful and Unlawful in Foodstuffs

– Definition of food
– Permissible
– Aquatic animals
– Saltwater fish
– Aquatic and terrestrial animals
– Lawful terrestrial animals
– Quadrupeds
– Food explicitly described as unlawful
– Parts detached from a living animal
– The prohibition of donkeys and mules
– Predatory animals and birds are unlawful
– Animals that feed on filth are unlawful
– Impure things are unlawful
– Animals whose killing the Shariah commands are unlawful
– Things concerning which silence has been observed
– Imported meat
– Eating unlawful food is permissible in a state of necessity
– The limits of a state of necessity
– The amount of unlawful food that may be eaten
– The availability of another person’s food does not constitute necessity
– Is alcohol lawful for medical treatment?

Chapter Fifty: Slaughter Permitted by the Shariah

– Requirements for a valid slaughter
– Animals slaughtered by the People of the Book
– Animals slaughtered by fire worshippers and Sabians
– Disliked acts in slaughtering
– Slaughtering an animal facing death or while ill
– Withdrawing the hand before completing the slaughter
– Wounding an animal when slaughtering it becomes impossible
– Slaughtering a fetus

Chapter Fifty-One: Hunting

– Definition and ruling
– Hunting that is prohibited
– Killing animals without a beneficial purpose
– Conditions for the hunter
– Hunting with a wound-inflicting weapon and with an animal
– Conditions for hunting with a weapon
– Conditions for hunting with a predatory animal
– Two predatory animals sharing in capturing one quarry
– Hunting with a hunting dog belonging to a Jew or Christian
– Finding the quarry alive
– Finding the quarry dead after it has been wounded

Chapter Fifty-Two: Sacrifice

– The Shariah ruling concerning sacrifice
– Definition
– The virtue of sacrifice
– The ruling on sacrifice
– When sacrifice becomes obligatory
– The rationale for sacrifice
– What makes a sacrifice valid
– Sacrificing a castrated animal
– Animals with which sacrifice is not permissible
– The time of slaughter
– One sacrifice suffices for one family
– The permissibility of several people sharing in a sacrifice
– Distribution of sacrificial meat
– The person offering the sacrifice may slaughter it himself

Chapter Fifty-Three: Aqiqah

– Definition and ruling
– Virtue
– What should be slaughtered on behalf of a boy and a girl
– The time of slaughter
– Performing aqiqah and sacrifice together
– Naming the child and shaving its hair
– The best names
– Naming with certain names, including marks
– Calling the adhan in the newborn’s ear
– Some جاهلي customs concerning a newborn
– Piercing a child’s ear

Chapter Fifty-Four: Kafalah (Suretyship)

– Definition
– The liable person or debtor
– The validity of kafalah or suretyship in the Shariah
– Immediate, conditional, and time-bound suretyship
– Demanding repayment from both the surety and the debtor simultaneously
– Categories of kafalah
– Personal suretyship
– Financial suretyship
– The surety’s demand for the debt owed by the debtor
– Several rulings concerning kafalah

Chapter Fifty-Five: Musaqat

– Definition
– Ruling
– Essential elements of musaqat
– Conditions
– In what cases musaqat is permissible
– The responsibility of the musaqi
– When the musaqi becomes unable to work
– If either party to a musaqat contract dies

Chapter Fifty-Six: Contract for Unspecified Work (Ju‘alah)

– Validity

Chapter Fifty-Seven: Partnership or Shirkah

– Definition
– Validity
– Types of shirkah
– Shirkah in ownership or joint ownership
– Rulings on joint ownership
– Contractual shirkah
– Types of contractual shirkah
– Essential elements of shirkah
– Ruling
– Shirkah al-‘Inan, or unequal partnership
– Shirkah al-Mufawadah, or equal partnership
– Shirkah al-Wujuh, or joint business without capital
– Shirkah al-Abdan, or labor-based partnership
– Partnership in raising animals
– Several methods of valid shirkah

Chapter Fifty-Eight: Life Insurance

Chapter Fifty-Nine: Settlement and Compromise

– Definition
– Validity of settlement
– Essential elements of settlement
– Conditions of settlement
– The party accepting settlement
– Conditions concerning the consideration for settlement
– Conditions of the disputed right whose settlement is sought
– Types of compromise settlement
– Settlement based on admission
– Compromise following denial
– Compromise based on silence
– The Shariah ruling on compromise following denial or silence
– Compromise by promptly paying part of a long-term debt

Chapter Sixty: The Judicial System

– The primary purpose of all the prophets’ missions was to establish justice
– The judicial system of Islam
– What judgments will be based on
– The status of justice
– Qualifications of a judge
– The judgment of an unqualified judge
– The Shariah method of adjudication
– A mujtahid receives a reward
– What a judge must do
– Umar’s letter concerning judicial matters
– A judge’s recommendation
– The external effect of a judge’s ruling
– A judge’s ruling concerning an absent person who has no representative
– A judge’s ruling against non-Muslims
– May a creditor recover his due without making a demand if the debtor procrastinates?
– A new decision occurring to the judge
– An example of adjudication in the early period of Islam

Chapter Sixty-One: Claims and Evidence

– Definition
– Whose claim is valid
– A claim has no value without evidence
– The claimant must present the evidence
– The evidence must be conclusive
– Methods of proving a claim

Chapter Sixty-Two: Admission

– Definition
– Validity of admission
– Conditions for a valid admission
– Withdrawing an admission
– Admission is limited evidence
– Admission is indivisible
– Admission of a debt

Chapter Sixty-Three: Testimony

– Definition
– Giving testimony without knowledge is invalid
– The Shariah ruling on testimony
– Conditions for accepting testimony
– The testimony of a dhimmi concerning a dhimmi
– The testimony of a person of unknown character
– The testimony of a nomad concerning city dwellers
– The testimony of a blind person
– The minimum number of witnesses
– Cases requiring four witnesses
– The requirement of three witnesses
– The testimony of two men only
– The testimony of two men, or one man and two women
– The testimony of one man
– Testimony concerning a child’s suckling
– Testimony concerning a child’s cry at birth

Chapter Sixty-Four: Testimony and Oaths

– An oath when one is unable to present testimony
– Will evidence be accepted after an oath has been taken?
– Refusal to take an oath
– The oath is taken according to the intention of the one who demands it
– Giving judgment by adding an oath to a witness’s testimony
– Conclusive circumstantial evidence
– Dispute over household furnishings
– Handwritten evidence and documents

Chapter Sixty-Five: Contradiction

– Contradiction is of two types
– A witness’s contradiction or withdrawal of testimony
– The claimant’s contradiction
– Invalidating the claimant’s evidence
– Contradictory testimony by two witnesses
– Administering an oath to a witness
– Giving false testimony
– Punishment for giving false testimony

Chapter Sixty-Six: Prisons and Imprisonment

– The prison is a place of security and welfare
– Types of detention
– Striking the accused
– What detention must be like

Chapter Sixty-Seven: Coercion

– Definition
– Types of coercion
– Coercion to make someone speak
– The reason for the revelation of the verse
– The verse also gives guidance concerning matters other than disbelief
– When coerced into uttering offensive words, remaining steadfast upon the principle is better
– Being compelled to perform an unlawful act
– No Shariah hadd is imposed on one who commits a crime under coercion

Chapter Sixty-Eight: Clothing

– The Shariah ruling concerning clothing
– Obligatory clothing
– Recommended clothing
– Prohibited clothing
– Wearing silk and sitting on it
– Al-Shawkani’s opinion
– Silk is permissible for women to wear
– Wearing blended silk
– Silk is permissible for children to wear
– Wearing gold and silver rings

Chapter Sixty-Nine: Gold and Silver Vessels

– Vessels made of metals other than gold and silver
– Making teeth and noses from gold
– Women resembling men
– Clothing worn for fame
– Attaching one woman’s hair to another woman’s hair or wearing a wig

Chapter Seventy: Images

– Taking pictures and making statues
– Children’s play dolls are permissible
– Keeping pictures or statues in the home is prohibited
– Images that have no shadow
– Chapter Seventy-One: Competitions
– The validity of mutual betting
– Situations in which betting is prohibited
– Cheating in competitions is not permissible
– Harming animals is prohibited
– Branding and castrating animals
– Castrating human beings
– Inciting animals to fight
– Playing cards or dice
– Playing chess

Chapter Seventy-Two: Waqf

– Definition
– How many types of waqf are there?
– Validity of waqf
– How is a waqf completed?
– When does waqf become obligatory?
– Property that may and may not be made waqf
– Making a waqf in one’s own name is permissible
– If a waqf is made in the name of a child, grandchildren and great-grandchildren are included
– Making a waqf in the name of dhimmis
– Collective waqf
– Making a waqf in one’s own name
– Waqf without a specified purpose
– Making a waqf during a terminal illness
– Making a waqf for an heir during illness
– Making a waqf for the wealthy
– The administrator of waqf property may receive remuneration from the waqf property
– Surplus produce or profit from waqf property is to be spent on similar purposes
– Transforming vowed and waqf property into something better
– A waqf that harms the interests of heirs is prohibited

Chapter Seventy-Three: Hiba and Gift

– Definition
– The Shariah ruling concerning hiba
– Essential elements of hiba
– Conditions of hiba
– Conditions for the donor
– Conditions for the recipient
– Conditions for the item given as hiba or charity
– Hiba given during an illness from which the patient dies
– Taking possession of the gifted item
– Giving away all one’s property
– Returning a gift or present
– Giving hiba preferentially to one of one’s children
– Forms of equal treatment of children
– Taking back a hiba
– Hiba and gifts that may not be taken back
– Praising the giver and praying for him

Chapter Seventy-Four: Umma

Chapter Seventy-Five: Rubba

Chapter Seventy-Six: Maintenance

– Responsibility for maintaining parents and recovering it from the son’s property
– A prosperous father is responsible for maintaining his indigent son
– Maintenance of indigent relatives
– Maintenance of animals

Chapter Seventy-Seven: Hajr

– Definition and types
– Hajr imposed on a bankrupt person
– Delaying repayment despite being able to repay a debt
– Prohibiting transactions by a bankrupt person and selling his property
– If property lent to a bankrupt person is found intact with him
– No hajr is imposed on an indigent person
– The amount of respite that must be granted to a debtor
– Hajr imposed on a foolish person
– Acts committed by a foolish person
– A foolish person’s admission against himself
– Publicizing the imposition of hajr on a foolish or bankrupt person
– Hajr imposed on a minor
– Signs of reaching maturity
– The ruler’s order is necessary for transferring property to a person under restriction
– Who will be the guardian or trustee of a minor, foolish person, or insane person?
– Conditions for being the guardian or trustee of a person under hajr
– Guardianship should be avoided when one has weakness
– A guardian may consume from an orphan’s property
– Maintenance of a minor
– May a trustee give anything away without permission?

Chapter Seventy-Eight: Bequest

– Definition
– The ruling on bequests
– The Companions’ bequests
– The rationale for bequests
– When a bequest becomes due
– A conditional bequest
– Conditions of a bequest
– Conditions for the testator
– Conditions for the beneficiary
– Conditions for the bequeathed property
– The amount of property for which making a bequest is recommended
– A bequest of one-third
– The one-third is calculated from the entire estate
– Making a bequest of more than one-third
– When a bequest becomes invalid

Chapter Seventy-Nine: Fara’id

– Definition
– The place of fara’id in the Shariah
– The status of knowledge of fara’id
– Rights relating to the estate
– Essential elements of inheritance
– Causes of inheritance
– Conditions of inheritance
– Barriers to inheritance
– Who are entitled to the estate?
– Ashab al-Furud
– The various states of the father
– The status of the paternal grandfather
– The various states of the maternal half-brother
– The various states of the husband
– The status of the wife
– The divorced wife
– The status of a daughter
– The status of a full sister
– The status of paternal half-sisters
– The status of granddaughters
– The status of the mother
– The mother’s three states
– The status of grandmothers
– The three actual states of grandmothers
– Asabah
– Definition
– Types of asabah
– True asabah
– Male asabah
– Female asabah
– Dependent asabah
– Method of granting inheritance to male asabah
– Non-true asabah
– Partial and complete exclusion from inheritance
– How many types of hajb are there?
– Hajb excluding a person from inheritance
– The difference between mahrum and mahjub
– ‘Awl
– Definition
– Several examples of ‘awl
– Method of resolving problems of ‘awl
– Radd
– Definition
– Essential elements of radd
– Jurists’ opinions concerning radd
– Method of resolving problems of radd
– Dhawu al-Arham
– The fetus
– In terms of inheritance
– When the fetus is born
– The child in the mother’s womb
– The maximum and minimum duration of pregnancy
– The missing person
– After how long the missing person is deemed dead
– The inheritance of the missing person
– The hermaphrodite
– Definition
– How the hermaphrodite inherits
– The inheritance of an apostate
– An illegitimate child and a child denied by the lawful husband
– Takharuj
– Definition
– Ruling
– Acquiring an estate without inheritance
– One who is claimed to be one’s descendant
– A bequest exceeding one-third
– Bayt al-Mal
– Obligatory bequest

Chapter Twenty: War and Peace in Islam

Islam, the religion of peace: Among the principles that Islam has deeply rooted in the hearts of Muslims, the principle of peace is one of the foremost. Thus it has become part of their existence and faith. From its beginning and from the outset of the spread of its light, Islam has called humanity in every corner of the earth toward peace and established a sound method that leads humanity to peace.

Islam loves life, purifies and cleanses it, and creates in people love for it. For this reason, it has freed people from fear and shown them an excellent means of livelihood that advances life toward development and progress, sheltered beneath the verdant shade of comprehensive security. The word “Islam” is derived from the root of as-Salam (peace), because both peace and Islam increase stability, security, and tranquility.

One of the names of the exalted Lord of this religion is as-Salam (the Giver of Peace), for through principles and by showing paths and methods, He has granted humanity security. The Messenger of this religion is also a bearer of the banner of peace, for he is a beacon of true guidance for humanity. He came with the light of goodness and knowledge. He says about himself:

إِنَّهَا أَنَا رَحْمَةٌ مِّمْدَاةٌ “Indeed, I am an extended source of mercy and guidance.

Allah Most High says concerning his messengership: وَمَا أَرْسَلْنَاكَ إِلَّا رَحْيَةٌ “I have sent you only as a source of mercy for the worlds.” (Surah al-Anbiya: verse 107).

The Muslims’ greeting of salam creates harmony in hearts, strengthens mutual relationships, and connects a person with his fellow brother. The best and closest person to Allah is the one who gives salam first. Giving salam and spreading it are part of the faith of a knowledgeable person.

Allah Most High designated the word salam itself as the greeting of Muslims to make known that their religion is surely the religion of peace and security, and that they seek and love peace. The Messenger of Allah, peace and blessings be upon him, said:

إِنَّ اللَّهَ جَعَلَ السَّلَام تَحِيةٌ لِّأُمْتِنَا وَأَمَادَاً لِأَهْلِ نِمْتِنَا

Indeed, Allah has designated the exchange of salam as a greeting for my ummah and made it a means of security for our non-Muslim citizens. It is people’s duty to exchange salam with one another before beginning to speak to anyone. The Messenger of Allah, peace and blessings be upon him, said: السلام قبل الكلام Salam before speaking.” (Al-Tirmidhi, Abwab al-Isti’dhan, chapter 11.) [Imam al-Tirmidhi, may Allah have mercy on him, said: This is a munkar (rejected) hadith. I heard Imam al-Bukhari say that the narrator ‘Anbasah was weak and disregarded in the science of hadith, while Muhammad ibn Yazan was discarded, abandoned, and rejected in the science of hadith (Al-Tirmidhi). The Qur’an says that permission should first be sought and then salam offered before entering another person’s house (see Surah al-Nur, verse 27)—Translator.]

The reason is that salam means security, and conversation can begin only after security has been attained. Every adult and sane Muslim prays to his Lord for peace to be bestowed upon His Prophet, upon himself, and upon Allah’s righteous servants by offering salam. After supplicating to Allah, he engages in worldly activities with peace, mercy, and blessing.
In the battlefield, if a non-Muslim combatant from the opposing side utters a message of peace (salam), it becomes the Muslim fighter’s essential duty to refrain from killing him. Allah Most High says:

وَلَا تَقُوْلُوْا لِمَنْ الْفِي إِلَيْكُمُ السَّلَامَ لَسْتَ مُؤْمِنًا

If anyone offers you salam, do not say to him, “You are not a believer.” (Surah 4, an-Nisa: verse 94).

Allah Most High’s greeting to the believers will be salam.

وَتَعِيتُم يَوْمَ يَلْقُونَهُ سَلَامٌ

“On the day they meet Him, their greeting will be salam.” (Surah al-Ahzab: verse 44).

In the Hereafter, the angels will greet people by offering salam:

وَالْمَلَئِكَةُ بَدخُلُونَ عَلَيْهِم مِن كُلِّ بَابٍ سلم عليكم

And the angels will enter upon them through every gate and say, “Peace be upon you.” (Surah ar-Ra‘d: 23–24).

And the dwellings of the righteous will be filled with peace and security:

وَاللَّهُ يَدَعُوا إِلى دَارِ السَّلام

“Allah calls to the abode of peace.” (Surah Yunus: verse 25).

لَمُرْدَارُ السَّلَامِ عِندَ رَبِّهِمْFor them is the abode of peace with their Lord.” (Surah al-An‘am: 127).

The inhabitants of Paradise will hear and speak no words other than peace and security.

لا يَسْمَعُونَ فِيهَا لقوا وَلَا تَأْثِيمًا إِلَّا قِيلًا سَلْمًا سَلْمَانِ

There they will hear no vain or sinful speech, but only words of peace, peace.” (Surah al-Waqi‘ah: verses 25–26).

Islam is the ideal of peace, not of force: Islam has made establishing justice obligatory and has prohibited oppression and injustice. Conversely, it has included sincerity, compassion, mutual cooperation, sacrifice, and self-sacrifice among its sublime teachings and elevated values. These beautify life, make hearts compassionate, and awaken a sense of brotherhood among people. Islam respects the human conscience, values human thought and awareness, and regards reason, intellect, and thought as means of achieving mutual understanding and agreement.

Islam does not compel anyone regarding any particular belief. It does not use force to make anyone accept a view concerning the created world, nature, or humanity. Even regarding accepting a religion, Islam holds that there is no compulsion in religion. Islam’s method is to employ reason, reflection, and insight concerning Allah’s creation. Allah says:

. لَا إِكْرَاءَ فِي الدني مَنْ تَبَيْنَ الرَّقْلُ مِنَ الْفِي

There is no compulsion in accepting religion. The right path has become clear from the wrong path.” (2:256).

وَلَوْ شَاءَ رَبِّكَ لَا مَنَ مَنْ فِي الْأَرْضِ كُلُّهُمْ جَمِيعًا أَفَالَسَ تَكْرِهُ النَّاسَ حَتَّى يَكُولُوا مُؤْمِنِينَ

Had your Lord willed, everyone on earth would have believed. Would you then compel people to become believers?” (Surah Yunus: verse 99).

وَمَا كَانَ لِنَفْسٍ أَن تُؤْمِنَ إِلَّا بِإِذْنِ اللهِ ، وَيَجْعَلُ الرِّجْسَ عَلَى الَّذِينَ لَا يَعْقِلُونَ

No soul can believe except by Allah’s permission, and He places filth upon those who do not understand.” (Surah Yunus: verse 100).

قُلِ الْقُرُوْا مَاذَا فِي السَّموسِ وَالْأَرْضِ وَمَا تَغْنى الأمسُ وَالنَّذَرُ عَنْ قَوْمِ لَا يَؤْمِنُونَ

Say, “Look at whatever is in the heavens and the earth.” But signs and warnings are of no benefit to a people who do not believe.” (Surah Yunus: verse 101).

The sole responsibility of the Messenger of Allah (peace and blessings be upon him) was to convey the message from Allah and call people to Him. In this regard, Allah Almighty says:

يَايُّهَا النَّبِيُّ إِنَّا أَرْسَلْنَكَ عَامِدًا وَمُبَقِيرًا وَلَذِبْرًا وَدَاعِيًا إِلَى اللَّهِ بِاذْلِهِ وَسِرَاجًا مُنِيرًا

‘O Prophet! Indeed, We have sent you as a witness, a bearer of good news and a warner, as one who calls to Him by Allah’s permission, and as a radiant lamp.’ (Surah al-Ahzab: 45–46).

Relations among people: Islam does not merely commend the principles mentioned above; rather, it also establishes relations of peace and security between individuals, groups, and countries. Consequently, mutual relations among Muslims and relations between Muslims and others become mature. A detailed discussion of this is presented below.

Mutual relations among Muslims: Islam came to establish an integrated entity, join heart to heart, and unite people of different classes. That entity would remain distant from the causes of disunity, weakness, failure, and defeat, so that the great destination, noble purposes, and beneficial objectives of the Messengership could be realized. These are: worshipping Allah, exalting His word, establishing truth, doing good deeds, and striving to maintain the principles under whose shade people live safely and peacefully.

For these reasons, Islam is committed to creating good relations and close bonds among the members of society. The characteristic of this relationship is that it is a growing and enduring civic relationship. It is unlike other material relationships, which end when the occasion ends and are severed when the need is over. This relationship is stronger than bonds of blood, race, language, country, material welfare, and other human ties. It requires the creation of strong bonds among Muslims and the establishment among them of an unbroken and indestructible structure.

The first of these bonds is faith. It is the axis around which believers unite. This faith creates among believers a bond of brotherhood stronger than ties of lineage. Allah Almighty says:إِنَّمَا الْمُؤْمِنُون الحوة ‘Indeed, the believers are but brothers.’ (Surah al-Hujurat: 10).

وَالْمُؤْمِنُونَ وَالْمُؤْمِن بَعْضُهُمْ أَوْلِيَاء بَعْضٍ ‘They are allies of one another.’ (Surah al-Tawbah: 71).

The Messenger of Allah (peace and blessings be upon him) said:السيرامو الثلي ‘A Muslim is the brother of another Muslim.’

The nature of faith is to bring people together and unite them, not to divide or separate them. The Messenger of Allah (peace and blessings be upon him) said:الْمُؤْمِنُ الْفِ مَالُوفٌ وَلا خَيْرَ فِي لَا يَأْلِفَ وَلَا يُؤْلَف. من He said, ‘There is no goodness in one who neither befriends others nor is befriended.’

A believer is a source of strength for his believing brother. The Prophet (peace and blessings be upon him) said:

بعضا . الذين لِلْمُؤْمِن كَالْبَنْيَانِ يَعْلُ بَعْضُهُ ‘One believer is to another like a structure, one part of which strengthens another.’

A believer is compassionate toward another’s suffering, awakens his feelings, and rejoices in his happiness. He grieves over his sorrow and distress and considers himself a partner in them. The Messenger (peace and blessings be upon him) said:

مثل المؤمِن فِي تَوْا بِهِمْ وَتَرَ احْهِمْ وَتَعَاطْفِهِمْ كَمَثَلِ الْجَسَدِ إِذَا اشْتَكَى مِنْهُ عَضُوْ تَدَاعَى لَهُ سَائِرٌ الْجَمَلِ بالعمى والسمر.

‘In mutual love, mercy, and compassion, the believers are like one body. When one limb suffers because of fever and sleepless nights, the whole body responds to it with pain and distress.’ Through its call to unity and the maintenance of discipline, Islam has supported and strengthened this bond. At the same time, it has prohibited every means and instrument that could weaken its united strength. United strength always remains under Allah’s protection and beneath the shelter of His hand. The Prophet (peace and blessings be upon him) said:

بَنَ اللَّهِ مَعَ الْجَمَاعَةِ وَمَنْ شَنْ قُلْ فِي النَّارِ ‘

‘Allah’s help is with the community. Whoever separates himself from the community separates himself and heads toward Hell.’ Communal life is naturally a source of tranquillity for people. Then there is the matter of mercy and grace. The Messenger said:

لْجَمَاعَةُ رَحْمَةٌ وَالْقُرْقَةُ عَذَابٌ ‘The community is mercy, and separation is punishment.’

No matter how small a community may be, it is better than isolation in every circumstance. The greater its number of members, the better it is. The Messenger of Allah (peace and blessings be upon him) said:

الا ثنَانِ غير مِن وَاحِدٍ والثلاثة غير من الاثنين والاربعة غير من الثلاثَةِ فَعَلَيْكُمْ بِالْجَمَاعَةِ فَإِنْ الله لَن يَجْمَعَ أُمَّتِي إِلا عَلَى مُدَى.

‘A group of two is better than one, a group of three is better than two, and a group of four is better than three. So adhere to the community, for Allah Almighty will never unite my entire ummah upon anything other than guidance.’

All forms of worship in Islam require congregation. For example, performing the prayer in congregation is a highly important Sunnah; it is twenty-seven times more virtuous than praying alone. Zakah is a mutual exchange between the rich and the poor. Fasting is collective participation in abstinence for a specified month. Hajj is an annual sacred general gathering for Muslims. They assemble from different parts of the world for one great sacred purpose. The Messenger of Allah (peace and blessings be upon him) said:

وما اجتمع قوم في بيت من بيوتِ اللهِ يَقْرَوْنَ الْقُرْآنَ وَيَتَدَا رَسُولَهُ بَيْنَهُمْ إِلَّا تَزَلَ عَلَيْهِمُ السَّكِينَةُ وحفتهم الرحمة وَذَكَرَهُ اللهُ فِي مَلَا عِندَهُ.

‘Whenever a group of people gathers in one of Allah’s houses, recites the Qur’an, and teaches it to one another, tranquillity descends upon them, mercy envelops them, and Allah mentions them to those angels who are with Him.’

The Messenger of Allah (peace and blessings be upon him) liked Muslims to remain united, even in their outward arrangement. One day, seeing some Muslims sitting apart from one another, he said, ‘Come together.’ So they sat together.

While the community serves as a force for preserving Allah’s religion and as a vigilant guardian of the worldly interests of Muslims, disunity and division destroy both religion and worldly life. Islam has strictly forbidden remaining separate, because this is the open road to defeat. Islam has been so vigilant concerning disunity and division that it has not given such importance to any other matter that destroys Muslim strength, whose inevitable consequences are hardship, failure, humiliation, and suffering. Allah Almighty says:

ووَلَا تَكُونُوا كَالَّلِ مَن تَفَرَّقُوا وَاخْتَلَفُوا مِنْ بَعْدِ مَا جَاءَهُمُ الْبَيني وَأُولَئِكَ لَهُمْ عَلَ ابْ عَظِيمٌ

‘Do not be like those who became divided and differed after clear proofs had come to them. For them is a tremendous punishment.’ (Surah Al ‘Imran: 105).

وَلَا تَنَازَعُوا فَتَفْعَلُوا وَتَنْ مَبَ رِيحَكُمْ ‘

‘Do not quarrel among yourselves, lest you lose courage and your strength and influence vanish.’ (Surah al-Anfal: 46).

واعتصموا يصبْلِ اللَّهِ جَمِيعًا وَلَا تَفَرْقُواس ‘

‘Hold firmly, all together, to the rope of Allah and do not be divided.’ (Surah Al ‘Imran: 103).

ولا تَكُونُوا مِنَ الْمُشْرِكِينَ مِنَ الَّذِينَ فَرَّقُوا دِينَهُمْ وَكَانُوا شِيَعًا طَ

‘And do not be among the polytheists—those who divided their religion and became sects.’ (Surah al-Rum: 31–32).

نَ إِنَّ الَّذِيْنَ فَرْقُوا دِينَهُمْ وَكَانُوا فِيعًا لَسْتَ مِنْهُرْ فِي غَيْوط

‘You have no responsibility for those who divided their religion and became sects.’ (Surah al-An’am: 159).

The Messenger of Allah (peace and blessings be upon him) said:وَلَا تَخْتَلِفُوا مَانَ مَنْ كَانَ قَبْلَكُمْ إِخْتَلَفُوا فَمَلَكُوا ‘Do not differ among yourselves, for those who came before you differed and were destroyed.’

No community can ever achieve genuine unity until each of its members invests his utmost strength and cooperation in achieving it. This cooperation may be both material and moral, such as wealth, knowledge, opinions, and advice.

Humankind is Allah’s family. The most beloved of them to Allah is the person who is most beneficial to His family. As the Messenger of Allah (peace and blessings be upon him) said:

غير الناس الفعمر للناس ‘The most beneficial person to people is the best of them.’ إِنَّ اللَّهَ يُحِبُّ إِلَمَاثَةَ اللُّمْقَانِ ‘Indeed, Allah loves helping the distressed.’

افضوا تؤجروا ‘Intercede for the benefit of others, and you will be rewarded.’

A Muslim is a mirror for another Muslim. He protects him from ruin and guards him from behind. The Messenger of Allah (peace and blessings be upon him) said:
.إِن أَحَلَ كَرِيرًاءٌ أَعَيْهِ فَانْ رَأَى مِنْهُ أَذًى فَلْيَصَلَّهُ عَنْهُ

Indeed, each of you is a mirror for his Muslim brother. If he sees him falling into harm, let him remove it from him.’

Thus Islam works to strengthen and consolidate this relationship so that a united and powerful society may be built—one capable of confronting new problems and eliminating the hostility of transgressors. How greatly Muslims need such unity today! Through it they can fulfill one of Islam’s obligations, attain political protection and military strength, and secure their existence and collective economic protection, which will bring them the prosperity they need.

Colonial powers have left many harmful effects on Muslim society, such as weakness in religious commitment, moral decline, and backwardness in knowledge and science. Therefore, these social harms can be overcome only when the entire ummah advances, united toward the same goal and with one unwavering voice.

Taking up arms against rebels: Taking up arms against rebels is regarded as a principle for preserving the mutual relations and bonds of Muslims. When these relations among them are severed, the bond of brotherhood becomes weakened, and one group mounts an armed revolt against another, taking up arms against the rebels becomes obligatory until they return to the path of justice and social order. Allah Almighty says:

وإِن طَائِفَتِي مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا فَأَصْلِحُوا بَيْنَهُمَا ، فَإِنْ بَلَى إِحْدهُمَا عَلَى الْأَخْرَى فَقَاتِلُوا الَّتِي تَبْغِي حَتَّى تَفِي إِلَى أَمْرِ اللهِ : فَإِنْ فَاءَتْ فَأَصْلِحُوا بَيْنَهُمَا بِالْعَدْلِ وَأَقْسِطُوا ، إِنَّ اللَّهَ يُحِبُّ المقسطين

If two groups of believers fight one another, make peace between them. If one of them transgresses against the other, then fight the transgressing group until it returns to Allah’s command. If it returns, reconcile between them with justice and act equitably. Indeed, Allah loves those who act equitably. (Surah al-Hujurat: 9).

The above verse shows that when believers engage in conflict, it becomes essential for the wise and discerning members of society to intervene immediately and settle the dispute between the contending parties. If one party transgresses against the other and does not respond even after efforts at reconciliation have been made, then it becomes the duty of all Muslims to unite in fighting that rebellious group in order to subdue it.

Ali (may Allah be pleased with him) fought against the rebellious group. Likewise, Abu Bakr al-Siddiq (may Allah be pleased with him) fought those who refused to pay zakah. The jurists unanimously agree that this rebellious party does not leave Islam because of its rebellion. For the Noble Qur’an, while commanding resistance against them, also describes them as believers. As Allah’s word states: ….وَإِن طائِفَتَنِ مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا ‘If two groups of believers engage in fighting (Surah al-Hujurat: 9).

For this reason, those among them who flee or are wounded may not be killed; their property may not be considered war booty; their women and children may not be taken captive; no compensation may be claimed for lives or property damaged during the fighting; and arrangements must be made for the washing, shrouding, funeral prayer, and burial of those killed among the rebels.

On the other hand, those from the just party who are killed are regarded as martyrs. Therefore, they are not washed and the funeral prayer is not performed over them, because they were killed in a war prescribed by Allah and are equivalent to those martyred in war against unbelievers.

The same ruling applies when an armed rebellion is launched against the imam (head of state) elected by the Muslim population of a country governed according to Islamic Shariah, if it is intended to remove the imam in order to obstruct his work for the welfare of society and the people. In other words, certain characteristics must be present for them to be regarded as rebels. They are:

First: Abandoning obedience to the just ruler of the Islamic state. Allah has made it obligatory for Muslims to obey those who administer their collective affairs according to Islamic Shariah.

Second: The rebellion must be carried out by a sufficiently powerful group, such that adequate preparation, the gathering of manpower, and warfare become necessary to subdue them. If they are not sufficiently powerful—that is, if they are few in number or lack the means to defend themselves—they are not considered rebels, because they can easily be controlled and subdued.

Third: They must have an acceptable interpretation for their call to armed rebellion against the imam’s rule according to Islamic Shariah. Without an acceptable interpretation, they are combatants against the government, not rebels.

Fourth: They must have a leader accepted by all. For no strong organization can be formed without a leader.

Fifth: This rebellion must be armed. Mere unarmed protest is neither rebellion nor warfare, and carries no punishment. This is the condition of rebels and Allah’s ruling concerning them.

On the other hand, if arms are taken up solely for worldly interests, to seize state power, or because of a dispute with the head of state, it is considered warfare. Mentioning that the military ruling is distinct from the ruling on rebellion, Allah Almighty says:

إنها جزءوا الَّذِينَ يُحَارِبُونَ اللهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَن يَقَتَلُوا أَو يُصَلَّبُوا أَوْ تَقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِن خِلافٍ أَوْ يُنفَوْا مِنَ الْأَرْضِ ، ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ إِلَّا الَّذِينَ تَابُوا مِن قَبْلِ أَن تَقْدِرُوا عَلَيْهِمْ فَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ رَّحِيرٌ

‘The punishment of those who wage war against Allah and His Messenger and spread corruption in the land is that they be killed, crucified, have their hands and feet cut off on opposite sides, or be exiled from the land. That is their disgrace in this world, and in the Hereafter they will have a tremendous punishment—except for those who repent before you gain power over them. Know that Allah is Most Forgiving, Most Merciful. (Surah al-Ma’idah: 33–34).

According to the nature of the crime and the judge’s ruling, the punishment of armed rebels is execution, crucifixion, amputation of the hand and foot on opposite sides, imprisonment, or exile. Whoever among them is killed is wretched, while whoever is killed fighting against them is regarded as a martyr. If both sides fight out of blind tribal or sectarian loyalty or to seize state power, then both sides are considered rebels, and the punishment for rebellion applies to them.

Relations between Muslims and other religious communities: Relations between Muslims and other religious communities are based on mutual acquaintance, humanitarian cooperation, good conduct, and the preservation of justice and fairness. Regarding mutual acquaintance, Allah Almighty says:

يَأَيُّهَا النَّاسُ إِنَّا خَلَقْنَكُمْ مِنْ ذَكَرٍ وَأُنثى وَجَعَلْنَكُمْ هُعُوبًا وَقَبَائِلَ لِتَعَارَفُوا مَا إِنْ أَكْرَمَكُمْ عِنْدَ اللَّهِ انْقُكُمْ مَا إِنَّ اللَّهَ عَلِيمٌ خَبِيره

‘O humanity! Indeed, We created you from a male and a female and made you into peoples and tribes so that you may know one another. Indeed, the most noble of you in the sight of Allah is the most God-fearing of you. Indeed, Allah is All-Knowing, All-Aware. (Surah al-Hujurat: 13).

Urging good conduct, justice, and fairness, Allah Almighty says:

لا يَنْمَكُرُ اللَّهُ عَنِ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينَ وَلَمْ يَخْرِمُوكُم مِّن دِيَارِكُمْ أَنْ تَبَرُوهُمْ وَتَقْسِطُوا النهر ما إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ

‘Allah does not forbid you from showing kindness and acting justly toward those who have not fought you because of religion and have not expelled you from your homes. Indeed, Allah loves those who act justly. (Surah al-Mumtahanah: 8).

These relations require the exchange of mutual welfare, increasing the extent of benefits, offering cooperation, expressing compassion, and strengthening human relations.

The matter mentioned above does not fall under the prohibition against taking unbelievers as patron allies. The purpose of prohibiting this is to forbid making alliances with unbelievers against Muslims and their mutual cooperation against Muslims. It also aims to prohibit expressing satisfaction with their unbelief. For the cooperation of unbelievers against Muslims is gravely harmful to the existence of the religion of Islam and amounts to weakening the strength of the Muslim ummah. Likewise, expressing satisfaction with unbelief is itself a form of unbelief that removes a Muslim from Islam.

On the other hand, Islam welcomes friendship that establishes peace, builds a good society, promotes proper mutual exchange and the exchange of benefits, and entails mutual cooperation in righteousness and piety.
Preserving the religious freedom of non-Muslims: In religious matters, Islam recognizes equality and equal rights between Muslims and people of other faiths. Non-Muslim citizens have the same rights as Muslim citizens, and the social responsibilities and duties incumbent upon Muslims are also incumbent upon them. Their religious freedom includes:

First: No non-Muslim citizen may be pressured or compelled in any way to abandon his religion or adopt a particular belief. Allah Almighty says:

لَا إِكْرَاءَ فِي الرَّيْنِ قَلْ تَبَيِّنَ الرَّقْدَمِنَ الْفَرْعِ

‘There is no compulsion in religion. Surely, the right path has become distinct from the wrong.’ (Surah al-Baqarah: 256).

Second: The People of the Book—namely, Jews and Christians—have the right to follow the rules and regulations of their respective religions. Therefore, their churches may not be destroyed, nor may their crosses be broken. The Messenger of Allah (peace and blessings be upon him) said:
آترکو می و مایل بنون Let them practice their own religion.

Even the Jewish or Christian wife of a Muslim man has the right to go to a church or synagogue for her own prayer. The husband has no right to prevent her from doing so.

Third: Islam has declared lawful for non-Muslims the foods that their religion has made lawful for them. Their herds of pigs may not be slaughtered, and they may not be prevented from drinking wine so long as it is lawful in their religion. Thus Islam has shown greater tolerance toward them than toward Muslims. In this society, wine and pork are entirely forbidden and punishable offenses for Muslims.

Fourth. In matters of marriage, divorce, and providing maintenance for their families, their religious freedom remains intact. They may enjoy and use their property as they wish, without any restrictions or compulsion.

Fifth. Islam has protected their dignity and rights and has granted them the freedom to participate courteously, rather than harshly, in conscientious and rational discussion and debate. Allah says:

ولا تُجَادِلُوا أَهْلَ الْكِتَبِ إِلَّا بِالَّتِي مِنْ أَحْسَنُ إِلَّا الَّذِينَ ظَلَمُوا مِنْهُ وَقُولُوا آمَنَّا بِالَّذِي أَنْزِلَ إِلَيْنَا وَأُنْزِلَ إِلَيْكُمْ وَالْمَنَا وَالْمُكْرَ وَاحِدٌ وَنَحْنُ لَهُ مُسْلِمُونَ

‘And do not argue with the People of the Book except in the best manner, except those among them who commit injustice; and say, “We believe in what has been revealed to us and what has been revealed to you. Our God and your God is one, and we are submissive to Him.” (Surah al-‘Ankabut: verse 46)

Sixth. According to the rulings of some schools of law, in the application of criminal punishments, they and Muslims are subject to the same law. Although a Muslim and a non-Muslim cannot inherit from one another, they have the same rights as Muslims regarding inheritance among themselves. Thus, a non-Muslim does not inherit from his Muslim relative, nor does a Muslim inherit from his non-Muslim relative.

Seventh. Islam has declared the food of Jews and Christians, and the meat of animals slaughtered by them, lawful for Muslims, and has also permitted marriage to their women. The Exalted Allah says:

الْيَوْمَ أُحِلَّ لَكُم الطيب ، وطَعَامُ الَّذِينَ أوتُوا الْكِتَبَ حِلٌّ لَكُمْ وَطَعَامُكُمْ حِلٌّ لَهُمْ وَالْمُحْصَنَت مِن الْمُؤْمِني والمحصن من الذين أوتوا الكتب مِن قَبْلِكُم إِذا اتيتمو من أجور من محصنين عمير مُسْفِعِينَ وَلَا مُتَّخِلِي أَعْدَانِ مَا

وَمَن يَكْفُرْ بِالْإِيْمَانِ فَقَدْ حَبِطَ عَمَلَهُ وَهُوَ فِي الْأَمِيرَةِ مِنَ الْخَسِرِينَ

‘Today all good things have been made lawful for you. The food of those who were given the Book is lawful for you, and your food is lawful for them [In Islamic law, only those foods and drinks lawful for Muslims are lawful for Muslims in the possession of Jews and Christians. Likewise, only the meat of animals lawful in their possession is lawful for Muslims if the animals were slaughtered in the name of Allah. (Translator)]. And lawful for you are chaste believing women and chaste women from among those who were given the Book before you, when you give them their bridal gifts, seeking marriage, not fornication or secret affairs. Whoever rejects faith—his deeds have certainly become worthless, and in the Hereafter he will be among the losers.’ (Surah al-Ma’idah: verse 5)

Eighth. The religion of Islam has permitted meeting non-Muslims, visiting or caring for their sick, giving them gifts, and similar social dealings with them, including buying, selling, and conducting business. At the time of the Messenger of Allah’s death, his iron armor was mortgaged to a Jew against a debt. Some Companions of the Messenger of Allah would slaughter goats and sheep and tell his servant, “First, take some meat to our Jewish neighbor.”

The author of the book ‘Al-Bada’i wa al-Sana’i’ says, ‘Those who live in a Muslim state will buy, sell, and conduct business with one another. Social dealings with non-Muslim citizens are lawful because they may provide an occasion for them to accept Islam. Allowing them to live in Muslim lands is more conducive to achieving this purpose. In addition, Muslims themselves derive many benefits from business and social dealings with them.’

Prohibited Alliance: This is the basic principle governing close relations between Muslims and non-Muslims. This principle will not change unless some opposing action becomes evident on the part of the non-Muslims. If they engage in destructive and separatist activities against Muslims, behave hostilely toward Muslims, and declare war against them, then severing relations with them becomes, from the Islamic perspective, an obligatory and indispensable duty. Nevertheless, political and diplomatic dealings with them on the basis of justice will continue equally. The Noble Qur’an has drawn its followers’ attention to this reality and given them clear and detailed guidance on the matter. The word of the Exalted Allah:

لا يَتَّخِلِ الْمُؤْمِنُونَ الْكَفِرِينَ أَوْلِيَاءَ مِن دُونِ الْمُؤْمِنِينَ ، وَمَن يَفْعَلْ ذَلِكَ فَلَيْسَ مِنَ اللَّهِ فِي شَيْءٍ إِلَّا أن تتقوا منهر تقةٌ ، وَيُصَلِّ ركم الله نَفْسَهُ .

‘Let not the believers take the disbelievers as supporting friends instead of the believers. Whoever does so has no connection with Allah whatsoever, except when you fear them as a precaution for self-protection. Allah warns you of Himself. (Surah Al ‘Imran: verse 28)

The following points may be learned from the above verse:

One. A cautious policy must be adopted regarding friendship and mutual cooperation with hostile non-Muslims, because this may entail harm.

Two. The Muslim who befriends them is cut off from Allah and has no connection with Him.

Three. However, when weak and fearful, it is permissible to maintain an outward friendship with them in order to protect oneself from their persecution and attacks.

The Exalted Allah says in the Noble Qur’an:

بقرِ الْمُنفِقِينَ بِأَنْ لَهُمْ عَذَابًا أَلِيمًا الَّذِينَ يَتَّخِذُونَ الْكَفِرِينَ أَوْلِيَاءَ مِنْ دُونِ الْمُؤْمِنِينَ ايبتغون عِنْدَ هُمُ الْعِزَّةَ فَإِنَّ الْعِزَّةَ لِلَّهِ جَمِيعًا وَقَدْ نَزَّلَ عَلَيْكُمْ فِي الْكِتٰبِ أَنْ إِذَا سَمِعْتُم ايت الله يغْفَرُ بِهَا وَيُسْتَمْرًا بِمَا فَلَا تَقْعُدُوا مَعَهُمْ

حَتَّى يَخُومُوا فِي حَدِيدٍ غَيْرِهِ مِن الكُمْ إِذَا مِثْلَهُمْ إِنَّ اللَّهَ جامِعُ الْمُنْفِقِينَ وَالْكَفِرِينَ فِي جَهَنَّمَ جَمِيعًا الَّذِينَ يَتَر بصونَ بِكُمْ فَإِن كَانَ لَكُمْ فَتْحٌ مِنَ اللَّهِ قَالُوا أَلَمْ تَكُنْ مُعَكُمْ وَإِنْ كَانَ لِلْكُفِرِينَ نَصِيبٌ قَالُوا أَلَمْ تَسْتَحْوِذْ عَلَيْكُمْ

وَتَمْتَعْكُمْ مِنَ الْمُؤْمِنِينَ فَاللَّهُ يحكم بينكم يَوْمَ الْقِيمَةِ وَلَن يَجْعَلَ اللهُ لِلْكَفِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلا

‘Give the hypocrites the glad tidings that there is a painful punishment for them. Those who take the disbelievers as supporting friends instead of the believers—do they seek honor with them? Indeed, all honor belongs to Allah. He has already revealed to you in the Book that when you hear Allah’s verses being rejected and mocked, do not sit with them until they engage in another discourse; otherwise, you would be like them. Surely Allah will gather the hypocrites and disbelievers all together in Hell. Those who await misfortune for you say, when victory comes to you from Allah, “Were we not with you?” But if the disbelievers have a share of victory, they say, “Did we not gain the upper hand over you and protect you from the believers?” Allah will judge between you on the Day of Resurrection, and Allah will never grant the disbelievers a way against the believers.’ (Surah al-Nisa: verses 138–141)

The following points may be learned from the above verses:

One. The hypocrites take the disbelievers as friends, develop close relations with them, abandon friendship with the believers, and secretly assist the disbelievers.

Two. Through this conduct they hope to gain honor and power from the disbelievers. In reality, this is their mistake, for all honor and power belong to Allah and the believers. The word of the Exalted Allah:

لِلَّهِ الْعِزَّةُ وَلِرَسُوْلِهِ وَلِلْمُؤْمِنِينَ وَلَكِنَّ الْمُنْفِقِينَ لَا يَعْلَمُونَ’Honor and power belong to Allah, His Messenger, and the believers, but the hypocrites do not understand. (Surah al-Munafiqun: verse 8)

Three. These hypocrites await the immediate outcome of the believers’ situation. When victory in battle and assistance come to the believers from Allah, they say, “We are with you concerning the religion and jihad.” Conversely, when they see victory for the disbelievers, they say to them, “Did we not protect you from their punishment by withdrawing from the Muslims’ group and informing you of their secret information? So give us a share of what you have received.”

Among the Muslims there were some who maintained friendly relations with the disbelievers because of kinship, neighborhood, or a pact of friendship. But this friendship was harmful to the security of the Muslims. Therefore, the Exalted Allah warned the Muslims against such harmful friendship, saying:

يأَيُّهَا الَّذِينَ آمَنُوا لَا تَتَّخِذُوا بِطَانَةً مِّن دُونِكُمْ لَا يَأْلُونَكُمْ عَبَالًا ما وَدُّوا مَا عَنِتُرْجَ قُلْ بَدَتِ الْبَغْضَاءُ من أفواههم مدح وَمَا تُغْفى صدورهم أكبر طا قد بينا لكم الأيس إِن كُنتُمْ تَعْقِلُونَ .

‘O believers! Do not take anyone outside your own ranks as intimate friends. They will spare no effort to harm you. They wish for whatever causes you distress. Hatred has already appeared from their mouths, but what their hearts conceal is even worse. We have made the revelations clear to you, if only you would understand. (Surah Al ‘Imran: verse 118)

The above verse forbids Muslims from taking anyone besides their own people as intimate friends—particularly from revealing their secrets to them. For this intimacy will not be limited to causing you harm; rather, they enjoy and desire your suffering. Signs of this have appeared in the words of some of them concerning you. Because of the intensity of their envy and hatred, it is difficult for them to conceal it. What they hide in their hearts is even more terrible than what has come forth from their mouths.

A characteristic of faith is that a believer refuses to take his enemy as a friend, even if that enemy is his closest person. The word of the Exalted Allah:

لا تَجِدُ قَوْمًا يُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ يُوَادُّونَ مَنْ حَادَ اللهَ وَرَسُولَهُ وَلَوْ كَانُوا أَبَا لَهُمْ أَوْ أَبْنَا لَهُمْ أَوْ إِخْوَانَهُمْ أَوْ عَشِيرَ تمر أولئِكَ كَتَبَ فِي قُلُوبِهِمُ الْإِيمَانَ وَأَيْنَ هُم بِرُوحِ مِنْهُ .

‘You will not find a people who believe in Allah and the Last Day loving those who oppose Allah and His Messenger, even if they were their fathers, sons, brothers, or close relatives. Those are the ones in whose hearts He has inscribed faith and whom He has strengthened with a spirit from Him. (Surah al-Mujadilah: verse 22)

It is clear from the above verse that it is not proper for anyone among the Muslims to make their enemies friends, even if those enemies are their fathers, sons, or close relatives. The Qur’an’s ruling concerning those who support imperialism and the enemies of the Arabs and Muslims is clear. Indeed, such support amounts to treachery against Allah, His Book, His Messenger, the Muslim leaders, and the general public. They are never sincere concerning the demands of Islam, the demands of history, the rights of neighbors, the rights of the oppressed, or the present and future rights of Muslims. Through this treachery, they have sold themselves to Satan and registered for themselves humiliation through the ages and everlasting disgrace.

Recognition of the Rights and Dignity of the Individual: After implementing the principles of peace and establishing relations of peace and security among people, Islam has dignified and honored human beings as human beings, rather than on the basis of their lineage, race, religion, language, country, nationality, or social status. The Exalted Allah says:

ولَقَدْ كَرَّمْنَا بَنِي آدَمَ وَحَمَلْتُهُمْ فِي الْبَرِّ وَالْبَحْرِ وَرَزَقْنهم من الطيبي وَفَضَّلْتُهُمْ عَلَى كَثِيرٍ مِن خَلَقْنَا تفضيلاً .

‘Indeed, We have honored the children of Adam, carried them on land and sea, provided them with good things, and favored them greatly over many of those We created. (Surah Bani Isra’il: verse 70)

A sign of this honoring is that Allah created human beings with His own hands, breathed into them from the store of the spirit He created, caused His angels to prostrate before them, placed everything in the heavens and the earth under human control, made them leaders on this planet called Earth, and appointed them as His vicegerents so that they could make the earth beautiful and well ordered.

To give this bestowed dignity practical form and make it a way of life, Islam has undertaken to safeguard all kinds of human rights and made their protection obligatory, whether they are religious, civil, or political rights. These rights include:

1. The right to protection of life: Every person has the right to preserve and defend his life. Therefore, it is not lawful to take anyone’s life except for the crime of murder or for causing destruction on earth. The word of the Exalted Allah:

من أَهْلِ ذَلِكَ ، كَتَبْنَا عَلَى بَنِي إِسْرَائِيلَ أَنَّهُ مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّهَا قَتَلَ النَّاسَ جَمِيعًا ، وَمَنْ أَحْيَاهَا فَكَأَنَّهَا أَحْيَا النَّاسَ جَمِيعًا .

‘For this reason We decreed for the Children of Israel that whoever takes a life—unless in retribution for murder or for spreading corruption in the land—it is as if he had killed all of humanity; and whoever saves a life, it is as if he had saved all of humanity. (Surah al-Ma’idah: verse 32)

It is narrated in an authentic hadith: ‘The blood of a Muslim is not lawful except in one of three cases: a life for a life—that is, murder; a married adulterer; and an apostate who separates from the Muslim community.’

2. The right to protection of property: Like life, a person’s property is also sacred and protected. Therefore, it is not lawful to seize anyone’s property through unlawful means and methods. The Exalted Allah says:

يَأَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُرْ بَيْنَكُمْ بِالْبَاطِلِ إِلَّا أَن تَكُونَ تِجَارَةٌ عَنْ تَرَاضٍ مِنْكُر تف

O believers! Do not consume one another’s wealth unjustly, but it is lawful to conduct trade by mutual consent.’ (Surah al-Nisa: verse 29)

The Messenger of Allah said:

منْ أَعْمَلَ مَالَ أَخِيهِ بِيَمِينِهِ أَوْجَبَ اللهُ لَهُ النَّارَ وَمَوْمَ عَلَيْهِ الْجَنَّةَ فَقَالَ رَجُلٌ وَإِن كَانَ شَيْئًا يَسِيرًا يَا رَسُولَ اللَّهِ فَقَالَ وَإِنْ عُودًا مِنْ أَرَائِهِ.

‘Whoever wrongfully takes his brother’s property, Allah will make Hell obligatory for him and forbid Paradise to him.’ A man said, ‘O Messenger of Allah, even if it is something insignificant?’ He said, ‘Even if it is a twig from the arak tree.’

Arak is a type of thorny tree from which miswak is made.

3. The right to protection of honor: It is not lawful to attack anyone’s honor or dignity, even with mere words. The Exalted Allah says:

وَيْلٌ لِكُلِّ مَبَرَةٍ لَمَزَةِWoe to every person who slanders and defames others in their absence and to their faces.’ (Surah 104, al-Humazah: verse 1)

4. The right to personal freedom: Islam has not merely recognized the right to protect life, property, wealth, and honor; it has also established freedom of worship, freedom of thought, freedom to choose an occupation for livelihood, and the freedom to benefit from all institutions of the state. Islam has made it obligatory for the state to protect all these rights. Human rights, however, are not limited to these.

5. The right to residence: A person has the right to live in any place and in any direction, and to relocate to any place in the world without any kind of hindrance or obstruction. Therefore, no person may be prevented, expelled, or imprisoned in this regard unless he wrongs others or is, under the law, subject to expulsion or imprisonment. Such measures may be taken if he transgresses against others, disturbs the peace, or behaves violently toward innocent people.

إِنَّمَا جَزَاؤُا الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَن يُقَتَلُوا أَوْ يُصَلِّبُوا أَوْ تَقَطَّعَ ايْدِ نمر وارجلهم من خلافٍ أو ينقوا مِنَ الْأَرْضِ، ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ إِلَّا الَّذِينَ تَابُوا مِن قَبْلِ

أَن تَقْدِرُوا عَلَيْهِمْ فَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ رَحِيرٌ

Those who wage war against Allah and His Messenger and spread corruption in the land—their punishment is that they be killed, crucified, have their hands and feet cut off on opposite sides, or be exiled from the land. That is their disgrace in this world, and in the Hereafter they will have a tremendous punishment. Except for those who repent before you gain power over them. So know that Allah is Most Forgiving, Most Merciful.’ (Surah al-Ma’idah: verses 33–34)

6. The right to freedom of expression: Among these rights is the right to education. Every person has the right to receive education, through which his conscience is enlightened, his being develops, and his level of dignity rises. Likewise, people have the right to express their opinions, prove them through reason, and reveal and proclaim the truth. Islam does not hinder freedom of expression or free thought, provided that they are not harmful to society.

The Messenger of Allah took a pledge from his Companions that they would speak the truth, even when it was bitter, and that they would not fear the blame of any critic concerning Allah. The Messenger of Allah also said;كِتَ عَنِ الْحَقِّ عَيْطَانُ أَعْرَسَ’One who remains silent instead of speaking the truth is a mute devil.’

It is stated in the Noble Qur’an concerning this:

إن الذِينَ يَكْتُمُونَ مَا أَنْزَلْنَا مِنَ البَيْتِ وَالْهُدَى مِن بَعْدِ مَا بَيْنَهُ لِلنَّاسِ فِي الكُتُبِ لَا أُولَئِكَ يلعنهم الله ويَلْعَتُهُم اللعنونَ إِلَّا الَّذِينَ تَابُوا وَأَسْلَعُوا وَبَيْهُوا مَا وَلَئِكَ أَتُوبَ عَلَيْهِمْ وَأَنَا التَّوَّابُ الرميدة

‘Indeed, those who conceal the clear proofs and guidance We have revealed, after We have made them clear to people in the Book, are cursed by Allah and cursed by those who curse. Except those who repent, correct themselves, and make the truth clear; their repentance I will accept. I am the Most Accepting of Repentance, the Most Merciful.’ (Surah 2, al-Baqarah: verses 159–160)

Islam considers it the right of the hungry to be given food, the right of the unclothed to be given clothing, the right of the sick to receive proper treatment, and the right of the frightened and terrified to be given security. All are equal in receiving these rights, regardless of religion or race. This is Islam’s teaching regarding recognition of human rights. It is a teaching that contains comprehensive welfare for the entire world.

With regard to recognizing and implementing rights, the most important point is that among all the religions and ideologies that speak and issue statements about human rights, Islam’s role is foremost. Indeed, Islam has recognized the teaching of rights as an essential part of religion. Through fulfilling rights, one can attain closeness to Allah, just as one attains closeness to Him through formal acts of worship such as prayer and fasting.

Punishment for violating rights: The rights mentioned above give people the opportunity to advance toward broad horizons so that they may attain perfection and achieve the progress assigned to them, whether material or educational.

Destroying or eliminating any one of human rights is considered a crime. This is the actual reason why Islam prohibits every kind of conflict. Aggression against a person’s life is an accompaniment of conflict; preserving life is a sacred right. Life is destroyed through conflict.

Therefore, wars aimed at expanding imperial borders and increasing wealth and power have been prohibited. The word of the Exalted Allah:

تِلْكَ الدَّارَ الْآخِرَةُ نَجْعَلُهَا لِلَّذِينَ لَا يُرِيدُونَ عَلُوا فِي الْأَرْضِ وَلَا فَسَادًا ، وَالْعَاقِبَةُ لِلْمُتَّقِينَ

This is the abode of the Hereafter, which We assign to those who do not seek arrogance or corruption in the land. The good end is for the God-fearing.’ (Surah al-Qasas: verse 83)

Prohibiting wars born of revenge and enmity, Almighty Allah says:

ولَا يَجْرٍ مَنْكُمْ عَنَانُ قَوْمٍ أَن مَدُّوكُمْ عَنِ الْمَسْجِدِ الْحَرَامِ أَن تَعْتَدُوا – وَتَعَاوَلُوا عَلَى الْبِرِّ وَالتَّقْوى وَلَا تَعَاوَلُوْا عَلَى الْإِثْرِ وَالْعَدْوَانِ وَاتَّقُوا اللَّهَ طَ إِنَّ اللَّهَ عَدِيدُ الْعِقَابِ

Let not hatred for a people who prevented you from entering the Sacred Mosque ever incite you to transgress. Help one another in righteousness and piety, and do not help one another in sin and transgression. Fear Allah. Surely, Allah is severe in punishment.’ (Surah 5, al-Ma’idah: verse 2).

Prohibiting wars of destruction and annihilation, Almighty Allah says:

وَلَا تُفْسِدُوا فِي الْأَرْضِ بَعْدَ إِصْلَاحِهَا ‘Do not spread corruption on the earth after it has been set right.’ (Surah al-A’raf: verse 56).

When is war lawful? Since peace is the natural state and the fundamental principle of life, while war is an exception and deviation, in Islam war is by no means lawful under any circumstances except two. The two circumstances in which war is lawful are:

First circumstance: When someone launches an attack and aggression, war becomes unavoidable in order to repel the attack and aggression and defend life, property, honor, and homeland. Allah Almighty says:

وَقَاتِلُوا فِي سَبِيلِ اللَّهِ الَّذِينَ يُقَاتِلُونَكُمْ وَلَا تَعْتَدُوا مَا إِنَّ اللَّهَ لا يُحِبُّ الْمُعْتَدِينَ

Fight those who fight you in the way of Allah, but do not transgress. Allah does not love transgressors. (Surah al-Baqarah: 190).

Sa’d ibn Zayd reported that the Messenger of Allah (peace and blessings be upon him) said: Whoever is killed while defending his property is a martyr. Whoever is killed while defending his life is a martyr. Whoever is killed while defending his religion (din) is a martyr. Whoever is killed while defending his family is a martyr. (Abu Dawud, al-Tirmidhi).

قَالُوا وَمَا لَنَا أَلَا تُقَاتِلَ فِي سَبِيلِ اللَّهِ وَقَدْ أَخْرِجْنَا مِنْ دِيَارِنَا وَأَبْنَائِنَا مَا

(The Children of Israel said:) ‘Why should we not strive in the way of Allah when we have been expelled from our homelands and separated from our children?’ (Surah al-Baqarah: verse 246).

Second circumstance: When someone obstructs the spread and expansion of Islam by persecuting believers in Islam, preventing those who wish to accept Islam, or stopping the one who propagates Islam and calls people to Islam from carrying out that call and propagation. Then war becomes necessary in order to establish and protect the right to call people and propagate Islam in the way of Allah.

The first proof is verses 190, 191, 192, and 193 of Surah al-Baqarah:

وَقَاتِلُوا فِي سَبِيلِ اللَّهِ الَّذِينَ يُقَاتِلُونَكُمْ وَلَا تَعْتَدُوا مَا إِنَّ اللهَ لا يُحِبُّ الْمُعْتَدِينَ وَاقْتُلُوهُمْ حَيْثُ تقِفْتُمُوهم وأخر موهم من حيث أخرمُوكُمْ وَالْفِتْنَةَ أَهَدَّ مِنَ القَتْلِ : وَلَا تُقْتِلُوهُمْ عِنْدَ الْمَسْجِدِ الْحَرَامِ حَتَّى يَقْتِلُوكُمْ فِيْهِ: فَإِنْ

قَتَلُوكُمْ فَاقْتُلُوهُمْ مَا كَل لكَ جَزَاءُ الْكَفِرِينَ فَإِنِ الْتَمَوْا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيرُه وَقُتِلُوهُمْ حَتَّى لَا تَكُونَ فِتْنَةٌ و يَكُونَ الدين لله ما فَإِنِ الْتَمَوْا فَلَا عُدْوَانَ إِلَّا عَلَى القلمين

Fight those who fight you in the way of Allah, but do not transgress. Allah does not love transgressors. Kill them wherever you find them, and expel them from wherever they have expelled you. Oppression is more serious than killing. Do not fight them near the Sacred Mosque until they fight you there. If they fight you, then kill them. Such is the recompense of the disbelievers. But if they desist, then Allah is Forgiving, Merciful. Fight them until persecution ceases and Allah’s religion is established. But if they desist, then no hostility is permitted except against the wrongdoers.’

The lessons of the aforementioned verses are:

1. The command to fight them was given solely to repel the aggression of those who launch the first attack and transgress. Fighting in self-defense is lawful under all the laws and in all religions of the world. This matter is made clear by Allah’s statement: ‘Fight those who fight you in the way of Allah.’

2. It is not lawful to launch the first attack against those who will not begin a war, that is, who do not attack first, because this is transgression. Allah has prohibited transgression and forbidden oppression and aggression. He says: Do not transgress. Allah does not love transgressors.

3. The prohibition of launching the first attack is supported by the argument that Allah does not love transgressors. This proves that the prohibition is definitive and unalterable. For here it is reported and stated as fact that Allah does not love transgression. None of Allah’s reports or statements can ever be abrogated or changed. For launching the first attack and transgression constitute oppression, which Allah never loves.

4. This permitted war has a specific objective and boundary. That objective and boundary is to repel and end the oppression and persecution of believing men and women and to uphold their rights and freedom, so that they may worship Allah and implement Allah’s religion in complete security from every kind of attack and aggression.

The second proof is verse 75 of Surah al-Nisa’:

وَمَا لَكُمْ لَا تُقَاتِلُونَ فِي سَبِيلِ اللهِ وَالْمُسْتَضْعَفِينَ مِنَ الرِّجَالِ وَالنِّسَاءِ وَالْوِلْدَانِ الَّذِينَ يَقُولُونَ ربَّنَا أَعْرِمْنَا مِنْ هَذِهِ الْقَرْيَةِ الظَّالِمِ أَهْلَهَا : وَاجْعَلْ لَّنَا مِن لذلك وَلِيًّا ، وَاجْعَلْ لَنَا مِن لَّدتك تسيرات

‘What is the matter with you that you do not strive in the way of Allah and for those helpless men, women, and children who say, “Our Lord, take us out of this town whose inhabitants are wrongdoers, appoint for us a protector from You, and appoint for us a helper from You.”‘

This verse states two reasons for war:

First: Fighting in the way of Allah. In reality, this is Islam’s ultimate objective: that no obstacle, oppression, or persecution remain, and that obedience become devoted solely to Allah.

Second: Fighting to liberate those helpless men and women who accepted Islam in Makkah but were unable to migrate. As a result, the disbelieving Quraysh subjected them to cruel oppression and persecution. They therefore prayed to Allah for deliverance from that situation. There was no alternative to protecting them from the oppression of the wrongdoers and restoring to them the right and freedom to follow the religion they had chosen.

The third proof is verse 90 of Surah al-Nisa’:

فَإِنِ اعْتَرَلُوكُمْ فَلَمْ يُقَاتِلُوكُمْ والقَوْا اليكم السلم لا فَما جَعَلَ اللَّهُ لَكُمْ عَلَيْهِمْ سَبِيلاه

If they withdraw from you, do not fight you, and offer you peace, then Allah has given you no way against them. In fact, Muslims have no opportunity to take action against those who neither fight the Muslims nor fight alongside those fighting the Muslims, but instead keep away from both sides and completely distance themselves from war in pursuit of peace.

The fourth proof is verses 61 and 62 of Surah al-Anfal:

وان جَنَعُوا لِلسَّلْمِ فَاجْتَعْ لَهَا وَتَوَكَّلْ عَلَى اللهِ ، اللَّهَ هُوَ السَّمِيعُ الْعَلِيم وَإِن يُرِيدُوا أَن يخدموا فَإِن حَسْبَكَ الله

‘If they incline toward peace, then incline toward it and place your trust in Allah. Indeed, He is the All-Hearing, the All-Knowing. If they intend to deceive you, then Allah is sufficient for you.’ This verse commands that when the opposing party inclines toward peace, one should also incline toward peace, even if that inclination is deceptive and intended as a ruse.

The fifth proof is that every war led by the Messenger of Allah (peace and blessings be upon him) was defensive. None was aggressive. The wars fought against the polytheists of Arabia after the conquest of Makkah, and the annulment of their treaties, were likewise based on this principle. This is unambiguously proved by verses 13, 14, and 15 of Surah al-Tawbah:

أَلَا تُقَاتِلُونَ قَوْمًا لَّكَثُوا أَيْمَالَهُمْ وَمَمُوا بِإِعْرَاجِ الرَّسُولِ وَهُمْ بَدَءُ وَكَمْ أَوَّلَ مَرا ، الخَفَوْنَهُرْ فَاللَّهُ أحَقُّ أَن تَغْفُوهُ إِن كُنتُمْ مُؤْمِنِينَ قَاتِلُوهُ يُعَلِّ بَصَرَ اللهُ بِأَيْدِيكُمْ وَيَجْزِي وَيَنْصُرْكُمْ عَلَيْهِمْ وَيَقْفِ

صدور قَوْمٍ مُؤْمِنِينَ وَيُدْعِب غَيْةَ قُلُوبِهِمْ ، وَيَتُوبَ الله عَلَى مَنْ يُشَاءُ ، وَاللَّهُ عَلِيمٌ حَكِيرٌه

Will you not fight a people who broke their oaths and resolved to expel the Messenger, and who were the first to attack you? Do you fear them? If you are believers, Allah is more deserving of your fear. Fight them; Allah will punish them by your hands, disgrace them, grant you victory over them, heal the hearts of the believers, and remove the rage from their hearts. Allah turns in forgiveness to whomever He wills. Allah is All-Knowing, All-Wise.’

When the polytheists united and launched an all-out attack against the Muslims, Allah also commanded the Muslims to unite and fight them. He said:

وقاتلوا المشركين كَافَّةً كَمَا يُقَاتِلُونَكُمْ كَافَّةً ، وَاعْلَمُوا أَنَّ اللَّهَ مَعَ الْمُتَّقِينَ

‘Fight the polytheists all together, just as they fight you all together. And know that Allah is with the God-fearing.’ (Surah al-Tawbah: 36).

The reason for fighting the Jews, on the other hand, was that after the Messenger of Allah (peace and blessings be upon him) migrated to Madinah, they entered into a non-aggression pact with him. But shortly afterward they violated that pact, allied themselves with the polytheists and hypocrites, formed a united front against the Muslims, and fought the Muslims in the Battle of the Confederates. In this context, verse 29 of Surah al-Tawbah was revealed:

قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحْرِمُونَ مَا حرم اللهَ وَرَسُولَهُ وَلَا يَدِينُونَ بِهِنَ الْحَقِّ من الذين أوتوا الكتب حتى يعطوا الجزية عن يد وهر سفرونه

Fight those among the People of the Book who do not believe in Allah or the Last Day, do not prohibit what Allah and His Messenger have prohibited, and do not follow the true religion, until they pay the jizyah with their own hands in submission.’ He also says in verse 123 of Surah al-Tawbah:

يَأَيُّهَا الَّذِينَ آمَنُوا قَاتِلُوا الَّذِينَ يَكونَكُم مِّنَ الْكُفَّارِ وَلْيَجِدُوا فِيكُمْ غِلْقَةٌ ، وَاعْلَمُوا أَنَّ اللَّهَ مَعَ المتقين

‘O believers, fight those of the disbelievers who are nearest to you, and let them find harshness in you. And know that Allah is with the God-fearing.’

The sixth proof is that once, upon seeing the body of a slain woman, the Messenger of Allah (peace and blessings be upon him) said: ‘This woman was not fighting.’ From this it became known that the reason killing women was prohibited was that she was not fighting alongside the other combatants. Thus, the reason for our fighting them was that the disbelievers were fighting against us; their being disbelievers was not the reason for our fighting them.
The seventh proof is that the Messenger of Allah (peace and blessings be upon him) prohibited killing ascetics and children, and the reason was precisely the same as that for which he prohibited killing women.

The eighth proof is that Islam did not prescribe force as a means of propagating and spreading Islam. Rather, it prescribed the use of reason and intellect, the exercise of thought, and observing the wondrous things in the heavens and the earth as the means of propagating and spreading Islam. Thus Allah says in verses 99, 100, and 101 of Surah Yunus:

وَلَوْ شَاءَ رَبُّكَ لَآمَنَ مَنْ فِي الْأَرْضِ كَلَّمُ جَمِيعًا ، أَفَانتَ تَكْرِهُ النَّاسَ حَتَّى يَكُونُوا مُؤْمِنِينَ وَمَا كَانَ لِنَفْسٍ أَن تُؤْمِنَ إِلَّا بِإِذْنِ اللهِ ، وَيَجْعَلُ الرِّجْسَ عَلَى الَّذِينَ لا يَعْقِلُونَ قُلِ انْظُرُوا مَاذَا فِي السمو وَالْأَرْضِ ، وَمَا تَغْنى الايت

والنذر عَن قَوْمٍ لا يُؤْمِنُونَ

If your Lord had willed, everyone on earth would have believed. Would you then compel people to become believers? No soul can believe except by Allah’s permission. He places impurity upon those who do not understand. Say: Observe whatever is in the heavens and the earth. Signs and warnings are of no benefit to a people who do not believe.’

Allah says in verse 256 of Surah al-Baqarah:

لا إكراه في اللون من قُلْ تَبَيَّنَ الرَّهْدُ مِنَ الْغَيِّ :

‘There is no compulsion in religion. The right path has become distinct from the wrong path.’

History also proves that the Messenger of Allah (peace and blessings be upon him) captured many people as prisoners of war. Yet there is no record that he compelled any of them to accept Islam. His Companions followed the same practice.

Ahmad narrated from Abu Hurayrah that when Thumamah al-Hanafi was taken prisoner, the Messenger of Allah (peace and blessings be upon him) would go to him every morning and say, ‘O Thumamah, what do you have?’ (That is, do you have anything with which to pay a ransom?)

Thumamah would reply: If you kill me, you may do so, for I have killed one of your men. If you show me favor, you will be showing favor to a grateful man. And if you want wealth, I will give you whatever you ask.

The Companions of the Messenger of Allah (peace and blessings be upon him) preferred to release him in exchange for a ransom and said, ‘What will we gain by killing him?’ Then, when the Messenger of Allah (peace and blessings be upon him) went to him, he accepted Islam. He then released him, sent him to Abu Talhah’s garden, and ordered him to bathe. He bathed and prayed two rak’ahs. Then the Messenger of Allah (peace and blessings be upon him) said: ‘Your brother’s acceptance of Islam has been very excellent.’

As for the Christians and followers of other religions, the Messenger of Allah (peace and blessings be upon him) did not fight any of them until, after the Treaty of Hudaybiyyah, he had sent envoys to all the kings and invited them to Islam. He sent envoys to the emperors of Rome and Persia, and to al-Muqawqis, the Negus, the rulers of the eastern Arab kingdoms, and the rulers of Syria. Some of these Christian and other rulers accepted Islam. When he appointed the Christians of Syria to govern there, they killed some of those who had recently accepted Islam. They initiated war against the Muslims and killed them unjustly and aggressively. Thus, when the Christians first killed Muslims, the Messenger of Allah (peace and blessings be upon him) sent an army there. He first appointed Zayd ibn Harithah as commander of this army, then Ja’far, and then Abdullah ibn Rawahah. This was the first war between the Christians and the Muslims, known as the Battle of Mu’tah. A large number of Christians engaged the Muslims in battle. All three of the aforementioned commanders were martyred there. Finally, Khalid ibn al-Walid assumed command.

The foregoing account makes it clear that Islam permitted war for no purpose other than repelling aggression, strengthening the work of calling people to Islam, preventing oppression and persecution, and safeguarding people’s freedom to choose a religion. For fighting for these purposes is one of the duties prescribed by Islam, and it is also called jihad.

Chapter Twenty-One: Jihad

The word jihad is derived in Arabic lexicons from the root juhd. Juhd means strength and strenuous effort. Jihad means exerting one’s utmost strength and working hard in warfare against the enemy and in repelling the enemy. In modern terminology, it is called harb, or war. War is armed fighting between two or more countries. It is a natural phenomenon among humankind. No nation or generation can remain free from war. War has also been recognized and retained in all the earlier revelation-based religions. In the Torah read by the Jews, war is retained with the adoption of the vilest methods of sabotage, destruction, killing, and captivity. The following is a quotation from the Torah: ‘When you approach a city to fight against it, first invite it to peace. If it agrees to peace and opens the city to you, then all its people will become your subjugated subjects and slaves. But if it does not agree to make peace and instead wages war against you, then besiege it. When your Lord God delivers them into your hands, put all their males to death with the blows of a sharp sword. As for the women, children, livestock, all the resources of the city, and all the spoils of war, you shall take them all as your booty, and you shall consume the enemy property given to you by your Lord God. Do the same with those distant cities that are not among these cities. But from among the inhabitants of these nearby cities, whose property your Lord God grants you as a portion, you shall give nothing to anyone; rather, you shall completely deprive them. Give nothing to any of the Hittites, Amorites, Canaanites, Perizzites, Hivites, or Jebusites, as your Lord God has commanded you.’

The Bible read by Christians says:

Do not think that I have come to establish peace on earth. I have not come to establish peace, but to establish the sword. I have come to set a man against his father and a daughter against her mother. I have come to make a man’s household his enemies. Whoever loves his father and mother more than me is not worthy of me; whoever loves his son and daughter more than me is not worthy of me. Whoever does not take up his cross and follow me is not worthy of me. Whoever loves his own life will lose it, and whoever gives up his life for my sake will find it.

International law also recognizes the circumstances and conditions in which war becomes lawful and establishes principles for war that may reduce its casualties and devastation, although in practice it has not been possible to reduce them even slightly.

How jihad became lawful in Islam: Allah sent His Messenger to all humankind. He commanded him to call people to justice and to the true religion. While staying in Makkah, he delivered this call with wisdom and discernment and through gracious counsel.

Since his people considered this call harmful to their ancestral and moral existence, it was inevitable that the Messenger would face opposition from them. In this situation, Allah instructed him to view their opposition with patience and forgiveness. He said:

وَاصْبِرُ الحُكْرِ رَبِّكَ فَانَّكَ بِأَعْيْنِنَا Be patient while awaiting the judgment of your Lord, for you are truly under Our watch.’ (Surah al-Tur: verse 48)

فَاسْفَع عنهم وقُل سليم ، فسوف يعلمون Ignore them and say, ‘Peace’; they will soon come to know.’ (Surah al-Zukhruf: verse 89).

فَاصْفَعِ الصَّفْحَ الْحَمِيلَ Forgive them with gracious forgiveness.’ (Surah al-Hijr: 85).

قُلْ لِلَّذِينَ آمَنُوا يَغْفِرُوا لِلَّذِينَ لَا يَرْجُونَ أَيَّامَ اللَّهِ

Tell the believers to forgive those who do not anticipate the Days of Allah.’ (Surah al-Jathiyah: verse 14)

At that time, Allah did not permit responding to misconduct with misconduct and violence with violence, fighting those who had mounted armed resistance against the call, or fighting those who were brutally persecuting believing men and women.

دفع بالتي هي أحسن السيئة طَلَعَنَ أَعْلَمُ بِمَا يَصِفُون

Repel evil with that which is best. I am fully aware of what they say.’ (Surah al-Mu’minun: verse 96)

At that time, whatever instructions he gave using the word jihad were given in the sense of resisting through the Qur’an and rational proofs. For example:وَجَامِلٌ مُرْ بِهِ جِهَادًا كَبِيرًا .

‘Strive against them with a mighty struggle by means of the Qur’an.’ (Surah al-Furqan: 52)

Thus, after thirteen years had passed in Makkah, when the violent conduct, oppression, and persecution of the unbelievers became severe and reached an extreme level—even to the point of plotting to kill the Messenger (peace be upon him)—he was compelled to migrate from Makkah to Madinah and ordered his Companions to migrate to Madinah as well:

وَإِذْ يَمْكُرُبِكَ الَّذِينَ كَفَرُوا لِيُثْبِتُوكَ أَوْ يَقْتَلُوكَ أَوْ يُخْرِجُوكَ ، وَيَمْكُرُونَ ويمكر الله ، والله غير المكرين

‘And remember when the unbelievers plotted against you to imprison you, kill you, or expel you. They plotted, and Allah also planned. Allah is the best of planners.’ (Surah al-Anfal: 30)

إِلا تَنْصُرُوهُ فَقَدْ نَصَرَهُ اللهIf you do not help him, then Allah will surely help him.’ (Surah al-Tawbah: 40)

Finally, when the enemies began to attack the Muslims in Madinah, the new capital of Islam, and the Muslims were compelled to take up arms to protect their lives and property and to continue conveying Islam, permission to fight was granted. At that time, the first verses to be revealed were verses 39, 40, and 41 of Surah al-Hajj:

أذِنَ لِلَّذِينَ يَقْتَلُونَ بِأَنَّهُمْ ظُلِمُوا ، وَإِنَّ اللهَ عَلَى نَصْرِهِمْ لَقَدِيرُ الَّذِينَ أَخْرِجُوا مِن بِيْرِهِمْ بِغَيْرِ حَق إِلَّا أَن يَقُولُوا رَبُّنَا الله وَلَوْلا دَفْعُ اللَّهِ النَّاسِ بَعْضَهُمْ بِبَعْضِ المُرسَت مَوامِعَ وَبِيَعٌ وَصَلُونَ وَمَسْجِدٌ يذكَرَ فِيهَا اسْم اللهِ كَثِيرًا ،

وَلَيَنْصُون الله من ينصره ، إن اللهَ لَقَوِيٌّ عَزِيزَهُ الَّذِينَ إِن مُكْتَهُمْ فِي الْأَرْضِ أَقَامُوا الصَّلوةَ وَاتُو الزكوة وأمرُوا بِالْمَعْرُوفِ وَلَموا عَنِ الْمُنْكَرِ مَا وَلِلَّهِ عَاقِبَةُ الْأَموره

‘Permission to fight is given to those who have been attacked, because they have been wronged. Allah is certainly capable of helping them. They were expelled from their homes unjustly only because they said, “Our Lord is Allah.” Had Allah not repelled some people by means of others, monasteries, churches, synagogues, and mosques—where Allah’s name is mentioned frequently—would have been destroyed. Allah will surely help those who help Him. Allah is indeed Strong, Mighty. Those who, if We establish them in the land, establish prayer, give zakat, enjoin what is right, and forbid what is wrong. And the outcome of all affairs belongs to Allah.’ Here, the justification for permission to fight is established by mentioning three reasons.

1. The unbelievers oppressed the Muslims in a completely aggressive manner and without provocation, expelled them unjustly from their homes, and their sole reason was that the Muslims had accepted the true religion and said: “Our Lord is Allah alone.”

2. Had Allah not granted humanity permission for such self-defense, all those places of worship where Allah’s name is constantly remembered would have been destroyed. They would have been obliterated by the oppression of the unbelievers who disbelieve in Allah and the Hereafter.

3. The sole purpose of granting people victory, establishment, power, and authority on earth is that they establish prayer, pay zakat, enjoin good, and forbid evil.

When and how jihad became obligatory: In the second year of the Hijrah, Allah made jihad obligatory by revealing the following verse:

كتِبَ عَلَيْكُمُ الْقِتَالُ وَهُوَ كَرَهُ لَكُمْ ج وَعَسَى أَن تَكْرَهُوا شَيْئًا وَهُوَ خَيْرٌ لَكَرْجَ وَعَسَى أَن تَحِبُّوا شَيْئًا وهو شر لكمرها واللهُ يَعْلَمُ والتُر لَا تَعْلَمُونَ

‘Fighting has been prescribed for you, though it is hateful to you. Perhaps you dislike something that is good for you, and perhaps you love something that is bad for you. Allah knows, and you do not know.’ (Surah al-Baqarah: 216)

Jihad is a communal obligation: There are certain obligatory acts that every individual must perform; they are not fulfilled by one or several people performing them. These include faith, purification, prayer, zakat, fasting, and Hajj. These are called individual obligations. Every individual is responsible for performing them. No one may omit them or perform them incompletely. (Acquiring basic knowledge of Islam is also an individual obligation.) There are also obligations that are mandatory for some people, but not for everyone. These are called communal obligations. (The responsibility for performing them falls only upon those who have the ability or opportunity to do so.)

Communal obligations are broadly of four types:

1. Religious activities, such as acquiring detailed knowledge of Islam, teaching Islamic rulings to others, resolving doubtful matters and issuing decisions, removing doubts raised about Islam and responding to propaganda, arranging the funeral prayer and congregational prayers, establishing Islamic organizations, and calling the adhan for prayer, among other things.

2. Adopting the means, resources, and professions necessary for economic development and prosperity, such as agriculture, industry, and medicine—professions from which, if everyone refrained, the whole society would suffer both religiously and materially.

3. Matters requiring the presence of a qualified ruler, such as ordering jihad and implementing the punishments or hudud prescribed by the Shariah. These are solely the responsibility and right of the ruler. Ordinary citizens and subjects have neither the right nor the authority to punish one another.

4. Matters for which a ruler is not a condition (rather, competence, ability, opportunity, and voluntary initiative are sufficient), such as enjoining good, forbidding and preventing evil, encouraging and calling people to do good and noble deeds, acquire virtues, and undertake public welfare work, and resisting evil deeds and wicked qualities.

In fact, these communal obligations are not mandatory for everyone. The responsibility for performing them is assigned to some people. If some people perform them and the task is successfully completed, or their effort is shown to be sufficient, the responsibility of performing these acts is discharged on behalf of everyone. But if no one performs them, everyone will be sinful. See verse 122 of Surah al-Tawbah, verse 71 of Surah al-Nisa, and verse 95 of Surah al-Nisa on this subject.

Jihad is not obligatory for all Muslims. It is a communal obligation. If some people perform jihad and the enemy is subdued thereby, the obligation is lifted from the remaining people. Allah says in verse 122 of Surah al-Tawbah:

وَمَا كَانَ الْمُؤْمِنُونَ لِيَنْفِرُوا كَافَّةً ، فَلَوْلا نَفَرَ مِن كُلِّ فِرْقَةٍ مِنْهُمْ طَائِفَةٌ لِيَتَفَقَّهُوا فِي الدِّينِ وَلِيُنْذِرُوا قوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِمْ لَعَلَّهُمْ يَحْذَرُونَ

‘It is not appropriate for the believers to march forth all together. So why does not a group from each faction go forth to gain religious understanding and, upon returning to their people, warn them so that they may beware?’

يَأَيُّهَا الَّذِينَ آمَنُوا عَذُوا مِن رَكُمْ فَانْفِرُوا ثَبَاتِ أَوِ الْفِرُوا جَمِيعًانِ

O believers, remain vigilant. Then advance either in separate groups or all together.’ (Surah al-Nisa: 71)

(Advancing here means setting out on an expedition against the unbelievers.) Imam al-Bukhari said: Ibn Abbas explained “advancing in separate groups” as “setting out in separate armed battalions.”

لا يَسْتَوى الفعِدُونَ مِنَ الْمُؤْمِنِينَ غَيْر أولى الضرر والمُعْمِدُونَ فِي سَبِيلِ اللَّهِ بِأَمْوَالِهِمْ وَانْفُسِهِمْ ط فضل الله المَحمِدِينَ بِأَمْوَالِهِرْ وَالْفِيهِم عَلَى القَعِدين درجة ط وكلا وَعَدَ اللَّهُ الْحُسْنَى طَ وَفَضْلَ الله المحمد بن عَلَى

الْقَعِدِينَ أَجْرًا عَظِيمًا .

‘Those believers who remain at home without being disabled are not equal to those who strive in the way of Allah with their wealth and lives. Allah has elevated those who strive with their wealth and lives above those who remain at home. Allah has promised goodness to all. Yet He has favored those who strive over those who remain at home with a tremendous reward.’ (Surah al-Nisa: 95). Imam Muslim narrated from Abu Sa’id al-Khudri that the Messenger of Allah (peace be upon him) sent a detachment to the Banu Lihyan of Banu Hudhayl and said: ‘One of every two people should go on the expedition. The reward will be shared between both.’

When does jihad become an individual obligation? Jihad does not become an individual obligation except in the following circumstances:

1. When a person qualified and able to perform jihad is present in the ranks of battle. In such a situation, jihad becomes obligatory for him. Allah says:

يابها الَّذِينَ آمَنُوا إِذَا لَقِيتُمْ فِلَةٌ فَالْبَتَوانِ

O believers, when you confront a group, stand firm.’ (Surah al-Anfal: 45)

يأَيُّهَا الَّذِينَ آمَنُوا إِذَا لَقِيتُمُ الَّذِينَ كَفَرُوا زَحْفًا فَلَا تُوَلَّوْمَ الْأَدْبَارَه

O believers, when you meet the unbelieving forces, do not flee from the battlefield.’ (Surah al-Anfal: 15)

2. When enemies arrive in the city or place where Muslims reside, it becomes obligatory upon all the inhabitants to go out and fight them. At that time, even if the enemy cannot be repelled without everyone joining together and establishing resistance against them, no one may refrain from fulfilling the duty of fighting. Allah says:

يأيُّهَا الَّذِينَ آمَنُوا قَاتِلُوا الَّذِينَ يَلُوْلَكُمْ مِنَ الْكَفَّارِ

O believers, fight the unbelievers who are nearest to you. (Surah al-Tawbah: 123)

3. When a ruler orders or calls upon a person who is qualified and able to participate actively in jihad to set out for jihad, he has no excuse for failing to respond to that order or call. Ibn Abbas reported that the Messenger of Allah (peace be upon him) said: ‘After the conquest of Makkah, there is no longer a need to migrate to Madinah. However, the intention of jihad and migration when necessary must continue. And when you are called to jihad, set out.’ (Al-Bukhari)

It should be noted that before the conquest of Makkah, Muslims were obligated to migrate to Madinah. This hadith abrogated that obligation after the conquest of Makkah. However, migration from Dar al-Harb (a country ruled by non-Muslims) to a country ruled by Muslims has not been abrogated. For anyone who does not feel secure in his freedom to fulfill his religious duties, migration remains obligatory.

يَأَيُّهَا الَّذِينَ آمَنُوا مَالَكُمْ إِذَا قِيلَ لَكُمُ الْفِرُوا فِي سَبِيلِ اللَّهِ انَّا قَلْتُمْ إِلَى الْأَرْضِ ، أَرَضِيتُمْ بِالْحَيوا الدُّنْيَا مِنَ الْآخِرَةِ : فَمَا مَتَاعُ العبوة الدُّنْيَا فِي الْآخِرَةِ إِلَّا قَلِيلٌ

‘O believers, what is the matter with you that when you are told to march forth in the way of Allah, you cling heavily to the earth? Do you prefer the life of this world over the Hereafter? The enjoyment of this worldly life is but little compared with the Hereafter.’ (Surah al-Tawbah: 38)

Upon whom jihad is obligatory: Jihad is obligatory upon an adult, healthy-minded, physically fit Muslim man who has sufficient financial means for himself and his family until he returns from jihad. Thus, jihad is not obligatory upon non-Muslims, women, boys and children, the insane, or the sick. Therefore, there is no blame upon any of them for not participating in jihad. Their weakness and incapacity are obstacles in war. There is little need for them to be on the battlefield; moreover, their presence may cause greater harm than benefit. Regarding this, Allah says:

لَيْسَ عَلَى الضُّعَفَاءِ وَلَا عَلَى الْمَرْضَى وَلَا عَلَى الَّذِينَ لَا يَجِدُونَ مَا يُنْفِقُونَ حَرَجٌ إِذَا نَصَعُوْا لِلَّهِ ورسوله

‘There is no blame upon the weak, the sick, or those who cannot afford what they should spend, provided that they are sincere toward Allah and His Messenger. There is no cause for blame against those who do good.’ (Surah al-Tawbah: 91)

ليس على الأعمى حرج ولا عَلَى الْأَعْرَجِ حَرَجٌ وَلَا عَلَى الْمَرِيضِ حَرَج

There is no blame upon the blind, the lame, or the sick.’ (Al-Fath: 17)

Ibn Umar said: I presented myself to the Messenger of Allah (peace be upon him) on the day of Uhud. I was fourteen years old at the time, but he did not permit me.’ (Sahih al-Bukhari and Sahih Muslim).

Moreover, since jihad is an act of worship, it is not obligatory upon anyone who has not reached adulthood. Ahmad and al-Bukhari narrated that Aishah said: I asked, ‘O Messenger of Allah, is jihad obligatory upon women?’ The Messenger of Allah (peace be upon him) replied: ‘Yes, jihad without fighting is obligatory for them: Hajj and Umrah.’ In another narration: ‘However, a Hajj in which no sin is committed is the best jihad.’

Al-Wahidi and al-Suyuti narrated from Mujahid that Umm Salamah said: ‘O Messenger of Allah, men fight while we do not—how is that? We receive only half the inheritance.’ Then Allah revealed:

ولَا تَتَمَنَّوْا مَا فَضْلَ اللَّهُ بِهِ بَعْضُكُمْ عَلَى بَعْضٍ طَ لِلرِّجَالِ نَصِيبٌ مِّمَّا اخْتَسَبُوا وَلِلنِّسَاءِ نَصِيبٌ مِمَّا التسبن ، وستكوا الله مِن فَضْلِهِ ، إِنَّ اللَّهَ كَانَ بِكُلِّ شَيْءٍ عَلَيْهَا

Do not desire the things by which Allah has favored some of you over others. Men will have a share of what they earn, and women will have a share of what they earn. Ask Allah for His bounty. Allah has perfect knowledge of all things.’ (Surah al-Nisa: 32)

Al-Suyuti and al-Wahidi narrated from Ikrimah that the women expressed their desire for jihad and said: ‘We wished that Allah would give us the opportunity for jihad, so that we might also receive the reward that men earn through jihad.’ Then this verse was revealed.

However, this verse does not prohibit women from going to the battlefield to care for the wounded and perform similar services.

Anas said: On the day of Uhud, the people became separated from the Messenger of Allah (peace be upon him). I saw Aishah, the daughter of Abu Bakr, and Umm Sulaym working tirelessly. I even saw their anklets exposed (because of their excessive running). They were carrying water-filled waterskins on their backs, pouring the water into the mouths of the warriors, then returning to refill the waterskins and pouring it into the warriors’ mouths again.’ (Al-Bukhari and Muslim)

Anas also said: The Messenger of Allah (peace be upon him) would fight accompanied by the aforementioned Umm Sulaym and several other women of the Ansar. They would give water to the thirsty and treat the wounded.’ (Muslim, Abu Dawud, al-Tirmidhi)

Permission of parents: When jihad is obligatory, the permission of one’s parents is not required. However, for voluntary jihad, the permission of one’s independent parents or either one of them is required. Ibn Masud said: I asked the Messenger of Allah (peace be upon him), ‘Which deed is most beloved to Allah?’ He said: ‘Performing prayer at its proper time.’ I asked: ‘Then which?’ He said: ‘Kindness to parents.’ I asked: ‘Then which?’ He said: ‘Jihad in the way of Allah.’ (Al-Bukhari and Muslim)

Ibn Umar said: A man came to the Messenger of Allah (peace be upon him) and asked permission to go for jihad. He asked: ‘Are your parents alive?’ The man replied: ‘Yes.’ He said: ‘Then perform jihad by remaining with your parents.’ (Al-Bukhari, Abu Dawud, al-Nasa’i, and al-Tirmidhi; al-Tirmidhi declared it authentic.)

The book Shari’at al-Islam states: Only a person who is free from the responsibility of caring for his family and children and serving his parents should go for jihad. This is more important than jihad; indeed, it is the best jihad.

Permission of the creditor: Participation in voluntary jihad is not permissible for a debtor without the creditor’s permission or repayment of the debt. If he cannot repay the debt, it is sufficient for him to pledge something in place of the debt or have someone guarantee it for him.

Imam Ahmad and Muslim narrated from Qatadah: A man said to the Messenger of Allah (peace be upon him), ‘If I go to fight in the way of Allah and am killed, will all my sins be forgiven?’ He replied: ‘Yes, if you are patient, fight for Allah’s pleasure, and do not flee from the battlefield. But the liability of a debt will not be forgiven. Jibril told me this.’

Seeking the help of unbelievers and sinful people in war: It is permissible to seek the assistance of hypocrites and sinful people in war against the unbelievers. Abdullah ibn Ubayy and his fellow hypocrites used to participate in battles with the Messenger of Allah (peace be upon him). The story of the trial of the intoxicated Abu Mihjan al-Thaqafi in the Persian war is well known.

The jurists differed over fighting the unbelievers alongside Muslim combatants. Imam Malik and Imam Ahmad said: It is not permissible at all to seek their assistance. According to Imam Malik, however, it is permissible for non-Muslims to go to the battlefield as servants of Muslim fighters. Imam Abu Hanifah said: Seeking the assistance of unbelievers and providing help and support on their side are entirely permissible. In that case, however, the decisions of the Islamic army will apply to them. If the decisions of the polytheists prevail, it will be disliked. Imam al-Shafi’i said that it is permissible under two conditions:

a. The Muslims are a minority and the polytheists are the majority.

b. The assisting polytheists must have a favorable attitude and inclination toward Islam. After accepting their assistance, they will be paid wages for it, but they will not be given a share of the spoils acquired by the Muslims.

Seeking the help of weak people:

1. Musab, the son of سعد ibn Abi Waqqas, said: My father believed that he was superior to people of lower status than himself. When the Messenger of Allah (peace be upon him) learned of this, he told him: ‘You receive sustenance and help only through your weak people.’ (Al-Bukhari and al-Nasa’i). The wording of al-Nasa’i is: ‘Allah helps this ummah through its weaker class—that is, through their supplications, prayers, and sincerity.’

2. Abu al-Darda said: I heard the Messenger of Allah (peace be upon him) say: ‘Seek me among the weaker Muslims, for you receive help and sustenance only through your weak.’ (Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah)

3. Abu Hurayrah said: The Messenger of Allah (peace be upon him) said: ‘There are many dust-covered, disheveled-haired people who are turned away from doors, yet if they were to swear by Allah, Allah would fulfill their oath.’ (That is, a person may outwardly appear so insignificant in dress and appearance that no one’s attention is drawn to him; but if he possesses firm faith and strong conviction and supplicates to Allah, his supplication is immediately accepted.)

The Virtue of Jihad and Martyrdom

The virtue of jihad: Jihad means raising or making supreme the word of Allah, establishing His message of guidance on earth, and placing the true religion on a firm foundation. Therefore, it is superior to voluntary Hajj, voluntary Umrah, voluntary prayer, and voluntary fasting. At the same time, jihad encompasses all forms of worship, both outward and inward. Among inward acts of worship are zuhd—that is, abstaining from acquiring worldly wealth—temporarily leaving one’s homeland and birthplace, and abandoning greed, desire, and the pursuit of sensual gratification; all of these are present in jihad. For this reason, jihad has been called ‘the asceticism of Islam.’ The Messenger of Allah (peace be upon him) said: ‘The asceticism of my ummah is jihad in the way of Allah.’ Jihad also includes practicing the sacrifice of one’s life and wealth in the way of Allah and selling them to Allah. This is the direct result of love for Allah, faith, conviction, and reliance upon Allah. Allah says:

إن الله اشترى مِنَ الْمُؤْمِنِينَ الْفَسَهُم وأَمْوَالَهُرْ بِأَن لَهُمُ الجَنَّةَ ، يُقَاتِلُونَ فِي سَبِيلِ اللَّهِ فَيَقْتَلُونَ ويقتلون تف وَعْدًا عَلَيْهِ حَقًّا فِي التَّوْرَةِ وَالْإِنْجِيلِ وَالْقُرْآنِ ، وَمَن أولَى بِعَهْدِهِ مِنَ اللَّهِ فَاسْتَبْشِرُوا بِبَيْعِكُمُ الَّذِي بَايَعْتُم بِهِ ،

وَذَلِكَ هُوَ الْفَوْزُ الْعَظِيره

Allah has purchased from the believers their lives and wealth in exchange for Paradise. They fight in the way of Allah, killing and being killed. This is a true promise from Him in the Torah, the Gospel, and the Qur’an. And who is more faithful to His covenant than Allah? So rejoice in the bargain you have made. That is the supreme success.’ (Surah al-Tawbah: 111)

Islam has given jihad tremendous importance. Its virtue is described in most Madinan surahs, those who abandon jihad are condemned, and they are described as afflicted with hypocrisy and a disease of the heart.

The Mujahid Is the Best of People: Ibn Abbas (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Shall I tell you who is the best of people? It is the person who firmly grasps the reins of his horse in the path of Allah. Shall I tell you who is next in excellence? It is the person who, with the little booty he has received, lives apart from society and fulfills Allah’s right from it” (that is, distributes the due shares according to Allah’s command). “Shall I tell you who is the worst of people? It is the person who begs people in Allah’s name but does not give in Allah’s name.”

The Messenger of Allah (peace and blessings be upon him) was asked: “Who is the best of people?” He said: “The believer who strives in the path of Allah with his life and wealth.” The people asked: “Who is better after him?” He said: “The believer who lives in a mountain ravine, fears Allah, and protects people from his own harm.”

The statement, “He lives in a mountain ravine out of fear of Allah and to protect himself from his own harm,” is evidence for those who believe that seclusion is better than mixing with the general public. However, there is disagreement on this matter.

According to Imam al-Shafi‘i and most scholars, mixing with people is better if one can reasonably hope to protect oneself from going astray. Some groups, however, hold that seclusion is better.

Most scholars explain this hadith as referring to withdrawing from society when misguidance has become widespread and during times of war, conflict, and disorder; or as recommending seclusion for someone who cannot keep himself safe and cannot patiently endure people’s conduct; or as indicating some other exceptional circumstance of this kind. The prophets, most of the Companions, the Followers, the scholars, and the spiritually detached sages of the world mixed with people and benefited by attending Friday prayers, congregational prayers, funerals, visits to the sick, and Islamic gatherings and assemblies. The mention of mountain caves or passes is figurative, meaning seclusion, since such places are generally deserted. This hadith resembles another hadith in which, when the Messenger of Allah (peace and blessings be upon him) was asked about the means of salvation, he said: “Control your tongue, consider your house sufficiently spacious for you, and weep over your sins.”

Paradise Is for the Mujahid: Imam al-Tirmidhi narrated that a man, being inclined toward seclusion, asked the Messenger of Allah (peace and blessings be upon him) about it. He said: “Do not do that. For a person’s remaining in the path of Allah is better than praying for seventy years while sitting at home. Do you not wish that Allah forgive you and admit you into Paradise? Strive in the path of Allah. Paradise is guaranteed for the person who strives in the path of Allah while riding on the back of a she-camel.”

The Mujahid Is Raised One Hundred Ranks in Paradise: Abu Sa‘id al-Khudri (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “O Abu Sa‘id, whoever accepts Allah as Lord, Islam as religion, and Muhammad (peace and blessings be upon him) as prophet with a satisfied heart, Paradise is guaranteed for him.” Abu Sa‘id al-Khudri was amazed and said: “O Messenger of Allah, repeat that to me.” The Messenger of Allah (peace and blessings be upon him) repeated it, then said: “There is another deed which, if performed, causes Allah to raise a servant one hundred ranks in Paradise; the distance between two of them is like the distance between heaven and earth.” Abu Sa‘id asked: “O Messenger of Allah, what is that deed?” He said: “Striving in the path of Allah—striving in the path of Allah.” The Messenger of Allah (peace and blessings be upon him) also said: “There are one hundred levels in Paradise that Allah has prepared for those who strive in His path. The distance between two levels is like the distance between heaven and earth. So when you ask Allah for Paradise, ask Him for al-Firdaws, for it is the middle and highest level of Paradise. Above it is the Throne of Allah, and from it the rivers of Paradise spring forth.”

Nothing Equals Striving: Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) was asked: “O Messenger of Allah, what is equal to striving in the path of Almighty Allah?” He said: “You cannot do it.” The question was asked two or three times, and each time the Messenger of Allah (peace and blessings be upon him) said: “You cannot do it.” Finally he said: “The equal of one who strives in the path of Allah is a person who constantly fasts and continuously prays while reciting Allah’s verses, then continues praying and fasting without interruption until the one striving in the path of Allah returns home.” (Narrated in the five collections of hadith.)

The Virtue of Martyrdom: The Messenger of Allah (peace and blessings be upon him) said: “Allah alone knows who will be wounded in His path. But when a person wounded in the path of Allah appears on the Day of Resurrection, blood will continue to flow from his wound. Its color will be the color of blood, but its scent will be that of musk.”

Muhammad ibn Ibrahim said: When Abdullah ibn al-Mubarak was setting out for the battlefield, I came to bid him farewell. He had me write down the following poem and sent it to Fudayl ibn Iyad, who was staying in Makkah: “O worshiper of Allah seated in the Two Holy Sanctuaries, if you were to see us, you would realize that you are merely playing in worship. Let the one whose cheeks are wet with tears know that our throats are being dyed with our blood. Let the one whose horse is exhausted running about for some vain purpose know that our horses become exhausted on the day of battle. The breeze of perfume delights you, while our perfume is the gust from the sharp edges of swords and the pure dust. The true and sound saying of our Prophet, which can never be proved false, has come to us: ‘The dust of those devoted to Allah and the fire of Hell will never be combined inside a person’s nostrils.’ This saying can never be false. Here is the Book of Allah, proclaiming among us: ‘The martyr never dies.’ This is not false.”

Muhammad ibn Ibrahim said: I met Fudayl ibn Iyad in the Sacred Mosque carrying this letter to him. When he read it, tears began to fall from his eyes. He said: “Abu Abd al-Rahman has spoken the truth and offered me sincere counsel.” Then he asked: “Can you write hadith?” I replied: “Yes.” He said: “Then, as compensation for bringing Abu Abd al-Rahman’s letter to me, write this hadith:”

Abu Hurayrah (may Allah be pleased with him) narrated that a man said: “O Messenger of Allah, teach me a deed by which I may receive a reward equal to that of those who strive in the path of Allah.” The Messenger of Allah (peace and blessings be upon him) said: “Can you continuously pray without interruption and continuously fast without breaking your fast?” He replied: “O Messenger of Allah, I am more incapable of this than anyone.” The Messenger of Allah (peace and blessings be upon him) then said: “Even if you could do that, you would not equal those who strive in the path of Allah. Do you not know that a mujahid earns this rank through whatever righteous deed he performs according to his ability?” The Messenger of Allah (peace and blessings be upon him) said to his Companions: “When your brothers were martyred at Uhud, Allah placed their souls inside green birds. Those birds roamed through the rivers of Paradise, ate its fruits, and rested beside hanging lamps beneath the shade of the Throne. When they had fully enjoyed their food, drink, and sleep and were satisfied, they said: ‘Who will convey from us to our brothers in the world that we are alive in Paradise and receiving provision, so that they do not lose interest in striving?’ Allah then said: ‘I shall convey this message from you.’ Thereafter Allah revealed:”

وَلَا تَحْسَبَنَّ الَّذِينَ قَتِلُوا فِي سَبِيلِ اللَّهِ أَمْوَاتًا بَلْ أَحْيَاءٌ عِنْدَ رَبِّهِمْ يُرْزَقُونَ فَرِحِينَ بِمَا أَتَمْرُ الله من فَضْلِهِ لا وَيَسْتَبْشِرُونَ بِالَّذِينَ لَمْ يَلْحَقُوا بِهِم مِن خَلْفِهِمْ أَلَّا خَوْفٌ عَلَيْهِمْ وَلَا هُمْ يَحْزَلُونَ يَسْتَبْشِرُونَ بِنِعْمَةٍ مِنَ اللهِ وَفَضْلٍ

لا وأن اللَّهَ لَا يُضِيعُ أَجْرَ الْمُؤْمِنِينَ .

“Never think of those who have been killed in the path of Allah as dead. Rather, they are alive and receiving provision from their Lord. They rejoice in what Allah has granted them from His bounty, and they rejoice for those who have not yet joined them, that they will have no fear and will not grieve. They rejoice in Allah’s blessing and bounty, and because Allah does not allow the reward of the believers to be lost.” (Surah 3, Al Imran: verses 169–171)

The Messenger of Allah (peace and blessings be upon him) said: “The souls of martyrs dwell inside green birds, roaming wherever they wish in Paradise.” The Messenger of Allah (peace and blessings be upon him) also said: “A martyr feels the pain of being killed only as much as one of you feels the pain of an insect bite.” He further said: “The best striving is for your blood to be shed and your horse to be killed.” Jabir ibn Atik said that the Messenger of Allah (peace and blessings be upon him) said: “Besides the person killed in the path of Allah, seven others are martyrs: one who dies of plague; one who drowns; one who dies from fever, cough, or similar illness arising from a deep internal wound, sore, or abscess; one who dies from an abdominal illness; one who is burned to death; one who dies crushed beneath a collapsed structure; and a woman who dies during childbirth.” (Ahmad, Abu Dawud, and al-Nasa’i, with an authentic chain of transmission.)

Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whom do you consider a martyr?” The people replied: “O Messenger of Allah, one who is killed while striving in the path of Allah is a martyr.” The Messenger of Allah (peace and blessings be upon him) said: “Then the martyrs of my community would be very few.” They asked: “Then, O Messenger of Allah, who are the martyrs?” He said: “One who is killed while striving in the path of Allah is a martyr; one who dies a natural death while stationed in the path of Allah is a martyr; one who dies of plague is a martyr; one who dies from an abdominal illness is a martyr; and one who drowns is a martyr.” (Muslim.)

Sa‘id ibn Zayd narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever is killed while defending his property is a martyr; whoever is killed while defending his life is a martyr; and whoever is killed while defending his family is a martyr.” (Ahmad and al-Tirmidhi; al-Tirmidhi declared it authentic.)

The scholars say: The martyrdom of these people, despite not being killed while striving in the path of Allah, means that they will receive the reward of martyrs in the Hereafter. In this world, however, their bodies will be washed and funeral prayers will be offered for them.

In fact, there are three types of martyrs. The first is a martyr both in this world and in the Hereafter: the person killed in battle against the unbelievers. The second is a martyr only in the Hereafter, not according to the rulings of this world; these are those mentioned here. The third is a martyr only according to worldly judgment, not in the Hereafter: the person who dies after stealing from the spoils or fleeing from the battlefield. Abdullah ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Allah will forgive all the sins of a martyr, but He will not forgive debts.” Wrongs committed against servants, such as killing or unlawfully taking people’s property, are like debts and will not be forgiven.

Striving to Elevate Allah’s Religion: Striving cannot properly and truly be called jihad until its purpose is to attain Allah’s pleasure, establish and exalt Allah’s religion, raise the banner of truth, overcome the forces of falsehood, and exert every effort while abandoning the desires of the self for Allah’s sake. If someone strives to achieve any worldly interest or objective apart from these purposes, it is not considered true jihad. Thus, if someone fights an armed battle to obtain a position, acquire wealth, gain a reputation for bravery, or achieve any other kind of fame, he will receive no reward or recompense in the Hereafter. Abu Musa (may Allah be pleased with him) narrated that a man came to the Messenger of Allah (peace and blessings be upon him) and said: “One man fights to obtain wealth, another fights to gain fame, and another fights to be called a hero. Which of them is fighting in the path of Allah?” The Messenger of Allah (peace and blessings be upon him) said: “The one who fights so that Allah’s word is exalted and Allah’s religion prevails is the one fighting in the path of Allah.” Abu Dawud and al-Nasa’i (may Allah have mercy on them) narrated it. A man said: “O Messenger of Allah, a man fights intending to gain both fame and the reward of the Hereafter. What will he receive?” The Messenger of Allah (peace and blessings be upon him) said: “He will receive nothing.” The man repeated the question three times, and each time the Messenger of Allah (peace and blessings be upon him) told him: “He will receive nothing.” Allah does not accept any deed that is not performed solely to seek His pleasure.

Indeed, intention or purpose is the spirit of every deed or action. An action whose intention or purpose is not to attain Allah’s pleasure and the reward of the Hereafter is dead and lifeless. It has no value with Allah. Imam al-Bukhari narrated from Umar ibn al-Khattab (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Actions are judged only by intentions. Every person will have only what he intended.”

Only a sincere and pure intention ensures the true value of every deed. Through a sincere intention, a person may attain the rank of a martyr without actually being martyred. The Messenger of Allah (peace and blessings be upon him) said: “Whoever sincerely asks Allah for martyrdom, even if he dies in his bed, Allah will grant him the rank of a martyr.” He also said: “There are many groups in Madinah who accompanied you on every expedition and across every distance you traveled, although they could not remain with you because of an excuse.” When a worldly interest becomes the source of a person’s motivation for striving instead of a sincere intention, the one who strives is not only deprived of the reward of the Hereafter; by this very act he also casts himself into punishment on the Day of Resurrection. Abu Hurayrah (may Allah be pleased with him) said: I heard the Messenger of Allah (peace and blessings be upon him) say: “The first person to be judged on the Day of Resurrection will be a martyr. He will be brought before the field of Resurrection, and the blessings bestowed upon him will be mentioned. He will acknowledge all of them. Then he will be asked: ‘How did you use these blessings?’ He will say: ‘I fought for Your sake until I was martyred.’ Allah will say: ‘You have lied. You fought so that people would call you brave, and that was said.’ Then he will be thrown into the Fire headfirst. Another will be a man who acquired knowledge of Islam, taught it to others, and recited the Quran. He will be brought and reminded of the blessings given to him. He will acknowledge them. He will then be asked: ‘How did you use these blessings?’ He will say: ‘I learned and taught religious knowledge and recited the Quran for Your pleasure.’ Allah will say: ‘You have lied. You learned so that people would call you a scholar, and you recited the Quran so that people would call you a reciter; and that was said.’ Then he will be thrown into Hell face-first. Another will be a man whom Allah had given abundant wealth and made the owner of various kinds of property. He will be brought and reminded of those blessings, and he will acknowledge them all. Allah will ask: ‘How did you use these blessings?’ He will say: ‘I spent in every cause in which You love money to be spent, for Your pleasure.’ Allah will say: ‘You have lied. You gave so that people would call you generous, and that was said.’ Then he will be ordered to be thrown into Hell face-first, and he will be thrown there.” (Sahih Muslim.)

The Reward of Deeds: However sincere and pure the Mujahid’s intention may be, when he takes a share of the spoils of war, it is deducted from his reward. Abdullah ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Regardless of whether the expedition is small or large, those who take part in it, return safely, and receive booty obtain two-thirds of the reward for their striving. Those who take part in any small or large expedition and are killed or wounded receive the full reward for their striving.” (Sahih Muslim.)

Imam al-Nawawi said: The general meaning of this hadith is that the reward of those among the fighters who return unharmed or receive booty is less than that of those who do not return unharmed, or who return unharmed but do not receive booty. This is because booty constitutes part of the reward for striving. Those who receive it are considered to have received two-thirds of the reward for striving. Booty is counted as one part of the total reward. This explanation accords with well-known statements narrated from the Companions. For example, one Companion said: “Some of us would die without enjoying any portion of his reward, while others would enjoy its benefit in this world.” Thus, the explanation we have given is correct and is the apparent meaning of the hadith. No clear, authentic hadith contradicts this explanation. Therefore, our explanation must be accepted as sound. Qadi Iyad (may Allah have mercy on him) also adopted this explanation. Imam Abu Dawud narrated from Abu Ayyub (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said:

“Many lands will be conquered at your hands, and you will become organized armies. Various military units will then be formed. Some people will prefer to enlist in those units and go to war. A man will separate himself from his tribe, then examine the condition of all those tribes again, present himself before them, and say: ‘Who is there in whose place I may go to such-and-such a unit?’ Such a person is the true fighter; he will fight even with his final drop of blood.”

The Virtue of Stationing Oneself on the Frontier to Confront the Enemy in Allah’s Path: There are many places along the frontier through which enemy forces may enter Muslim lands. It is essential to establish the strongest possible resistance in these places so that the enemy cannot use them as weak points to enter the interior. Islam has strongly encouraged safeguarding such potential gaps and commanded that soldiers be stationed there so that they may become a source of strength for the Muslims. Stationing oneself in such gaps for jihad in Allah’s path and safeguarding them through guards is called ribat. The minimum duration of ribat is one hour or some period of time, and its maximum is forty days. The best duration is however long one remains there so as to make it the most terrifying base in the eyes of the enemy. The scholars unanimously state that stationing oneself on the frontier or battlefield to repel the enemies of Islam and the Muslims is better than residing in Makkah. The following hadiths have been narrated regarding its virtue:

Imam Muslim narrated from Salman (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “One day and one night of ribat is better than a month of fasting and prayer. If someone dies in this state, the righteous deeds he used to perform will continue to be recorded for him (this is a special virtue of ribat), and his provision will continue for him. Moreover, he will be safe from the oppression of the wrongdoers.” He also said: “The deeds of every dead person cease with his death. But the righteous deeds of the one stationed in Allah’s path do not cease. His deeds continue increasing until the Day of Resurrection, and he remains safe from the punishment of the grave.”

The Virtue of Shooting Arrows with the Intention of Jihad: Islam has encouraged shooting arrows with the intention of striving in Allah’s path, learning the art of warfare and self-defense, receiving training in these matters, and learning archery and wrestling.

1. Uqbah ibn Amir (may Allah be pleased with him) said: I heard the Messenger of Allah (peace and blessings be upon him) say while seated on the pulpit: Allah said: “Prepare as much strength as possible against the enemy. Know that archery is strength; know that archery is strength; know that archery is strength.” (Muslim.)

2. It is also narrated from Uqbah ibn Amir that the Messenger of Allah (peace and blessings be upon him) said: “Soon many lands will come under your control. Therefore, do not neglect the sport of spear throwing. Through a single spear, Allah Most High admits three people into Paradise: its maker, its supplier, and the one who throws it in Allah’s path.”

Islam has strongly condemned learning to shoot arrows or throw spears and then forgetting it. Abandoning it without an excuse is makruh tahrimi.

3. The Messenger of Allah (peace and blessings be upon him) said: “Whoever learns to shoot arrows and then abandons it is not one of us”—or he said—“he has disobeyed Allah.”

4. The Messenger of Allah (peace and blessings be upon him) also said: “All games played by people are futile, except archery, training horses, and enjoying oneself with one’s wife; these are legitimate.”

Al-Qurtubi said: “Allah knows best the true meaning of this hadith. However, as I understand it, its meaning is that the forms of entertainment people pursue have no benefit whatsoever in this world or the Hereafter. They are therefore futile, and avoiding them is better. These three activities, although performed as entertainment and amusement, also have some benefits. Archery and horse-racing practice are skills that assist in warfare. Enjoyment with one’s wife may result in the worshipper of Allah being blessed with a child. These three things are therefore legitimate.” The Messenger of Allah (peace and blessings be upon him) also said: “O descendants of Ismail, practice archery, for your father was an archer.” Learning to ride horses and use weapons is a communal obligation, which sometimes becomes an individual obligation.

Naval Warfare Is Better than Land Warfare: Since warfare by sea is more dangerous than warfare on land, its reward is greater.

A. Abu Dawud narrated from Umm Haram (may Allah be pleased with her) that the Messenger (peace and blessings be upon him) said: “The person who dies on a naval expedition and the person who drowns at sea both attain the rank of martyrs.”

B. Ibn Majah narrated from Abu Umamah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “The person martyred at sea is equal to two martyrs on land. The person afflicted by seasickness at sea is equal to the person rolling in blood on land. The person who fights seeking either type of martyrdom has the rank of one who cuts himself off from worldly ties in order to spend his life worshiping Allah. Allah appoints the Angel of Death to take the lives of everyone except the martyr of naval warfare. He Himself takes the life of the martyr of naval warfare. As for the martyr of land warfare, all his sins are forgiven except his debts. But the debts as well as all sins of the martyr of naval warfare are forgiven.”

Qualities Necessary in a Commander: Regarding the qualities essential in a commander, Imam Fakhri mentions the following and says: “A Turkish military expert said: A commander must possess ten qualities that are naturally found among various animals. They are: the courage of a lion, the agility of a pig, the cunning of a fox, the vigilance of a crane, the sacrifice and generosity of a rooster, a hen’s affection for its chicks, the alertness of a crow, and a well-built body like that of a tayaru. Tagaru is a kind of animal from the Khurasan province of Iran, which is fattened for arduous work and travel. Jihad Under the Leadership of Both Righteous and Unrighteous People: It is not a condition for jihad that the leader or ruler be just or righteous. Rather, jihad is obligatory in every circumstance. It is not unusual for a sinful man on the battlefield to possess courage and bravery that others do not have.”

The Commander’s Responsibilities and Duties Toward Ordinary Soldiers: The commander’s responsibilities and duties toward ordinary soldiers are as follows:

1. Consulting them, accepting their opinions, and not acting arbitrarily while excluding them. For Allah has said: وشاورهم في الأمرع“Consult them in matters.”
(Surah 3, Aal ‘Imran: verse 159)

Abu Hurayrah (RA) said: “I have never seen anyone consult his companions more than the Messenger of Allah (PBUH) did.” (Ahmad and al-Shafi‘i)

2. Showing them affection and compassion, and treating them gently and flexibly. ‘A’ishah (RA) said that the Messenger (PBUH) said: “O Allah, whoever is placed in charge of any matter concerning my community and treats them gently, treat him gently.” (Muslim)

Ma‘qil ibn Yasar (RA) said that the Messenger of Allah (PBUH) said: “Any leader who is placed in charge of the Muslims and then does not strive fully for their welfare or sincerely seek their good will not enter Paradise.” (Sahih Muslim)

Abu Dawud narrated from Jabir (RA): When the Messenger of Allah (PBUH) traveled, he would remain at the rear, advance those who were weak, lift someone up behind him on his mount, and show them deep affection.

3. Enjoining good and forbidding evil, so that they do not become involved in sinful acts.

4. Inspecting the army from time to time, so that the commander remains properly informed about the soldiers, can prevent those unfit for battle from going to war, and can send back useless equipment. He should also remove from the army those who incite the soldiers to withdraw from battle or remain inactive, those who spread various rumors, such as saying, “Their army lacks sufficient manpower and weapons,” and likewise those who leak information about the army’s movements or attempt to create disorder.

5. Identifying the supervisors.

6. Providing standards.

7. Selecting suitable places for halts and securing places of concealment.

8. Deploying spies extensively to monitor the enemy’s movements.

The practice of the Messenger of Allah (PBUH) was that when he intended to campaign against one place, he would indicate another. Yet he would keep the actual destination fixed in his mind, so that the enemy would not learn of his intention. He would spread spies everywhere so that they could bring information about the enemy’s movements. He would prepare several armies and select standards for them. Ibn ‘Abbas (RA) said: The standard of the Messenger of Allah (PBUH) was black, and his banner was white. (Abu Dawud)

The Messenger of Allah’s (PBUH) farewell instructions to commanders: It is narrated from Abu Musa (RA) that when the Messenger of Allah (PBUH) sent someone on an assignment, he would say: “Give people good news and do not give them discouraging news; make things easy for them and do not make them difficult.” (That is, when he sent them with an administrative or managerial responsibility, he would say: Give those who, despite their wrongdoing, are drawing close to Islam, repenting, believing, and wishing to advance toward righteous deeds the good news of the breadth of Allah’s mercy and the vastness of His reward. Do not make them despair by giving them various frightening reports. Be easygoing and gentle with people; do not be harsh and extreme. (This is more conducive to creating love for Islam.))

It is further narrated from Abu Musa (RA) that when the Messenger of Allah (PBUH) sent him and Mu‘adh to Yemen, he said: “Make things easy and do not make them difficult. Give good news and do not cause despair. Do not engage in disagreement; work together in agreement.” (Bukhari and Muslim)

Anas (RA) narrated that the Messenger of Allah (PBUH) said: “Set out in the name of Allah, relying upon Allah and following the example of the Messenger of Allah. Do not kill a dying old man, unless he is fighting, advising in war, or skilled in warfare, in which case he may be killed. The Messenger of Allah (PBUH) killed Zayd ibn Thabit, who was more than one hundred and twenty years old and present among the Hawazin army, because he was their adviser concerning war and an experienced military expert. Do not kill an underage child or a woman, unless she is an active combatant, supervises the fighters, or advises them. Do not transgress. Safeguard your war booty. Reconcile and show magnanimity. Allah loves those who show magnanimity.” (Abu Dawud)

‘Umar’s instructions: ‘Umar (RA) sent the following written instructions to Sa‘d ibn Abi Waqqas (RA) and his fellow fighters: “I instruct you and the soldiers under your command to fear Allah and observe restraint in all circumstances. For fear of Allah and restraint are the finest weapons and the strongest military strategy for defeating the enemy. I instruct you and your army to be more wary of sinful acts than of the enemy. For the soldiers’ sins are more terrifying for them than their enemy. Muslims attain victory only because their enemies disobey Allah; otherwise they could not defeat them. The Muslims’ manpower is not equal to theirs, nor are their weapons equal to the enemy’s weapons. Therefore, if the Muslims and their enemies become equal in sinfulness, they will be stronger than us in power. If we cannot defeat them through our moral superiority, we will not be able to overcome them through strength alone. Know that during your campaign, guards from Allah are appointed over you. They are aware of your actions, so be ashamed before them. Do not become involved in any sin while in the path of Allah. Do not console yourself by saying that our enemies are more wicked than us, and therefore they can never defeat us. In the past, people more wicked than others have defeated and overpowered many nations. For example, when the Children of Israel engaged in deeds that provoked Allah’s anger, He gave the fire-worshipping disbelievers victory over them. They even attacked their homes. Allah’s promise concerning them was fulfilled. We ask Allah for assistance for you. You too should continue seeking Allah’s help against the enemy. I pray for this help for you and for us.”

Treat the Muslims gently while they are on the march. Do not force them to travel in a way that leaves them exhausted and ill. But do not be so lenient that you halt somewhere before reaching the enemy’s position. Remember that travel does not diminish strength. They must march toward an enemy that is established and highly skilled in caring for itself and its livestock. Every Friday, stay with your companions for one day and one night, so that they may rest and be refreshed. During this time they should inspect and surrender their weapons and equipment. Keep their halting places away from the villages of those who have made peace or obtained security under a treaty. At such times, do not allow anyone from among your companions to enter those villages except those whose religious commitment you are certain of. Let no one in the Muslim army show any contempt or disrespect toward any of the villagers. Remember that the responsibility for protecting their honor and security rests upon you, just as the responsibility of honoring the treaty rests upon them. As long as they honor it, continue treating them well. If those who have made peace commit an injustice, do not retaliate against them with the help of fighting disbelievers. When you are stationed in enemy territory, spread spies between you and them. Let no movement of theirs remain unknown to you. Keep with you only those Muslims or local inhabitants whose truthfulness and sincerity you are certain of. Remember that when people accustomed to lying tell the truth selectively, their information will not benefit you. A deceitful person will spy against you, not for you. When you draw near the enemy’s territory, send many advance units and spread numerous small detachments that will cut off the enemy’s supply lines and resources, while the advance units uncover their secret information.

To form the advance units, appoint from among your companions those who are experienced military strategists and veteran fighters. Form cavalry units from them as well. If they encounter an enemy, that will be the first use of force undertaken on your judgment. Entrust the dispatch of small detachments to those experienced in jihad. Exercise patience and restraint in wielding the sword. Do not allow anyone to undertake this at his own whim. Otherwise, your opinion and authority will be undermined even more than they would be by showing leniency toward your prominent people. Never send an advance unit or small detachment where defeat is highly likely. When you have finished observing the enemy’s movements, gather your distant troops, advance forces, and small detachments to you, and consolidate your battle plan and strength. Even then, do not hasten to fight until you have obtained detailed information about the enemy’s secrets and fighters and acquired knowledge of their territory equal to that of its inhabitants, unless battle is imposed upon you. After obtaining this information and knowledge, you will be able to deal with the enemy exactly as they deal with you.

Then spread spies throughout your army, and remain alert at night, making every effort to attack the enemy. If you find any treaty-bound prisoner of war outside—whether fleeing or fighting—kill him immediately, so that those who are your enemies and the enemies of Allah will be afraid. Allah is the protector of you and the soldiers under your command. He alone enables you to gain victory over your enemy. Help should be sought from Him alone.

The soldiers’ responsibilities and duties: The soldiers’ responsibility and duty toward the commander is to accept and obey without objection every order that does not involve disobedience to Allah. Imams Bukhari and Muslim narrated from Abu Hurayrah (RA) that the Messenger (PBUH) said: “Whoever obeys me has obeyed Allah; whoever disobeys me has disobeyed Allah; whoever obeys the commander has obeyed me; and whoever disobeys the commander has disobeyed me.”

Obedience in sinful matters is completely forbidden, for one cannot obey the command of a created being by violating the command of the Creator. Bukhari and Muslim narrated from ‘Ali (RA): “Once the Messenger of Allah (PBUH) sent out a small detachment, appointed an Ansari man as its commander, and ordered its members to listen to and obey him. At one point the soldiers disobeyed him in a matter. The commander then said: ‘Gather some firewood for me.’ They gathered firewood, and the commander said: ‘Light a fire.’ They lit it. Then the commander said: ‘Did the Messenger of Allah (PBUH) not order you to listen to my commands and obey me?’ They said: ‘Yes.’ The commander said: ‘Then enter this fire.’ Hearing this, the soldiers began looking at one another. Then they said: ‘We came to the Messenger (PBUH) only to be saved from the Fire.’ After some time passed, the commander’s anger subsided and the fire went out.

When the soldiers returned from the expedition and related the incident to the Messenger of Allah (PBUH), he said: “Had you entered that fire, you would never have come out of it.” He also said: “One must not obey the command of a created being by violating the command of the Creator. Obedience is required only in what is right and lawful.”

It is obligatory to invite people to Islam before war: Before beginning any war, it is obligatory for Muslims to invite the opposing side to Islam. Muslim narrated from Buraydah (RA): “Whenever the Messenger of Allah (PBUH) appointed anyone as commander of a small or large army, he specifically instructed him to fear Allah and to treat the ordinary Muslim soldiers justly. Then he would say: Set out in the name of Allah and in the path of Allah; fight those who disbelieve in Allah. Fight, but do not betray the war booty, do not break promises, do not mutilate the bodies of the slain, and do not kill children (nor women or old men, because they do not fight). When you meet polytheist enemies, invite them to one of three things: accepting Islam, leaving the country, or paying jizyah. Accept whichever of these they choose and do not fight them. Invite them to Islam. If they accept this invitation, accept it from them and do not fight them. Then order them to leave their country and migrate to the land of the emigrants, and inform them that if they migrate, they will have the same privileges and rights as the other emigrants, and the same responsibilities and duties as the other emigrants. If they do not agree to migrate and engage in jihad, inform them that they will be like the desert-dwelling Bedouins. (That is, under Allah’s law they will receive no share of the war booty or of the lands and property seized after the war.) The commands of Allah that apply to the other Muslims will also apply to them. If they refuse to accept Islam, ask them to pay the jizyah tax. In the later Surah al-Tawbah, jizyah became restricted to Jews and Christians. This was probably before that ruling. If they agree to pay jizyah, accept it and do not fight them. If they refuse, seek Allah’s help and fight them. After besieging the inhabitants of a fortress, if they seek the protective asylum of Allah and His Messenger, do not grant it to them. Instead, grant them protective asylum from yourself and your companions. For if you later wish to break that grant of asylum, breaking a pledge given by you and your companions will be less serious than breaking one given in the name of Allah and His Messenger. After besieging the inhabitants of a fortress, if they ask permission to submit under Allah’s promise and authority, do not grant it. Rather, allow them to submit under your authority, because you do not know whether, in their case, you might violate Allah’s authority. That is, one should avoid pledging Allah’s protective asylum and authority, for both are extremely honored and their honor must be carefully preserved.” (Narrated in the five sound hadith collections other than Bukhari.)

Once, a Muslim army under the command of Salman al-Farisi besieged a palace in Persia. The soldiers said to the commander: “Shall we attack them?” The commander replied: “I have heard that the Messenger (PBUH) would invite people to Islam before attacking. So give me the opportunity to invite them.” Salman then came to the inhabitants of the besieged palace and said: “I am a Persian like you. The Arabs obey me. Therefore, if you accept Islam, you will receive all the rights and privileges we receive, and the same responsibilities and duties will be imposed upon you as upon us. But if you are in no way prepared to abandon your religion, then pay us jizyah with your own hands as a sign of submission. We will allow you to remain firm in your religion.” Salman said in Persian: “You are not worthy of praise. Nevertheless, if you pay jizyah, we will allow you to remain in your religion. If you agree to neither, we will fight you.”

The Persians said: “We will not pay jizyah. Rather, we will fight you.” The soldiers then said to Salman: “Now shall we attack them?” Salman gave them three days. Then he said: “Attack them.” We then attacked them and seized the palace.” (Tirmidhi)

Imam Abu Yusuf said: As far as we have learned, the Messenger of Allah (PBUH) never fought a people until he had invited them to Allah and His Messenger. The book al-Ahkam al-Sultaniyyah (The Laws of Governance) states: “It is forbidden for us to launch a surprise or nighttime attack upon those who have not received the invitation to Islam, killing them and burning their property. It is forbidden for us to launch the first attack against them until we present the invitation to Islam and place before them the miracles and decisive proofs of the Messenger (PBUH) that help them accept the invitation.”

According to Imam al-Sarakhsi, one of the imams of the Hanafi school, it is preferable not to begin fighting immediately after issuing the invitation. They should be given at least one night to consider it. According to the jurists, if the commander begins fighting before inviting them to the three things mentioned above and warning them with arguments, and kills some of the enemy by surprise and at night, he must pay blood money for those killed.

In the book Futuh al-Buldan, al-Baladhuri said: “The people of Samarqand said to their governor, Sulayman ibn Abi al-Sura: ‘Qutaybah ibn Muslim al-Bahili violated the treaty he made with us, betrayed us, wronged us, and seized our country. Yet Allah has established and made justice and fairness victorious. Therefore, permit us to send a delegation to the Commander of the Believers to complain about this injustice. If we have a rightful claim, it will be granted to us.’ Sulayman permitted them. They sent a delegation to ‘Umar ibn ‘Abd al-‘Aziz. When ‘Umar learned of the injustice committed against them, he sent the following order to Sulayman: ‘The people of Samarqand have complained to me about the injustice committed against them. Qutaybah wronged them by expelling them from their land. As soon as you receive this letter, appoint a judge for them who will consider their complaint. If he rules in their favor, return them to where they were before Qutaybah conquered them, and remain where you were.’”

Upon receiving the letter, Sulayman appointed Jami ibn Hazir as judge. He ruled that the Arabs residing in Samarqand should return to their camp. Then they should send the people an offer from an equal position, and victory should be achieved anew either through a treaty or through war.

After this ruling was announced, the landowners said: “Rather, we are content with what has happened. We are not prepared to fight again.” For the wise among them said: “The Muslims have merged and mingled with us. We have lived with them; they have allowed us to live in peace and security, and we have allowed them to do the same. If we return to a state of war, we do not know who will be victorious. If we are not victorious, we will already have created hostility by raising this dispute.” Thus they maintained the situation as it was, were content with it, and refrained from creating a new dispute. For they had already been impressed by the justice of Islam and the Muslims and regarded it as a tremendous achievement. Ultimately, this became the reason they entered Islam spontaneously. We know of no one besides the Muslims who has ever established such an example of justice.”

Praying to Allah on the eve of battle: Supplicating Allah for the help and victory of the mujahidin is one of the principles of war, for help and victory rest solely in Allah’s hands. This was the practice of the Messenger of Allah (PBUH) and, after him, his Companions.

1. Abu Dawud narrated that the Messenger of Allah (PBUH) said: “Two supplications are never rejected: the supplication made at the time of the call to prayer and the supplication made when the two sides clash in battle.”

2. The Exalted Allah says: تستفيشون ربَّكر فاستجاب لwhen you sought Allah’s help and He immediately answered your supplication.” (Surah al-Anfal: verse 9)

3. It is narrated from ‘Abdullah ibn Abi Awfa in the three sound hadith collections that, before facing the enemy in a battle, the Messenger of Allah (PBUH) waited until the sun began to decline. Then he stood before the people and said: “O people… Do not long to face the enemy; ask Allah for safety and well-being. But when you are compelled to face the enemy, be patient and steadfast, and know that Paradise lies beneath the shade of swords.” Then he said: “O Allah, Revealer of the Book, Mover of the clouds, and Defeater of the confederate armies of disbelievers, defeat them and grant us victory over them.”

4. When engaging in battle, he would supplicate: “O Allah, You are my strength and my support. Through Your help I find the strategy to counter the enemy’s schemes; through the strength You grant me I attack the enemy; and with Your help I fight.” —Abu Dawud, Tirmidhi, al-Nasa’i, and Ibn Majah.

5. Bukhari and Muslim narrated that on the day of the Battle of the Confederates (the Battle of the Trench), the Messenger of Allah (PBUH) supplicated: “O Allah, Revealer of the Book and Swift in reckoning, defeat the armies of the disbelievers. O Allah, defeat them and shake them.”

Chapter Twenty-Two: War and Truce

Islam gives the highest importance to inviting humankind to accept Allah’s religion, so that through this religion they may attain happiness and peace in this world and the Hereafter and enjoy a secure life under its authority. Allah has appointed the Muslim community to make His religion victorious and spread His revelation everywhere. Likewise, liberating and freeing all the nations of the world also falls within the responsibility of the Muslim community.

In this respect, the Muslim nation is the finest nation in the world. In relation to other nations, its status is like that of a teacher before a student. As long as this status remains, it also bears the responsibility of preserving the national identity of the entire Muslim community, striving and struggling as much as possible to secure its rightful rights, and making every effort to attain and remain in the rank and position Allah has appointed for it. Any degree of negligence in this regard will be considered a grave offense, and Allah has decreed that its consequence will inevitably be disgrace, humiliation, downfall, and even destruction and extinction. Until the Muslim community fully achieves the aforementioned objective—its own defense and the liberation of all nations—Islam has prohibited it from laxity and indifference and declared truce and compromise unlawful. In such circumstances, compromise and truce are, from Islam’s perspective, nothing but cowardice and degradation. In this regard Allah says:

فَلَا تَمِنُوا وَتَدعوا إلى السلم وانتم الْأَعْلَوْنَ وَاللَّهُ مَعَكُمْ وَلَن يُترَكُمْ أَعْمَالَكُرْه

Therefore, do not weaken and do not call for peace; you are superior, and Allah is with you, and He will never deprive you of the reward of your deeds.” (Surah Muhammad: verse 35) That is, in terms of creed, belief and ideology; in worship; in character; in customs and practices; and in knowledge and deeds, you occupy the highest rank.

In Islam, peace and truce are made from a position of strength and power, not from a position of weakness. For this reason, Islam has not made peace and truce unconditional; rather, it has linked them to the conditions that the enemy permanently abandon and refrain from aggression, that no oppression or injustice remain in the world, and that no one deprive another of religious freedom. If any one of these causes is present, Allah has permitted war. This is the war for which one may stake one’s life and willingly sacrifice one’s life.

No religion other than Islam is found on earth that has inspired its followers to fight solely for Allah, for truth, for the incapacitated and weak, and for a dignified life. Anyone who examines the Qur’anic verses and the actual lives of the Messenger of Allah (peace and blessings be upon him) and the caliphs who succeeded him will see this matter clearly. Almighty Allah has imposed upon the Muslim ummah the duty of striving in jihad by expending all that one possesses, saying:وَجَاهِدُوا فِي الله حق جهاده‘Strive in the way of Allah as striving in His cause ought to be.’ (Surah al-Hajj, verse 78)

This verse states that this jihad is active faith, without which the religion is not complete. Allah has said elsewhere:

أحسب الناس أن يتركوا أن يقولوا آمنا وهم لا يفتنونَ وَلَقَدْ فَتَنَّا الَّذِينَ مِن قَبْلِهِمْ فَلَيَعْلَمَنَّ الله الدين مَنقُوا وَلَيَعْلَمَنَّ الكلبين

‘Do people think that merely saying, “We believe,” will allow them to be left without being tested? Indeed, We tested those who came before them, and Allah will certainly make clear who are truthful and who are liars.’ (Surah al-‘Ankabut, verses 2–3)

It is clearly stated here that this is Allah’s established practice with regard to believers, and that there is no other path to attaining Paradise or Allah’s help. Allah also says:

أمْ حَسِبْتُمْ أَن تَدْخُلُوا الْجَنَّةَ وَلَمَّا يَأْتِكُمْ مَثَلُ الَّذِينَ عَلَوْا مِن قَبْلِكُمْ ما مستمر البأساء والضراء وزلزِلُوا حَتَّى يَقُولَ الرَّسُولُ وَالَّذِينَ آمَنُوا مَعَهُ مَتى نَصْرُ اللَّهِ مَا أَلَا إِنْ نَصْرَ اللَّهِ قَرِيبٌ

‘Do you think that you will enter Paradise although the condition of those who came before you has not yet come upon you? Poverty and hardship touched them, and they were shaken, until the Messenger and those who believed with him said, “When will Allah’s help come?” Surely, Allah’s help is near.’ (Surah al-Baqarah, verse 214)

For this reason, Allah has made it obligatory to gather weapons and equipment for jihad:

وَاعِدُوا لَهُمْ مَا اسْتَطَعتم من قوة و من رباط الحبل تُرْهِبُونَ بِهِ عَدُوَّ اللَّهِ وَعَدُوكُمْ .

‘Prepare against them whatever strength and cavalry you are able to, by which you may terrify the enemy of Allah and your enemy.’ (Surah al-Anfal, verse 60)

When and how preparations should be made is determined in light of the circumstances and environment. The word ‘strength’ includes every means that helps subdue the enemy.

It is reported in an authentic hadith: ‘Know that archery is strength; know that archery is strength; know that archery is strength.’ Exercising vigilance and organizing manpower by every able person also falls within the scope of preparation. As Allah has said:

يَأَيُّهَا الَّذِينَ آمَنُوا عَدُوا مِنْ رَكُمْ فَالْفِرُوا تَبَابٍ أَوِ الْفِرُوا جَمِيعًا

‘O believers, take your precautions, then advance in groups or advance all together.’ (Surah al-Nisa, verse 71)

In fact, vigilance is impossible without making preparations by land, sea, and air. The command has been given to go out to confront the enemy in every condition, whether difficult or easy, pleasant or adverse. As Allah says: الْفِرُوا مِفَانًاو‘Go forth, whether lightly equipped or heavily equipped, on the expedition.’ (Surah al-Tawbah, verse 41)

(That is, whether the military equipment and weapons are more or less abundant, the enemy must be confronted in all circumstances.)

Islam relies more on spiritual strength than on material strength. Therefore, it inspires morale and high aspirations in the following manner:

فَلْيُقَاتِلُ فِي سَبِيلِ اللهِ الَّذِينَ يَقرون الحيوة الدنيا با الأميرة ط ومن يُقَاتِلُ فِي سَبِيلِ اللَّهِ فَيُقْتَلْ أَوْ يَقْلِبُ فَسَوْفَ تُؤْتِيهِ أَمْرًا عَظِيمًا وَمَا لَكُمْ لَا تُقَاتِلُونَ فِي سَبِيلِ اللَّهِ وَالْمُسْتَضْعَفِينَ مِنَ الرِّجَالِ وَالنِّسَاءِ وَالْوِلْدَانِ الَّذِينَ

يَقُولُونَ رَبَّنَا امْرِحْنَا مِنْ هَذِهِ الْقَرْيَةِ الظَّالِي أَمْلَهَا ، وَاجْعَلْ لَّنَا مِن لَّدُنْكَ وليا واجْعَلْ لَنَا مِن لَّدُنْكَ نَصِيرًاه

Therefore, those who sell the life of this world in exchange for the Hereafter should strive in the way of Allah. Whoever strives in the way of Allah, whether he is killed or victorious, We shall grant him a great reward. What is the matter with you that you do not strive in the way of Allah and for the helpless men, women, and children who say, ‘Our Lord, take us out of this town whose inhabitants are oppressors, appoint for us from Yourself a protector, and appoint for us from Yourself a helper.’ (Surah al-Nisa, verses 74–75)

He consoles the believers by saying that even if they suffer hardship and distress, they are not the only ones to suffer it; their enemies suffer it as well. Yet there is an enormous difference between the ultimate outcomes of the two sides. Allah says:

وَلَا تَمِنُوا فِي ابْتِغَاءِ الْقَوْمِ ، إِن تَكُونُوا تَأْلَمُونَ فَالْهُم بِالْمُونَ كَمَا تَأْلَمُونَ ، وَتَرْجَعُونَ مِنَ اللَّهِ مالا يرجون .

‘Do not lose heart in pursuing the enemy. If you suffer pain, they also suffer pain just as you do, while you hope from Allah for what they do not hope for.’ (Surah al-Nisa, verse 104)

الَّذِينَ آمَنُوا يُقَاتِلُونَ فِي سَبِيلِ اللَّهِ : وَالَّذِينَ كَفَرُوا يُقَاتِلُونَ فِي سَبِيلِ الطَّاغُوتِ فَقَاتِلُوا أَوْلِيَاءَ الشيطيج إِن كَيْدَ الشَّيْطَنِ كَانَ ضَعِيفًا

Those who believe fight in the way of Allah, while those who disbelieve fight in the way of Taghut. So fight the allies of Satan; surely Satan’s plan is weak.’ (Surah al-Nisa, verse 76)

That is, the believers have lofty and noble aims. They strive for a specific mission. That mission is the mission of truth, the mission of goodness, and the mission of making Allah’s religion victorious. Commanding steadfastness and firmness when facing the enemy, Allah says:

يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا لَقِيتُمُ الَّذِينَ كَفَرُوا زَحْفًا فَلَا تُوَلُّوهُمُ الْأَدْبَارَهُ وَمَنْ يُوَلِهِمْ يَوْمَئِلِ دَبَرَهُ إِلَّا مُتَعَرِّنَا لِقِتَالِ أَوْ مُتَعَيْرًا إِلَى فِئَةٍ فَقَدْ بَاءَ بِغَضَبٍ مِّنَ اللهِ وَمَا وَنَهُ جَهَنَّمَ، وَبِئْسَ الْمَصِيرُه

‘O believers! When you meet the disbelieving forces in battle, do not turn your backs to them. Whoever turns his back on them that day—unless as a maneuver for battle or to join another group—will incur Allah’s wrath, and his refuge will be Hell. What an evil destination.’ (Surah al-Anfal, verses 15–16)

Instructing believers to acquire moral and spiritual strength, Allah says in verses 45 and 46 of Surah al-Anfal:

يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا لَقِيتُمْ فِئَةً فَالْبَتُوا وَاذْكُرُوا اللهَ كَثِيرًا الْعَلَّكُمْ تُفْلِحُونَ وَأَطِيعُوا اللَّهَ وَرَسُولَهُ وَلَا تَنَازَعُوا فَتَفْعَلُوا وَتَذْهَبَ رِيحُكُمْ وَاصْبِرُوا ، إِنَّ اللهَ مَعَ الصَّبِرِينَ

‘O believers! When you encounter a group, stand firm and remember Allah much so that you may succeed. Obey Allah and His Messenger, and do not dispute among yourselves, lest you lose courage and your strength depart. Be patient; surely Allah is with the patient.’

In verse 111 of Surah al-Tawbah, Allah mentions the believers’ unshakable courage and states that, in accordance with the demands of this courage, in defensive war they are either killers or killed; they have no third condition besides these two. Allah says:

إن الله اشترى مِنَ الْمُؤْمِنِينَ الْفَسَهُم وأَمْوَالَهُمْ بِأَنَّ لَهُمُ الْجَنَّةَ ، يُقَاتِلُونَ فِي سَبِيلِ اللَّهِ فَيَقْتُلُونَ ويقتلون تف وعدا عَلَيْهِ حَقًّا فِي التورية والإنجيل والقرآن ، ومن أوفى بِعَهْدِهِ مِنَ اللَّهِ فَاسْتَبْشِرُوا بِبَيْعِكُمُ الَّذِي بَايَعْتُم بِهِ ،

وَذَلِكَ هُوَ الْفَوْزُ الْعَظِيره

Allah has purchased from the believers their lives and wealth in exchange for Paradise. They fight in the way of Allah; they either kill or are killed. The promise concerning this is given to them in the Torah, the Gospel, and

the Qur’an. And who is more faithful to his covenant than Allah? So rejoice in the bargain you have made, for that is the supreme success.’ If they kill, they are victorious; if they are killed, they are martyrs. In verse 52 of Surah al-Tawbah, He says,

قُلْ هَلْ تَرَبَّصُونَ بِنَا إِلَّا إِحْدَى الْحُسْنَيَيْنِ :

Say: You are awaiting for us only one of the two excellent outcomes.

Being killed in the way of Allah is not death for eternity; rather, it is a transfer to a better and everlasting life. Sacrificing oneself in the way of Allah is the true enduring life. Allah has said this in verses 169, 170, and 171 of Surah Al ‘Imran:

ولا تَحْسَبَنَّ الَّذِينَ قُتِلُوا فِي سَبِيلِ اللَّهِ أَمْوَاتًا بَلْ أَحْيَاءٌ عِنْدَ رَبِّهِمْ يُرْزَقُونَ فَرِمِينَ بِمَا أَنْهُم اللَّهُ مِنْ فَضْلِهِ وَيَسْتَبْشِرُونَ بِالَّذِينَ لَمْ يَلْحَقُوا بِهِم مِّن خَلْفِهِمْ أَلَّا خَوْفٌ عَلَيْهِمْ وَلَاهُمْ يَحْزَنُونَ يستبشرون بِنِعْمَةٍ مِنَ اللهِ وَفَضْلٍ لا و أن اللَّهَ لَا يُضِيعُ أَمْرَ الْمُؤْمِنِينَ .

‘Never consider those who have been killed in the way of Allah to be dead. Rather, they are alive and provided for by their Lord. They rejoice in what Allah has granted them from His bounty, and they rejoice for those who have not yet joined them, knowing that they will have no fear and will not grieve. They rejoice in Allah’s favor and bounty, and in the fact that Allah does not allow the reward of the believers to be lost.’

In verse 12 of Surah al-Anfal, Allah declares that He is with the mujahidin and never abandons them:

إِذْ يَوْمِي رَبُّكَ إِلَى الْمَلْئِكَةِ إِنِّي مَعَكَر فَتَيْتوا الَّذِينَ آمَنُوا ، سالْقِي فِي قُلُوبِ الَّذِينَ كَفَرُوا الرَّعْبَ فَاضْرِبُوا فَوْقَ الْأَعْنَاقِ وَاضْرِبُوا مِنْهُمْ كُلَّ بَنَانٍ

‘Remember when your Lord revealed to the angels: “I am with you, so make the believers firm. I will cast terror into the hearts of those who disbelieve. So strike them above the necks and strike every fingertip of theirs.”’

In verses 10, 11, 12, and 13 of Surah al-Saff, Allah announces promises of excellent rewards for the believers in both this world and the Hereafter:

يَأَيُّهَا الَّذِينَ آمَنُوا هَلْ أَدُلُّكُمْ عَلَى تِجَارَةٍ تَنْعِيْكُمْ مِنْ عَذَابِ الَيْهِ تُؤْمِنُونَ بِاللَّهِ وَرَسُوْلِهِ وتحمدُونَ فِي سَبِيلِ اللهِ بِأَمُولِكُمْ وَالْفُسِكُم عليكم غير لكم إن كُنتُمْ تَعْلَمُونَ ، يَغْفِرْ لَكُمْ ذُنُوبَكُمْ وَيَدْخِلْكُمْ مَنْ تَجْرِي مِن تَحْتِهَا الأنهر

ومسكن طيبة في جني عَدْنٍ عَذَلِكَ الْفَوْزُ الْعَظِيرَة وأخرى تُحِبُّونَهَا نَصَرٌ مِنَ اللَّهِ وَفَتْحٌ قَرِيبٌ ، وَبَشِّرِ الْمُؤْمِنِينَ

‘O believers, shall I guide you to a trade that will save you from a painful punishment? It is that you believe in Allah and His Messenger and strive in the way of Allah with your wealth and your lives. That is best for you, if only you knew. He will forgive you your sins and admit you into Gardens beneath which rivers flow, and into excellent dwellings in everlasting Gardens. That is the supreme success. And He will grant you another blessing that you desire: help from Allah and an imminent victory. Give the believers this good news.’

It was through this method that the Qur’an molded the Muslims of the first generation. It created in their hearts an unconquerable faith that decisively distinguished between truth and falsehood, and in this way led them toward Allah’s help, victory, and establishment. Allah says:

يَأَيُّهَا الَّذِينَ آمَنُوا إِن تَنْصُرُوا اللَّهَ يَنْصُرْكُمْ وَيَثَبِّتْ أَقْدَامَكُرُه

‘O believers. If you help Allah, He will help you and make your foothold firm.’ (Surah Muhammad, verse 7)

وَعَدَ اللهُ الَّذِينَ آمَنُوا مِنْكُمْ وَعَمِلُوا الصَّلعَت لَيَسْتَخْلِفَنَّهُمْ فِي الْأَرْضِ كَمَا اسْتَخْلَفَ الَّذِينَ مِنْ قبلهم من وليكنى لَهُم دينهم الذي ارتضى لَهُمْ وَلَيُبَدِ النَّهُم مِن بَعْدِ خَوْفِهِمْ أَمَنَا يَعْبُدُونَنِي لَا يشركون بي شيئا .

‘Allah has promised those among you who believe and do righteous deeds that He will surely grant them succession in the land, just as He granted succession to those before them; and He will surely establish for them the religion He has chosen for them and replace their fear with security. They will worship Me, associating nothing with Me.’ (Surah al-Nur, verse 55)

Remaining steadfast during battle is obligatory: steadfastness in direct combat with the enemy is obligatory, and fleeing is forbidden. Allah says:

يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا لَقِيتُمُ الَّذِينَ كَفَرُوا زَحْفًا فَلَا تُوَلُّوهُمُ الْأَدْبَارَه وَمَنْ يُوَلِهِمْ يَوْمَئِلِ دَبَرَهُ إِلَّا متحرفًا لِقِتَالِ أَوْ مُتَصَيْرًا إِلَى فِئَةٍ فَقَدْ بَاءَ بِغَضَبٍ مِّنَ اللهِ وَمَاونَهُ جَهَنَّمَ مَا وَبِئْسَ الْمَصِيرُه

‘O believers. When you meet the disbelieving forces in battle, do not turn your backs to them. Whoever turns his back on them that day—unless as a maneuver for battle or to join another group—will incur Allah’s wrath, and his refuge will be Hell. What an evil destination.’ (Surah al-Anfal, verses 15–16)

Both verses prove that remaining firmly in position on the battlefield is obligatory and fleeing is forbidden, except in two situations. In those two situations, it is permissible to withdraw from confronting the enemy:

The first situation: repositioning for battle. That is, moving from one battlefield to another as required by the needs of the battle. One may move from a confined place to a spacious one, from an exposed place to a concealed one, or from a low place to a higher one. Similarly, changing to a position that is more advantageous and suitable on the battlefield is permissible.

The second situation: joining a group of Muslims, whether with the intention of fighting alongside them or seeking their assistance. This is permissible. It makes no difference whether that group is near or far.

Sa‘id ibn Mansur narrates that ‘Umar (may Allah be pleased with him) said: ‘If Abu ‘Ubaydah were to join my group, I would allow him to join.’ At that time, Abu ‘Ubaydah was in Iraq and ‘Umar (may Allah be pleased with him) was in Madinah. ‘Umar (may Allah be pleased with him) said: ‘I am a group for every Muslim who changes groups.’ (That is, I am ready to accept him.)

Ibn ‘Umar (may Allah be pleased with him) narrated: When the Messenger of Allah (peace and blessings be upon him) left his house before the dawn prayer, a group of Muslims who had fled from confronting the enemy came to him. They said, ‘We have fled.’ The Messenger of Allah (peace and blessings be upon him) said, ‘Rather, you are devoted to fighting. I am the refuge of all Muslims.’

In fact, it is only in these two situations that a warrior may flee from the enemy. Although this may appear to be mere flight, it is actually preparation and an effort to take a more effective position against the enemy. In every situation other than these two, fleeing from battle is a major sin and a cause of painful punishment. The Messenger of Allah (peace and blessings be upon him) said: ‘Refrain from the seven destructive sins.’ The people asked, ‘O Messenger of Allah, what are they?’ He said: ‘Associating partners with Allah, practicing magic, unlawfully taking a life that Allah has forbidden, consuming an orphan’s property, fleeing on the day of battle, and accusing chaste, unsuspecting Muslim women of adultery.’

Lying and deception in war: It is permissible to lie and deceive in war to mislead the enemy, provided that this does not amount to breaking a promise or disrupting peace. One such deception is for the commander to give the enemy the impression that his army is so numerous and his weapons so powerful that defeating him is impossible. al-Bukhari narrated from Jabir (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: ‘War is a form of deception.’

Muslim narrated from Umm Kulthum bint ‘Uqbah (may Allah be pleased with her): I have not heard the Messenger (peace and blessings be upon him) permit lying in the speech people ordinarily use except in four situations:

1. In war; 2. in settling disputes between people; 3. in a husband’s speech to his wife; and 4. in a wife’s speech to her husband.

Fleeing from an enemy force twice as large: I have already stated that fleeing in order to move from one battlefield to another or from one army to another is permissible. This applies when the enemy is more than twice as numerous. If they are twice as numerous or fewer, fleeing is forbidden. Allah says:

الفن عقفَ اللهُ عَنْكُمْ وَعَلى أَن فِيكُمْ ضَعْفًا مَا فَإِن يكن مِنكُمْ مَالَهُ سَابِرَةٌ يُقْلِبُوا مِالَتَيْنِ : وَإِن يَكُن منكر ألف يُقْلِبُوا الغَيْر بِإِذْنِ اللَّهِ ، وَاللَّهُ مَعَ الصَّبِرِينَ

‘Now Allah has lightened your burden, for He knows that there is weakness among you. So if there are one hundred steadfast among you, they will overcome two hundred; and if there are one thousand among you, they will overcome two thousand by Allah’s permission. Allah is with the steadfast.’ (Surah al-Anfal, verse 66)

The book al-Muhadhdhab states: ‘Fleeing is permissible when the enemy’s number exceeds twice the number of Muslims.’ However, if the Muslims have a stronger expectation that they will not be destroyed, remaining firm is preferable; and if the expectation of destruction is stronger, there are two opinions:

First, withdrawing is obligatory, because Allah says:

ولا تُلْقُوا بِأَيْدِيكُمْ إِلَى التَّهْلُكَةِ

‘Do not throw yourselves into destruction with your own hands.’ (Surah al-Baqarah, verse 195)

Second, withdrawing is recommended, not obligatory, because if they are killed, they will be martyrs.

If the number of disbelievers is not more than twice the number of Muslims, then fleeing is not permissible unless the fear of destruction is stronger; if it is stronger, there are two opinions: First, it is permissible, based on the aforementioned verse 195 of Surah al-Baqarah.

Second, based on the apparent meaning of the same verse. The latter opinion is considered correct by the jurists.

Al-Hakim said: What should be done in this case depends on the warrior’s stronger judgment and discernment. If his stronger judgment is that he will be able to resist, fleeing is not permissible. If his stronger judgment is that he will be destroyed, it is permissible to join any other Muslim army, no matter how far away it may be. The condition, however, is that he must not intend to flee from jihad. According to Ibn al-Majishun and Imam Malik, weakness is assessed not by numbers but by strength. Thus, even if the enemy is only one person, if he is more skilled in the art of warfare and superior in weapons and strength, it is permissible for one Muslim opposing him to flee. This opinion is more evident.

Mercy and restraint in war: Just as Islam has permitted warfare when unavoidable, it has also confined it within definite limits. Therefore, during war, only those engaged in combat may be killed, and no one else. It is not permissible to kill or in any way harass someone who is not engaged in the fighting. Likewise, Islam has prohibited killing inactive people such as women, children, the sick, the elderly, monks, worshippers, and the like. It has also prohibited mutilating the bodies of the slain. It has even prohibited killing animals, destroying crops and water, polluting ponds, and demolishing or damaging houses. Similarly, it has prohibited striking an injured person again in order to finish him off, pursuing fleeing enemies, and conducting searches. War is like surgery performed for the purpose of treatment; it is in no way permissible to go beyond the limits of the diseased area.

Regarding this, Sulayman ibn Buraydah narrated from his father: ‘Whenever the Messenger of Allah (peace and blessings be upon him) appointed someone as commander of an army, he would particularly advise him and the Muslims accompanying him to fear Allah. Then he would say: “Go forth in the name of Allah and in the way of Allah. Fight those who disbelieve in Allah, but do not transgress, do not betray or break your promise, do not mutilate anyone’s body, and do not kill any child.”’

Nafiʿ narrates from ʿAbdullah ibn ʿUmar (may Allah be pleased with him): In one of the battles conducted under the leadership of the Messenger of Allah (peace and blessings be upon him), a woman was found killed. He expressed his displeasure at this and forbade the killing of women and children. (Muslim.)

In a hadith narrated by Rabah ibn Rabiʿ, it is stated that, perhaps upon seeing the woman mentioned in the preceding hadith, the Messenger of Allah (peace and blessings be upon him) said: “This woman did not intend to fight.” Then he looked toward his Companions and said to one of them: “Go to Khalid ibn al-Walid and tell him that under no circumstances should he kill any child, servant, or woman.”

ʿAbdullah ibn Zayd narrates: The Messenger of Allah (peace and blessings be upon him) forbade killing the wounded and mutilating the bodies of the dead.

ʿImran ibn al-Husayn said: The Messenger of Allah (peace and blessings be upon him) encouraged us to give charity and forbade mutilating the bodies of the dead. Among the farewell instructions Abu Bakr gave when sending Usamah to Syria were: “Do not betray, commit excesses, or transgress; do not break your promises; do not mutilate corpses; do not kill children, the elderly, or women; do not cut down or burn date palms; do not cut down fruit-bearing trees; and do not slaughter sheep, cattle, or camels except for eating. Spare the ascetics and monks devoted to constant worship in their places of worship, and spare their objects of worship.”

ʿUmar ibn al-Khattab (may Allah be pleased with him) followed the same policy. In one letter he wrote:

“Do not commit excesses or embezzle; do not betray; do not kill children; and fear Allah concerning the farmers.” He forbade the commanders to kill children, the elderly, and women. In particular, he sternly ordered them to refrain from killing them when the two sides engaged in combat and during attacks.

Night attacks on the enemy: In a defensive war, it is permissible to launch a nighttime attack on the enemy when unavoidable necessity requires it. Imam al-Tirmidhi said: Some scholars considered night attacks permissible, while others considered them disliked. Imam Ahmad and Ishaq said: They are permissible. When the Messenger of Allah (peace and blessings be upon him) was asked about attacking the homes of polytheists at night, thereby potentially killing or injuring their women and children along with them, he said: “Those women and children are part of the polytheists.” (Al-Bukhari and Muslim.)

Imam al-Shafiʿi said: The prohibition against killing the women and children of polytheists applies only when they can be identified and found separately. However, a night attack is permissible even when there is a possibility that women and children may be killed or injured.

Conclusion of the war: The war will end when any one of the following occurs:

1. If all or some of the combatant party embraces Islam and enters Allah’s religion. In that case, they will be regarded as Muslims. Their rights will be like those of other Muslims, and their duties will likewise be like those of other Muslims.

2. If they request a truce for a specified period. In that case, granting their request is obligatory, as he did at the Treaty of Hudaybiyyah.

3. If the non-Muslim party expresses a desire to remain in its religion by paying jizyah. Through this, it too will gain the right to coexist with the Muslims.

4. If the warring non-Muslim party is defeated and the Muslims prevail over it. The defeated non-Muslims will then become ghanimah, that is, spoils of war, for the Muslims.

5. At times, part of the enemy party may seek refuge with the Muslims. In such a case, the request will be granted. The same applies when one of them requests permission to enter an area governed or inhabited by Muslims. These matters are as follows:

1. A peace treaty. 2. A security and peaceful-coexistence agreement. 3. Ghanimah. 4. A request by part of the enemy to seek refuge with the Muslims.

Peace treaties and truces: A truce agreement means agreeing to stop hostilities for a specified period. It may sometimes develop into a peace treaty. It is obligatory in two situations:

The first situation: when the enemies request a truce. Even if the enemies intend to deceive through such a request, granting it is obligatory. However, in such a case, vigilance must be maintained and preparations made to face any undesirable situation. Allah says in verses 61 and 62 of Surah al-Anfal:

وَإِنْ جَنَعُوْا لِلسَّلْمِ فَاجْنَعْ لَهَا وَتَوَكَّلْ عَلَى اللهِ ، اللَّهَ هُوَ السَّمِيعُ العَلِيرُه وَإِن يُرِيدُوا أَن يُخْدَعُوكَ فَإِن حَسْبكَ الله .

“If they incline toward peace, then incline toward it and rely upon Allah. Indeed, He is the All-Hearing, the All-Knowing. If they intend to deceive you, then Allah is sufficient for you.” During the expedition of Hudaybiyyah, the Messenger of Allah (peace and blessings be upon him) concluded a peace treaty with the polytheists of Makkah and established a ten-year truce and peaceful relations with them. That treaty was concluded to halt bloodshed and seek peace.

Al-Baraʾ (may Allah be pleased with him) narrated: “When the disbelievers prevented the Messenger of Allah (peace and blessings be upon him) and his Companions from entering Makkah for ʿumrah, they concluded a peace treaty with him at Hudaybiyyah. Its terms were that the Messenger (peace and blessings be upon him) and the Muslims would return to Madinah that year and come to Makkah for ʿumrah the following year; then they would bring nothing with them except their swords in their sheaths. If any Makkan wished to go to Madinah with them, they would not take him; but if any of those who had come with them wished to remain in Makkah, they would neither prevent him from staying nor take him to Madinah. They would not remain in Makkah for more than three days. The treaty secured a ten-year truce, nonaggression, and complete mutual security for the people of both sides. When the treaty was being written, the Messenger (peace and blessings be upon him) said to ʿAli (may Allah be pleased with him): ‘Write the terms between our two parties, and begin with: Bismillah al-Rahman al-Rahim.’ According to another narration, the disbelievers said: ‘We do not know Bismillah al-Rahman al-Rahim. Write what we know: Bismika Allahumma.’ Then the Messenger of Allah said: ‘Write: This is the treaty agreed by Muhammad, the Messenger of Allah.’ Immediately the polytheists said: ‘Had we regarded you as the Messenger of Allah, we would have followed you. Rather, write: Muhammad, son of ʿAbdullah.’ At once the Messenger of Allah (peace and blessings be upon him) ordered ʿAli to erase the words ‘the Messenger of Allah.’ ʿAli said: ‘By Allah, I cannot erase them.’ The Messenger of Allah (peace and blessings be upon him) said: ‘Show me where the words are.’ After ʿAli showed him, the Messenger of Allah (peace and blessings be upon him) erased them, and ʿAli wrote: ‘Son of ʿAbdullah.’”

The following year, the Messenger of Allah (peace and blessings be upon him) stayed in Makkah for three days. On the third day, the polytheists said to ʿAli (may Allah be pleased with him): “Today is the final day according to the terms agreed with your leader. Tell him to leave Makkah today.” When ʿAli informed the Messenger of Allah (peace and blessings be upon him), he said: “All right.” Then he departed.

Al-Miswar ibn Makhramah (may Allah be pleased with him) narrated: The two parties concluded a peace treaty stipulating that neither party would wage war for ten years. All people would live in safety (there would be no theft, robbery, or treachery between the two parties, no discussion of the past, everyone’s hearts would remain clear, and complete peace and security would prevail). (Al-Bukhari, Muslim, and Abu Dawud.)

The second situation: the arrival of the sacred months. Initiating war during these months is forbidden. They are Dhu al-Qiʿdah, Dhu al-Hijjah, Muharram, and Rajab. However, if the enemy initiates hostilities, fighting to repel the attack is not merely permissible but obligatory for the Muslims. Likewise, if these months arrive while war is already underway and the enemy is unwilling to stop fighting, continuing the war is permissible. Allah says:

ان عِدَّةَ العُمَوْرِ عِنْدَ اللَّهِ النَا عَمَرَ قَمْرًا فِي كِتَبِ اللهِ يَوْمَ خَلَقَ السَّمواتِ وَالْأَرْضِ مِنْهَا أَرْبَعَةٌ حُرم ، ذلك الدين القيْرُ فَلَا تَظْلِمُوا فِيهِنَّ الْفُسَكَر

“Indeed, the number of months with Allah is twelve months in Allah’s ordinance from the day He created the heavens and the earth; four of them are sacred. That is the established religion. So do not wrong yourselves during them.” (Surah al-Tawbah, verse 36.)

In his Farewell Sermon, the Messenger of Allah (peace and blessings be upon him) said: “O people, postponing a month is only an increase in disbelief, by which the disbelievers are led astray. They declare it lawful one year and unlawful another year, so that they may complete the number of months Allah has made sacred. Time has returned to its original form, as it was on the day Allah created the heavens and the earth. The number of months with Allah is twelve months from the day He created the heavens and the earth; four of them are sacred, three consecutive and one separate: Dhu al-Qiʿdah, Dhu al-Hijjah, Muharram, and Rajab. Rajab lies between Jumada and Shaʿban. Know that I have conveyed the message. O Allah, bear witness.”

Some narrations state that this was abrogated. However, that narration is weak, because it contains no proof of abrogation.

The dhimmah agreement: Dhimmah means granting a pledge and granting security. A dhimmah agreement means that the ruler or an official acting on his behalf permits a disbeliever or a People of the Book to remain in their disbelief subject to two conditions.

The first condition: Properly observing the Islamic legal restrictions.

The second condition: Paying jizyah. The person who concludes the agreement will be subject to it for life, and thereafter his descendants will also be subject to it. The basis of this agreement is verse 29 of Surah al-Tawbah:

قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحْرِمُونَ مَا حرم الله وَرَسُولَهُ وَلا يَدِينُونَ دِينَ الْحَقِّ منَ الَّذِينَ أُوتُوا الْكِتَبَ حَتَّى يَعْفُوا الْجِزْيَةَ عَنْ بَد وَهُمْ سَفِرُونَ

“Fight those among the People of the Book who do not believe in Allah or the Last Day, who do not forbid what Allah and His Messenger have forbidden, and who do not follow the religion of truth, until they pay jizyah by hand, being humbled.”

Imam al-Bukhari narrates that during the Battle of Nahavand, al-Mughira said: “Our Prophet commanded us to fight you until you worship Allah alone or pay jizyah.” The dhimmah agreement will remain in force as long as nothing occurs that nullifies it.

Binding rules for those under the dhimmah agreement (that is, the dhimmis): Two types of Islamic regulations will apply to dhimmis:

The first type: Regulations concerning financial transactions. Thus, it is not permissible for them to conduct any transaction or agreement that conflicts with the principles of Islam, such as an agreement involving usury or any other unlawful transaction.

The second type: The prescribed punishments of Islam. If they become involved in any offense for which these punishments are prescribed, they will be obliged to undergo them, and these penalties will be enforced upon them. When two married Jews committed adultery, the Messenger of Allah (peace and blessings be upon him) imposed the punishment of stoning upon them. However, they will enjoy complete freedom regarding religious beliefs, worship, and family laws, such as marriage and divorce. According to the juristic principle: ‘Leave them and their religion alone.’ If they bring a complaint against one of their own people before our courts, our court will either judge according to Islamic law or dismiss the case. Allah says:

فَإِنْ جَاءُوكَ فَاحْكُمْ بَيْنَهُمْ أَوْ أَعْرِضْ عَنْهُم وَإِن تَعْرِضْ عَنْهُمْ عَلَى يَضُرُّوكَ شَيْئًا وَإِنْ حَكَمْ فاحكم بينهم بالقسط إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ

“If they come to you, then judge between them or turn away from them. If you turn away from them, they cannot harm you in the least. But if you judge, then judge between them with justice. Indeed, Allah loves those who act justly.”

That concerned the first condition. We will now discuss the condition of jizyah.

Chapter Twenty-Three: Jizyah

Definition: Jizyah is the tax imposed on a member of the People of the Book who has received protective asylum and a pledge of security from the Muslims.

Proof that jizyah is sanctioned by the Shariah: The basis for instituting and imposing jizyah is verse 29 of Surah al-Tawbah:

قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا مَوْمَ اللهُ وَرَسُولَهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ من الذين أوتوا الكتب حتى يعطوا الجزية عن يد وهم سفرون

“Fight those among the People of the Book who do not believe in Allah or the Last Day, who do not forbid what Allah and His Messenger have forbidden, and who do not follow the religion of truth, until they pay jizyah by hand, being humbled.”

Imam al-Bukhari and al-Tirmidhi narrate from ʿAbd al-Rahman ibn ʿAwf that the Messenger of Allah (peace and blessings be upon him) accepted jizyah from the fire worshippers of Hijr (a city in the Arabian Peninsula). Al-Tirmidhi also narrates that he collected jizyah from the fire worshippers of Bahrain. ʿUmar (may Allah be pleased with him) collected it from Persia, and ʿUthman (may Allah be pleased with him) collected it from the Persians or the Berbers. Why was jizyah instituted in the Shariah? Along with making zakat obligatory for Muslims, Islam imposed jizyah on dhimmis so that both parties would be equal. Muslims and dhimmis live as citizens of the same country under the same banner. They enjoy all rights and state benefits equally. Therefore, Allah made it an obligatory duty for Muslims to pay jizyah on behalf of the dhimmis in exchange for guaranteeing the security of their lives, property, and honor and protecting them in the Muslim country where they live. For this reason, after jizyah has been paid, protecting them and preventing anyone who wishes to harass or harm them is an obligatory duty of the Muslims.

From whom will jizyah be collected: Jizyah will be collected from all non-Muslim communities, whether they are from the People of the Book (Jews and Christians), fire worshippers, or another community, and whether they are Arabs or non-Arabs. This is the view of Imam Malik, al-Awzaʿi, and the Syrian jurists. Imam al-Shafiʿi said: Jizyah will be collected from the People of the Book and fire worshippers, whether they are Arabs or non-Arabs. However, it will not be collected at all from idol worshippers. Imam Abu Hanifah said: No jizyah will be accepted from Arab non-Muslims; they must either embrace Islam or face war.

However, collecting jizyah from the People of the Book is established by the Qur’an, while collecting it from fire worshippers and other non-Muslims is established by the Sunnah.

Ibn al-Qayyim’s view: The eminent scholar Ibn al-Qayyim said: “Since fire worshippers are a polytheistic community without a scripture, the acceptance of jizyah from them establishes the permissibility of accepting it from all other polytheistic communities as well. The reason the Messenger of Allah (peace and blessings be upon him) did not accept jizyah from the Arab idol worshippers is that they embraced Islam before the verse on jizyah was revealed. The verse on jizyah was revealed before the expedition of Tabuk, after the Messenger of Allah had concluded the phase of fighting the Arabs and become certain that all of them had embraced Islam. For the same reason, he did not accept jizyah from the Jews who had previously fought him, because that verse had not yet been revealed. After the verse was revealed, he accepted jizyah from the Christians of Arabia and from the fire worshippers. If any idol worshippers had remained and wished to pay jizyah, he would have accepted it from them as he accepted it from other idol worshippers, fire worshippers, and Christians. There is no difference between the disbelief of one disbeliever and that of another, nor is there any benefit or harm in portraying the disbelief of one community as inferior to that of another. There is no rational proof for saying that the disbelief of idol worshippers is worse than that of fire worshippers. What difference is there between those who worship idols and those who worship fire? Rather, the disbelief of fire worshippers is more repugnant. The idol worshippers regarded Allah alone as the supreme Lord and did not believe that anyone besides Allah was the Creator. They said that they worshipped their idols only so that they might bring them nearer to Allah. Unlike the fire worshippers, they did not believe in two creators of the universe, one the creator of good and the other the creator of evil. Nor did the idol worshippers, like the fire worshippers, ever regard marriage to their mothers, sisters, or daughters as lawful. They believed in remnants of the religion of Ibrahim. The fire worshippers, however, were not followers of any scripture at all. Nor were they followers of the religion of any prophet, whether in creed, law, or principles. This claim has no basis. They did have a scripture and a law, but when one of their kings raped his own daughter, both were taken away from them. Even if this were accepted as true, it would not establish that they were People of the Book, because their scripture was removed and their law abrogated. Thus neither remains.”

On the other hand, it is well known that the Arabs adhered to the religion of Ibrahim, although in a distorted form. Ibrahim had a scripture and a law. Even if it were true that the fire worshippers had a prophet, religion, and scripture, the Arab idol worshippers did not distort the religion of Ibrahim to the extent that the fire worshippers distorted theirs. No element of the law brought by the prophets can be found among the fire worshippers, whereas traces of it could still be found among the Arabs. Therefore, there is no reason whatsoever to regard the fire worshippers, followers of the world’s most debased religion, as superior to the Arab polytheists.

Conditions for collecting jizyah: Freedom, justice, and benevolence must be observed when collecting jizyah. Therefore, the following conditions must be met by those from whom jizyah is collected:

1. The payer of jizyah must be male. 2. The payer of jizyah must be an adult of sound mind. 3. The payer of jizyah must be a free person.

The verse concerning jizyah, verse 29 of Surah al-Tawbah, mentions ‘paying jizyah by hand,’ which indicates physical and financial capacity. Therefore, women, children, slaves, and the insane are not required to pay jizyah. Likewise, the poor who receive charity and have no earning capacity, the blind and incapacitated, and ascetics and monks devoted to worship in places of worship are not required to pay jizyah. However, if they are wealthy, they must pay it.

Imam Malik (may Allah be pleased with him) said: The children and women of the People of the Book are not required to pay jizyah. Only adult men must pay it. Aslam narrates that ʿUmar (may Allah be pleased with him) wrote to the commanders: “Do not impose jizyah on anyone except adult men.” The insane are included in the category of underage children.

The amount of jizyah: Abu Dawud, al-Tirmidhi, al-Nasaʾi, and Ibn Majah narrate from Muʿadh (may Allah be pleased with him) that when the Messenger of Allah (peace and blessings be upon him) sent him to Yemen, he ordered him to collect one dinar from every adult male, or an equivalent amount in a Yemeni garment called a mayafir. Later, ʿUmar (may Allah be pleased with him) increased the amount, imposing twelve dinars annually on those possessing gold and forty dirhams annually on those possessing silver. This was because the Messenger of Allah knew the poverty of the people of Yemen, while ʿUmar knew the prosperity and capacity of the people of Syria.

Imam al-Bukhari narrates that Mujahid was asked: What distinguishes the people of Syria such that four dinars were imposed on them, while one dinar was imposed on the people of Yemen? Mujahid replied: This was done before prosperity emerged. Imam Abu Hanifah and Imam Ahmad also held this view. Ahmad said: Forty-eight dirhams were set for the wealthy, twenty-four dirhams for the middle class, and twelve dirhams for the poor. Thus, the jizyah imposed on Syria and Yemen represents the highest and lowest amounts. Imam al-Shafiʿi and, according to one narration, Ahmad held that one dinar is only the minimum jizyah; there is no fixed maximum, which depends on the rulers’ ijtihad. Imam Malik and, according to another narration, Imam Ahmad also said—and this is the stronger view—that there is no fixed minimum or maximum amount of jizyah. It depends on the rulers’ ijtihad and judgment. They will impose jizyah according to each person’s circumstances. No one will be charged more than he can afford. Additional obligations: It is permissible to stipulate for the dhimmis that if a Muslim passes through their territory, they must provide him hospitality. ʿUmar (may Allah be pleased with him) required the dhimmis to provide hospitality for one day and one night, repair bridges, and pay blood money if a Muslim was killed in their territory. Aslam narrates that a group of dhimmis from Syria came to ʿUmar (may Allah be pleased with him) and complained that, when Muslims passed through their territory, they were compelled to slaughter goats and chickens for their hospitality. ʿUmar said: ‘Feed them what you eat, and nothing more.’

It is unlawful to take anything burdensome for the People of the Book: The Messenger of Allah (peace and blessings be upon him) ordered kind and lenient treatment toward the People of the Book and forbade imposing anything beyond their capacity upon them. Ibn ʿUmar narrated that the final words spoken by the Messenger of Allah (peace and blessings be upon him) were: “Observe my pledge concerning the dhimmis.”

The Messenger of Allah (peace and blessings be upon him) also said: “If anyone wrongs a non-Muslim citizen under treaty or imposes upon him anything beyond his capacity, I will be his litigant on the Day of Resurrection.” Ibn ʿAbbas narrated: “Only the surplus of the dhimmis’ property may be taken.”

Jizyah is waived upon embracing Islam: A dhimmi who embraces Islam is no longer required to pay jizyah. Ibn ʿAbbas narrated: “There is no jizyah upon a Muslim.” (Ahmad and Abu Dawud.) Abu ʿUbaydah narrated that jizyah was demanded from a Jew even after he had embraced Islam. He was told: “You embraced Islam only to escape jizyah.” He replied: “There is an opportunity for deliverance in Islam.” The matter was later brought before ʿUmar (may Allah be pleased with him), who said: “There is an opportunity for deliverance in Islam.” Then he wrote an order that jizyah must not be taken from that man.

A dhimmah covenant is valid with both those living together with Muslims and those living separately: just as this covenant is permissible with those living together with Muslims under Muslim rule, so it is permissible with those living separately away from Muslim society. The Messenger of Allah, peace and blessings be upon him, made a covenant with the Christians of Najran, although at that time they were living in their own homeland and no Muslim was living among them. The covenant stipulated protection of their lives, property, and honor; preservation of their religious and personal freedom; establishment of justice among them; and a pledge to administer justice if anyone wronged them. Later caliphs took care to implement this covenant. When Caliph Harun al-Rashid intended to violate it, Imam Muhammad ibn al-Hasan, a student of Imam Abu Hanifah, forbade him. The covenant was as follows:

A covenant of protection from Allah and a dhimmah covenant from the Messenger of Allah, Muhammad, peace and blessings be upon him, is hereby declared for Najran and its surrounding region. This covenant shall also apply to the dependents of the inhabitants of that region, whether they are many or few. None of their bishops shall be removed from his bishopric, nor any monk from his monasticism, nor any priest from his priesthood. No one shall be considered weak, nor shall anyone be burdened with blood money from the Age of Ignorance. No harm shall be done to anyone, and no arduous task shall be imposed on anyone. No army shall trample their territory. If anyone makes a claim, it shall be settled justly. No one shall be an oppressor, nor shall anyone be oppressed. Whoever among them engages in usury in the future shall be deprived of my protection.

Ibn al-Qayyim said: This shows that if it is stipulated that introducing a new practice or consuming usury is forbidden, the dhimmah covenant will be violated by consuming usury or introducing a new practice. None of them will be held responsible for another’s wrongdoing. On the basis of everything recorded in this document, perpetual protection from Allah and security from Allah’s unlettered Prophet and Messenger, Muhammad, peace and blessings be upon him, are declared, until Allah brings His law.

Therefore, if any tribal chief wishes to use this covenant for his own interests and oppress the people, that must be prevented.

Imam Sarakhsi said in his book al-Mabsut: “If a ruler bound by a dhimmah covenant wishes to be allowed to govern his kingdom as he pleases, including killing and crucifixion, which are unlawful in a land under Muslim rule, he must not be allowed to do so. For wherever it is possible to prevent oppression, allowing oppression to continue is unlawful. Moreover, dhimmis are required to follow Islamic law in their mutual dealings. Thus, if a condition is imposed requiring something contrary to the purpose of the dhimmah covenant, it is void. If a truce and dhimmah covenant are concluded with him on that basis, any conditions in it that oppose Islam are likewise void. For the Messenger of Allah, peace and blessings be upon him, said: ‘Any condition contrary to the Book of Allah is void.’”

When is the dhimmah covenant annulled? It is annulled if one stops paying jizyah; refuses to obey a law or decision enacted by the Muslim ruler; unjustly attacks and kills a Muslim; prevents a Muslim from practicing his religion or converts him; commits adultery with a Muslim woman; marries and has intercourse with her; commits homosexuality; commits banditry, highway robbery, theft, or kidnapping; engages in espionage, or helps or shelters someone who does; or makes insulting remarks against Allah, His Messenger, His Book, or His religion. The dhimmah covenant will be annulled because all these acts cause irreparable physical, psychological, financial, moral, religious, and honor-related harm to Muslims.

Once Ibn Umar, may Allah be pleased with him, was told that a monk under the protection of a dhimmah covenant had insulted the Messenger of Allah, peace and blessings be upon him. He said: “Had I heard him, I would have killed him, because we did not grant him protection for this.” Similarly, the dhimmah covenant will be annulled if a dhimmi seeks refuge in Dar al-Harb (a non-Muslim territory at war with Muslims or declared hostile to them). However, it will not be annulled for committing an overt sin or spreading slander or defamation against a Muslim. When a dhimmi’s covenant is annulled, the covenant of the women and children in his family will not be annulled. The violation was committed by him alone; therefore, its consequence will be confined to him alone.

Consequences of violating the covenant: If a dhimmi violates the dhimmah covenant, he becomes a prisoner of war. If he then accepts Islam, it is unlawful to kill him, because Islam erases all his previous sins.

Non-Muslims entering mosques and Muslim territories: The jurists differed concerning non-Muslims entering al-Masjid al-Haram, other mosques, and Muslim territories. Muslim lands and regions can be divided into three categories regarding the entry of unbelievers:

First category: the Sacred Precinct. No unbeliever, whether a dhimmi or one granted protection, may enter the Sacred Precinct. For it is clearly stated in verse 28 of Surat al-Tawbah:

يَأَيُّهَا الَّذِينَ آمَنُوا إِنَّمَا الْمُشْرِكُونَ نَجَسٌ فَلَا يَقْرَبُوا الْمَسْجِدَ الْحَرَامَ بَعْدَ عَامِهِمْ هَذَا ج

“O believers! The polytheists are truly impure, so let them not approach the Sacred Mosque after this year.”

Imam al-Shafi‘i, Ahmad, and Malik held this view. If an envoy comes from the land of the unbelievers while the imam is inside al-Masjid al-Haram, the envoy will not be allowed to enter it. Rather, the imam himself will leave the mosque to meet him, or send someone outside the Sacred Precinct to meet him and hear his message. Imam Abu Hanifah and the jurists of Kufah, however, ruled that dhimmis may enter the Sacred Precinct. They may stay there as travelers, but may not reside there permanently. (According to Imam Abu Hanifah, this view is subject to the permission of the imam, ruler, or his deputy.) In his view, even a dhimmi may enter the interior of the Ka‘bah.

Second category: the remaining parts of Arabia. The Hijaz lies between Yamamah, Yemen, and Najd, and includes Madinah. Some say that half of Madinah belongs to Tihamah and half to the Hijaz; others say that all of Madinah is part of the Hijaz. (According to Islamic terminology, this is the correct view.) According to al-Kalbi, the Hijaz is the region between the two mountains and the road toward Iraq. According to al-Harbi, Tabuk is also part of the Hijaz. Thus unbelievers may enter the Hijaz with permission, but may not remain there for more than three days. According to Imam Abu Hanifah, they are not prevented from residing there permanently.

The evidence of most scholars is this hadith of Muslim, narrated from Ibn Umar: “The Messenger of Allah, peace and blessings be upon him, said: ‘I will certainly expel the Jews and Christians from the Arabian Peninsula, and I will allow no one but Muslims to remain there.’” Abu Bakr did not have time to carry out this order, but during his caliphate Umar exiled them and allowed merchants who came there to stay for three days. It is narrated from Ibn Shihab that the Messenger of Allah, peace and blessings be upon him, said: “Two religions shall not coexist in the Arabian Peninsula.” (Muwatta of Imam Malik.)

In Sahih Muslim, it is narrated from Jabir, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “Satan has no hope that those who pray will ever again follow him in the Arabian Peninsula, though he has not given up hope of creating discord among them.” Sa‘id ibn Abd al-Aziz said: “The boundaries of the Arabian Peninsula extend from the valley to the farthest limit of Yemen, the borders of Iraq, and the sea.” According to others, its length extends from the farthest limit of Aden to the rural areas of Iraq, and its breadth from Jeddah and its surrounding region to the seacoast and Syria.

Third category: the rest of the Muslim world, excluding the first and second categories. In these countries and regions, unbelievers may reside under a treaty, a guarantee of protection, or a dhimmah covenant. According to Imam al-Shafi‘i, however, they may not enter a mosque without the permission of a Muslim. Imam Abu Hanifah said that they may enter even without permission. Imam Ahmad and Malik said that unbelievers may not enter mosques under any circumstances, whether with permission or without it.

Chapter Twenty-Four: Ghanimah, or War Booty

Definition: Linguistically, ghanimah means “that which is acquired through effort.” A poet says: “I traveled through the regions of the earth, then returned joyfully after obtaining booty.” In Islamic terminology, ghanimah means “property acquired from the enemies of Islam through warfare.”

Ghanimah is broadly of three types: 1. Movable property; 2. Prisoners; 3. Conquered land.

Ghanimah is also called anfal, the plural of nafl, meaning “an addition.” It is so named because it is additional property for Muslims. In the pre-Islamic Age of Ignorance, when people fought one another and one side defeated the other, they took booty from the defeated side and distributed it among the warriors. A large share was reserved for the tribal chief. A poet alludes to this by saying: “For you is a quarter of the booty, and whatever you like and choose for yourself—whatever falls into the warriors’ hands before distribution and whatever remains after distribution.”

Ghanimah was made lawful exclusively for the community of the final Prophet: Allah Most High made ghanimah lawful only for the community of the final Prophet. Declaring the taking of this property lawful, Allah says:

تكلُوا مِمَّا عَلِمْتُمْ حَللاً طَيِّبًا وَاتَّقُوا اللَّهَ ، إِنَّ اللَّهَ غَفُورٌ رَّحِيره

“So consume what you have gained as lawful and good, and fear Allah. Surely Allah is All-Forgiving, Most Merciful.” (Al-Anfal, verse 69)

It is mentioned in authentic hadith that ghanimah was reserved exclusively for the Muslim ummah. None of it was lawful for the community of any previous prophet. Bukhari and Muslim narrate from Jabir ibn Abdullah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “I have been given five things that no prophet before me was given:

1. My enemies are struck with fear of me from a distance of one month, and I have been aided through this.

2. The earth has been made for me a mosque and a means of purification. Therefore, whenever the prayer time comes for anyone from my ummah, he should pray wherever he is (purifying himself with earth—that is, performing tayammum on the earth).

3. Ghanimah has been made lawful for me, although it was not made lawful for anyone before me.

4. I have been granted the right to intercede (on the Day of Resurrection).

5. I have been sent to all humanity (until the Day of Resurrection).” The reason is that Bukhari and Muslim narrate from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “Ghanimah was not made lawful for anyone before us, because Allah saw our weakness and incapacity; therefore He made it lawful for us.”

Recipients of ghanimah: The first clashes between the Messenger of Allah, peace and blessings be upon him, and the polytheists took place at Badr on the seventeenth of Ramadan in the second year after the Hijrah. This battle brought the Messenger and the Muslims a great victory and remarkable success. It was the first time after the beginning of prophethood that the Muslims tasted victory, and Allah enabled them to defeat the enemies who had persecuted and tortured them for fifteen years and expelled them from their homes and property solely because they said, “Allah is our only Lord.” The defeated polytheists fled the battlefield, leaving behind abundant wealth, which the Muslims collected. Later they disagreed over who should receive it: those who had pursued the enemy, or those who had surrounded the Messenger of Allah, peace and blessings be upon him, and gathered the property? The Holy Qur’an settled this dispute by declaring that only Allah and His Messenger would determine the matter of ghanimah. In the very first verse of Surat al-Anfal, Allah says:

يسئلونك في الأنفال ما قُلِ الْأَنْفَالُ لِلَّهِ وَالرَّسُولِ

People ask you about war booty. Say: “War booty belongs to Allah and the Messenger.”

The method of distributing ghanimah: Allah Most High has also explained how ghanimah is to be distributed.

وَاعْلَمُوا أَنَّهَا غَنِمْتُمْ مِنْ شَيْءٍ فَإِنَّ لِلَّهِ عُمسَهُ وَالرَّسُولِ وَلَذِي الْقُرْبَى وَالْيَتَمَى وَالْمَسْكِينِ وَابْي السَّبِيلِ لَا إِن كُنتُر امنتر بِاللَّهِ وَمَا أَنْزَلْنَا عَلَى عَبْدِنَا يَوْمَ الْفُرْقَانِ يَوْمَ الْتَقَى الْجَمْعُنِ، وَاللَّهُ عَلَى كُلِّ شَيءٍ قديره

“Know that whatever you gain as spoils of war, one-fifth belongs to Allah, the Messenger, the Messenger’s close relatives, orphans, the poor, and needy travelers, if you truly believe in Allah and what We revealed to Our servant on the Day of Criterion, when the two armies met. And Allah is Most Capable of everything.” (Surat al-Anfal, verse 41)

Thus, this verse establishes a sound rule for distributing one-fifth among the recipients whom Allah has mentioned: Allah and His Messenger, relatives, orphans, the poor, and travelers. Allah’s name is mentioned here solely for blessing. The share of Allah and His Messenger is to be spent on the poor, weapons and equipment, jihad, and similar public welfare. Abu Dawud and al-Nasa’i narrate from Amr ibn Aqsa, may Allah be pleased with him: “The Messenger of Allah, peace and blessings be upon him, prayed with us beside a camel from the booty. After ending the prayer, he took a hair from the camel’s side and said: ‘One-fifth of your war booty will return to you.’” That is, it will be spent on the poor, jihad, and weapons. The Messenger’s personal expenses were met from the property of Banu Nadir that Allah had granted him. Muslim narrates from Umar, may Allah be pleased with him, that Allah granted the Messenger of Allah the lands and wealth of Banu Nadir. The Muslims had not seized them through fighting; they were reserved exclusively for the Messenger. His annual expenses were met from them, and whatever remained was spent on preparation for jihad in Allah’s path and on purchasing horses and weapons. The share of the Messenger’s relatives refers to the people of Banu Hashim and Banu Abd al-Muttalib, who always supported and assisted him—not those relatives who were hostile to him and persecuted him.

Bukhari and Ahmad narrate from Jubayr ibn Mut‘im, may Allah be pleased with him: From the booty of Khaybar, the Messenger of Allah, peace and blessings be upon him, distributed the relatives’ share among Banu Hashim and Banu Abd al-Muttalib. I and Uthman ibn Affan then came and said: “O Messenger of Allah, we do not deny the excellence of Banu Hashim, since Allah chose you from among them. But what about our brothers of Banu al-Muttalib? You gave to them and excluded us, although in relation to you they and we are equal in status.”

The Messenger of Allah, peace and blessings be upon him, said: “Banu al-Muttalib never separated from me, either in the Age of Ignorance or in Islam. Indeed, Banu al-Muttalib and Banu Hashim are one.” He interlaced the fingers of his two hands. He said: “Their rich and poor, near and distant, women and men will all receive a share. A man will receive twice the share of a woman.” Imam Abu Hanifah said: If they are poor, they receive their share because of poverty. Imam al-Shafi‘i said: They receive it as relatives of the Messenger. It is narrated from Ibn Abbas, Imam Zayn al-Abidin, and Imam al-Baqir that all of them—the rich and poor, women and men, children and adults—receive equal shares, because they are equal in kinship. Moreover, since zakat is forbidden to them, this share compensates them. Allah allocated this share to them, and the Messenger distributed it among them. The hadith does not state that he preferred any of them over another. Imam al-Shafi‘i’s reasoning is that they became entitled to this share by kinship, so it resembles inheritance. The Messenger gave a share to his uncle Abbas, may Allah be pleased with him, although he was wealthy, and he also gave one to his aunt Safiyyah. Regarding the share of orphans, which is due to Muslim orphan children, some hold that it is due only to poor orphans. Others say it is due to both poor and wealthy orphans, because even if wealthy they belong to a vulnerable class. Al-Bayhaqi narrated with an authentic chain that a man said:

“When the Messenger of Allah, peace and blessings be upon him, was sitting on a horse at Wadi al-Qura, I came and said: ‘O Messenger of Allah, what should we say regarding ghanimah?’ He said: ‘One-fifth belongs to Allah, and the remaining four-fifths belong to the soldiers.’ I asked: ‘Then no one has priority over anyone else?’ He said: ‘No—and you are not taking this share from your own pocket. You are no more entitled to it than your Muslim brother.’”

It is narrated in another hadith: “Whoever from the village people disobeys Allah and His Messenger, his share belongs to Allah and His Messenger, then it belongs to you.”

The remaining four-fifths will be given to the army. Only male, free, adult, and sane soldiers will receive it. Women, slaves, children, and the insane will receive no share, because being male, adult, and of sound mind are conditions for entitlement. The strong and weak, those who participate in battle and those who refrain from fighting, will all receive equal shares of the ghanimah. Imam Ahmad narrates from Sa‘d ibn Malik: I said, “O Messenger of Allah, one man guards the Muslims. Will his share nevertheless be equal to that of the others?” The Messenger of Allah, peace and blessings be upon him, said: “O Sa‘d, do you receive provision and help except through your weak?”

It is stated in Hujjat Allah al-Balighah: “A person whom the commander sends somewhere for the army’s interests and needs—such as a courier, advance scout, or spy—also receives a share, even if he does not participate in the battle. Thus Caliph Uthman received a share of the booty from Badr, although he was absent on the Messenger’s instructions because his wife, Ruqayyah, the daughter of the Messenger of Allah, peace and blessings be upon him, was ill. The Messenger then told him: ‘You will receive the reward and share of booty of those who participated in the Battle of Badr.’” (Bukhari: Ibn Umar.)

A foot soldier receives one share and a cavalryman three shares. Several authentic hadiths show that the Messenger of Allah, peace and blessings be upon him, gave three shares to cavalrymen and one to foot soldiers. This is because a horse requires additional expenditure and a groom, and because in battle a cavalryman can contribute three times as much as a foot soldier. According to Imam Abu Hanifah, a cavalryman receives twice the share of a foot soldier, but this view conflicts with authentic hadith. Some scholars hold that riders of Arab and non-Arab horses receive equal shares. Others say they are not equal, and that a rider of an Arab horse receives a share only as a cavalryman, not an additional share for the horse. No share is given to a rider of an animal other than a horse, since there is no evidence that the Messenger gave a share to anyone riding an animal other than a horse. There were seventy camels at Badr, and camels were present in every battle, since they were the principal mounts of the Arabs. Had he given shares to camel riders, it would have been known to us. Neither the Messenger nor his Companions later gave shares of booty to camel riders.

No share is given for more than one horse, since it has not been narrated from the Messenger of Allah, peace and blessings be upon him, or his Companions that they gave shares for multiple horses. Moreover, since the enemy does not fight mounted on multiple horses, our warriors likewise receive a share for no more than one horse. Imam Abu Hanifah said that a person with multiple horses also receives shares, because he is more self-sufficient and more useful than others. Whether the horse is borrowed, rented, or seized, its rider receives a share. Any booty denied because of a seized horse belongs to its owner.

Additional shares of ghanimah: If the ruler wishes, he may give certain warriors one-third or one-quarter more than their allotted share. If he grants such an addition, it may also be considered part of the ghanimah. Such an addition may be given only to a warrior who proves himself deserving. This is the view of Imam Ahmad and Abu Ubayd. According to Imam Malik, the additional amount is taken from the one-fifth belonging to the public treasury. Imam al-Shafi‘i said it is taken from one-fifth of the one-fifth, which is the ruler’s share. The evidence is a hadith narrated by Habib ibn Muslimah and reported by Abu Dawud and al-Tirmidhi: “After first giving the armies one-fifth, the Messenger of Allah, peace and blessings be upon him, would give an additional quarter; on returning, after the one-fifth he would give an additional third.” In a battle under the command of the Messenger, Salamah ibn al-Akwa‘ displayed extraordinary bravery, so he was given five shares, combining the share of a foot soldier and a cavalryman. The equipment accompanying a slain soldier belongs to his killer: the weapons, military equipment, and battle clothing accompanying a slain unbelieving soldier belong entirely to the soldier who killed him. However, if he had cash, jewels, or similar items, these count as ghanimah and are distributed according to the rules of ghanimah. Sometimes the commander encourages soldiers to take the equipment of those they kill in order to inspire them in battle, giving it exclusively to the killer and not to the other soldiers. The Messenger of Allah, peace and blessings be upon him, ruled that these items be given to the killer, rather than distributed as one-fifth. (Abu Dawud.)

However, Ibn Abi Shaybah narrates from Anas ibn Malik, may Allah be pleased with him, that in a desert battle Bara ibn Malik killed Marzuban while he was mounted on his riding animal. The weapons and equipment with him were worth thirty thousand coins. When Umar ibn al-Khattab, may Allah be pleased with him, learned of this, he said to Abu Talhah: “Until now we did not divide the equipment accompanying a slain soldier; we gave all of it to the killer. But the items acquired by Bara are extremely valuable. I see no alternative but to distribute them according to the rule of khums (one-fifth).”

Imam Ibn Sirin said: Anas ibn Malik told me that this was the first incident in which equipment recovered from a slain enemy soldier was distributed. Salamah ibn al-Akwa‘ narrated: “Once a spy from among the polytheists came to the Messenger of Allah, peace and blessings be upon him, while he was traveling. The spy spoke with his Companions for a while and then slipped away. The Messenger of Allah, peace and blessings be upon him, said: ‘Find him and kill him.’ I then killed him, and the Messenger gave me the military equipment found with him.”

Those who have no share in the spoils: It has been stated earlier that the conditions for receiving a share of the spoils are adulthood, sound mind, being male, and being free. Whoever does not meet all these conditions will receive no share of the spoils, although he may receive something outside the designated shares. Sa’id ibn al-Musayyab said: In the early period, boys and slaves who were present in battle would receive something from the spoils. Imam Abu Dawud narrated from ‘Umayr, may Allah be pleased with him: I, ‘Umayr, was present at the Battle of Khaybar with my masters. The Messenger of Allah asked about me. He was told that I was a slave. He then gave me a few insignificant things. Ibn ‘Abbas, may Allah be pleased with him, was asked whether women and slaves, when they appeared on the battlefield with others, would receive a specified share. He replied: They will not receive any specified share. However, they may be given something from the spoils collectively. Umm ‘Atiyyah, may Allah be pleased with her, said: We women would go to the battlefield with the Messenger of Allah, may Allah’s blessings and peace be upon him. We would tend and care for the wounded and the sick, and he would give us something from the spoils. Imam al-Tirmidhi narrated through Imam al-Awza’i: The Messenger of Allah, may Allah’s blessings and peace be upon him, gave boys a share from the spoils at Khaybar. Here, however, “share” means a small gift.

It is narrated from Yazid ibn Harmuz that Najdah al-Haruri wrote to Ibn ‘Abbas, may Allah be pleased with him, requesting answers to five questions: Did the Messenger of Allah, may Allah’s blessings and peace be upon him, go to war accompanied by women? Did he give them any share? Did he kill boys? When does an orphan’s orphanhood end? Who is entitled to one-fifth of the spoils?

Ibn ‘Abbas said: Had I wished to conceal information, I would not have answered the questioner’s letter. He then wrote in reply: You asked me whether the Messenger of Allah, may Allah’s blessings and peace be upon him, went to war with women. Yes, he went to war with them. They only treated and cared for the wounded. He then gave them something from the spoils, but he did not give them any specified share. The Messenger of Allah, may Allah’s blessings and peace be upon him, did not kill boys; you do not do so, do you? You also asked when an orphan’s orphanhood ends. By Allah, there are many men who are unable to earn a livelihood for themselves even after growing a mustache and beard. Thus, when he becomes capable of earning a livelihood, his orphanhood ends. You also asked who is entitled to the khumus (one-fifth). We used to say that it was ours, but the Muslims did not give it to us. (The five canonical Hadith collections other than al-Bukhari)

Hired workers and non-Muslims receive no share: Workers who accompany the soldiers to earn a livelihood receive no share of the spoils, even if they participate in the battle. This is because they did not intend to fight and did not leave their homes for the purpose of fighting. Modern armies also belong to this category. It is a profession and a technical occupation. As for non-Muslim dhimmis, when their assistance is sought and they participate in battle alongside the Muslims, the jurists have differed regarding them.

The Hanafis hold that they may be given a small gratuity, but no share. According to one narration, this was also Imam al-Shafi’i’s view. Another view narrated from Imam al-Shafi’i is that the ruler should pay them from property belonging to no specific owner. If he cannot do so, he should give them from the Messenger of Allah’s share. Imam al-Thawri and al-Awza’i said that they should be given a share.

Ghulul (misappropriating spoils)

Ghulul is forbidden: Ghulul means stealing from the spoils. It is forbidden because ghulul weakens the Muslims’ morale, creates division among them, and attracts them toward plundering instead of fighting. All of this makes defeat inevitable. Therefore, the unanimous view of the Muslims is that ghulul is a major sin. The Almighty Allah says:

وَمَا كَانَ لِنَبِي أَن يقل ط وَمَن يُغْلُلْ يَأْتِ بِمَا عَلَّ يَوْمَ الْقِيمَة :

It is not possible for a prophet to misappropriate anything unjustly. Whoever misappropriates anything unjustly will bring with him on the Day of Resurrection what he misappropriated unjustly. (Surah Al ‘Imran: 161)

The Messenger of Allah ordered that the person guilty of ghulul be punished. He himself burned his belongings and beat him so that others would take warning and refrain from such conduct. Imam Abu Dawud and al-Tirmidhi narrated from ‘Umar, may Allah be pleased with him, that the Messenger of Allah said: “When anyone’s ghulul is discovered among you, burn his belongings and beat him.” ‘Umar, may Allah be pleased with him, said: We found a volume of the Qur’an among one man’s belongings and asked Salim about it. He said: Sell it and give its price in charity. It is narrated from ‘Amr ibn Shu’ayb, may Allah be pleased with him, that the Messenger, Abu Bakr, and ‘Umar, may Allah be pleased with them, would burn the belongings of one guilty of ghulul and beat him.

However, other hadiths narrated from the Messenger of Allah, may Allah’s blessings and peace be upon him, state that he neither ordered the belongings of one guilty of ghulul to be burned nor beat him. This indicates that the ruler may adopt whatever measure he considers beneficial. Burning and beating may be carried out; otherwise, whatever is deemed beneficial should be done.

Al-Bukhari narrated from ‘Abdullah ibn ‘Umar, may Allah be pleased with him: A man named Kirkirah was entrusted with guarding the belongings of the Messenger of Allah, may Allah’s blessings and peace be upon him. When he died, the Messenger said: “He is an inhabitant of Hell.” The people then went to see him and searched his belongings, finding that he had concealed a garment.

Imam Abu Dawud narrated: On the day of the Battle of Khaybar, a Companion died. When the Messenger of Allah, may Allah’s blessings and peace be upon him, heard this, he said to the Muslims present: “You perform the funeral prayer for your companion.” (That is, he indicated that he himself was unwilling to perform it.) On hearing this, the people’s faces became pale. The Messenger of Allah, may Allah’s blessings and peace be upon him, then said: “Your companion committed ghulul in the path of Allah.” The people searched his belongings and found a silk garment belonging to the Jews, worth less than two dirhams.

Benefiting from foodstuffs before the spoils are distributed: Food and animal fodder have been exempted from the restrictions mentioned above. Muslim fighters may benefit from these two types of goods while they remain in enemy territory, even before the spoils are distributed.

1. Imam al-Bukhari and Muslim narrated from ‘Abdullah ibn Mughaffal, may Allah be pleased with him, who said: “On the day of the Battle of Khaybar, I found a bag full of fat. I concealed it and said: Today I will not give anyone anything from it. Then I looked to the side and saw the Messenger of Allah, may Allah’s blessings and peace be upon him, smiling.

2. Imam Abu Dawud, al-Hakim, and al-Bayhaqi narrated that Ibn Abi Awfa said: “On the day of the Battle of Khaybar, we found some foodstuffs. People came one after another, ate as much as they needed from them, and then left.

3. Imam al-Bukhari narrated from Ibn ‘Umar, who said: During our military campaigns, we would find honey and grapes and eat them, but we would not carry them away with us. According to Imam Abu Dawud’s narration of the same hadith, no khumus was taken from them.

Imam Malik said in al-Muwatta: When the Muslims enter enemy territory, they may eat its foodstuffs; I see no objection to this. They may eat whatever food they acquire before distribution. He also said: “I consider camels, cattle, and goats to be foodstuffs as well. After entering enemy territory, the Muslims may eat these just as they eat other food. He further said: If all these foods were not eaten until everyone was present for the distribution and the distribution had taken place, it would harm the soldiers. Therefore, I do not consider it objectionable to eat these foodstuffs in a necessary and reasonable amount. However, it is not appropriate to store some of them and later take it along when returning to one’s family.”

Property found by a Muslim among the enemy is considered enemy property: When fighters ask the Muslims to return property that had been with the enemy, the owners of that property have the greater right to it. The fighters have no entitlement to it, because it is neither war booty nor spoils.

1. Ibn ‘Umar, may Allah be pleased with him, narrated: One of his camels went missing and an enemy seized it. Later, the Muslims defeated him, and during the lifetime of the Messenger of Allah, may Allah’s blessings and peace be upon him, it was returned to him.

2. It is narrated from ‘Imran ibn Husayn that he said: “The polytheists raided the livestock in Madinah and abducted the she-camel of the Messenger of Allah, may Allah’s blessings and peace be upon him, named ‘Adba’, and a Muslim woman. At night, while the enemy was asleep, the woman quietly arose and began feeling each camel one by one to determine which one she could ride and flee on. Every camel she touched bellowed. Finally, when she came to ‘Adba’, she found her extremely docile. She mounted her and set out toward Madinah. On the way, she vowed that if Allah rescued her, she would sacrifice this camel. When the woman reached Madinah, everyone recognized the she-camel. The people brought the woman to the Messenger of Allah, may Allah’s blessings and peace be upon him. She told him of her vow. The Messenger of Allah, may Allah’s blessings and peace be upon him, said: “You intended to give the she-camel a very bad recompense. No vow is valid concerning something that a son of Adam does not own, and no vow is valid for a sinful act.” Similarly, if a combatant disbeliever accepts Islam while possessing Muslim property, that property will be returned to its owner.

When a combatant disbeliever accepts Islam: When a combatant disbeliever accepts Islam and emigrates to the Muslim state, leaving his wife, children, and property in Dar al-Harb (the land of war), his children and property thereby become entitled to complete security. If the Muslims conquer that land, his wife, children, and property will not be included among the spoils. The Messenger of Allah, may Allah’s blessings and peace be upon him, said: “When disbelievers accept Islam, their blood and property become secure with me.”

Chapter Twenty-Five: Prisoners of War

Prisoners of war also fall under the category of spoils. Prisoners of war are of two kinds. The first kind: women and children.

The second kind: adult male combatant disbelievers who are captured alive by the Muslims.

When the Muslims defeat and capture combatant male disbelievers, Islam grants the ruler authority to choose whichever of these three measures he considers more beneficial and advantageous: showing mercy and releasing them, releasing them in exchange for ransom, or killing them.

Ransom may be paid with wealth or through an exchange of prisoners. At the Battle of Badr, it was paid with wealth. However, authentic reports establish that the Messenger of Allah, may Allah’s blessings and peace be upon him, freed two of his Companions in exchange for a polytheist from Banu ‘Aqil. (Imam Ahmad and al-Tirmidhi; al-Tirmidhi declared it authentic.) The Almighty Allah says:

فَإِذَا لَقِيتُمُ الَّذِينَ كَفَرُوا فَضَرَبَ الرِّقَابِ مَا حَتَّى إِذَا أَنْعَمْتُمُوهُمْ فَقَدُّوا الْوَفَاقَ فَإِمَّا مَنَّا بَعْدُ وَإِمَّا فداء حَتَّى تَفَعَ الْحَرْبُ أَوْزَارَمَا : تف

“When you meet the disbelievers in battle, strike their necks. Then, when you have thoroughly defeated them, bind them firmly; thereafter, either show favor or take ransom, until the war lays down its burdens.” (Surah Muhammad, 4)

Imam Muslim narrated from Anas, may Allah be pleased with him: The Messenger of Allah, may Allah’s blessings and peace be upon him, once released eighty prisoners who had descended from Mount Tan’im at the time of the dawn prayer in order to kill the Messenger of Allah and his Companions. Regarding this matter, the following portion of verse 24 of Surah al-Fath was revealed:

وَهُوَ الَّذِي كَفَّ أَيْدِيَهُم عنكم والديكم عنهم ببطن مكةَ مِنْ بَعْدِ أَنْ أَظْفَرَكُمْ عَلَيْهِمْ

He is the One who restrained their hands from you and your hands from them in the valley of Makkah, after He had given you victory over them.

On the day of the conquest of Makkah, he addressed the people of Makkah and said: “Go, you are free.” Nevertheless, it is lawful for the ruler to kill a prisoner when greater benefit requires it. It is established that the Messenger of Allah, may Allah’s blessings and peace be upon him, himself did so. He killed al-Nadr ibn al-Harith and ‘Uqbah ibn Mu’ayt on the day of the Battle of Badr, and Abu ‘Izzah al-Jumahi on the day of the Battle of Uhud. Concerning this, Allah says:مَا كَانَ لِنَبِي أَن يَكُونَ لَهُ أَسْرَى حَتَّى يُشْفِيَ فِي الْأَرْضِ“It is not for a prophet to have prisoners until he has thoroughly subdued the enemy in the land.” (Surah al-Anfal: 67)

Most scholars support the view that the ruler has the right to adopt any one of the three measures mentioned above.

However, al-Hasan and ‘Ata, may Allah have mercy on them, said: A prisoner may not be killed; rather, he must either be pardoned and released or released in exchange for ransom. Imam al-Zuhri, Mujahid, and a group of scholars said: It is not permissible at all to accept ransom from disbelieving prisoners. Imam Malik, on the other hand, said: Release without ransom is not permissible. According to the Hanafis, it is not permissible to release prisoners of war, whether in exchange for ransom or without ransom.

Treatment of prisoners of war: Islam has treated prisoners of war humanely and kindly. It has called for honoring and showing compassion toward them and praises those who show them generosity. Allah says:

وَيَطْعِمُونَ الطَّعَامَ عَلَى حُبِّهِ مِسْكِينا وبَتِهَا وَأَمِيرَانَ إِنَّمَا نَطْعِمُكُمْ لِوَجْهِ اللَّهِ لَا نُرِينَ مِنْكُمْ جَزَاء ولا شكورات

“And they give food, despite loving it, to the needy, the orphan, and the prisoner, [saying:] ‘We feed you only for the countenance of Allah. We wish not from you reward or thanks.’” (Surah al-Dahr: 8–9)

Abu Musa al-Ash’ari, may Allah be pleased with him, narrated that the Messenger of Allah, may Allah’s blessings and peace be upon him, said: “Free the prisoner, accept the invitation of the one who invites you, feed the hungry, and care for the sick.”

It was mentioned earlier that when Thumamah ibn Uthal was captured by the Muslims and brought to the Messenger of Allah, may Allah’s blessings and peace be upon him, he said: “Treat his captivity courteously and collect food from all of you and send it to him.” Thereafter, the Companions would send him milk from the Messenger of Allah’s milch camel morning and evening. The Messenger of Allah, may Allah’s blessings and peace be upon him, invited him to Islam. He rejected it and said: If you want ransom, demand whatever amount of wealth you desire. The Messenger of Allah then showed him compassion and released him without ransom. This treatment later encouraged him to accept Islam.

The authentic Hadith collections narrate concerning the prisoners from the expedition against Banu al-Mustaliq: Among these prisoners was Juwayriyyah bint al-Harith, who later became one of the Mothers of the Believers. Her father, al-Harith ibn Abi Dirar, came to Madinah with many camels to ransom his daughter. On the way, he hid his two favorite camels in a mountainous valley called al-‘Aqiq, several miles from Madinah. When he came to the Messenger of Allah, may Allah’s blessings and peace be upon him, he said: “O Muhammad, you have captured my daughter. Here is her ransom.” The Messenger of Allah immediately asked: “Where are the two camels that you hid in such-and-such valley of al-‘Aqiq?” Al-Harith immediately exclaimed: “I testify that there is no deity but Allah and that you are the Messenger of Allah.” By Allah, no one informed you of this secret except Allah. His two sons also accepted Islam, and his daughter accepted Islam as well. The Messenger of Allah immediately sent a proposal to her father to marry her and married her. The Muslims then said: These prisoners held by us are now the relatives of the Messenger of Allah by marriage. They were therefore treated compassionately and released without ransom. ‘A’ishah, may Allah be pleased with her, said: “I know of no woman who proved more beneficial to her people than Juwayriyyah.” Through her marriage to the Messenger of Allah, one hundred members of a family of Banu al-Mustaliq were freed. In fact, it was for this noble purpose that the Messenger of Allah married Juwayriyyah. He did not marry her merely to satisfy physical desire; rather, he married her to achieve an objective of the Shariah. If his sole purpose had been physical gratification, he could have kept Juwayriyyah as a slave woman captured in war.

Chapter Twenty-Six: Enslaving People

There is no statement in the Noble Qur’an that permits enslaving people; rather, it calls for freeing people. There is also no evidence anywhere that the Messenger of Allah, may Allah’s blessings and peace be upon him, enslaved any prisoner. Instead, he released the prisoners of Makkah, the prisoners of Banu al-Mustaliq, and the prisoners of Hunayn. It is also established that the Messenger of Allah, may Allah’s blessings and peace be upon him, freed all the slaves who had been in his possession during the Age of Ignorance, as well as all those who were given to him as gifts.

Nevertheless, as a reciprocal measure because the enemy side enslaved Muslim prisoners of war, the Rightly Guided Caliphs enslaved some prisoners. This does not mean that they permitted enslaving people in all circumstances, as had been permitted in earlier religious laws and man-made systems of law. They restricted it solely to those wars that the Muslims declared against their enemies for legitimate reasons. In all other circumstances, they declared enslaving prisoners forbidden and prohibited, and it is never lawful under those circumstances. Just as Islam greatly narrowed and severely restricted the sources of slavery, it also treated slaves with great generosity and opened the doors for their freedom. A brief account of this follows:

Treatment of slaves: Islam accorded slaves ample honor, treated them with generosity and magnanimity, and extended to them the hand of affection and compassion. It did not subject them to humiliation, disgrace, or abuse, nor make them objects of slander and blame. Consider some examples:

1. It instructed people to treat slaves compassionately. Allah says:

واعْبُدُوا اللهَ وَلَا تُشْرِكُوا بِهِ شَيْئًا وَبِالْوَالِدَيْنِ إِحْسَانًا وَبِذِي الْقُرْبَى وَالْيَتمى وَالْمَسْكِين والحار ذِي الْقُرْبَى وَالْجَارِ الْجُنُبِ وَالصَّاحِبِ بِالجَنبِ وَابْنِ السَّبِيلِ لَا وَمَا مَلَكَتْ أَيْمَالُكُرْه

“Worship Allah and associate nothing with Him, and show kindness to parents, relatives, orphans, the needy, near neighbors, distant neighbors, the companion at your side, the traveler, and those whom your right hands possess.” (Surah al-Nisa: 36)

It is narrated from ‘Ali, may Allah be pleased with him, that the Messenger of Allah, may Allah’s blessings and peace be upon him, said: “Fear Allah regarding those whom your right hands possess.”

2. Islam prohibited addressing them in a way that expresses contempt for them. The Messenger of Allah, may Allah’s blessings and peace be upon him, said: Do not say, “My male slave” or “My female slave”; rather, say, “My companion,” “My female companion,” or “My servant.”

3. Islam ordered that slaves be given food and clothing similar to those of their master. It is narrated from Ibn ‘Umar, may Allah be pleased with him, that the Messenger of Allah, may Allah’s blessings and peace be upon him, said: “Your servants are your brothers and sisters. Allah has placed them under your authority. Whoever has a brother under his authority should feed him from what he himself eats and clothe him from what he himself wears. He should not compel them to do anything excessively difficult. If he must compel them to do something excessively difficult, then he should assist them in completing it.”

4. Islam prohibited wronging and persecuting them. It is narrated from Ibn ‘Umar, may Allah be pleased with him, that the Messenger of Allah, may Allah’s blessings and peace be upon him, said: “Whoever slaps or beats his male or female slave, his expiation is to set that slave free.”

Abu Mas’ud al-Ansari, may Allah be pleased with him, said: While I was beating a slave, I suddenly heard a sound behind me. I looked and saw the Messenger of Allah, may Allah’s blessings and peace be upon him, standing there. He said: “O Abu Mas’ud, know that Allah has more power over you than you have over this slave.” I said: He is free for the sake of Allah. He said: “Had you not done this, the Fire would have touched you.” Islam has also granted the courts the authority to order a slave’s emancipation when it is established that a master has treated his male or female slave cruelly.

5. Islam encourages teaching slaves literacy and refined conduct. The Messenger of Allah, may Allah’s blessings and peace be upon him, said: “Whoever has a female slave, teaches her, treats her generously—that is, frees her—and then marries her will receive two rewards in this world and the Hereafter: one reward for teaching and marrying her, and another reward for freeing her.” Methods of emancipation: Islam opened many avenues for freeing slaves, such as:

1. It identified this as a means of receiving Allah’s mercy and attaining Paradise. Allah says:

فلا انتحر العقبة وَمَا أَدْرَكَ مَا الْعَقَبَةُ ، فَكَ رَقَبَةٍ

“But he has not attempted the steep path. And what will make you comprehend what the steep path is? It is the freeing of a slave.” (Surah al-Balad: 11–13)

Once, a Bedouin came to the Messenger of Allah, may Allah’s blessings and peace be upon him, and said: O Messenger of Allah, show me an act that will cause me to enter Paradise. He said: Freeing a slave and removing the burden of slavery. The Bedouin asked: O Messenger of Allah, are the two not the same thing? He said: No. Freeing a slave means that you free a slave entirely on your own. Removing the burden of slavery means helping pay its price.

2. Freeing a slave is the expiation for accidental killing. Allah says:

ومَن قَتَلَ مُؤْمِنًا عَطَا فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ .

“Whoever accidentally kills a believer must free a believing slave.” (Surah al-Nisa: 92)

3. It is also the expiation for breaking an oath. Allah says:

فَكَفَّارَتَهُ إِطْعَامُ عَشَرَةِ مَسْكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ نِسْوتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ مَا

The expiation for breaking an oath is to feed ten poor people with the average food you normally give your families, or to clothe them, or to free a slave. (Surah al-Ma’idah: 89)

4. Freeing a slave is also the expiation for zihār. Allah says:

والذِينَ يُظْهِرُونَ مِن لِسَالِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِنْ قَبْلِ أَن يُتَمَاسًا مَا

Those among you who practice zihār with their wives—that is, say to a wife, “You are to me like my mother’s back,” which people in the pre-Islamic era would say to sever the marital relationship—and then retract what they said must free a slave before the two may touch one another. (Surah al-Mujādalah: 3)

5. Islam has designated purchasing slaves and setting them free as one of the categories for spending zakat funds. Allah says:

إنها المدفتُ لِلْفُقَرَاءِ وَالْمَسْكِينِ وَالْعَمِلِينَ عَلَيْهَا وَالْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِي الرِّقَابِ

Zakat is only for the destitute, the needy, those employed to administer it, those whose hearts are to be reconciled, and for freeing slaves. (Surah al-Tawbah: 60)

6. Islam has commanded the freeing of slaves in exchange for a specified amount of money. Allah says:

والذين يبتغون الكتب مِمَّا ملكت المنكر مكاتبوهم إن علمتم فيهِم خَيْرًا وَاتُوهُم مِن مالِ اللَّهِ الذي أنكره

If any of those whom you own seek a written contract for their emancipation, enter into a contract with them if you recognize goodness in them. And give them from the wealth Allah has granted you. (Surah al-Nur: 33)

7. If someone vows to free a slave, fulfilling the vow becomes obligatory as soon as the objective is achieved.

This discussion proves unequivocally that Islam restricted the sources of slavery, treated slaves with generosity, facilitated the path to freedom, and extended toward them a compassionate hand to free them completely from this humiliating condition—a compassion that will be remembered for generations.

Chapter Twenty-Seven: Lands Acquired as Booty from Warring Disbelievers

Land seized by force: When Muslims acquire land as booty—for example, land conquered by force through warfare, from which they have expelled its inhabitants—the ruler may adopt either of two arrangements regarding that land:

A. Distribute it among the victorious Muslim fighters. According to Imam Malik, making it a waqf is obligatory, and distribution is not permissible.

B. Make it a waqf for the general Muslim public. If it is made a waqf for the general Muslims, a permanent land tax will be imposed on it. If the land has irrigation facilities, the tax will be imposed whether it is cultivated or not, and collected from whoever possesses the land, whether Muslim or dhimmi.

This land tax will be collected once every year and will be regarded as rent for the land. In principle, the land tax was imposed by Amir al-Mu’minin Umar (may Allah be pleased with him) on the lands he conquered; Syria, Egypt, and Iraq are among the notable examples.

When the inhabitants of an area leave voluntarily or by agreement: Just as conquered land must be distributed among the fighters or made a waqf for the general Muslims, land whose inhabitants abandon it out of fear of the victorious Muslims, or whose inhabitants agree with the Muslims that ownership will belong to the Muslims while they may remain in exchange for paying land tax, must likewise be distributed among the victorious fighters or made a waqf for the general Muslims. It should be noted, however, that when an agreement provides that the land will remain the property of its inhabitants and the Muslims will receive only land tax from it, this tax imposed on the inhabitants is like jizyah. If they accept Islam, the tax will be waived. Since land tax is a form of rent, the ruler has the authority to determine its rate. He will set whatever rate he considers appropriate, because the rate may vary according to place and time. It is not necessary to follow exactly the rate set by Umar (may Allah be pleased with him). However, wherever Umar and other rulers established a rate, it will remain in force there. No one may change it unless the reason for setting the rate changes, because what they established was their command.

When one is unable to cultivate land subject to land tax: Whoever owns land on which tax is due, but is unable to make use of it, will be compelled to do one of two things:

1. Either rent the land to someone, such as for sharecropping,

2. Or relinquish it.

For the land is, in reality, the property of the Muslims. No one has the right to leave this property idle and deprive them of its benefits.
Inheritance of land acquired as booty: Ownership of this land will pass by inheritance to the owner’s heirs, just as it passed by inheritance to the owner.

Chapter Twenty-Eight: Fay’

Fay’ is property that Muslims acquire from their enemies without fighting. Concerning this, Allah says in verses 6, 7, 8, 9, and 10 of Surah al-Hashr:

وَمَا أَنَاهُ اللهُ عَلَى رَسُولِهِ مِنْهُمْ فَمَا أَوْ مَفْتُمْ عَلَيْهِ مِنْ خَيْلٍ وَلأَرِكَابِ وَلَكِنَّ اللَّهَ يُسْلِمَ رُسُلَهُ عَلَى مَنْ يْمَاءُ ، وَاللَّهُ عَلَى كُلِّ شَيْءٍ قَدِيرُه مَا آنَاءَ الله عَلَى رَسُولِهِ مِنْ أَهْلِ الْقُرَى فَلِلَّهِ وَالرَّسُوْلِ وَلِذِي القربى وَالْيَتَمَى

وَالْمَسْكِينِ وَابْنِ السَّبِيلِ لا تى لا يكون دولة بَيْنَ الْأَغْنِيَاءِ مِنْكُمْ ، وَمَا الكم الرَّسُولُ فَخُلُوهُ ، وَمَا لَهُمْ عَنْهُ فَانْتَهُوا وَاتَّقُوا اللهَ إِنَّ اللهَ مَدِيدُ الْعِقَابِ لِلْفُقَرَاءِ الْمُمْجِرِينَ الَّذِينَ أَخْرِجُوا مِن دِيَارِهِمْ وَأَمْوَالِهِمْ يَبْتَغُونَ فَضْلاً مِّنَ اللهِ

وَرِضْوَانًا وَيَنْصَرُونَ اللهَ وَرَسُولَهُ ، أُولَئِكَ همُ الصَّدِقُونَ وَالَّذِينَ تَبَورا الدَّارَ وَالْإِيْمَانَ مِن قَبْلِهِمْ يُحِبُّونَ مَنْ هَاجَرَ إِلَيْهِمْ وَلَا يَعِدُونَ فِي صُدُورِهِمْ حَاجَةً مِّمَّا أُوتُوا وَيُؤْثِرُونَ عَلَى أَنْفُسِهِمْ وَلَوْ كَانَ بِهِمْ عَصَاصَةٌ وَمَنْ يُوقَ مُعْ نَفْسِهِ

فَأُولَئِكَ هُمُ الْمُفْلِحُونَ وَالَّذِينَ مَاءَ وَمِن بَعْدِهِمْ يَقُولُونَ رَبَّنَا اغْفِرْ لَنَا وَلِاعْوَانِنَا الَّذِيْنَ سَبَقُونَا بِالْإِيْمَانِ وَلَا تَجْعَلْ فِي قُلُوبِنَا غِلا لِلَّذِينَ آمَنُوا رَبَّنَا إِنَّكَ رَءُوفٌ رَّحِيره

You did not engage in combat on horseback or riding camels to acquire what Allah granted His Messenger from them. Rather, Allah gives His messengers authority over whomever He wills, and Allah is Powerful over all things. Whatever Allah granted His Messenger from the people of these towns belongs to Allah, His Messenger, the Messenger’s close relatives, orphans, the needy, and travelers, so that wealth does not circulate only among the rich among you.

Whatever the Messenger gives you, accept it, and whatever he forbids you, abstain from it. And fear Allah. Indeed, Allah is severe in punishment. This wealth is for the needy emigrants who were expelled from their homes and property, seeking Allah’s bounty and pleasure and supporting Allah and His Messenger. They are the truthful. Those who had settled in the city and embraced faith before the emigrants arrived love those who emigrated to them and do not feel any desire in their hearts for what the emigrants were given.

They give them preference over themselves, even though they are in need. Those who are protected from their own greed are the successful. Those who came after them say, “Our Lord, forgive us and our brothers who preceded us in faith, and do not place in our hearts any resentment toward those who believe. Our Lord, You are truly Most Kind, Most Merciful.”

Here Allah mentions those who migrated to Madinah as people who accepted Islam before the conquest of Makkah. He mentions the Ansar of Madinah as those who gave the emigrants refuge. He also mentions those who will come after them until the Day of Resurrection.

Distribution and allocation of fay’: Quoting Imam Malik, Imam al-Qurtubi says: “This depends on the ruler’s judgment and ijtihad. He may take from it for himself without fixing a specific rate, and on the basis of ijtihad he may give from it to relatives. Whatever remains should be spent on the welfare of the Muslims. The four caliphs all said this and acted accordingly. This is also established by the following statement of the Messenger of Allah (peace and blessings be upon him): ‘I have no right to anything from what Allah has granted you as fay’ except one-fifth, and even that one-fifth will return to you.’”

In fact, the Messenger of Allah (peace and blessings be upon him) did not distribute fay’ in the form of one-fifth or one-third. The verse merely mentions those concerning whom care must be taken, because they are the most important among its recipients.

Imam al-Zajjaj, presenting evidence in support of Imam Malik’s statement, says that Allah said:

They ask you what they should spend. Say, “Whatever wealth you spend should be for parents, relatives, orphans, the needy, and travelers.” (Surah al-Baqarah: 215)

However, if someone considers it appropriate to give to someone outside these categories, then doing so is unanimously permissible. Imam al-Nasa’i relates that Ata said: “Allah’s one-fifth and the Messenger’s one-fifth are the same thing. The Messenger of Allah (peace and blessings be upon him) would take from it himself, give to others, spend it wherever he wished, fulfill whatever he wished, and do with it whatever he wished.”

In the book Hujjat Allah al-Balighah, Shah Waliullah al-Muhaddith al-Dehlawi (may Allah have mercy on him) says: “There are various hadiths concerning the distribution of fay’. Whenever fay’ came to the Messenger of Allah (peace and blessings be upon him), he distributed it that same day. He gave a married man two shares and an unmarried man one share. Abu Bakr (may Allah be pleased with him) distributed it among free people and slaves in such a way as to meet their basic needs.”

Umar (may Allah be pleased with him) gave priority to the administration, cavalry units, and other needs; and he gave individuals priority according to seniority, the hardships they had endured, their dependents, and their needs. The basic principle in these matters of disagreement is that he acted, on the basis of ijtihad, as he considered appropriate. During his rule, he gave priority to whatever was deemed sound and beneficial.

Chapter Twenty-Nine: Security Agreements

If anyone among the enemy combatants requests protection, his request will be granted. Through this, he will acquire guaranteed security, and under no circumstances may he be attacked.
The Most High Allah says:

وإِنْ أَحَدٌ مِنَ الْمُشْرِكِينَ اسْتَجَارَكَ تاجرة حَتَّى يَسْمَعَ عَلَى اللهِ ثُمَّ أَبْلِغْهُ مَأْسَنَهُ ، ذَلِكَ بِأَنَّهُمْ قَوْمٌ لا يعلمون

If any of the polytheists asks you for protection, then grant him protection so that he may hear the word of Allah. Then escort him to a place of safety, because they are an ignorant people. (Surah al-Tawbah: 6)

Who has the authority to grant protection? Any Muslim citizen, whether male or female, free or enslaved, has the legal right to grant protection to any member of the enemy who seeks it. No Muslim may be deprived of this right except a minor or an unsound-minded person. If a minor or an unsound-minded person grants protection to an enemy, neither grant of protection is valid. Imams Ahmad, Abu Dawud, al-Nasa’i, and al-Hakim narrated from Ali (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “The protection granted by Muslims is equal; even the least among the Muslim citizens may grant it. They have authority over all others.” According to narrations by Imam al-Bukhari, Abu Dawud, and al-Tirmidhi, Umm Hani bint Abi Talib (may Allah be pleased with her) said: “I said, ‘O Messenger of Allah, I have granted protection to such-and-such a son of Hubayrah, while the son of Umm Ali claims that he will kill him.’ The Messenger of Allah (peace and blessings be upon him) said, ‘O Umm Hani, we have granted protection to the one whom you have protected.’” That is, he is under the protection of the state, so no one may kill him.

Effect of granting protection: When protection has been granted through an explicit statement or an understandable indication, no attack against the protected person is permissible. By granting him protection, he has secured his life from being taken and his freedom from being converted into slavery.

It is related that Umar ibn al-Khattab (may Allah be pleased with him) learned that a certain mujahid had told a Persian warrior, “You have nothing to fear,” and then immediately killed him. He therefore wrote to the commander of the Muslim army: “I have learned that some of you seek out the great warriors of the enemy. When one of them becomes trapped inside a mountain and it is difficult to strike him, he is told, ‘You have nothing to fear.’ Then, as soon as whoever reaches him has him within reach, he kills him. By Allah, if I learn that anyone has done this, I will kill him.”

Imam al-Bukhari in his book al-Tarikh and Imam al-Nasa’i narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever assures a person that his blood will not be shed and then kills him, I am free of responsibility for that killer, even if the slain person was a disbeliever.” Imams al-Bukhari, Muslim, and Ahmad narrated from Anas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Every treacherous person will have a distinctive banner by which he will be recognized on the Day of Resurrection.”

When does the right of security or protection take effect? The right of security or protection receives legal recognition as soon as it is granted, and is considered effective from the moment it is uttered and announced. However, it does not receive final recognition without approval from the ruler or commander. Once the grant of protection is recognized and also approved by the ruler or commander, the protected person becomes a dhimmi, and the rights and duties of Muslims become his rights and duties as well. This protection may be revoked only when it is proven that the right will be used to harm Muslims—for example, if he is a spy for his people or tribe and conducts espionage against the Muslims.

Collective protection: If an individual Muslim citizen grants protection to one or two people, that protection is valid. But collective protection for a group may be granted only by the ruler. The ruler grants protection through ijtihad or by considering benefit and harm, such as accepting a non-Muslim group as dhimmis. If the right to grant this kind of collective protection were given individually to all Muslim citizens, it would become a means of abolishing jihad.

Envoys are included among those granted protection: An envoy is like a protected person, whether he comes as a letter-carrier, travels between two warring parties to establish peace, or seeks a temporary ceasefire to facilitate the removal of the wounded and dead. The Messenger of Allah (peace and blessings be upon him) said to the two envoys sent by Musaylimah, the false claimant to prophethood: “I would not kill the two of you only because envoys are not killed; otherwise, I would kill you.” Imam Ahmad and Imam Abu Dawud narrated this from Nu’aym ibn Mas’ud. At the time, the Messenger of Allah (peace and blessings be upon him) was reading Musaylimah’s letter. He asked them, “What do both of you believe?” They replied, “What Musaylimah believes”—that is, both believed Musaylimah to be a prophet.

Once Quraysh sent Abu Rafi as a representative to the Messenger of Allah (peace and blessings be upon him). After arriving, he decided to embrace faith. He said, “O Messenger of Allah, I do not want to return to Quraysh; I want to remain with you as a Muslim.” The Messenger of Allah (peace and blessings be upon him) said, “I do not break promises, nor do I detain messengers. Return safely, and if your present feelings remain, then come back to us.” (Ahmad, Abu Dawud, al-Nasa’i, and Ibn Hibban)

It is stated in Imam Abu Yusuf’s Kitab al-Kharaj and Imam Muhammad’s al-Siyar al-Kabir: Certain conditions have been established regarding envoys, and Muslims must fulfill them. Even if the disbelievers kill Muslim prisoners held by them, it is not permissible to betray their envoy. We will never kill their envoy, because the Messenger of Allah (peace and blessings be upon him) said: “Keeping a promise in response to treachery is better than treachery in response to treachery.”

Mustamin (a person seeking protected asylum)

Definition: A musta’min is a non-Muslim combatant who enters a Muslim-ruled territory with a guarantee of security, not intending to reside there permanently or stay indefinitely, but intending to remain for a specified period of no more than one year. If one year passes and he intends to remain permanently, he becomes a dhimmi, and the rules applicable to a dhimmi under the allegiance and subjection of the Muslim state also become applicable to him. During the mustamin’s secure stay and residence, his wife, minor sons, all daughters, mother, paternal and maternal grandmothers, and household servants may remain with him for as long as they wish. When a non-Muslim combatant comes as a messenger or to hear the word of Allah, he receives security without any treaty or promise. But when he comes for business and obtains protected asylum from an authorized citizen, he is considered a mustamin. The principle concerning this is set out in verse 6 of Surah al-Tawbah:

وان أحد من المُشْرِكِينَ اسْتَجَارَكَ فاجرة حتى يَسْمَعَ كَلْرَ اللَّهِ ثُمَّ أَبْلِقَهُ مَآمَنهُ .

If any of the polytheists asks you for protection, then grant him protection so that he may hear the word of Allah. Then escort him to a place of safety, because they are an ignorant people.

Rights of the mustamin: When a non-Muslim combatant enters a Muslim-ruled territory under protected asylum, he has the right to protection of his life, property, rights, and interests as long as he observes and does not violate his security agreement. It is not permissible to curtail his freedom or arrest him merely because he is a citizen of an enemy country or because a state of war exists between them and us. This applies whether the arrest is intended only as temporary detention or as permanent detention as a prisoner of war.

Imam al-Sarakhsi says: “Because the mustamin’s property has acquired security through the grant of protected asylum, it is not permissible for the state to seize it.” This remains so even when he returns to Dar al-Harb, the hostile non-Muslim territory. His personal security will then be revoked, but the security of his property will remain intact.

It is stated in al-Mughni: “When a harbi—a non-Muslim combatant, the opposite of a mustamin—enters Dar al-Islam, the Muslim-ruled territory, as a mustamin, that is, under protected asylum, and then deposits his property with a Muslim or dhimmi there, or lends it to him, and subsequently returns to Dar al-Harb, we must consider in what capacity or for what purpose he returned to Dar al-Harb. If he went as a merchant, messenger, or for medical care, recreation, or a specific need, and then returned to Dar al-Islam, he will have full security for his life and property. This is because the journey did not nullify his purpose of remaining in Dar al-Islam. Thus, through it he acquired a status equal to that of a dhimmi. Conversely, if he went to Dar al-Harb intending to reside there permanently, his personal security will be revoked, but the security of his property will remain. Since he entered Dar al-Islam under security, his property remains protected. When his personal security is revoked by entering Dar al-Harb, the security of his property remains, because the revocation is specific to his person and is therefore limited to it.”

Duties and responsibilities of the mustamin: It is his duty to preserve peace and order in the country and refrain from rebelling against it. Therefore, espionage is not permissible for him. If he spies for the enemy against the Muslims, killing him becomes permissible.

Islamic law applies to the musta’min: Islamic law applies to the musta’min in financial transactions. Therefore, contracts relating to buying, selling, and other transactions shall be concluded according to Islamic rules and regulations. He will not be allowed to engage in interest-based dealings, since they are prohibited in Islam. In the case of similar offenses, when he violates the rights of a Muslim dhimmi or another musta’min like himself, he will be punished according to Islamic Shariah. For it is the state’s responsibility to secure justice for the oppressed against the oppressor, and no leniency in this matter is permissible. When a right of Allah is violated, such as making a false accusation of adultery, he will likewise be punished as a Muslim. For this is among the offenses that corrupt Islamic society. (Imam Abu Hanifa held a different opinion on this matter. He said that in offenses in which the right of Allah is exclusively or predominantly violated, Islamic punishments will not be applied to the musta’min. However, this view has not been preferred by the jurists.)

Confiscation of the musta’min’s property: If a musta’min ever engages in war against the Muslims and is subsequently captured and enslaved, his property will be confiscated in that situation. For his ownership of the property ceases at that point. His heirs will not receive his property either, even if they possess a special status in Dar al-Islam. They can inherit his property only after his death, whereas he is still alive. In such a case, all his property will be deposited in the Bayt al-Mal as spoils. If he is owed a debt by a Muslim or a dhimmi, that debt will be cancelled for the debtor, since he has no legally recognized claimant.

Inheritance of the musta’min: Wherever a musta’min dies, whether in Dar al-Islam or Dar al-Harb, his ownership or proprietary right over his property does not lapse. According to the jurists other than Imam al-Shafi‘i, his heirs will become its owners. It is the duty of the Islamic state to transfer or deliver his property into the ownership of his heirs. If he has no heirs, the property becomes the Muslims’ collective property (fay’). (Property acquired from unbelievers without fighting is called fay’.)

Chapter Thirty: Promises and Treaties

Honoring promises: From the Islamic perspective, honoring promises and treaties is an essential duty. It has a highly beneficial effect and an important role in maintaining peace. It is also of great importance in resolving various problems, settling disputes, and maintaining normal relations. An Arab proverb says: ‘Whoever does not wrong people in his dealings with them, does not resort to lies in speech, and does not break his word after making a promise, perfects his humanity, proves his integrity, and makes it inevitable that everyone will establish a brotherly relationship with him.’ This proverb is entirely true and correct. Honest conduct and dealings with people, fulfilling promises made to them, and speaking the truth are proof of true humanity and mature character, signs of integrity, and guarantees of friendship and brotherhood. Allah Most High has commanded the fulfillment of all pledges and promises, whether made with Allah or with people. Allah says in verse 1 of Surat al-Ma’idah: أَيُّهَا الَّذِينَ آمَنُوا أَوْنُوا بِالْعَقَودُ‘O believers, fulfill your covenants.’ Refraining from obeying this command is a major sin and inevitably incurs Allah’s wrath and displeasure. Allah says in verses 2 and 3 of Surat al-Saff:

يَأَيُّهَا الَّذِينَ آمَنُوا لِمَ تَقُولُونَ مَا لَا تَفْعَلُونَ كَبُرَ مَقْتًا عِندَ اللَّهِ أَنْ تَقُولُوا مَالَا تَفْعَلُونَ

‘O believers, why do you say what you do not do? It is exceedingly displeasing to Allah that you say what you do not do.’

Whatever pledge or promise a person makes, he must be held responsible for it and must give an account of it. Allah says: وأونُوا بِالْعَمْدِ : إِنَّ الْعَمْنَ كَان مسئولاً‘Fulfill the covenant. Indeed, the covenant will be questioned about.’ (Bani Isra’il: verse 34) Rights arising from promises take precedence even over religious rights. Allah says:

والَّذِينَ آمَنُوا وَلَمْ يُهَاجِرُوا مَا لَكُم مِّن وَلا يَتِهِم مِن شَيْءٍ حَتَّى يُهَاجِرُوا وَإِنِ اسْتَنْصَرُوكُمْ فِي الدِّينِ فَعَلَيْكُم النصر إلا عَلَى قَوْمِ بَيْنَكُمْ وَبَيْنَهُم مِيثَاقَ .

‘And those who have believed but have not emigrated—for you have no guardianship over them until they emigrate. But if they seek your help in religion, then it is your duty to help them, except against a people between whom and you there is a treaty.’ (Al-Anfal: 72)

Indeed, keeping promises is a special part of faith. The Messenger (peace be upon him) said: ‘Keeping promises is part of faith.’ Fulfilling a promise is such a virtuous deed that its reward is nothing less than Paradise. The Almighty Allah says:

وَالَّذِيْنَهُمْ لِأَمْنَتِهِمْ وَعَهْدِهِمْ رَعَوْنَ وَالدِينَهُمْ عَلَى سَلَوَتِهِمْ يُحَافِظُونَ أُولَئِكَ هُمُ الْوَرِثُونَ الَّذِينَ يَرِثُونَ الْفِرْدَوسَ طَهُمْ فِيهَا خَلِدُونَ

‘Those who honor their trusts and covenants, and those who carefully maintain their prayers—they are the inheritors, who will inherit al-Firdaws; they will abide therein forever.’ (Surat al-Mu’minun: verses 8–11)

Keeping promises was a characteristic of the Prophets. Allah says:

وَاذْكُرْ فِي الْكِتَبِ اسْمَعِيلَ وَ اللَّهَ كَانَ صَادِقَ الْوَعْدِ وَكَانَ رَسُوْلاً نَّبِيَّاه

‘And mention in the Book Ishmael. Indeed, he was true to his promise, and he was a messenger and a prophet.’ (Surat Maryam: verse 54)

The Messenger of Allah (peace be upon him) was the finest example of this noble moral quality. Abdullah ibn Abi al-Hamsa said: ‘Before the Messenger of Allah (peace be upon him) received prophethood, I bought something from him, and part of its price remained due to him. I promised him, “Stay here, and I will return to you.” Later, the Messenger of Allah (peace be upon him) said to me: “Young man, you have caused me great hardship. I have been waiting for you here for three days.”’

After the Hijrah, the Messenger of Allah (peace be upon him) concluded a treaty with the Jews. In that treaty, he allowed them to retain their religion and guaranteed the security of their property on the sole condition that they would not assist the polytheists against him. But they violated the treaty. Then they sought forgiveness for this and pledged not to violate it again. Subsequently, they violated it once more. At this point, Allah revealed verses 55 and 56 of Surat al-Anfal. In these two verses Allah says:

إن مَرَّ الدَّوَابِ عِنْدَ اللَّهِ الَّذِينَ كَفَرُوا فَهُمْ لَا يُؤْمِنُونَ الَّذِينَ عَمَدَ مِنْهُمْ ثُمَّ يَنقُضُونَ عَهْدَهُمْ فِي كل مرة وهُمْ لا يَتَّقُونَ

‘Indeed, the worst of creatures in the sight of Allah are those who disbelieve and will not believe. Those among them with whom you have made a treaty violate their treaty every time, and they are not mindful.’

Tha’labah pledged to Allah that if Allah expanded his provision and made him prosperous, he would give every rightful person his due. Then, when Allah granted him prosperity, abundance, and plenty, he broke his pledge and began to be miserly in giving Allah’s servants their due. Concerning him, Allah revealed verses 75, 76, and 77 of Surat al-Tawbah:

ومنهم من عهد الله لَئِنْ النَا مِن فَضْلِهِ لَنَصْلُ قَى وَلَنَكُونَنَّ مِنَ الصَّلِحِينَ فَلَمَّا أَتْهُم مِّن فَضْلِهِ بخِلُوا بِهِ وَتَوَلَّوْا وَهُمْ مُعْرِضُونَ فَاعْقَبَهُمْ لِفَاقًا فِي قُلُوبِهِمْ إِلَى يَوْمِ يَلْقَوْنَهُ بِمَا أَعْلَقُوا اللَّهَ مَا وَعَدُوهُ وَبِمَا كَانُوا يَكْلِ بُونَ

‘Among them are those who pledged to Allah: “If He gives us of His bounty, we will surely give charity and be among the righteous.” But when He gave them of His bounty, they became stingy with it and turned away, refusing. So He caused hypocrisy to settle in their hearts until the Day they meet Him, because they broke their pledge to Allah and because they used to lie.’

When Abdullah ibn Umar’s death was approaching, he said: ‘A man from Quraysh sent a proposal to marry my daughter, and I had nearly promised her to him. By Allah, I will not meet Allah carrying a third of hypocrisy. I call you all to witness that I have married my daughter to him.’ By his statement, ‘a third of hypocrisy,’ he was alluding to this hadith of the Messenger: ‘Whoever possesses three qualities is a hypocrite, no matter how much he prays and fasts or claims to be a Muslim: he lies when he speaks, breaks his promise when he makes one, and betrays a trust when entrusted.’

Condemning those who break promises, Allah says in verses 91 and 92 of Surat al-Nahl:

واونوا بِعَهْدِ اللَّهِ إِذَا عَمَدتُمْ وَلَا تَنْقُضُوا الأيمن بَعْدَ تَوْكِيدِهَا وَقَدْ جَعَلْتُمُ اللَّهَ عَلَيْكُمْ كَفِيلاً مَا إِن الله يَعْلَمُ مَا تَفْعَلُونَ وَلا تَكُونُوا كَالَّتِي نَقَضَتْ غَوْلَهَا مِنْ بَعْدِ قُوا أَنْكَانًا مَا تَتَّخِلُونَ أَيْمَانَكُمْ دَخَلاً بيْنَكُمْ أَن تَكُونَ أُمَّهُ هِي أَربي

مِنْ أُمَّةٍ ، إِنَّهَا يَبْلُوكُرُ الله به ، وليبيني لَكُمْ يَوْمَ الْقِيمَةِ مَا كُنتُمْ فِيهِ تختلفون

‘Fulfill Allah’s covenant when you make a covenant, and do not break oaths after confirming them, having made Allah your guarantor. Indeed, Allah knows what you do. Do not be like the woman who unravels her yarn after making it strong, using your oaths as a means of deception among yourselves so that one group may gain more than another. Allah only tests you by this. On the Day of Resurrection, He will certainly make clear to you that concerning which you differed.’ Conditions of promises: The following conditions apply to promises that must be honored and fulfilled:

a. It must not contradict any unanimously agreed ruling of the Shariah. The Messenger of Allah (peace be upon him) said: ‘Any condition not found in the Book of Allah is invalid, even if there are a hundred such conditions.’

b. The promise must be based on the consent of both parties. Coercion rejects free will. No one respects or honors a contract or promise that is not founded on freedom.

c. The promise or contract must be transparent, clear, unambiguous, and free from doubt and uncertainty, so that no disagreement or dispute may arise over its interpretation when it is implemented.
Breaking a promise or contract: It is not permissible to break a promise in any circumstance other than one of the following:

1. When it is for a specified period and that period has elapsed, or when it is limited to specified circumstances and those circumstances change.

Imam Abu Dawud and Imam al-Tirmidhi narrated that Amr ibn Abasah said: I heard the Messenger of Allah (peace be upon him) say: ‘Whoever has a treaty with another group must not violate or break it until its term has expired or the opposing party has violated it.’

Allah says in verse 4 of Surat al-Tawbah in the Holy Qur’an:

إِلَّا الَّذِينَ عُمَد تَر مِنَ الْمُشْرِكِينَ لَمْ لَمْ يَنْقُصُوكُمْ شَيْئًا وَلَمْ يُظَاهِرُوا عَلَيْكُمْ أَحَدًا فَالِبُوا إِلَيْهِرْ عهدهم إلى من تهم ، إن الله يحب المتقين

‘Except for those polytheists with whom you have a treaty and who have not failed you in anything or supported anyone against you—so fulfill their treaty to its term. Indeed, Allah loves the mindful.’

2. When the opposing side violates the treaty, Allah says:

فَمَا اسْتَقَامُوا لَكُمْ فَاسْتَقِيمُوا لَهُمْ إِنَّ اللَّهَ يُحِبُّ الْمُتَّقِينَ

‘So long as they remain upright toward you, remain upright toward them. Indeed, Allah loves the mindful.’ (Surat al-Tawbah: verse 7)

وَإِن تَكَثُوا أَيْمَانَهُمْ مِّنْ بَعْدِ عَهْدِهِمْ وَطَعَنُوا فِي دِينِكُمْ فَقَاتِلُوا آلِمَةَ الْكُفْرِ لَا الْمَرْ لَا أَيْمَانَ لَهُرْ لَعَلَّهُمْ يَنتَهُونَ أَلَّا تُقَاتِلُونَ قَوْمًا تَكَثُوا أَيْمَانَهُمْ وَمَنوا بِإِخْرَاجِ الرَّسُولِ وَهُمْ بَدَءٌ وَ كُمْ أَوَّلَ مَرا .

أَتَخْمُونَهُمْ : فَاللَّهُ أَحَقُّ أَن تَخْشَوهُ إِن كُنتُمْ مُؤْمِنِينَ

‘If they break their oaths after their treaty and attack your religion, then fight the leaders of disbelief. Indeed, they have no binding oaths; perhaps they will desist. Will you not fight a people who broke their oaths, resolved to expel the Messenger, and initiated hostilities against you first? Do you fear them? Allah is more deserving of your fear, if you are believers.’ (Surat al-Tawbah: verses 12–13)

3. When clear signs of treachery and breach of the promise become evident.

وَإِمَّا تَخَافَتْ مِن قَوْمٍ عِيَالَةٌ فَالْبِلْ إِلَيْهِمْ عَلَى سَوَاء ، إِنَّ اللَّهَ لَا يُحِبُّ الخَالِنِينَ

‘If you fear treachery from a people, then terminate your treaty with them on equal terms. Indeed, Allah does not love the treacherous.’ (Surat al-Anfal: verse 58)

Notice of treaty termination is necessary to avoid treachery: If a Muslim ruler learns that a treaty concluded with a people has been or will be violated by that people, it is not permissible to immediately go to war against them. This remains so until they are notified of the treaty’s termination and the news becomes known to people both near and far, so that they do not become victims of a surprise attack. Allah says in verse 58 of Surat al-Anfal:

وَإِمَّا تَخَافَى مِن قَوْمٍ عِبَادَةٌ فَالْبِلْ إِلَيْهِرْ عَلَى سَوَاء ، إِنَّ اللَّهَ لَا يُحِبُّ الخَالِنِينَ

‘If you fear treachery from a people, then terminate your treaty with them on equal terms. Indeed, Allah does not love the treacherous.’

Indeed, the principle of Islam is: ‘Responding to treachery with loyalty is better than responding to treachery with treachery.’

In the book al-Siyar al-Kabir, Imam Muhammad ibn al-Hasan al-Shaybani says: ‘If the amir of the Muslims sends a messenger to the enemy king and informs him that the treaty has been terminated because the reason for its termination has occurred, it is still not appropriate for the Muslims to attack them or the areas surrounding their kingdom immediately. We must wait so that their king has time to spread news of the treaty’s termination throughout the kingdom and so that we do not launch a surprise attack against them. Even so, when the Muslims become certain that the people of the enemy country have received no information about their king’s action, it is recommended for the Muslims not to attack them until they have been informed of the treaty’s termination. For this would be concealed deception. Muslims must refrain from both overt and concealed deception.’

Imam Muhammad narrated: During the reign of Abd al-Malik ibn Marwan, the people of Cyprus committed a grave offense. Consequently, he intended to annul the peace treaty concluded with them. When he sought the advice of the contemporary jurists al-Layth ibn Sa’d and Malik ibn Anas, al-Layth ibn Sa’d wrote: ‘The people of Cyprus have continually been accused of deceiving the Muslims and cultivating close relations with the enemies—the Romans. Allah has said: “If you fear treachery from a people, then terminate your treaty with them on equal terms.” I think you should terminate their treaty and give them one respite’ (that is, wait once before attacking). Malik ibn Anas wrote in his legal opinion: ‘The security and pledge granted to the people of Cyprus are ancient and have continued under the patronage of their rulers. I do not know of any ruler who annulled their treaty and expelled them from their homes. I think you should not hasten to annul their treaty until conclusive evidence has been presented against them, for Allah has said: “Fulfill the treaty with them until its specified term.”’ (Surat al-Tawbah: 4)

If, even after this, they do not follow the correct path or abandon their treachery, and you see that treachery has become entrenched among them, then attack them after terminating the treaty, and you will be victorious.

Some treaties of the Messenger (peace be upon him):

1. The Messenger of Allah (peace be upon him) concluded a treaty with the Banu Damrah tribe, one of the Arab tribes. The text of this treaty is as follows:

This is the treaty of Muhammad, the Messenger of Allah (peace be upon him), with Banu Damrah. It was agreed that Banu Damrah would remain secure in their persons and property and would be entitled to assistance against anyone who attacked them, so long as Banu Damrah did not wage war concerning the religion of Allah. When the Messenger of Allah (peace be upon him) called upon them for assistance, they would respond to him. In return, they would have the protection of Allah and His Messenger, and those among them who were righteous and God-fearing would be entitled to assistance.

2. Likewise, when he first settled in Madinah, he concluded a treaty with the Jews. Its text is given below:

In the name of Allah, the Most Compassionate, the Most Merciful

This is a document from Allah’s Messenger, the Prophet Muhammad (peace be upon him), concerning the believing Muslims of Quraysh, the people of Madinah, their followers, those who later joined them, and those who fought alongside them: they are one distinct ummah, separate from all other people.

The Muhajirun of Quraysh shall remain in their existing condition. They shall mutually pay the blood money for their slain and shall ransom their captives from one another in a fair and just manner.

Banu Awf shall also remain in their existing condition. They shall mutually pay the blood money previously due, and each group shall ransom the captives among the believers in a fair and just manner.
(Banu al-Harith, a branch of Khazraj) shall remain in their existing condition, mutually pay the previous blood money, and each group shall exchange the captives among the believers in a fair and just manner. Banu Sa’idah shall remain in their current condition, pay the previous blood money, and each group shall exchange the captives among the believers in a fair and just manner.

Banu Jusham shall remain in their current condition and pay the previous blood money. Each group shall exchange the captives among the believers in a fair and just manner.
Banu Najjar shall remain in their current condition, pay their previous blood money, and each group shall ransom its captives among the believers in a fair and just manner.
Banu Umar ibn Awf shall remain in their current condition, pay their previous blood money, and each group shall ransom the captives among the believers in a fair and just manner.
Banu Nabیت shall remain in their current condition. They shall pay their previous blood money as before, and each group shall ransom the captives among the believers in a fair and just manner.
Banu Aws shall remain in their current condition, pay their previous blood money as before, and each group shall ransom the captives among the believers in a fair and just manner.

The believers shall not leave any indebted person among them helpless. They shall give him a reasonable amount from the blood money or ransom. No believer shall meet the freed slave of another believer in the absence of his master. The God-fearing believers shall have full authority over any oppressor or criminal among them, anyone who creates division among the believers or commits aggression against them, and anyone who unjustly claims a donation or a due right. All the believers shall collectively possess coercive and preventive authority over such an unjust person, even if he is the son of one of them.

No believer shall kill a believer in exchange for a disbeliever, nor shall he assist a disbeliever against a believer. Allah’s protection is equally available to all. Any ordinary Muslim has the right to grant protection to anyone. The believers are all allies of one another. Any Jew who follows us shall be entitled to assistance and support. No one may wrong him, nor may anyone assist in wronging him. The peace granted by the believers is the same for all. In fighting in the path of Allah, no peace agreement may be made with one believer while excluding another believer. Peace agreements shall be made only on the basis of equality and justice. (This shows that declaring war against any one Muslim group is equivalent to declaring war against the entire Muslim ummah.)

Each of our fighting detachments shall take its turn in battle. The believers shall receive recompense for the blood they shed in Allah’s path. The God-fearing believers are on the best and firmest path of guidance. No polytheist of Quraysh shall grant protection to the life or property of any Qurayshite, nor shall he assist anyone against a believer. Whoever kills a believer without any offense whatsoever shall be killed in retaliation. However, if the slain person’s guardian or heir agrees to blood money, he shall be released upon payment of the blood money. All believers shall stand together against such a murderer. Nothing shall be lawful for them except opposing him.

For any believer who supports everything contained in this covenant and believes in Allah and the Hereafter, it is not permissible to assist or shelter any criminal. Whoever assists or shelters him shall incur Allah’s curse and wrath on the Day of Resurrection. No compensation or ransom shall be accepted from him for this. The prohibition against assisting criminals is included in this provision. Whenever you differ over anything, it shall be referred for settlement to Allah and Muhammad, peace and blessings be upon him. As long as the Jews fight alongside the Muslims, they shall bear the expenses of their fighters. The Jews of the Banu Awf

are an allied group of the believers. The Jews have their religion and the Muslims have their religion. They shall retain their own religion, as shall their freed slaves. The Jews of Banu Najjar shall be like the Jews of Banu Awf. The Jews of Banu al-Harith shall be like the Jews of Banu Awf, and the Jews of Banu Sa’idah shall be like the Jews of Banu Awf. The Jews of Banu Jusham shall be like the Jews of Banu Awf, the Jews of Banu Awf shall be like the Jews of Banu Awf, and the Jews of Banu Tha’labah shall enjoy the same rights and privileges as the Jews of Banu Awf. Yet whoever is unjust and sinful destroys only himself and his family. The branch of Tha’labah, Jafna, shall enjoy the same privileges as Tha’labah. But righteousness and sin are distinct. The freed slaves of Tha’labah shall have the same status as them. Their tribal affiliates shall have the same status as them. None of them may leave from among them without the permission of Muhammad, peace and blessings be upon him.

No wound shall go without retaliation. Whoever kills shall pay for it with his own life or with the lives of members of his family, except the oppressed. By virtue of this covenant, he shall receive compensation for the wrong done to him. The Jews shall bear the expenses of their fighters, and the Muslims shall bear the expenses of their fighters. Against whoever fights those who uphold this covenant, the Jews and Muslims shall assist one another and prevail over them. There shall be goodwill, sincere counsel, and righteousness among them. There shall be no sinful conduct.

No one shall wrong his ally. Every avenue of assistance shall remain open to the oppressed. As long as they are at war, the Jews shall bear the expenses of fighting alongside the believers. For those who uphold this covenant, the central area of Medina shall be safe and sacred. A neighbor shall have the status of one’s own self, so long as he causes no harm and commits no sin. No one shall be granted refuge in a sacred place without the permission of its inhabitants.

Whenever an incident or dispute occurs among those covered by this covenant whose consequence may be disorder, it shall be referred to Allah and His Messenger Muhammad, peace and blessings be upon him, for settlement. Allah is the most firmly established in piety and goodness in this covenant. No protection may be granted to Quraysh or to anyone who assists Quraysh. The people of Medina shall assist one another in repelling whoever attacks Medina. When they are invited to make peace, they shall make peace. When they invite their enemies to make peace, they shall be entitled to receive peaceful treatment from the believers, except for those fighting solely on account of religion. Each group shall bear its expenses from its adjoining quarter. The Jews of Aws, both they themselves and their freed slaves, shall have equal rights with those who uphold this covenant and shall receive the fullest good treatment from them. Good treatment is distinct from sinful conduct. Every earner earns only for himself.

Allah is established upon the greatest truth and goodness in this covenant. This covenant is not a shield for any wrongdoer or sinner. Whoever leaves Medina shall be safe, and whoever remains within Medina shall also be safe, except the unjust and sinful. Allah is the protector of the God-fearing and righteous. Allah’s Messenger Muhammad, peace and blessings be upon him, is the protector of the God-fearing and righteous.

(Quoted from Dr. Muhammad Hamidullah Haydarabadi’s Al-Risalat al-Khalidah. The author was a professor of international law at Osmania University in Hyderabad, in the Deccan.)

Thirty-First Chapter: Oaths

Definition of an oath: In the terminology of Islamic law, an oath means affirming or establishing the truth of something by mentioning Allah’s name or one of His attributes, or by which the person taking the oath strengthens his resolve to do or abstain from an act.

An oath is valid only with mention of Allah’s name or an attribute: No oath is valid without mentioning Allah’s name or one of His attributes. Examples include: by Allah; by Allah’s honor; by Allah’s majesty or greatness; by Allah’s might, power, will, and knowledge; and the like. Likewise, an oath by the Noble Qur’an, or by one of its surahs or verses. Allah says in the Holy Qur’an:

وفِي السَّمَاءِ رِزْقَكُمْ وَمَا تُوعَدُونَ فَوَرَبِّ السَّمَاءِ وَالْأَرْضِ إِنَّهُ لَحَقِّ مِثْلَ مَا أَنَّكُمْ تَنْفِقُونَ

In heaven is your provision and whatever you are promised. So, by the Lord of heaven and earth, it is surely true, just as it is true that you speak.’ (Surah al-Dhariyat: verses 22–23) Allah also says:

فَلا أُقْسِمُ بِرَبِّ المفرق وَالْمَغْرِبِ إِنَّا لَقَدِرُونَ عَلَى أَنْ تَبَوَّلَ عَيْرًا مِنْهُمْ لَا وَمَا نَحْنُ بِمَسْبُوقِينَ

I swear by the Lord of the east and the west that We are capable of replacing them with better people, and We cannot be overcome.’ (Surah al-Ma’arij: verses 40–41)

Ibn Umar, may Allah be pleased with him, said: The Messenger, peace and blessings be upon him, used to swear in this way: ‘By the One who changes hearts.’

Abu Sa’id al-Khudri, may Allah be pleased with him, said: When the Messenger of Allah, peace and blessings be upon him, supplicated with great earnestness, he would say: ‘By the One in whose hand is the life of Abu al-Qasim (that is, Muhammad, peace and blessings be upon him).

Various forms of oaths: An oath made with the expressions ‘By Allah’s day,’ ‘By Allah’s life,’ and ‘By your oath’ shall count as an oath, because these mean ‘By Allah’ or ‘By Allah’s right.’ According to the Hanafis and Malikis, saying ‘By Allah’ counts as an oath, since it means ‘I swear in Allah’s name.’ According to the Shafi’is, it is not an oath without intention. If the person taking the oath intends an oath by it, it is an oath; otherwise it is not. Two opinions are reported from Imam Ahmad. The sounder opinion is that it is an oath. ‘By Allah’s life’ counts as an oath according to the Hanafis and Malikis, because it means by Allah’s lifespan and everlasting existence. Imam al-Shafi’i, Ahmad, and Ishaq say that it is not an oath without intention. According to some jurists, the expressions ‘By your oath’ and ‘I swear in Allah’s name’ constitute an oath. The majority, however, hold that an oath is established only when there is an intention to swear.

According to the Shafi’i school, mentioning Allah’s name itself makes it an oath, whether or not there is intention; otherwise it is not an oath. Imam Malik, may Allah have mercy on him, said: If the person says, ‘I swear in Allah’s name,’ it is an oath. But if he says, ‘I swear,’ or ‘I swear by your name,’ it is not an oath without intention.

If someone says, ‘If I do such-and-such, fasting for one month shall become obligatory upon me,’ or, ‘If I do such-and-such, performing Hajj at the House of Allah shall become obligatory upon me,’ or, ‘If I do such-and-such, all lawful things shall become unlawful for me,’ or says, ‘If I do such-and-such, everything I own shall become charity,’ then if he violates his oath after making such statements or similar ones, expiation for the oath becomes obligatory. Some, however, say that no expiation is required. Others hold that if he violates the oath, he becomes obligated to do whatever he swore to do.

Taking an oath that declares oneself a non-Muslim or outside Islam: If someone says, ‘If I do such-and-such, I am a Jew or a Christian,’ or ‘I am free of liability toward Allah and His Messenger,’ and then does that act, Imam al-Shafi’i and a number of scholars hold that this is not an oath and no expiation is required. The Qur’an and Hadith only rebuke and censure the person who makes such an oath. Abu Dawud and al-Nasa’i narrated from Buraydah that the Messenger of Allah, peace and blessings be upon him, said: Whoever swears, ‘If I do such-and-such, I am outside Islam,’ if he is lying, then it will be as he said; but if he is truthful, he will never return to Islam perfectly. (That is, if he intended only to frighten and warn himself, he does not become a disbeliever. However, he must immediately recite the testimony that there is no god but Allah and Muhammad is the Messenger of Allah, and repent. If he intended to become a disbeliever—Allah forbid—then he will become a disbeliever if he does what he swore about.) It is narrated from Thabit ibn al-Dahhak that the Messenger of Allah, peace and blessings be upon him, said: Whoever swears by a religion other than Islam, it will be as he said. The Hanafi imams, Ahmad, Ishaq, Sufyan, and al-Awza’i hold that this too is an oath, and that expiation is required if it is violated.

It is prohibited to swear by anyone other than Allah: Since an oath is valid only by Allah’s name or one of His attributes, swearing by any other name is unlawful. This is because the one by whom an oath is taken must necessarily be accorded the highest honor, whereas granting the highest honor to anyone besides Allah is impermissible. Therefore, whoever swears by anyone other than Allah—such as a prophet, saint, father, the Noble Ka’bah, or anything similar—has not made a valid oath, and no expiation is required for violating such an oath. Nevertheless, he sins for granting someone besides Allah the highest honor.

1. Ibn Umar, may Allah be pleased with him, said: The Messenger of Allah, peace and blessings be upon him, heard Umar, may Allah be pleased with him, swear by his father while in a caravan. He addressed the entire caravan, saying: Listen, Allah has forbidden you to swear by your fathers. Whoever wishes to swear should swear only by Allah; otherwise he should remain silent. Umar, may Allah be pleased with him, said: By Allah, after hearing this prohibition from the Messenger of Allah, peace and blessings be upon him, I never again swore by anyone other than Allah.

2. Ibn Umar, may Allah be pleased with him, heard a man swear by the Noble Ka’bah and said: I heard the Messenger of Allah, peace and blessings be upon him, say: ‘Whoever swears by anyone other than Allah the Exalted is a polytheist.’

3. Abu Hurayrah, may Allah be pleased with him, said: The Messenger of Allah, peace and blessings be upon him, said: If any of you swears by al-Lat and al-‘Uzza, he should immediately say, ‘There is no god but Allah.’ If anyone says to another, ‘Come, let us gamble,’ he should immediately give charity. (Al-Lat and al-‘Uzza were the names of two idols of the people of Makkah. During the Age of Ignorance, they used to swear by them.)

4. Imam Abu Dawud narrated: ‘Whoever swears by the trust is not one of us’—that is, he is not a follower of our way.

5. Imam Abu Dawud and Imam al-Nasa’i narrated from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: Do not swear by your fathers, mothers, or idols. Do not swear by anyone other than Allah. Do not swear upon anything except the truth.

When there is no intention to show devotion to the one by whom the oath is taken: Swearing by anyone other than Allah is prohibited when the purpose is to show honor and devotion. If honor and devotion are not intended, but the oath is taken merely to emphasize the truth of a statement, it is disliked, because it resembles the prohibited oath. Moreover, it gives the impression that

honor has been shown to a being other than Allah. The Messenger of Allah, peace and blessings be upon him, said concerning a Bedouin: ‘By the father of the man, he has prospered.’ In explaining this, Imam al-Bayhaqi said that such oaths were customary among the Arabs and were frequently uttered without any particular intention. Imam al-Nawawi supported this explanation and said: It is satisfactory.
Swearing by created things: It was the custom of the Arabs to give special importance to the statement with which an oath began and to focus their attention on it. They understood that a speaker’s oath indicated the special importance of the statement he wished to make and symbolized its accuracy and truth. The Qur’an also follows this rhetorical style and swears by many things. One example is the Qur’an, as in Surah Qaf, verse 1: ‘By the Glorious Qur’an.’ It also swears by some created things, such as: ‘By the sun and its radiance’ (Surah al-Shams, verse 1). The first two verses of Surah al-Layl likewise say: ‘By the night when it covers, and by the day when it shines.’ Behind these oaths lie many subtle and lofty purposes, such as drawing attention through the oath to instructive matters contained in these things. People are encouraged to reflect on them so that the true reality may be discovered through them.

Allah swears by the Qur’an to express that it is truly Allah’s speech and that it contains all the means of happiness and peace in this world and the Hereafter. By swearing by the angels, He shows that they are obedient servants of Allah and not deities to be worshipped. By swearing by the sun, moon, and stars, their varied benefits are indicated. Their continual changes demonstrate their created nature and reveal that they have a skillful Creator. Therefore, it is improper to neglect expressing gratitude to that Great Creator and turning one’s attention to Him.

In some places Allah swears by the wind, Mount Tur, the pen, and the sky containing the constellations. All these are signs of Allah, and people are obliged to reflect upon them. Through these oaths, Allah intended to establish the truths of His oneness, the messengership of the Messenger of Allah, peace and blessings be upon him, resurrection after death, and the Resurrection. These are the fundamental doctrines of Islam that must become deeply rooted in people’s hearts.

The right to swear by Allah’s creation belongs exclusively to Allah. For us, it is not permissible to swear by anything except Allah or one of His attributes.
Conditions and essential element of an oath: The conditions for a valid oath are that the person taking it be of sound mind, an adult, a Muslim, capable of fulfilling the oath, and free. Thus, if someone takes an oath under another person’s coercion, it is not valid. The essential element of an oath is the wording used in it.

The legal ruling on oaths: The legal ruling concerning an oath is that the person who takes it must fulfill the act for which he swore, so that he may be discharged from the oath. If he does not fulfill it, he is guilty of violating the oath and expiation becomes obligatory upon him.

How many types of oaths are there, and what are they? Oaths are of three types: 1. Unintentional oaths. 2. Deliberate oaths. 3. False oaths.

Unintentional oaths and their ruling: An unintentional oath is one in which there is actually no intention to swear. It is uttered merely as a habitual expression, such as: ‘By Allah, you must eat,’ or ‘By Allah, you must come,’ and so on.

The Mother of the Believers, Aishah, may Allah be pleased with her, said: This verse was revealed concerning people’s frequent expressions such as, ‘By Allah, no,’ ‘By Allah, yes,’ and ‘By Allah, never’: ‘Allah will not call you to account for your unintentional oaths’ (Surah al-Baqarah: verse 225). Bukhari and Muslim. Imam Malik, the Hanafi imams, Imam al-Layth, and al-Awza’i said: An unintentional oath is to swear about something while believing it to be correct and true, and then the opposite becomes clear. It may also be called an erroneous oath. Two opinions are reported from Imam Ahmad, may Allah have mercy on him, corresponding to the views of the two schools mentioned above.

The ruling on unintentional oaths: There is neither expiation nor liability for this type of oath.

Deliberate oaths and their ruling: A deliberate oath is one that the person taking it makes knowingly and resolutely. It represents his intention and pledge. It is not a meaningless or purposeless expression uttered spontaneously according to customary usage. Some hold that a deliberate oath expresses a resolve to do or refrain from a future act. Its ruling is that expiation is definitely required if the oath is broken or violated. The ruling concerning this is found in the following two verses:

لا تَوَاعِدُكُمُ اللَّهُ بِاللَّغْوِ فِي أَيْمَالِكُمْ وَلَكِن يُوَاعِلُ كُم بِمَا كَسَبَتْ قُلُوبُكُمْ ، وَاللَّهُ غَفُورٌ حَلِيرُه

Allah will not call you to account for your unintentional oaths. But He will call you to account for the commitments of your hearts. Allah is Most Forgiving and Forbearing.’ (Surah al-Baqarah: verse 225)

لَا يُوَاعِدُ كُمُ اللَّهَ بِالتَّفْوِ فِي أَيْمَانِكُمْ وَلَكِن يُوَاعِدُكُمْ بِمَا عَقَد تُمُ الْأَيْمَانَ : نَكَفَّارَتَهُ الْعَامِ عَفَرَا مَسْكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ كِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ ، فَمَنْ لَمْ يَجِدْ فَصِيَامُ ثَلْثَةِ أَيَّامٍ . ذَلِكَ كَفَّارَةِ أَيْمَانِكُمْ إِذَا

خَلَقْتُمْ، وَاحْفَظُوا أَيْمَالَكُمْ ، كُلِّ لِكَ يُبَيِّنُ اللَّهُ لَكُمْ ابْتِهِ لَعَلَّكُمْ تَشْكُرُونَ

‘Allah will not call you to account for your unintentional oaths. But He will call you to account for the oaths you deliberately make. Their expiation is to feed ten needy people with the average quality of what you feed your families, or to clothe them, or to free a slave. But whoever cannot afford it must fast for three days. This is the expiation for your oaths when you swear. Guard your oaths. Thus Allah makes His verses clear to you, so that you may give thanks.’ (Surah al-Ma’idah: verse 89).

False oaths and their ruling: A false oath is one by which another person’s rights are seized, or through which one intends to commit treachery or sin. It is one of the major sins. There is no expiation for it, because it is more serious than sins from which one can be freed through expiation. (According to Imam al-Shafi’i and one opinion of Imam Ahmad, expiation is required for it.) In Arabic it is called ghamus, meaning one that plunges into ruin. It is so named because this oath plunges a person into the Fire of Hell. It is obligatory for the person who makes such an oath to repent; and if it has caused someone’s rights to be violated, he must also restore those rights. Allah says:

ولَا تَتَّخِلُوا أَيْمَانَكُمْ دَفَلا بَيْنَكُمْ فَتَزِلُ قَدَم بَعْدَ تَبَوْتِهَا وَتَل وهو السُّوءَ بِمَا مَن دَتُّمْ عَنْ سَبِيلِ اللَّهِ ج ولكمْ عَذَابٌ عَظِيره

Do not use your oaths as a means of deceiving one another, lest feet slip after they have been firm and you taste punishment because you hindered people from Allah’s path. For you is a tremendous punishment.’ (Surah al-Nahl: verse 94)

1. Imam Ahmad and Abu al-Shaykh, may Allah have mercy on them, narrated from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: ‘There is no expiation for five sins: associating partners with Allah, taking a life without valid cause, falsely accusing a believer, and unjustly seizing someone’s property through a false oath.’

2. Imam Bukhari narrated from Abdullah ibn Amr, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: ‘The major sins are associating partners with Allah, disobedience to parents, suicide, and making a false oath.’

3. Abu Dawud narrated from Imran ibn Husayn, may Allah be pleased with him, that the Messenger, peace and blessings be upon him, said: Whoever makes a false oath and, because of it, someone is forced to remain in prison or suffers some other official harm, let him prepare his dwelling in Hell.

The basis of an oath, intention, and customary usage: The legal basis of an oath lies in the customary usage prevalent in society—not in the lexical meaning, nor in Islamic technical terminology. For example, if someone swears that he will not eat meat and then eats fish, he has not violated his oath, even though Allah has also referred to fish as meat. (See verse 14 of Surah al-Nahl.) However, if he intended the fish to be included in the meat mentioned in his oath, or if fish is included under meat in the customary language of his people, then eating fish violates the oath. Whoever swears by something but privately intends something else is judged according to his intention, not his spoken words. But if another person makes him swear concerning a particular thing, then the intention of the person who administered the oath is considered, not that of the person taking it. Otherwise, an oath would have no value in judicial proceedings.

Imam al-Nawawi said: An oath is always judged according to the intention of the person taking it. The sole exception is when a judge or his representative asks him to swear concerning an accusation or claim brought against him. In that case, the intention of the judge or his representative determines the ruling. The person taking the oath’s contrary personal intention is not valid in this case. Outside this case, his personal intention is valid in all other circumstances. If he violates an oath taken according to the intention of the judge or his representative, he is not considered to have violated it, although making an oath for a false purpose is unlawful.

The proof that, except when someone else compels a person to swear, the intention of the person taking the oath is always decisive is this hadith narrated by Imam Abu Dawud and Ibn Majah from Suwayd ibn Hanzalah. Suwayd said: We set out with Wa’il ibn Hujr to meet the Messenger of Allah, peace and blessings be upon him. On the way, one of Wa’il’s enemies seized him. My companions hesitated to take an oath to rescue Wa’il. I swore, ‘He is my brother,’ and the man released Wa’il. Then we came to the Messenger of Allah, peace and blessings be upon him. I told him that my companions had been unwilling to swear that Wa’il was my brother, but I had sworn that he was my brother. The Messenger of Allah, peace and blessings be upon him, said: ‘You have spoken the truth. A Muslim is the brother of a Muslim.’

But when someone else administers the oath, the proof that the intention of the person administering it determines the ruling is the hadith narrated by Imam Muslim, Imam Abu Dawud, and al-Tirmidhi from Abu Hurayrah, may Allah be pleased with him. The Messenger of Allah, peace and blessings be upon him, said: ‘An oath is judged according to the intention of the person who administers it.’ According to another narration: ‘Your oath is what your opponent will believe from your statement.’ Here, the opponent is the person who administered the oath in a situation where both parties are claiming the oath.

Breaking an oath inadvertently or unwillingly does not invalidate it: Whoever swears not to do something and then does it by mistake or unwillingly will not be liable for breaking the oath. This is because the Messenger of Allah (peace and blessings be upon him) said: “Allah has exempted my community from mistakes, forgetfulness, and what they are compelled to do.” (A mistake means, for example, inadvertently doing something that is ordinarily sinful, or inadvertently refraining from something that is obligatory. Unwillingness means doing something wrongful or unlawful while believing it to be lawful or right, or refraining from something obligatory because one considers it improper, or refraining because of an excuse or incapacity. Compulsion means, for example, being forced to commit a sin under pressure from an evil power, or being forced to do something unlawful because of an unjust law of the country. It should be noted that an oath is broken or violated when one fails to do what one swore to do, or does what one swore not to do. —Translator)

An oath taken under compulsion need not be fulfilled: If someone forces a person to swear to do something, he is not required to fulfill that oath, and if he does the opposite, he will not be regarded as having broken it. The evidence for this is, first, the hadith mentioned above. Second, the person who is compelled is deprived of his freedom. One who lacks freedom is not responsible for observing any ruling of the Shariah. Therefore, according to Imam Ahmad, al-Shafi‘i, and Malik, the oath of a person who is compelled is not valid at all. Imam Abu Hanifah, on the other hand, holds that the oath is valid, but he is not obliged to fulfill it.

Saying “Insha’Allah” in an oath: Whoever adds “Insha’Allah” (that is, “if Allah wills”) to an oath will not be liable for breaking it if he does the opposite. It is narrated from Ibn Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever takes an oath and says, ‘Insha’Allah,’ will not be liable for breaking the oath.” (Ahmad and Ibn Hibban; Ibn Hibban declared the hadith authentic.)

Repeating an oath: If a person repeatedly swears regarding one or more matters and breaks the oaths, Imam Abu Hanifah, Malik, and, according to one report, Imam Ahmad say that a separate expiation must be offered for each oath. According to the Hanbalis, if a person takes several oaths before offering expiation, it is not obligatory to offer separate expiations when the oaths are of the same type; only one expiation is required. If the types of expiation differ—for example, zihar and an oath by Allah—two separate expiations must be offered.

Expiation for an oath: The literal meaning of kaffarah is a covering or screen that completely conceals something. In Islamic terminology, it refers to acts that cover and erase certain sins in such a way that afterward the person who committed them bears no further liability for them in this world or the Hereafter. The expiation for deliberately breaking an oath is, first, any one of the following three:

1. Feeding ten poor people.
2. Providing clothing for ten poor people.
3. Freeing one male or female slave.

Second, whoever is unable to do any of these three must fast for three days. The first three options mentioned are arranged from the lowest to the highest: feeding is the lowest, providing clothing is intermediate, and freeing a slave is the highest. Allah says: “Its expiation is to feed ten poor people with the average of what you feed your families, or to clothe them, or to free a slave. But whoever cannot afford it must fast for three days. This is the expiation for your oaths when you swear. And safeguard your oaths. Thus Allah makes His revelations clear to you so that you may be grateful.” (Surah al-Ma’idah, verse 89)

The rationale for expiation: Breaking an oath means neglecting and failing to fulfill a responsibility and duty. Therefore, prescribing expiation is necessary as compensation for it. Expiation is:

Providing food: The Shariah has not specified the quantity or quality of the food. Where it is silent on this matter, the decision must be based on customary practice. Thus, the food for expiation is determined according to the quality and quantity of food a person ordinarily serves his family—not according to the superior food served on special festivals or occasions, nor according to the inferior food sometimes served. If meat, vegetables, and wheat bread are customarily eaten in a person’s home most of the time, expiation will not be fulfilled by providing food of a lower quality. Food of equal or better quality must be distributed. Food of equal quality is the average; food of better quality fulfills the average requirement and adds something more. This average may differ according to the person and the country.

According to Imam Malik (may Allah have mercy on him), one mudd of food is sufficient in Madinah. He also said that for people whose standard of living differs from ours, the average should be determined according to the standard of living in their own country. Allah says: “Give the average of what you feed your families.” Imam Abu Dawud and his students held the same view. The jurists other than Imam Abu Hanifah stipulated that the ten poor people must be Muslims. According to Imam Abu Hanifah, it is permissible to give it to poor dhimmis (non-Muslim citizens living in a Muslim country). In his view, feeding one poor person for ten days is equivalent to feeding ten poor people. Others say that this counts as feeding only one poor person.

It should be remembered that offering expiation by providing food is restricted to those who can afford it. This means being able to provide that quantity from what remains after meeting one’s essential expenses and those of one’s family. Some scholars set the amount of surplus at fifty dirhams, while others set it at twenty dirhams. The first view is attributed to Qatadah and the second to Ibrahim al-Nakha‘i.

Clothing: The clothing that people use and recognize as garments is sufficient as expiation. Its minimum standard is what poor people ordinarily wear. This is because the verse stipulates an average standard only for food, not for clothing. It is also sufficient to give each person clothing of the standard ordinarily worn by the family of the person offering expiation. According to Imam Malik and Imam Ahmad, each poor person must be given clothing in which he or she can properly perform prayer—men’s clothing for men and women’s clothing for women.
Freeing a slave: This means freeing a male or female slave from bondage, whether Muslim or non-Muslim, because the verse does not mention Islam as a condition. This is the view of Imam Abu Hanifah, Abu Thawr, and Ibn al-Mundhir. According to the other jurists, being Muslim is a condition. They hold that, just as freeing a Muslim slave is stipulated for the expiation of accidental killing (according to verse 92 of Surah al-Nisa’), the same rule applies to this expiation.

Fasting when one lacks the financial means: Whoever lacks the financial ability to fulfill any of these three options must fast for three days. If he is unable to fast because of illness, he should fast after recovering. If he never regains the ability to fast, Allah’s forgiveness is sufficient for him.

It is not a condition that these fasts of expiation be observed consecutively. Thus, they may be observed consecutively or with intervals. The condition imposed by the Hanafis and Hanbalis that they be consecutive is not correct.

Paying the value of food and clothing: According to Imam al-Shafi‘i, Ahmad, and Malik, expiation is not fulfilled by paying the value of food or clothing. According to Imam Abu Hanifah, it is fulfilled.

Offering expiation before and after breaking an oath: The jurists unanimously state that expiation does not become obligatory until an oath has been broken. They differ over whether it may be offered in advance. According to most jurists, it is permissible to offer expiation in advance before breaking the oath and to offer it later after breaking it. It is narrated in Muslim, Abu Dawud, and al-Tirmidhi: “Whoever takes an oath and later realizes that doing something other than what he swore to do is better, let him offer expiation for his oath and do what is better.” This hadith proves the permissibility of offering expiation before breaking the oath.

Beginning to break an oath after offering expiation in advance is not considered beginning a sinful act. This is because the advance expiation has made lawful the act concerning which the oath was taken. Imam Muslim also narrated that the Messenger (peace and blessings be upon him) said: “Whoever swears to do something and later sees that another action is better, let him do it and offer expiation for his oath.” The reasoning of the jurists who consider advance expiation permissible is that a person who breaks an oath without first offering expiation begins a sinful act, yet he might die before offering the expiation. This may be the reason the Messenger of Allah permitted offering expiation in advance.

Imam Abu Hanifah, on the other hand, says that since the cause making expiation obligatory does not occur before the oath is broken, expiation is not valid until after the oath is broken. He interprets the Messenger’s statement, “Let him offer expiation for his oath and do what is better,” as meaning that he should intend to offer expiation. For example, verse 98 of Surah al-Nahl says: “When you recite the Qur’an, seek refuge in Allah from the accursed Satan.” Here, “when you recite the Qur’an” means “when you intend to recite the Qur’an.” In any case, the view of the majority of jurists is preferable: advance expiation is valid.

It is permissible to break an oath for the sake of a greater benefit: In principle, the person who takes an oath is obliged to fulfill it. However, it is also permissible not to fulfill it for the sake of a greater benefit. Allah says: “Do not use Allah’s name as an excuse.” (Surah al-Baqarah, verse 224)

That is, do not make an oath by Allah an obstacle to righteousness, self-restraint, and reconciliation among people.

وَلَا تَجْعَلُوا اللَّهَ عُرْضَةٌ لِإِيمَالِكُمْ أَن تَبَرُوا وَتَتَّقُوا وَتَصْلِحُوا بَيْنَ النَّاسِ مَا وَاللهُ سَمِيعٌ عَلِيمٌه

to swear that you will refrain from righteousness, self-restraint, and establishing peace among people

Allah says in verse 2 of Surah al-Tahrim:

قد فرَضَ اللَّهُ لَكُمْ تَحِلَّةَ أَيْمَالِكُمْ

“Allah has prescribed for you a way to release yourselves from your oaths.” That is, Allah has legislated release from oaths through offering expiation.

Imam Ahmad, and al-Bukhari and Muslim, narrate that the Messenger (peace and blessings be upon him) said: “When you swear to do something and then consider something other than it to contain greater benefit, do what is more beneficial and offer expiation for your oath.”

Types of oaths according to the subject of the oath: According to the subject concerning which an oath is taken, oaths are of five types.

1. An oath to perform a fard or wajib act and to refrain from a haram act. Breaking such an oath is haram, because it reinforces the acts that Allah has commanded His servants to perform or forbidden them to do.

2. An oath to refrain from a fard or wajib act and to perform a haram act. Breaking such an oath is wajib, because fulfilling it would be a means of committing sin. Offering expiation immediately upon breaking it is also wajib.

3. An oath to perform a permissible act. Breaking such an oath is makruh, and fulfilling it is mustahabb.

4. An oath to abandon a mustahabb act or perform a makruh act. In this case, breaking the oath is mustahabb, prolonging the oath is makruh, and offering expiation is wajib.

5. An oath to perform a mustahabb act or refrain from a makruh act. This is included among acts of worship. Fulfilling this oath is mustahabb, and breaking it is makruh.

Chapter Thirty-Two: Vows

Definition: Nadhr, or a vow, is making obligatory upon oneself a noble righteous act that is not originally obligatory in the Shariah. This may be done through a statement of commitment such as: “It is obligatory upon me for Allah to give this much money in charity.” Or: “If Allah grants recovery to such-and-such of my sick person, it will be obligatory upon me to fast for three days,” and so on.

A vow is not valid except from a free, adult, and mentally sound person, even if he is a non-Muslim.

The vow is an ancient act of worship: Allah the Exalted has mentioned in the Noble Qur’an that the mother of Maryam made a vow concerning the child in her womb and said:

إِذْ قَالَتِ امرات عمران رَبِّ إِنِّي لَدَرْتُ لَكَ مَا فِي بَطْنِي مُصَرِّرًا فَتَقَبَّلْ مِنِّي ، إِنَّكَ الهَ السميع العليمة

“Remember when the wife of Imran said, ‘My Lord, I have dedicated what is in my womb entirely to You. So accept it from me; indeed, You are the All-Hearing, All-Knowing.’” (Aal ‘Imran, verse 35) And Allah commanded Maryam, saying:

فَإِمَّا تَرَينَ مِنَ الْبَقَر أَحَدًا لا تَقُوْلَى إِلى تدري لِلرَّحْمَنِ مَوْمًا عَلَى أَكَلَّمَ الْيَوْمَ الْسِيَّانِ

“When you see anyone among mankind, say: ‘I have vowed a fast of silence for the Most Merciful, so today I will not speak to any human being.’”

Vows in the Age of Ignorance: Allah mentioned in verse 136 of Surah al-An‘am the vows that the people of the Age of Ignorance made to their idols. The purpose of these vows was to draw near to those idols, have the idols intercede with Allah on their behalf, and thereby gain nearness to Allah. Allah says:

وَجَعَلُوا لِلَّهِ مِمَّا ذَرَا مِنَ الْحَرِيفِ وَالْأَنْعَامِ نَصِيبًا فَقَالُوا مَلَا لِلَّهِ بِزَعْبِهِمْ وَعَلَا لِمُرَكَاتِنَا ، فَمَا كَانَ لهُوَ كَالِهِمْ فَلَا يَصِلُ إِلَى اللَّهِ وَمَا كَانَ لِلَّهِ تَمَوَ يَصِلُ إِلَى هُوَ كَالِهِمْ مَا سَاءَ مَا يَسْكُمُوْنَ

“They assign to Allah a share of the crops and livestock He has created, and according to their claim they say: ‘This is for Allah and this is for our idols.’”

“Then what is assigned to their idols does not reach Allah, while what is assigned to Allah reaches their idols. How evil is their judgment!”

Vows are valid in Islam: The Qur’an and Sunnah establish that vows are sanctioned by the Shariah. Allah says in the Noble Qur’an:قْتُرُ مِنْ تَفَقَةٍ أَوْلَدَرْتُمْ مِنْ بَدْرٍ فَإِنَّ اللَّهَ يَعْلَهُ “Whatever you spend or vow, Allah surely knows it.” (Surah al-Baqarah, verse 270)

Allah also says:

تر ليقضوا تفتهم وليونوا لدورهم وليطوامُوا بِالْبَيْتِ العتيق

“Then let them remove their uncleanness, fulfill their vows, and perform tawaf around the Ancient House.” (Surah al-Hajj, verse 29)

Allah also says:يولون بالنذر ويخافون يوما كان هره مستطيران “They fulfill their vows and fear a Day whose evil will be widespread.” (Surah al-Dahr, verse 7)

The Messenger of Allah (peace and blessings be upon him) said: “Whoever vows to obey Allah should obey Him, and whoever vows to disobey Allah should not disobey Him.” (Al-Bukhari and Muslim, from A’ishah, may Allah be pleased with her.)

Although Islam has made vows valid, it does not approve of them. Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) prohibited making vows and said: “A vow brings no good. It is merely a means of extracting something from a miser.” (Al-Bukhari and Muslim)

When a vow is valid and when it is invalid: A vow is valid and effective, and its fulfillment is obligatory, when it is made for the purpose of drawing near to Allah. But when it is made to commit disobedience to Allah or a sinful act, it is invalid—for example, making a vow over a grave, to sinful people, to drink wine, kill, abandon prayer, or harm one’s parents. Fulfilling such a vow is not merely non-obligatory; it is haram, and no expiation is required for it, because this type of vow is invalid in the first place. The Messenger of Allah (peace and blessings be upon him) said: “There is no vow concerning an act of disobedience.” (Muslim, from Imran ibn Husayn.)

According to most jurists, including the Shafi‘i and Maliki jurists, expiation is wajib so that the person making the vow will be deterred. According to Imam Abu Hanifah and Imam Ahmad, there is no expiation.

A permissible vow: As stated earlier, a vow is valid when it concerns an act of worship suitable for drawing near to Allah, but a vow concerning a sinful act is not valid. An example of a permissible vow is: “Riding this train or wearing this garment is wajib or obligatory upon me for Allah.” According to most scholars, this is not a vow at all, and no expiation is required for it.

Imam Ahmad narrated that while the Messenger of Allah (peace and blessings be upon him) was delivering a sermon, he saw a Bedouin standing in the sun. He asked: “What is the matter with you?” The man replied: “I have vowed to stand in the sun until the Messenger of Allah (peace and blessings be upon him) finishes his sermon.” The Messenger said: “This is not a vow. A vow may be made only for an act through which Allah’s pleasure can be attained.”
Imam Ahmad (may Allah have mercy on him) said that this type of vow is also effective. The person making the vow may fulfill it or may refrain from fulfilling it, but if he does not fulfill it, offering expiation is obligatory. The author of Rawdat al-Nadiyyah preferred this view and said that a vow concerning a permissible matter also deserves to be called a vow, and, like all other vows, must be fulfilled. The hadith narrated by Abu Dawud supports this view: A woman said, “O Messenger, I have vowed that if you return safely from the expedition, I will beat a drum over your head.” He told her: “Fulfill your vow.” If beating a drum is not permissible, it must at least be makruh or worse; it is certainly not an act of worship. If it is permissible, this hadith proves that fulfilling a vow concerning a permissible act is wajib. If it is makruh, then the command to fulfill a vow concerning a makruh act proves even more clearly that fulfilling a vow concerning a permissible act is obligatory.

Conditional and unconditional vows: A vow may be conditional or unconditional. A conditional vow is made when something pleasant occurs or a calamity appears, causing a person to desire nearness to Allah and deliverance from the calamity. For example, he says: “If Allah cures my sick person, I will feed three poor people,” or “If Allah fulfills such-and-such wish of mine, I will perform such-and-such righteous act.” In such a case, the commitment or promise must be fulfilled when the wish is fulfilled.

An unconditional vow is a commitment to do something without linking it to any condition, such as saying

“I vow for Allah to pray two rak‘ahs.” In this case, fulfilling the commitment is obligatory, because it falls under the statement of the Messenger of Allah (peace and blessings be upon him): “Whoever vows to obey Allah must obey Him.”

Vows in the names of the dead: The books of the Hanafi jurists state that the vows commonly made by ignorant people in the names of the dead, through which they seek to please revered saints by offering cash, candles, perfumes, and similar things at their shrines, are unanimously invalid and haram. An example of such a vow in the name of a deceased saint is: “O my such-and-such spiritual master, if I recover such-and-such lost item, or if such-and-such purpose of mine is achieved, I will vow in your name this much cash, food, candles, or perfume.” There are three reasons why this type of vow is haram:

1. It is a vow made in the name of a created being, whereas making a vow in the name of a created being is not permissible. A vow is an act of worship, and no one has the right to receive worship except Allah.

2. The one in whose name the vow is made is dead, and a dead person has no ownership rights.

3. If the person making the vow believes that a deceased person possesses the power to accomplish anything apart from Allah, that belief is manifest disbelief. One should seek Allah’s protection from it.
However, if someone says: “O Allah, if You cure such-and-such sick person of mine, return such-and-such lost item, or fulfill such-and-such purpose of mine, I vow in Your name to feed the poor people living near the shrine of such-and-such saint; or I vow to purchase bedding or mats for such-and-such mosque, pay for its lighting, or give money to those engaged in serving that mosque,” then this is permissible because it benefits the poor. The vow here is made for Allah alone. The saint or mosque is mentioned only because those entitled to the vowed money are engaged in serving and maintaining that institution. It is not permissible to spend vowed money or goods on a wealthy person, or on a respectable, high-ranking, or learned person who is not poor. The Shariah does not permit spending money on the wealthy.

Vowing to perform worship in a specific place: If someone vows to pray, fast, recite the Qur’an, or perform i‘tikaf in a specific place, it must be determined whether that place possesses any special merit or distinctive status according to the Shariah—for example, praying in the three principal sacred mosques: al-Masjid al-Haram, the Prophet’s Mosque, and al-Masjid al-Aqsa. If it does possess such special merit or distinction, fulfilling the vow in that place is obligatory; otherwise, it is not obligatory.

According to the Shafi‘i school, when a person vows to give charity to the inhabitants of a particular city, he must fulfill the vow in that city. If he vows to fast in a particular city, fasting as a means of drawing closer to Allah is obligatory for him, but specifying that city as the place of fasting is not obligatory. He may fast anywhere else. If he vows to perform prayer in a particular city, that city is not thereby specified; he may pray elsewhere, since prayer does not differ according to place. However, if someone vows to pray in one of the three mosques—the Sacred Mosque, the Prophet’s Mosque, or al-Aqsa Mosque—then, because of the immense virtue of these three mosques, he must pray in the mosque specified in the vow. If he vows to pray in the Sacred Mosque, however, the vow will be fulfilled by praying anywhere within the entire Sacred Precinct. The Messenger of Allah, peace and blessings be upon him, said: “No journey should be undertaken for the purpose of visiting any sacred place except three mosques: the Sacred Mosque, this mosque of mine, and al-Aqsa Mosque.”

The Shafi‘is’ evidence for specifying the place of a charity vow is the report narrated from ‘Amr ibn Shu‘ayb, may Allah be pleased with him: A woman came to the Messenger, peace and blessings be upon him, and said, “O Messenger of Allah, I have vowed to slaughter an animal at the place where the people of the Age of Ignorance used to slaughter livestock.” The Messenger of Allah, peace and blessings be upon him, asked, “In the name of an idol?” She replied, “No.” He asked again, “For a deity?” She replied, “No.” The Messenger of Allah, peace and blessings be upon him, said, “Then fulfill your vow without hesitation.”

The Hanafi jurists have said: Whoever vows to perform two units of prayer at a particular place or to distribute charity among the poor of a particular city may fulfill the vow somewhere other than that place, according to the view of Imam Abu Hanifah and his two disciples. This is because the purpose of a vow is to draw closer to Allah, and no particular place has any role in achieving that nearness. If someone vows to perform two units of prayer in the Sacred Mosque and then prays in a place of lesser virtue, or in a place with no particular virtue at all, the vow is nevertheless fulfilled according to them. The essential purpose is to draw closer to Allah, and that can be achieved anywhere.

Making a vow in the name of a particular righteous person: If someone vows, during a particular great person’s lifetime, to give him charity because of his poverty and need, the vow is valid. It is regarded as an act of benevolence and public service, which Islam encourages. But if he is dead and the one making the vow intends to seek help from that deceased person and have his needs fulfilled through him, then it is a sinful vow, and fulfilling it is impermissible.

When one vows to fast but is unable to fulfill it: If someone vows to observe a legally valid fast but is unable to fulfill it because of extreme old age or an illness from which recovery is not expected, it is permissible for him not to fast and to offer the expiation for an oath, or to feed one poor person for each fast. Some have said that, as a precaution, both offering the expiation and feeding the poor are necessary.
The oath to give financial charity: Whoever swears to give all his property in charity, or says, “My property is dedicated to the cause of Allah,” is considered to have sworn to give most of his property, and he must offer the expiation for an oath. This is also the view of Imam al-Shafi‘i. According to Imam Malik, he must give one-third of his property. Imam Abu Hanifah says that he must give all property on which zakat is due, excluding property such as land and livestock on which zakat is not due.

Expiation for a vow: When the person who made a vow is unable to fulfill it or withdraws the vow, the expiation for an oath becomes due from him. ‘Uqbah ibn ‘Amir, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “When no specific expiation is prescribed for a vow, its expiation is the expiation for an oath.” (Ibn Majah and al-Tirmidhi; al-Tirmidhi considered it an authentic hadith.)

If one dies before fulfilling a vow to fast

Ibn Majah narrated that a woman asked the Messenger of Allah, peace and blessings be upon him: “My mother had vowed to observe some fasts, but she died before fulfilling them.” The Messenger of Allah, peace and blessings be upon him, said: “Her heir should fast on her behalf.”

Chapter Thirty-Three: Trade

Setting out very early in the morning to seek a livelihood: Imam al-Tirmidhi narrated from Sakhr al-Ghamidi that the Messenger of Allah, peace and blessings be upon him, said: “O Allah, bless my community in its early-morning efforts to earn a livelihood.” Whenever he dispatched a small or large force somewhere, he sent it at the beginning of the day. Sakhr was a merchant. Whenever he sent out a trading caravan, he sent it at the beginning of the day. As a result, he became wealthy and acquired great riches.

Halal earnings: It is narrated from ‘Ali, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “Allah loves to see His servant occupied with earning lawful wealth.” (Al-Tabarani and al-Daylami.)

It is narrated from Malik ibn Anas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “Earning lawful money is obligatory upon every Muslim.” (Al-Tabarani.)

It is narrated from Rafi‘ ibn Khadij, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, was asked: “O Messenger of Allah, which earning is the purest?” He replied: “That which a person earns with his own hands, and every honest trade.” (Ahmad, al-Bazzar, and al-Tabarani.) (That is, trade free from what is unlawful and from deception. Agriculture, commerce, and industry are the principal sources of earnings. Among these, what is done with one’s own hands, and wealth acquired as spoils from jihad, are purer and more blessed. Others hold that business and commerce are the purest and most blessed forms of earning.)

Knowing the Shari‘ah rulings concerning buying and selling is obligatory: Everyone engaged in earning a livelihood must know how earnings can be correct and lawful and how they can be unlawful and defective, so that his transactions are valid and his income and expenditure are free of defects. It is reported that ‘Umar, may Allah be pleased with him, used to patrol the marketplace, sometimes striking certain merchants with a whip, and saying: “No one may buy or sell in our marketplace except one who knows the rulings of the Shari‘ah. For whoever does not know the rulings of the Shari‘ah will inevitably consume usury, whether intentionally or unintentionally.”

Today, many Muslims do not recognize the need to know the rules of transactions and neglect this matter. They are concerned only with gaining extra profit and increasing their income, and they do not care about unlawful earnings. This is a grave wrong. Every merchant must refrain from this wrongdoing, distinguish between what is lawful and unlawful, keep his earnings legitimate and lawful, and avoid even doubtful transactions as far as possible. The Messenger of Allah, peace and blessings be upon him, said: “Acquiring knowledge of Islam is obligatory upon every Muslim man and woman.” Therefore, whoever wishes to eat lawful food, earn lawful wealth, and gain people’s trust and Allah’s pleasure should be cautious in this matter.

Nu‘man ibn Bashir, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “The lawful has been clearly explained, and the unlawful has also been clearly explained. Between the two are some doubtful matters (about which there is evidence in the Shari‘ah both for and against, and concerning which the jurists differ). Whoever abandons doubtful matters in order to avoid sin will be more certain to remain safe from clear unlawfulness. But whoever dares to engage in doubtful sinful matters is likely to fall into clear sin. Sinful matters are Allah’s protected pasture. Whoever grazes near that pasture is likely to enter it.” (Al-Bukhari and Muslim.)

Definition of trade: Lexically, trade means exchange, whatever its type. In the terminology of the Shari‘ah, it means exchanging one commodity for another by mutual consent of two parties, or transferring property in exchange for something by a method sanctioned by the Shari‘ah.

The status of trade in the Shari‘ah: Trade is established as lawful by the Qur’an, the Sunnah, and ijma‘ (the unanimous view of the Muslim community). In verse 275 of Surat al-Baqarah, Allah says:وَأَمَلَ اللَّهُ الْبَيْعَ وَمَرَّاً الرَّبواAllah has permitted trade and forbidden usury.

And the Messenger of Allah, peace and blessings be upon him, said: “The best earning is that acquired through a person’s labor and through every honest (unadulterated and deception-free) trade.”

From the time of the Messenger of Allah, peace and blessings be upon him, until our own time, the entire Muslim community has maintained complete consensus regarding the legality of trade.

The rationale for the permissibility of trade: The Almighty Allah permitted trade, that is, buying and selling, for the benefit of His servants. Every person needs food, clothing, and other such things. As long as a person remains alive, these things are absolutely essential for maintaining life. No one can, by himself, store a sufficient quantity of all these necessities. He must obtain them from others. Therefore, no system is more complete than exchange. In return for receiving from another person the things he needs, he gives that person the things he possesses but does not need. This is the system of exchange, and this is the essence of trade.

The result of completing a trade lawfully: Once the contract of trade, its essential elements, and its conditions have been completed, the seller must transfer ownership of the commodity to the buyer, and the buyer must transfer ownership of its price to the seller. In addition, it becomes lawful for both buyer and seller to make every use permitted by the law of whatever has had ownership transferred to them.

The elements of trade: Trade is completed through offer (ijab) and acceptance (qubul). In the case of buying and selling minor items, offer and acceptance are not necessary; the direct exchange of the commodity and its price is sufficient. The customary and well-known practice of society serves as the governing standard in this matter. There is no obligation to use any particular words for offer and acceptance, because in a contract what matters is the intention of both parties, not the words. (Trade falls within the sphere of people’s mutual transactions, and sincere consent is its basis. If this consent remains concealed and unexpressed, the other party cannot know it. Therefore, the Shari‘ah has accepted words or phrases that express inner consent as signs of consent and declared its rulings to depend upon them. Ijab is the first proposal expressed by either of the two parties, the buyer or the seller. Qabul is the subsequent statement or response expressed by the other party in reply to the proposal. The proposer, or offeror, may be either the buyer or the seller. Likewise, either party may be the acceptor.) Buying and selling is also completed by any word or phrase that indicates consent to an exchange-based transaction and transfer, expresses an attitude of agreement between the two parties, or manifests or states a sign indicating the granting of ownership. For example, the seller may say, “I have sold,” “I have given,” “I have transferred ownership,” “This is yours,” or “Give me the price.” The buyer may say, “I have bought,” “I have accepted,” “I agree,” or “Take the price.”

Conditions for offer and acceptance: Offer and acceptance are the means of concluding a contract. The validity of offer and acceptance depends on fulfilling three conditions:

First, while both parties are present in the same session, they must communicate with each other without any harmful interruption.

Second, the offer and acceptance of both parties must correspond regarding the commodity and price to which their mutual agreement is essential. If they do not correspond, the sale is invalid. Thus, if the seller says, “I have sold you this piece of cloth for five pounds,” while the buyer says, “I am willing to buy it for four pounds,” no sale has been concluded between them, because the offer and acceptance do not correspond. Third, offer and acceptance must be expressed in the past tense. For example, the seller says, “I have sold,” and the buyer says, “I have agreed.” If offer and acceptance are expressed with words indicating the future, they are regarded under the Shari‘ah as a promise to buy and sell, not as a contract of sale.

Concluding a sale contract in writing: Just as buying and selling is completed through verbal offer and acceptance, it can also be completed through making and accepting an offer in writing. However, the condition for concluding a sale in writing is that one party be at a distance from the other, or that the person concluding the contract in writing be unable to speak because he is mute. If the buyer and seller are both in the same session and there is no obstacle or valid excuse preventing them from speaking to each other, a sale cannot be concluded through written offer and acceptance, because writing is not an alternative or equivalent to speech. Speech is the clearest and most explicit means. If there is a valid reason to use an alternative to speech, however, offer and acceptance may be conducted in writing. In this case, the condition is that the person to whom the written offer was addressed must accept it while still in the place where the letter was read.

Concluding a contract through a messenger: Just as buying and selling can be concluded through conversation and correspondence, it can also be concluded through a messenger sent by one of the two parties. The condition is that the person to whom the messenger was sent accept the message immediately upon receiving it. In both cases, the sale is concluded as soon as the offer is accepted, whether or not the sender of the offer knows that it has been accepted.
Sales by a mute person: A mute person concludes a sale through the familiar gestures by which he expresses his thoughts, just as it is concluded through spoken words. If the mute person knows how to write, he may also conclude the sale in writing instead of by gestures. Although some jurists have stipulated that offer and acceptance are valid only with certain specific words, no evidence supporting this has been found in the Qur’an or Sunnah.

Conditions for a valid sale: Buying and selling, or trade, has certain conditions. Fulfilling these conditions is necessary for the soundness and validity of a trade. Some of these conditions relate to the buyer and seller, while others relate to the commodity or price.
Price: If it is lost or destroyed, the sale contract is not invalidated. Changing it before transfer is also permissible.
Commodity: If it is destroyed, the sale contract is not invalidated, nor is its availability nullified. If it is defective, its sale is invalidated. Altering it is not permissible.

Conditions concerning the buyer and seller: The conditions for being a buyer or seller are reaching adulthood and being of sound mind. Thus, it is not valid for a madman, an intoxicated person, or a minor to conclude a sale or trade-related contract. A person who is intermittently sane and insane has a valid contract when made while sane and an invalid contract when made while insane. However, a boy or adolescent who understands good and evil may conclude a contract subject to the guardian’s approval. If the guardian approves it, it is legally valid.

Conditions concerning the commodity: There are six conditions for the validity of a commodity: 1. It must be pure. 2. It must be beneficial. 3. The buyer or seller must own it. 4. It must be transferable. 5. It must be known. 6. The sold commodity must be deliverable. The details of these conditions are given below:

First condition: The commodity must be pure. Jabir, may Allah be pleased with him, said that the Messenger of Allah, peace and blessings be upon him, said: “Allah has forbidden the sale of wine, carrion, swine, and idols.” The people said, “O Messenger of Allah, what do you think about the fat of carrion? It is used to coat boats and leather, and people use it to light lamps.” The Messenger of Allah, peace and blessings be upon him, said, “No, it is unlawful”—that is, its sale is unlawful. For in the same hadith, the Messenger of Allah, peace and blessings be upon him, condemned a Jew for selling it. Therefore, apart from selling it, using the fat of carrion in ways that do not amount to consuming it and do not cause it to enter the human body is permissible. Thus, it is permissible to use it to coat leather and light lamps. In explaining this hadith, the scholar Ibn al-Qayyim says in his book I‘lam al-Muwaqqi‘in:

“Regarding the Messenger of Allah’s statement about the fat of carrion, ‘It is unlawful,’ there are two views. Some say that it means these uses are unlawful. Others say that it means selling it is unlawful, even if the buyer purchases it specifically to use it for these purposes. These two views must be considered in light of whether the question concerned selling it for the mentioned benefits or the benefits themselves. He did not initially inform them that these uses of the fat were forbidden, which is why they presented this need to him. Rather, he merely informed them that selling the fat was forbidden. They then told him that they sold it precisely for these uses. The Messenger of Allah, peace and blessings be upon him, therefore did not permit them to sell the fat, but he did not forbid them from using it for these purposes. A thing’s sale may be unlawful while benefiting from it may still be lawful. The Messenger of Allah, peace and blessings be upon him, then said: ‘May Allah curse the Jews. When Allah prohibited the fat of carrion for them, they melted it, sold it, and consumed its price.’”

According to most scholars, the reason the sale of the first three things—that is, wine, carrion, and swine—was prohibited is that they are impure. This establishes that selling every impure thing is unlawful. However, the jurists of the Hanafi and Zahiri schools hold that selling things possessing a benefit recognized by the Shari‘ah is permissible. They say that manure and waste which must be used in fields and farms, and which are useful as fuel or fertilizer, may be sold.

Likewise, the sale of other impure things that can be used for purposes other than eating and drinking is permissible, such as impure oil, which can be used to light lamps and apply color. If dye becomes impure for some reason, it may be sold for coloring. Al-Bayhaqi narrated with an authentic chain that Ibn ‘Umar, may Allah be pleased with him, was asked what should be done if a mouse falls into oil. He said, “Use it to light lamps and dye leather.” Once the Messenger of Allah, peace and blessings be upon him, saw a dead goat belonging to Maymunah, may Allah be pleased with her. He said, “Could you not remove its skin, tan it, and use it?” The people said, “O Messenger, it is carrion.” The Messenger of Allah, peace and blessings be upon him, said, “Allah has only forbidden eating it”—that is, benefiting from it in ways other than eating it is permissible. As long as benefiting from it for purposes other than eating remains permissible, selling it also remains permissible, provided the purpose of the sale is to obtain a lawful benefit.

The response to the hadith narrated by Jabir, may Allah be pleased with him, is that this prohibition applied in the early period. Later, when Islam had become firmly established in the hearts of Muslims, its use for purposes other than eating was permitted.
It should be noted in passing that the impurity of wine was discussed in detail in the first volume of Fiqh al-Sunnah. The reason for prohibiting the sale of wine is perhaps that it removes the intellect—the greatest blessing Allah has given human beings. It also has other harms, which we discussed in the second volume. As for swine, it is impure and also carries harmful germs that do not die even when boiled in fire. In addition, swine carry long worms that suck essential nourishment from the human body. The reason for prohibiting the sale of carrion is that most animals die from one illness or another, so eating their meat is harmful to health. Moreover, people naturally feel aversion and disgust toward them. Animals that die suddenly also decompose very quickly because blood remains trapped in them. Blood is an excellent medium for the growth and preservation of disease-causing germs that do not die even when boiled in fire. For the same reason, consuming and selling flowing blood is unlawful.
Second condition: The commodity must be beneficial. It is not permissible to sell snakes, mice, and insects that have no benefit. However, it is permissible to sell cats, bees, tigers, lions, animals suitable for hunting, and animals whose skins can be used. It is permissible to sell elephants for transport. Likewise, peacocks, parrots, and attractive birds may be sold, whether or not their meat is lawful, because hearing the calls of some birds is enjoyable, while seeing others is enjoyable and provides lawful entertainment. It is forbidden to sell dogs except those trained for hunting, because the Messenger of Allah, peace and blessings be upon him, prohibited their sale. According to Imam Abu Hanifah, however, dogs that can be domesticated, such as guard dogs and dogs used in farming, may be sold. ‘Ata and al-Nakha‘i hold that no dogs other than hunting dogs may be sold. If someone kills a dog whose sale is unlawful, Imam al-Shawkani says that, according to the jurists who prohibit selling dogs, he is not required to pay its value. According to those who consider their sale permissible, he must pay its value. Imam Malik holds that selling dogs is unlawful, but their killer must pay their value. According to some reports, Imam Malik considered selling dogs disliked. Imam Abu Hanifah says that selling dogs is permissible and that whoever kills one must pay its value.

Selling musical instruments: Music is permissible in certain circumstances. Music intended to achieve a lawful benefit may be sung and listened to; thus it becomes a lawful benefit, and buying and selling its accessories is also permissible. It has a specific useful function. Examples of lawful music:

1. Songs sung by mothers to comfort and amuse children.

2. Songs sung by people engaged in various occupations while working, so that the hardship of their labor is eased and mutual assistance and coordination are increased.

3. Songs sung to promote and publicize celebrations.

4. Songs sung to express joy at festivals and similar occasions.

5. Songs sung to increase enthusiasm for jihad.

Likewise, songs sung to create motivation and enthusiasm for every act of worship. A song or music is nothing more than its words. If the words of the music are good, the music is good; if the words are bad, the music is bad. If the music contains obscenity, encouragement to sin and immorality, or words that make people heedless of worship, then that music is not lawful.

Music is essentially lawful. Only words that encourage sin and obscenity cast it outside the bounds of what is lawful. The hadiths that state that music is prohibited must be understood in this context.

The evidence that music is essentially lawful is as follows:

1. Imam al-Bukhari and Muslim narrated from ‘A’ishah, may Allah be pleased with her: Once, on the day of Eid, two slave girls were singing and beating a drum in ‘A’ishah’s presence. The Messenger of Allah, peace and blessings be upon him, was covering his face with a cloth. At that moment, Abu Bakr, may Allah be pleased with him, came in and rebuked the two girls, making them stop. The Messenger of Allah, peace and blessings be upon him, immediately uncovered his face and said: “O Abu Bakr, let them sing. Today is the day of Eid.”

2. Imam Ahmad and al-Tirmidhi narrated with an authentic chain that, after the Messenger of Allah, peace and blessings be upon him, returned from a battle, a Black slave girl came and said, “O Messenger of Allah, I vowed that if Allah brought you back safely, I would sit before you, beat a drum, and sing.” The Messenger of Allah, peace and blessings be upon him, said: “If you made the vow, then do so.” She immediately began beating the drum.

3. It has been authentically reported through sound chains regarding numerous Companions and Followers that they listened to singing and musical instruments. Among the Companions, Abdullah ibn al-Zubayr and Abdullah ibn Ja’far may Allah be pleased with them are noteworthy; among the Followers, Umar ibn Abd al-Aziz, the judge Shurayh, and the mufti of Madinah, Abd al-Aziz ibn Muslimah, may be mentioned.

The third condition: The commodity must be owned by the seller or authorized by its owner, so that a contract of sale may be concluded regarding it. If a sale is made before permission is obtained, it is a fuzuli transaction.

Fuzuli transactions: A fuzuli transaction is buying or selling without the permission of the person in whose name the commodity is bought or sold. For example, selling property owned by a wife without her permission, purchasing something with her property without her permission, selling property belonging to an absent person without his permission, or purchasing something for him without his permission, as commonly occurs. A fuzuli transaction is valid, but its effectiveness depends on the permission of the owner, his lawful guardian, or his heir, and remains suspended until permission is obtained. If permission is given, it becomes effective; if not, it is void. The evidence is the hadith narrated by Imam al-Bukhari from Urwah al-Bariqi: “The Messenger of Allah, peace and blessings be upon him, sent me with one dinar to buy a sheep for him. I bought two sheep with that one dinar, sold one for one dinar, and returned to the Messenger of Allah, peace and blessings be upon him, with a sheep and one dinar. The Messenger of Allah, peace and blessings be upon him, said: ‘May Allah bless your transaction.’”

Imams Abu Dawud and al-Tirmidhi narrated from Hakim ibn Hizam, may Allah be pleased with him: The Messenger of Allah, peace and blessings be upon him, sent him (Hakim) with one dinar to purchase a sacrificial animal. Hakim bought a sacrificial animal for one dinar and sold it for two dinars. He then bought another animal for one dinar, returned to the Messenger of Allah, peace and blessings be upon him, with the animal and the dinar, and thus made a profit of one dinar. The Messenger of Allah, peace and blessings be upon him, said: “May Allah bless your business.”

The first hadith states that Urwah bought the second sheep for the Messenger of Allah, peace and blessings be upon him, without his permission and sold it again without his permission. When he later returned to the Messenger of Allah and informed him of the matter, the Messenger of Allah, peace and blessings be upon him, approved his action and prayed for him. This proves that buying and selling the second sheep was valid. It also proves that buying and selling another person’s property without permission is permissible; its effectiveness merely depends on the owner’s approval, so that the owner suffers no harm from the action.

The second hadith states that Hakim ibn Hizam first bought a sheep and sold it, and it thereby became the property of the Messenger of Allah, peace and blessings be upon him. He then bought another sheep for him without his permission. The Messenger of Allah, peace and blessings be upon him, approved this action, ordered that the sheep he brought be sacrificed, and prayed for him. It is thus known that the sale of the first sheep and the purchase of the second were valid. Had they not been valid, he would not have approved his action, but would have ordered him to annul the contract.

The fourth condition: The commodity sold or purchased must be legally and practically transferable. It is not valid to sell something that cannot practically be transferred, such as fish swimming in water. Imam Ahmad narrated from Ibn Mas’ud, may Allah be pleased with him: “Do not buy fish in the water, for that is deception.” This hadith has also been narrated from the Messenger of Allah, peace and blessings be upon him, by Imran ibn Husayn, may Allah be pleased with him.

It is forbidden to purchase a diver’s possible catch—for example, when a professional diver says, “Whatever I obtain on this dive, I will give you for such-and-such an amount.” The same applies to a child in its mother’s womb. Likewise, it is invalid to buy and sell a bird that has flown away and is not accustomed to returning to its roost. Even if it is accustomed to returning, regardless of whether it returns at night, nevertheless most

scholars hold that the sale of any bird other than bees is invalid. This is because the Messenger of Allah, peace and blessings be upon him, prohibited selling what people do not possess. According to the three imams other than Imam Abu Hanifah, it is permissible to buy and sell silkworms separated from their cocoon and bees if they are confined in their hive and visible to both buyer and seller.

According to the Hanafis, the sale of birds other than bees is valid, since they can be transferred. It is also invalid to sell the semen of bulls, he-goats, camels, horses, and other male animals. Imam al-Bukhari and others narrated that the Messenger of Allah, peace and blessings be upon him, prohibited this, because its form, quantity, and price cannot be specified or known, nor can it be transferred. Most scholars hold that selling or leasing a male animal for breeding is haram. However, there is no objection to whatever is voluntarily given for breeding by a male animal without stipulating a condition. According to Imam Malik, a group of Hanbalis and Shafi’is, and Imam al-Hasan and Ibn Sirin, it is permissible to lease a bull for mating for a specified period. On the other hand, it is not permissible to sell the milk in a cow’s udder before milking it, because of the uncertainty and ambiguity involved.

Imam al-Shawkani said: If someone sells a specified quantity, however, it is valid. For example, if the seller says, “I sell you one sa’ of milk from my cow.” Evidence from hadith supports the permissibility of this type of sale, because there is no room here for uncertainty, ambiguity, or deception. Similarly, a wet nurse’s breast milk may be sold when necessary. However, it is not permissible to sell wool while it remains on an animal’s back, because the sold and unsold portions are mixed and the commodity cannot be transferred.

According to one report, it is permissible to sell wool on an animal’s back on the condition that it be cut. In that case, the quantity of the wool sold is known and it can be transferred.

It is narrated from Ibn Abbas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, prohibited selling dates before tasting them, selling wool while it is on an animal’s back, and selling ghee while it remains within milk. (Al-Daraqutni) A commodity that cannot legally be transferred, such as mortgaged or endowed property, may not validly be sold. Nor is it valid to separate an animal from its young and sell either one, because the Messenger of Allah, peace and blessings be upon him, prohibited torturing animals. Some scholars, however, consider this permissible, just as slaughtering an animal is permissible; this is the stronger view. According to most jurists, selling the debt of an indebted person is permissible. However, according to the Hanafi, Hanbali, and Zahiri schools, selling it to someone who is not indebted is impermissible, because the seller cannot transfer the debt sold to the buyer. If transfer to the debtor is stipulated as a condition, it is likewise impermissible, since this amounts to imposing a condition on someone who is not a party to the sale. Such a condition is invalid, and because of its invalidity the sale must also be invalid.

The fifth condition: The commodity and its price must be known. If both are unknown, or either one is unknown, the sale is invalid, because this leaves room for ambiguity and deception. Directly viewing a specified commodity is sufficient knowledge of it, whether or not its quantity is known, as in sales by the bundle or auction sales. However, when a commodity is held in someone’s custody, its quality and quantity must be known to both buyer and seller. It is also necessary to know the quality and amount of the price and the time for its payment. There are separate rulings concerning commodities absent from the contract session, commodities that are difficult or risky to inspect, and commodities sold in bundles. These rulings are set out below:

A commodity absent from the contract session: It is permissible to sell a commodity absent from the contract session on condition that a description is provided through which its proper characteristics can be known.

If it is later found to correspond to the description, the sale contract becomes binding. If a discrepancy is found, either the buyer or the seller has the option to accept or reject the contract. Imam al-Bukhari and others narrated that Ibn Umar, may Allah be pleased with him, said: “I sold to the Commander of the Believers, Uthman, land in Wadi in exchange for his land in Khaybar.” Abu Hurayrah, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “Whoever buys something without seeing it may return it after seeing it.” (Al-Daraqutni, al-Bayhaqi)

Sale of commodities whose inspection may cause harm or difficulty: The sale of a commodity is valid when it is described or its qualities are known according to customary practice. Examples include preserved food, bottled medicine, oxygen, benzene, gas cylinders, and similar items that are not opened except when used, because opening them carries a risk of harm or difficulty. The same applies to grains or fruits concealed beneath the soil, such as potatoes, onions, and yams. It is not possible to remove and sell all of these commodities at once, nor is it possible to sell them piece by piece, since this is difficult and may cause the commodity to spoil or become unusable. Such products are generally sold by concluding a contract over a broad field, because the crops hidden beneath the soil cannot be sold except as they stand. If it is found that the sold commodity differs so greatly from its sample that either party would suffer harm, that party may choose to uphold or annul the contract. For example, if someone buys eggs and finds them spoiled, he may keep them or return them.

This is the view of the Maliki school. Allamah Ibn al-Qayyim gave preference to this view in his book I’lam al-Muwaqqi’in. Most scholars, however, hold that the sale is void in such a case, because it involves prohibited deception and ambiguity. According to the Hanafi school, the sale is valid, but it may be annulled after inspection.

Sale by the bundle: Approximate sales of commodities of unknown quantity were customary among the Companions during the time of the Messenger of Allah, peace and blessings be upon him. After viewing a commodity directly, the buyer and seller would conclude a sale contract. Although its exact quantity was unknown, experienced people estimated it so accurately that they rarely made mistakes. Although there was some risk of deception, it was so slight that it was generally tolerated. Ibn Umar, may Allah be pleased with him, said: People used to buy and sell foodstuffs by estimation in the center of the market. The Messenger of Allah, peace and blessings be upon him, prohibited selling them until they had been brought to the buyers. Thus it is known that he permitted approximate sales by the bundle, but prohibited selling them before bringing them to the market. According to Ibn Qudamah, selling by the basket is unanimously valid, whether its quantity is known or unknown.

The sixth condition: If the commodity sold came into the seller’s possession in exchange for something, it must also have come into his actual possession. Otherwise, its sale is invalid. The details are as follows:

Property received through inheritance or bequest, deposited property, and property acquired without consideration may be sold both before and after coming into one’s possession. Similarly, whoever purchases something may, after it comes into his possession, sell it, give it away, or otherwise make any lawful disposition of it. Before it comes into his possession, every disposition other than sale is valid. The reason dispositions other than sale are valid is that the buyer acquired ownership merely through the contract and may do whatever he wishes with property he owns. Ibn Umar, may Allah be pleased with him, said: “It is customary that whatever is covered by a purchase contract becomes the buyer’s property.” (Al-Bukhari)

The reason a sale is invalid before possession is that the commodity may have been destroyed while still with the first seller. If that occurs, the sale is deceptive, and a deceptive sale is always invalid, whether the commodity is immovable or movable property and whether its quantity is specified or unspecified. Imam Ahmad and al-Bayhaqi narrated that Hakim ibn Hizam said: “O Messenger of Allah, I buy many things. Which of them are forbidden and which are lawful for me?” He said: “When you buy something, do not sell it until you take possession of it.” Imam al-Bukhari and Muslim narrated that during the time of the Messenger of Allah, peace and blessings be upon him, when people bought foodstuffs in bulk, they were prohibited from selling them until they had transported them to their caravans. The permissibility of exchanging gold or silver for the other before possession is an exception to this principle. Ibn Umar, may Allah be pleased with him, asked the Messenger of Allah, peace and blessings be upon him, whether he could sell camels for dinars and take dirhams in exchange, and he permitted him to do so.

Meaning of taking possession: Possession of immovable property is complete when the person to whom ownership has been transferred is enabled to benefit from it as he wishes—for example, to cultivate the land, live in the house, or harvest the fruit of the trees. Possession of movable property, such as food, clothing, and animals, is completed in the following ways:

1. If the commodity is measurable, its quantity is determined by measuring or weighing it.

2. If the quantity of the commodity is unknown, he must be able to move it wherever he wishes without first determining its quantity.

3. In the case of other commodities, possession is completed according to customary practice.

The evidence that possession is completed by determining the quantity of movable property is a hadith narrated by al-Bukhari:

The Messenger of Allah, peace and blessings be upon him, said to Uthman ibn Affan, may Allah be pleased with him: “When you stipulated that it be measured, then measure it.” This proves that when determining the quantity by measuring or weighing has been stipulated, it is obligatory to determine it in that manner. Thus, whether it is food or something else, possession of any commodity whose ownership is customarily established and which can be measured or weighed must be established by determining its quantity. The necessity of transferring the commodity is proved by the following hadith narrated from Ibn Umar, may Allah be pleased with him, by al-Bukhari and Muslim:

Ibn Umar, may Allah be pleased with him, said: “We used to buy food from riders without determining its quantity. The Messenger of Allah, peace and blessings be upon him, prohibited us from selling it before transferring it elsewhere.” This ruling is not limited to food; it also applies to other things sold without determining their quantity. As for matters about which the Qur’an and Sunnah contain no explicit instruction, the customary practice of society will be followed concerning possession. Where there is an instruction in the Qur’an and Sunnah, it will be followed; where there is no instruction, customary practice will apply.

Its rationale: The reason selling a commodity before taking possession is prohibited is that after the seller sells it, it remains his liability until the buyer takes possession. If it is then destroyed, the seller bears the loss, not the buyer. When the buyer sells it to someone else in this state and earns a profit, he profits from a commodity whose risk he did not bear. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated that the Messenger of Allah, peace and blessings be upon him, prohibited taking profit without bearing the liability for loss. Moreover, a buyer who sells his purchased commodity before taking possession is like someone who gives property to another person so that he may receive similar property from him in a slightly greater amount. This buyer cleverly includes the same commodity in two contracts, making the transaction more closely resemble usury. Ibn Abbas, may Allah be pleased with him, understood this stratagem. When he was asked why selling a commodity before taking possession was prohibited, he said: “This is dirhams in exchange for dirhams, while the food will be received later.”

Having witnesses to a sale contract: In verse 282 of Surah al-Baqarah, Allah commanded that witnesses be present when a sale contract is concluded:

وَاعْمِدُوا إِذَا تَبَايَعْتُر مَن وَلَا يَشَارُ كَاتِبٌ وَلَا عَمِيدٌ

“When you transact with one another, have witnesses, and let neither the scribe nor the witness be harmed.”

According to some jurists, the command to have witnesses here conveys recommendation and encouragement toward a beneficial act, not obligation.

However, according to Ata and Ibrahim al-Nakha’i, witnesses must be present at the sale of every item, no matter how small or insignificant. Abu Ja’far al-Tabari considered this view preferable.

Imam al-Jassas wrote in Ahkam al-Qur’an: There is no disagreement among the jurists that the commands in this verse to record contracts, have witnesses, and take collateral all convey recommendation and admonition. They have been described as beneficial, precautionary, and advantageous for the interests of religion and worldly life. None of them is obligatory. It has been reported that in many Muslim-ruled regions during the early and medieval periods, numerous sale, purchase, and transaction contracts were concluded without witnesses. Yet the jurists in those regions, despite knowing of this command, did not object. If having witnesses had been obligatory, they would not have refrained from objecting to those who abandoned it. It is also established that they regarded it as recommended, and this practice continued from the time of the Messenger of Allah, peace and blessings be upon him, until our own time. Had witnesses been present for the sales and purchases of the Companions and Followers, reports of this would certainly have been recorded extensively, with the highest degree of strength and reliability, and they would have denounced and condemned sales concluded without witnesses. Since reports of their requiring witnesses are not widespread, and no widespread objection to abandoning this practice is known, it is proven that having witnesses and recording transactions and sales is not obligatory.

Outbidding another’s sale: It is haram to make a sale over another sale. Ibn Umar, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “None of you should make a sale over the sale of his brother.” (Ahmad, al-Nasa’i)

Al-Bukhari and Muslim narrated from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “No one should make a sale over the sale of his brother.” Imam Ahmad, al-Nasa’i, Abu Dawud, and al-Tirmidhi narrated—and al-Tirmidhi classified this report as hasan—that if the same item is sold to two people, it belongs to the first one.

According to Imam al-Nawawi’s analysis, an example is as follows: A person sells a commodity on the condition that the buyer has an option to reconsider. Then another person approaches him and asks him to cancel the contract so that he can sell it at a lower price. An example of buying over another’s purchase is that the seller has an option to reconsider, then someone comes and asks him to cancel the contract so that he can buy the sold commodity from him at a higher price. This conduct in buying and selling is prohibited and sinful. If someone nevertheless makes such a purchase or sale, it is effective. This is the view of the Hanafis, Shafi’is, and other jurists. According to Dawud ibn Ali of the Zahiri school, however, it is not effective. Two views are reported from Imam Malik: according to one it is effective, and according to the other it is not. Auction sales are an exception; in that case it is permissible, because the sale is not yet final. It is established from the Messenger of Allah, peace and blessings be upon him, that he would offer a commodity for sale and say: “Who will offer more?”

When sold to two people, the commodity belongs to the first buyer: If someone sells a commodity first to one person and then sells it again to another, the later sale becomes void, because the seller is no longer the owner of the commodity he sold; it has entered the ownership of the first buyer. It makes no difference whether the second sale occurs during or after the option period, because the commodity left his ownership as soon as it was sold. Samurah, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “If a woman is married by two guardians, she belongs to the first guardian; and if someone sells the same commodity to two people, it belongs to the first buyer.”

Credit and cash sales: Sales are permissible whether the price is paid immediately or later. It is also valid, with the agreement of both parties, to pay part of the price immediately and the remainder later. If the seller increases the price because payment is deferred, this is valid, since part of the price is due in return for the deferment. This is the view of the Hanafis, Shafi’is, and most jurists.

Brokerage is permissible: Imam al-Bukhari said that Imam Ibn Sirin, Ata, Ibrahim al-Nakha’i, and al-Hasan did not consider brokerage objectionable. Mediation by a third party between buyer and seller for the purpose of facilitating a sale is called brokerage. Ibn Abbas, may Allah be pleased with him, said: If someone tells another, “Sell this garment, and whatever exceeds one hundred taka is yours,” there is nothing wrong with it. Ibn Sirin said: If someone says, “Sell this item for fifty taka; whatever profit there is belongs to you, or belongs to both you and me,” there is nothing wrong with it. The Messenger of Allah, peace and blessings be upon him, said: “Muslims are bound by the conditions they impose.” (Ahmad, Abu Dawud, al-Hakim, al-Bukhari)

Sale under coercion: Most jurists have stipulated that the seller must be free to sell his property; if someone is unlawfully compelled to sell, the sale is invalid. Allah said:

يَأَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ إِلَّا أَنْ تَكُونَ تِجَارَةٌ عَنْ تَرَاضِ مِنْكُره

“O believers, do not consume one another’s wealth unjustly, but only trade by mutual consent.” (Surah 4, al-Nisa’: 29)

In the terminology of Islamic law, trade is the name for any contract concluded with the aim of obtaining profit, such as a sale contract, lease contract, and so on. This is because obtaining profit is generally people’s objective in such contracts. Thus, trade is broader than sale.

The Messenger of Allah, peace and blessings be upon him, said: “A sale must take place only by mutual consent.” He also said: “My ummah has been absolved of all mistakes, errors, and acts committed under coercion.” (Ibn Majah, Ibn Hibban, al-Daraqutni, al-Tabarani, al-Bayhaqi, and al-Hakim)

However, if someone is compelled to sell his property for a legitimate reason, the sale is valid and effective—for example, to widen a road, build a mosque or cemetery, repay a debt, or provide maintenance for a wife or parents. In all such cases, a sale under compulsion is valid, and the approval of Islamic law is regarded as the seller’s consent. Abd al-Rahman ibn Ka’b said: Mu’adh ibn Jabal was a generous young man. He saved nothing for himself, so he continually became indebted, until eventually all his property was burdened with debt. At last he came to the Messenger of Allah, peace and blessings be upon him, and asked him to persuade his creditors to release him from the debt. But the Messenger of Allah, peace and blessings be upon him, sold all of Mu’adh’s property and paid his debts, leaving Mu’adh completely destitute. Yet it was possible that his creditors would have released him at the Messenger of Allah’s request.

Sale by a person in distress: Sometimes a person is compelled to sell whatever he has at hand for less than its fair price in order to repay a debt or meet a financial need. Such a sale is permissible, though disliked; it will not be annulled. In such a case, the ruling of the Shariah is to help the distressed person and lend him money so that he may be freed from the crisis that has befallen him. It is narrated in Abu Dawud that an elderly man of Banu Tamim, whose name is unknown, said: Ali ibn Abu Talib, may Allah be pleased with him, delivered a sermon to us and said: A grievous age will soon come upon the people, when the wealthy will withhold the wealth in their possession, although they have not been commanded to do so. Allah has said: “Do not forget graciousness among yourselves.” (Surah 2, al-Baqarah: 237) The belongings of distressed people are purchased. Yet the Messenger of Allah, peace and blessings be upon him, prohibited selling the belongings of a person in distress, selling through deception, and selling unripe grain.

Sale out of fear of oppression: If a person sells his property out of fear that an oppressor may seize it, and concludes the contract while fulfilling all the conditions of sale, this sale is not valid. For in reality, neither the buyer nor the seller desired the purchase and sale; they merely pretended. According to Imam Abu Hanifah and Imam al-Shafi’i, the sale is valid because all the conditions have been fulfilled. Ibn Qudamah says that this sale is invalid.

Sale excluding a specified portion of the goods: If someone sells goods while excluding a particular portion—for example, all the trees except one, the whole house except one room, or all the land except one part—the sale is valid. However, the excluded portion must be identified and specified. It is narrated from Jabir, may Allah be pleased with him: The Messenger of Allah prohibited selling jointly owned land, selling the fruit of jointly owned trees, and selling property while excluding a portion without identifying that portion. If a portion is excluded in a sale but remains unknown, the sale is invalid, because this creates the possibility of ambiguity and deception.

Correctly completing weights and measures: Allah has commanded that measures and weights be fulfilled. He said:واونوا الكَيْلَ وَالْمِيزَانَ بِالْقِسْطِ .

“Measure and weigh with justice.” (Surah al-An’am: 152) Allah, the Exalted, also says:

وأوفُوا الْكَيْلَ إِذَا كِلْتُمْ وَزْنُوا بِالْقِسْطَاسِ المستقيم ، ذلك غير وأحسن تأويلات

“Give full measure when you measure, and weigh with the straight balance; that is better and best in outcome.” (Surah Bani Isra’il: 35) Allah, the Exalted, also says:

ويل للمطففين الَّذِينَ إِذَا احْتَالُوا عَلَى النَّاسِ يَسْتَوْقُونَ وَإِذَا كَالُوا مَن أَو وَزَنُوهُمْ يُخْسِرُونَ الا ينى أولئِكَ أَنَّهُم مبعوثونَ لِيَوْمٍ عَظِيم يُوْمَ يَقُوْمُ النَّاسُ لِرَبِّ الْعَلَمِينَ

“Woe to those who give short measure—those who, when they take measure from people, demand it in full, but when they measure or weigh for them, give less. Do they not think that they will be resurrected for a tremendous Day, the Day when all people will stand before the Lord of the worlds?” (Surah 83, al-Mutaffifin: 1–6)

It is recommended to give extra when weighing on the scales: Suwaid ibn Qays, may Allah be pleased with him, said: Makhramah al-Abdi and I came to Makkah from Hajar with some garments. The Messenger of Allah, peace and blessings be upon him, came walking to us and bargained with us over trousers. Then we sold them to him. A man there was weighing goods on a scale for a fee. The Messenger of Allah, peace and blessings be upon him, said to him: “Weigh and give extra.” (Tirmidhi, al-Nasa’i, and Ibn Majah; according to al-Tirmidhi, this is a hasan sahih hadith.)

Kindness in buying and selling: Imam al-Bukhari and al-Tirmidhi narrated from Jabir, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “May Allah accept the person who shows kindness when buying, selling, and demanding what is owed to him.”

Deceptive sales: A deceptive sale means any sale that necessarily involves ignorance, risk, or some form of gambling. Imam al-Nawawi said: Prohibiting deceptive sales is one of the fundamental principles of the Shariah. Numerous rulings fall under it. However, two things are excluded from deceptive sales:

First, whatever is included in the sold item and whose separation would invalidate the sale, such as selling a building together with its foundation, or selling an animal together with the milk in its udder.

Second, whatever is not ordinarily considered significant and is overlooked, either because it is extremely small and insignificant or because separating, sorting, or specifying it from the principal goods is difficult. For example, entering a public bathhouse for a fixed fee, although different people spend different amounts of time and water there (the fee cannot be varied according to the amount of time and water used). Likewise, selling preserved food or a robe mixed with cotton. The Shariah has given details of the cases in which deception occurs. Some practices of the pre-Islamic era are mentioned here:

1. Prohibition of selling land by determining its area through throwing a stone: In the pre-Islamic era, people would determine and sell the area of land whose boundaries had not been specified by throwing a stone. Wherever the thrown stone landed was marked as the boundary of the land sold. Sometimes a stone was thrown to designate the item to be purchased; whichever item the stone landed on was purchased. This was called stone-throwing sale.

2. Prohibition of sale based on a diver’s dive: People would purchase in advance from a diver whatever he was expected to bring up from the seabed. The buyer and seller were bound by this agreement, and the buyer had to pay the stipulated price even if the diver found nothing. If what the diver retrieved was worth many times more than the stipulated price, the seller was nevertheless obliged to give it to the buyer.

3. Prohibition of selling the unborn offspring of an animal: It is prohibited to sell the unborn offspring of livestock before it is born, and also to sell the milk contained in its udder.

4. Prohibition of sale based on touching: It is prohibited to sell on the condition that merely touching the other party’s cloth or goods will make the sale binding, despite not knowing what the goods are like and despite the absence of mutual consent.

5. Prohibition of sale based on throwing: It is prohibited for the buyer and seller to throw whatever each has with him, making the sale binding on that basis even without the consent of both parties.

6. Prohibition of selling the crop of a field by measuring it with a specified container used for selling grain.

7. Prohibition of selling dates by measuring them with the specified container used for selling grain.

8. Prohibition of selling unripe fruit before it becomes ripe.

9. Likewise, selling wool while it is still on the animal’s back.

10. Selling ghee while it is still within the milk, and

11. Prohibition of selling in advance the offspring that will be born from a calf. The reason these things are prohibited from being sold is ignorance regarding the goods, ambiguity, and the possibility of deception.

Selling seized, usurped, and stolen goods is haram: It is haram for every Muslim to purchase something while knowing that it was unjustly taken from someone else. This is because the seller did not lawfully receive the item from its owner. Consequently, ownership of it was not transferred from the owner to the seller. Purchasing the item from him is therefore tantamount to purchasing it from someone who does not own it. Moreover, such a purchase amounts to cooperation in sin and aggression. Imam al-Bayhaqi narrated that the Messenger of Allah, peace and blessings be upon him, said: Whoever purchases stolen property while knowing that it is stolen shares in its sin and disgrace.

Selling grapes to a wine producer and selling weapons during civil disorder are unlawful: It is prohibited to sell grapes to someone whose occupation is producing wine from them, to sell weapons to anyone during civil disorder in the country, and to sell weapons to combatants under all circumstances. Likewise, it is haram to sell anything intended to be used to do something prohibited. If a contract for such a sale is concluded, it is considered void. The purpose of a contract is for both buyer and seller to benefit. This benefit is realized by each receiving the exchange: the seller benefits by receiving the price and the buyer by receiving the goods. Here, however, the intended benefit is not realized, because a prohibited act is being carried out and assistance is being given in wrongdoing and criminal conduct, which is unlawful in the Shariah. Allah has said:

وتعاونوا على البر والتقوى ، ولا تعاونوا على الإثم والعدوان .

“Help one another in righteousness and piety, and do not help one another in sin and transgression.” (Surah 5, al-Ma’idah: 2)

It is narrated from Ibn Umar that the Messenger of Allah, peace and blessings be upon him, said: Allah has cursed wine, the one who drinks it, the one who serves it, its buyer and seller, its producer, the one who arranges its production, the one who transports it, and the one to whom it is transported. The Messenger of Allah, peace and blessings be upon him, also said: Whoever withholds grapes during the grape-picking season in order to sell them to a person who produces wine from them has knowingly prepared his own entry into Hell.

Umar ibn al-Husayn said: The Messenger of Allah, peace and blessings be upon him, prohibited selling weapons during civil disorder. According to Imam Abu Hanifah and Imam al-Shafi’i, concluding such a sale contract is valid, because although its purpose is unlawful, that purpose is concealed. The matter in this case is entrusted to Allah. He alone will bring peace.

Ibn Qudamah said: Selling grape juice to someone who is certainly going to make wine from it is haram. If the buyer’s concealed intention to make wine can be known from his words or conduct, the sale becomes void and haram. If making wine is merely a possibility—for example, the buyer’s occupation or circumstances are entirely unknown, or he produces both vinegar and wine as his occupation and says nothing indicating an intention to make wine—then selling to him is permissible. This ruling applies to everything through which an intention to commit a haram act is formed, such as selling weapons to combatants, robbers, or anyone during civil disorder. Likewise, renting one’s house for the purpose of selling wine there, and similar cases. All such sales are haram, and the contracts concluded for them are void.

Selling goods mixed with prohibited items: If halal and haram goods are included together in one sales contract, there are two opinions concerning it. Some say that the contract concerning the halal goods is valid and the contract concerning the haram goods is invalid. This is one of the two opinions of Imam al-Shafi’i and the opinion of Imam Malik. Others say that the contracts concerning both goods are invalid and void.

Prohibition of excessive swearing:

1. The Messenger of Allah, peace and blessings be upon him, prohibited excessive swearing. He said: “An oath makes the goods sell, but removes their blessing.” (Al-Bukhari, from Abu Hurayrah) This is because it diminishes reverence and devotion to Allah. Moreover, it becomes a means of deceiving and cheating the buyer.

2. Imam Muslim narrated: “Beware of swearing excessively when selling, for it promotes the business, but soon causes loss to increase.”

3. The Messenger of Allah, peace and blessings be upon him, said: “Merchants are sinful.” The people said: O Messenger of Allah, has Allah not made trade halal? He said: Yes, He has. But they swear and sin, and they lie when they speak.” (Ahmad)

4. It is narrated from Ibn Mas’ud that the Messenger of Allah, peace and blessings be upon him, said: Whoever swears falsely concerning the property of a Muslim will meet Allah while He is angry with him. Then the Messenger, peace and blessings be upon him, recited before us a verse from the Book of Allah as evidence:

ان الَّذِينَ يَعْتَرُونَ بِعَهْدِ اللَّهِ وَأَيْمَانِهِمْ ثَمَنًا قَلِيلاً أُولَئِكَ الأَعْلَاقَ لَهُمْ فِي الْآخِرَةِ وَلَا يُكَلِّمُمُ اللَّهُ ولا ينظر اليهِ يَوْمَ الْقِيمَةَ وَلَا يُزَكِّهِم مَن وَلَهُمْ عَلَاب اليره

“Indeed, those who sell Allah’s covenant and their oaths for a small price will have no share in the Hereafter. Allah will not speak to them on the Day of Resurrection, nor look at them, nor purify them. For them is a painful punishment.” (Ali Imran: 77)

5. Imam al-Bukhari narrated: A Bedouin came to the Messenger of Allah, peace and blessings be upon him, and said: O Messenger of Allah, what are the major sins? He said: Associating partners with Allah. He asked: Then what? He said: A false oath. He asked: What is a false oath? He said: Seizing the property of a Muslim through a false oath. A false oath plunges the one who swears it into the Fire of Hell. According to some jurists, there is no expiation for it, because it is such a vile and grave sin that it cannot be erased through expiation.

6. It is narrated from Abu Umamah, may Allah be pleased with him, that the Messenger, peace and blessings be upon him, said: Whoever seizes the property of a Muslim through an oath, Allah makes Hell obligatory for him and forbids Paradise to him. A man said: O Messenger, even if it is something very insignificant? The Messenger, peace and blessings be upon him, replied: Even if it is a green twig from a tree.” (Muslim)

Buying and selling inside mosques: Although Imam Abu Hanifah permitted buying and selling in the mosque, he considered bringing goods into the mosque at the time of sale disliked, for the sake of keeping the mosque clean. Imam Malik and al-Shafi’i considered buying and selling in the mosque permissible but disliked. Imam Ahmad deemed it haram. The Messenger, peace and blessings be upon him, said: If you see someone buying or selling in the mosque, say: “May Allah not make your trade profitable.”

Selling at the time of the Friday call to prayer: Selling is haram when the time for a prescribed prayer becomes constricted and when the call to Friday prayer is made. According to Imam Ahmad, this sale is invalid. Allah has said:

يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلوةِ مِن يَوْمِ الجمعةِ فَاسْعَوْا إِلَى ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ ، ذَلِكُمْ غَيْرٌ لكُمْ إِن كُنتُمْ تَعْلَمُونَ

“O believers! When the call to prayer is made on Friday, hasten to the remembrance of Allah and leave all trade. That is better for you, if only you knew.” (Al-Jumu’ah: 9) The natural implication of this prohibition concerning Friday is that a sale concluded in violation of the prohibition is invalid. Other prayers should likewise be judged in the same light.

The validity of tawliyah, murabahah, and wadhi’ah: These three types of sale—tawliyah, murabahah, and wadhi’ah—are valid, provided that both buyer and seller know the purchase price of the goods. Tawliyah is selling the goods at their original purchase price without profit or loss. Murabahah is selling them with a specified profit added to the purchase price. Wadhi’ah is selling them for less than the purchase price.

Buying and selling the Noble Qur’an: All jurists agree that buying the Noble Qur’an is permissible, but they differ over whether selling it is permissible. According to the Hanbalis, selling it is invalid; according to the other three schools, it is valid. Imam Ahmad said: I find no basis for the permissibility of selling the Noble Qur’an.

Selling and renting houses in Makkah: According to Imam al-Awza’i, Imam al-Thawri, Imam Malik, Imam al-Shafi’i, and Imam Abu Hanifah, this is permissible.

Selling water: River water, seawater, spring water, and rainwater are owned collectively by all people. No one has priority over these waters. As long as such water remains in its natural reservoir, buying and selling it is not permitted. According to a narration in Abu Dawud, the Messenger of Allah, peace and blessings be upon him, said: “Muslims share ownership of three things: water, fire, and pasture.” Iyas al-Mazani narrated that he saw a group of people selling water. He said: “Do not sell water, for I heard the Messenger of Allah, peace and blessings be upon him, prohibit selling water.” However, when a person stores water, he becomes its owner, and it then becomes permissible for him to sell it. Likewise, if someone digs a pond on land he owns or uses equipment to draw water from underground, it becomes permissible for him to sell the water. When the Messenger of Allah, peace and blessings be upon him, came to Madinah, there was a well belonging to a Jew called the Well of Rumah. He sold water from that well to the public. The Messenger of Allah, peace and blessings be upon him, allowed him to continue selling this water and allowed the Muslims to purchase water from him. This continued until Uthman, may Allah be pleased with him, bought the well and endowed it for the Muslims. Selling water in such circumstances is comparable to cutting wood in the forest and selling it after acquiring ownership of it. Before anyone takes ownership of it, forest wood is available to everyone. Once a particular person owns it, selling it becomes permissible. The Messenger of Allah, peace and blessings be upon him, said: “If one of you gathers a rope, makes a bundle of firewood with it, and sells it to people, that is better for him than begging. A beggar may be given something, or he may not be given anything.”

When selling water, if an instrument for determining its quantity, such as a meter, is available, it is permissible in the Shariah to determine the quantity with it. If no measuring instrument is available, the customary practice of society will be followed. This is the ruling under normal circumstances. If abnormal conditions prevail somewhere, the owner of the water must distribute it free of charge. It is narrated from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “On the Day of Resurrection, Allah will not speak to three people: one who refuses to give his surplus water to a traveler; one who sells goods by telling lies; and one who, after pledging allegiance to a ruler, fulfills the pledge if the ruler grants him payment, but breaks it otherwise.”

Sale on the condition that the goods will be returned when the price is repaid: To meet a shortage of cash, land is sold on the condition that whenever the buyer is able to return the price, the seller will return the land. Most jurists consider this type of sale comparable to a pledge, so the rules of pledges apply to it.

Buying goods manufactured to order: Buying goods made according to a buyer’s order was practiced even before the advent of Islam. The entire Muslim community agrees that it is permissible. The offer of one party and the property of the other are the essential elements and basis of this type of purchase contract. According to customary practice, this contract is valid and sound for all goods that are manufactured and sold in this way according to an order and demand. As a result of such a contract, the buyer becomes the lawful owner of the purchased goods and the seller becomes the lawful owner of the price received.

Conditions for the soundness of the contract: A clear description must be given in advance of the type, category, quality, quantity, and other characteristics of the item to be manufactured, so that there is no ignorance or ambiguity and no room for dispute or disagreement. At the time of receiving the goods ordered, the buyer has complete freedom either to accept them at the full price or to cancel the sale after inspecting them, whether or not they conform to the description provided. This is the opinion of Imam Abu Hanifah and Imam Muhammad. Imam Abu Yusuf, on the other hand, holds that if the goods are received according to the description, the buyer has no choice and must accept them, so that the seller is protected from loss, since no one other than that buyer may accept them at the agreed price.

Selling fruit and grain: It is not permissible to sell fruit before its ripeness becomes apparent or grain before its kernels become hard, because there is a risk that the fruit and crop may be destroyed.

1. Al-Bukhari and Muslim narrated from Ibn Umar, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, prohibited the buyer and seller from selling fruit until its ripeness became apparent.

2. Imam Muslim narrated from Ibn Umar that the Messenger of Allah, peace and blessings be upon him, prohibited selling dates until the unripe date clusters became white and the possibility of their being damaged had disappeared.

3. Al-Bukhari narrated from Anas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “What do you think if Allah were to withhold the production of fruit because of one of you interfering with another person’s property?” (That is, if fruit is picked before it ripens, the remaining fruit may be ruined without ripening.)

If fruit is sold before its ripeness becomes apparent, or grain before its kernels become hard, on the condition that it will be cut immediately, and it can be benefited from without being gathered together, the sale is valid. In that case, there is no possibility of its being destroyed or becoming defective. If it is sold on the condition that it be cut, but the buyer does not cut it until it ripens, some say that the sale becomes void, while others say that it does not; rather, both parties will share in the growth that occurred in the grain during that period. Sale to the original owner or landowner: The ruling mentioned above concerns selling to someone other than the original owner or landowner. If it is sold to the original owner before its ripeness becomes apparent, the sale is valid. Likewise, if the fruit together with its tree is sold before its ripeness becomes apparent, the sale is valid. Similarly, if grain is sold to the landowner before its ripeness becomes apparent, the sale is valid, because in this case the buyer has taken complete possession of the purchased goods. How is ripeness recognized? The ripeness of dates is recognized by their becoming red or yellow. Imam al-Bukhari and Muslim narrated from Anas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, prohibited selling fruit before it ripened. Anas was asked: What is the ripeness of fruit? He replied: Its becoming red or yellow.

The ripeness of grapes is recognized by their becoming soft, giving out sweet juice, and turning yellow. In the case of black grapes, it is recognized by their becoming black. The sign of ripeness for all other fruits is that they become pleasant to eat and their ripeness becomes apparent. Imam al-Bukhari and Muslim narrated from Jabir, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, prohibited selling fruit until it became pleasant to eat. The ripeness of grains is recognized by their kernels or ears becoming hard.

Selling fruits that ripen in stages: When some of the fruit or crops have ripened, if an agreement has been made to sell the ripe and unripe portions together, selling them together is valid. Likewise, even if an agreement has been made to sell them separately, it is permissible to decide, after they ripen, to sell all the fruit or crops together. This situation may be envisaged when the trees belong to a variety that produces fruit in stages—for example, mangoes among fruits, cucumbers among vegetables, and roses among flowers. This is the opinion of all Maliki jurists and some Hanafi and Hanbali jurists. Their arguments and proofs are given below:

a. The validity of selling fruit whose ripeness has become apparent is established by the Shariah. Therefore, it is natural that fruit whose ripeness has not become apparent should be included under the ruling of ripe fruit. Similarly, a contract made concerning what currently exists also encompasses objects that do not yet exist. This ruling applies when a contract is made for the produce of an entire field or orchard. If the contract concerns only a portion, the ruling for each portion is independent.

b. If this type of sale were invalid, it would necessarily result in two prohibited things: (a) the emergence of disputes, and (b) goods being left unused. Disputes arise because contracts are often concluded over large orchards or farms. In such cases, the buyer is compelled to purchase the produce of the first stage at a time so prolonged that the produce of the second stage also becomes marketable, and it becomes impossible to separate it from the produce of the first stage. Consequently, disputes arise between the buyer and seller, and one of them appropriates the other’s goods.

The second prohibited matter arises because the seller cannot always find a buyer who will purchase the produce of the first stage. As a result, his goods will inevitably be ruined. Therefore, sale is valid in such circumstances. To rule it invalid would create hardship and deadlock, which have been removed by the following verse:وَمَا جَعَلَ عليكم في الدين من حرج“He has not placed upon you any hardship in the religion.” (Surah al-Hajj: 78)

Ibn Abidin adopted this view as the preferable one and formulated the Shariah ruling accordingly. According to most jurists, a contract in such a case is invalid, and the produce of each stage must be sold separately.

Selling wheat while it is still in the ear: It is permissible to sell wheat while it is still in the ear, vegetables while they are inside their husks, as well as mustard, rice, coconuts, nuts, and the like. Each of these is a distinct crop; therefore, selling it while it is still in the ear or husk is completely valid. However, it should be remembered that the Messenger of Allah (peace and blessings be upon him) prohibited selling them until the ears had ripened and become free from calamities. Since such transactions are made out of unavoidable necessity, they are exempted despite involving some uncertainty. This is the view of the Hanafi and Maliki schools.

Waiving liability for losses caused by calamities: The Shariah contains specific rules concerning crops that are destroyed by calamities such as drought, cold, and lack of water—events beyond human control. When fruit or crops are sold after their ripeness has become apparent, and the seller transfers them to the buyer in such a way that they remain in the field and the buyer may cut or pick them whenever and however he wishes, then if the crops are destroyed by a calamity before the time for cutting or picking arrives, the loss is considered the seller’s liability, and the buyer is not liable to pay their price. This is because the Messenger of Allah (peace and blessings be upon him) ordered that liability for calamities be waived. (Narrated by Muslim from Jabir.) According to another narration, the Messenger of Allah (peace and blessings be upon him) said: “If you sell any fruit to your brother and it is then struck by a calamity, it is not lawful for you to take anything from him in payment for it. If you do so, you will be guilty of unlawfully taking your brother’s property.”

However, it should be noted that this ruling applies only when the seller sells the fruit or crops without their root source, sells them to someone other than the owner of the roots, or the buyer delays taking possession of the goods beyond the normal time. Otherwise, in all these cases the buyer must bear the loss caused by the calamity. If the crops are damaged not by a calamity but by someone’s wrongful act, the buyer may either cancel the purchase and demand a refund from the seller, or claim the price from the person whose wrongful act caused the damage. This is the view of Imam Ahmad ibn Hanbal, Abu Ubayd, and a group of hadith scholars. Ibn al-Qayyim considered this view preferable. In his work Tahdhib Sunan Abi Dawud, he says: “Most scholars hold that the command to waive liability for losses caused by calamities is understood as recommended and an act of generosity, not as obligatory. Imam Malik said: If one-third or more is destroyed, the loss is to be waived; if less than that is destroyed, it is not to be waived. Imam Malik’s disciples said: If less than one-third is destroyed by a calamity, it is the buyer’s liability; if more, it is the seller’s.”

As evidence that the command in the hadith is understood as recommendation, it is said that the calamity occurred after ownership of the goods had been established in favor of the buyer. For he would now be permitted to sell or donate the goods if he wished.

The Messenger of Allah (peace and blessings be upon him) prohibited profiting from property for which one has not assumed liability. Therefore, since selling that property is valid, it is established that it is under his liability. It was mentioned earlier that the Messenger of Allah (peace and blessings be upon him) prohibited selling fruit or crops before their ripeness became apparent. Thus, if losses caused by calamities after ripeness became apparent were the seller’s liability, this prohibition would be meaningless.

Conditions of sale: Conditions of sale are of two types: first, valid and binding conditions; second, conditions that invalidate the contract. The first is a condition consistent with the contract. It is further divided into three types:

1. A condition that is an inevitable requirement of the sale, such as the condition of delivering the goods and paying the price.

2. A condition stipulated for the benefit of the sale contract, such as deferring payment of the price, deferring part of the price, or stipulating that the sold item must possess a specific characteristic—for example, that the animal be milk-producing or pregnant, or that the bird be trained to hunt, and so on. If the condition is fulfilled, the sale becomes binding. If it is not fulfilled, the buyer may cancel the contract because the condition was not met. The Messenger of Allah (peace and blessings be upon him) said: “Muslims are bound by their conditions.” The buyer also has the right to reduce the price in proportion to the extent to which the stipulated characteristic is absent.

3. A condition that preserves some benefit or interest of the buyer or seller—for example, stipulating in a house-sale contract that the owner may benefit from it for a specified period, such as living in it for one or two months. Similarly, an animal may be sold on the condition that the seller may ride it to a specified place. Bukhari and Muslim reported that Jabir sold a camel to the Messenger of Allah (peace and blessings be upon him) on the condition that he would ride it as far as Madinah. Likewise, the buyer may stipulate a specified benefit from the seller, such as requiring the sold goods to be delivered by the seller’s means of transport to a specified place. If the place is not specified, the condition is invalid—for example, stipulating that the goods be delivered to the buyer’s house when the seller does not know where his house is. In that case, such a condition is invalid. Muhammad ibn Maslamah bought a bundle of firewood from a woman on the condition that she would carry it and deliver it. The condition became known, but the seller did not object to it. This is the view of Imam Ahmad, al-Awza‘i, Abu Thawr, Ishaq, and Ibn al-Mundhir. According to the Shafi‘i and Hanafi schools, this sale is invalid, because the Messenger of Allah (peace and blessings be upon him) prohibited sales made subject to conditions. However, this view is incorrect, because the Prophet (peace and blessings be upon him) prohibited a sale involving multiple conditions. The second type of condition is an invalid condition. Such conditions are further divided into several categories, as follows:

a. A condition that invalidates the entire contract, such as one party requiring the other party to conclude another contract. For example, the seller says to the buyer: “I sell this to you on condition that you sell me such-and-such an item or lend it to me.” The evidence that imposing such a condition is invalid is that the Messenger of Allah (peace and blessings be upon him) said: “A sale with a prior condition or a sale involving multiple conditions is not permissible.” (Narrated by al-Tirmidhi, who declared it authentic.) Imam Ahmad said: Any condition with a similar meaning is invalid, such as someone saying: “I sell this to you on condition that you marry your daughter to me, or that I marry my daughter to you.” All such conditions are invalid. This is the view of Imam Abu Hanifah, Imam al-Shafi‘i, and most jurists. Imam Malik permitted a sale containing such a condition but considered the imposed condition void. He said: “When the sale is valid, I pay no attention to the invalid wording that was used.”

b. A condition under which the sale remains valid but the condition itself is void. This is a condition contrary to the sale contract—for example, the seller stipulates to the buyer that he may not sell or donate the item to anyone else. The Messenger of Allah (peace and blessings be upon him) said: “Any condition contrary to the Book of Allah is void, even if it consists of one hundred conditions.” (Bukhari and Muslim.) This is the view of Imam Ahmad, Hasan, al-Sha‘bi, al-Nasa’i, Ibn Abi Layla, and al-Thawri. Abu Hanifah and al-Shafi‘i, however, say that the sale is void.

c. A condition by which no sale is concluded at all. For example, the seller says: “I will sell subject to so-and-so’s consent,” or “I will sell if you bring such-and-such an item.” Likewise, any sale dependent on a future condition is invalid and unenforceable.

Earnest-money sale: An earnest-money sale is one in which the buyer pays part of the price to the seller. If the sale is subsequently completed, that amount is deducted from the total price. Otherwise, the seller keeps the amount paid as a gift from the buyer. According to most jurists, this type of sale is invalid and unenforceable, because Ibn Majah reported that the Messenger of Allah (peace and blessings be upon him) prohibited earnest-money sales. Imam Ahmad declared this hadith weak and ruled that earnest-money sales are valid. As evidence, he related from Nafi‘ ibn ‘Abd al-Harith that Nafi‘ purchased a prison for Umar, for four thousand dirhams, from Safwan ibn Umayyah. The sale would be completed if Umar approved; otherwise, Safwan would receive four hundred dirhams. Ibn Sirin and Ibn al-Musayyab said: If the buyer dislikes the item and returns it, he may also return something additional with it. Ibn Umar ruled that this sale was valid.

Sale on the condition of exemption from liability for all defects: Even if a seller sells an item on the condition that he is exempt from liability for any unknown defect, he will not be exempt. As soon as the buyer discovers a defect in the item, he may return it. This is because whether a defect exists is established only after the sale; therefore, exemption from liability cannot be granted beforehand. However, if the seller mentions the item’s defects beforehand, or if the buyer releases him from liability after the contract, the seller will be exempt. Abdullah ibn Umar sold a slave to Zayd ibn Thabit for eight hundred dirhams on the condition of exemption from liability. Later, Zayd discovered a defect in him and wished to return the slave to Ibn Umar, but Ibn Umar refused to accept the return. Consequently, both sought judgment from Uthman. Uthman said to Ibn Umar: “Can you swear that you did not know of this defect?” He replied: “No.” Uthman then returned the slave to Ibn Umar. Subsequently, Ibn Umar sold him for one thousand dirhams. Imam Ahmad narrated this incident.

Ibn al-Qayyim said: “This proves that they agreed on the validity of this sale and the validity of the condition of exemption from liability. Uthman and Zayd also agreed that if the seller had known of the defect beforehand, the condition of exemption would not exempt him from liability.”

Dispute between the buyer and seller: When the buyer and seller dispute the price and neither has any witness or evidence, the seller’s sworn statement will be accepted. The buyer must either take the item at the price stated by the seller or swear that he did not purchase it for that price but for a lower price. If the buyer swears in this manner, he is released from the obligation to accept the item, and it is returned to the seller, whether it remains intact or has been destroyed. The basis for this is a hadith narrated by Imam Abu Dawud from Abd al-Rahman ibn Qays ibn Ashyas: “Ashyas purchased several slaves from among those who had arrived from Khumus on behalf of Abdullah, for twenty thousand coins. Abdullah then sent a messenger to him to collect their price. Ashyas said: ‘I bought these slaves for only ten thousand coins.’ Abdullah said: ‘Then appoint an arbitrator to settle the dispute between me and you.’ Ashyas said: ‘You yourself are the arbitrator between me and you.’ Abdullah said: ‘I heard the Messenger of Allah (peace and blessings be upon him) say: When a dispute arises between a buyer and seller and neither has a witness, the statement of the owner of the goods shall be accepted; otherwise, the sale shall be canceled.’” The scholars accepted this hadith. Al-Shafi‘i, applying the general meaning of this hadith, said: The matter will be decided according to what both buyer and seller state under oath. When they dispute the price, the term, a condition, a pledge, or a rahn, both must swear an oath.

Ruling on invalid sales: A sale concluded in accordance with the Shariah, fulfilling all the conditions and essential elements of a sale, is a valid and lawful sale. Through it, ownership of the sold item and its price, as well as the right to benefit from it, become lawful. But if the rules of the Shariah are violated, the sale is not valid; rather, it is defective, unlawful, and void.

Thus, an invalid and unlawful sale is one that Islam has not approved. Such a sale remains incomplete and unlawful in the eyes of the Shariah, and it does not establish ownership. This remains so even if the buyer takes possession of the item or acquires control over it. An unlawful act cannot be a means of acquiring ownership.

Imam al-Qurtubi said: “Whatever is carried out through an expressly prohibited act is void. In such a case, the buyer must return the item exactly as it is. If it is destroyed after coming into his possession, then, if it has an established value, he must pay its value, such as in the case of land, animals, and furnishings. If it is an item whose equivalent is measured by weight or measure, such as grain or a similar commodity, he must repay its equivalent in that commodity.

Profit from an invalid sale: According to Hanafi jurists, if, in an invalid sale, the seller takes possession of the price, invests it in business, and earns a profit, he must cancel the sale, return the price to the buyer, and give the profit in charity. This is because he acquired that profit through a means prohibited by the explicit ruling of the Quran.

When the goods are destroyed before possession is taken:

1. If the sold item is wholly or partly destroyed before the buyer takes possession because of the buyer’s own act, the sale will not be canceled; rather, it will remain in force, and the buyer must pay the full price, because he is responsible for the item’s destruction.

2. If it is destroyed through the act of a third party, the buyer may either cancel the purchase or claim compensation from the person responsible.

3. If, before the item comes into the buyer’s possession, it is wholly or partly destroyed through the seller’s fault, the fault of the sold item, or a natural calamity, the sale will be canceled.

4. If part of the sold item is destroyed through the seller’s fault, the buyer is exempt from paying the portion of the price corresponding to the destroyed part. He is free either to take the remaining portion for its price or not to take it.

5. If part of the sold item is destroyed through the fault of the sold item itself, the buyer is not exempt from any portion of the price. He must either cancel the entire purchase or accept the remainder of the item while paying the full price.

6. If it is destroyed by a natural calamity, the buyer is exempt from the portion of the price corresponding to what was destroyed. He may either take the remaining portion upon paying the balance of the price or cancel the purchase.

When the sold item is destroyed after possession is taken: When the sold item is destroyed after coming into the buyer’s possession, the buyer bears liability for it and must pay its price unless it falls under the seller’s period of deferment. If it falls under the seller’s period of deferment, the seller must provide the buyer with its price or an equivalent item.

Price regulation: Price regulation means keeping the prices of goods within limits that prevent the seller from committing injustice and the buyer from being cheated.

Prohibition of price regulation: Imam Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated through an authentic chain from Anas: The people said, “O Messenger of Allah, the prices of goods have risen, so set the prices for us.” The Messenger of Allah (peace and blessings be upon him) said: “It is Allah who sets prices. He is the Provider, the Withholder, and the Expander. I wish to meet Allah in such a state that no one can claim against me that I committed an injustice by harming anyone’s life or property.”

From this hadith, the scholars derived the ruling that intervening to regulate or set commodity prices is unlawful, because it gives rise to the notion of injustice. Yet ordinary people are free in their financial transactions, and fixing market prices is contrary to this freedom. Protecting the buyer’s interest is not more deserving than protecting the seller’s interest. When the interests of both conflict, it is essential to give both parties the opportunity and authority to consider how their interests can be protected.

Imam al-Shawkani said: “All people have full authority over their own property. Setting the prices of goods amounts to depriving them of this authority. It is the ruler’s duty to consider the interests of all citizens. It is not his duty to regard protecting only the buyer’s interest by lowering prices as more important than protecting the seller’s interest by allowing prices to rise. When the interests of both conflict, it is his duty to give both parties the opportunity to deliberate and investigate. Compelling someone to sell goods at a price the buyer does not accept contradicts the following statement in verse 29 of Surah al-Nisa:

إلَّا أَنْ تَكُونَ تِجَارَةٌ عَنْ تَرَاضٍ مِنكُمْ

“But lawful trade is by mutual consent among you.” Moreover, setting prices causes goods to disappear from the market, resulting in higher prices. Rising prices harm the poor, who become unable to purchase goods, while the wealthy can buy them in the hidden market at greatly inflated prices. Consequently, both buyers and sellers fall into difficulty, and neither side’s interests are protected.

Price regulation is permissible in times of need: When merchants begin to commit injustice and engage in such excessive profiteering that they harm the market, it becomes necessary for the government to intervene, set prices to protect the people’s rights, prevent hoarding, and resist the injustice inflicted on the people by the merchants’ greed. For this reason, when commodity prices rise, some scholars of the Maliki and Shafi‘i schools consider price fixing permissible. Some Zaydi scholars—including Sa‘id ibn al-Musayyab, Rabi‘ah ibn Abd al-Rahman, and Yahya ibn Sa‘id al-Ansari—also consider fixing prices permissible when it is deemed necessary for the public interest.

The author of al-Hidayah said: “It is not desirable for the ruler to set the prices of goods. But if food merchants act arbitrarily and go to excess, and the government finds no alternative to protecting the people’s rights except fixing prices, it may fix them after consulting knowledgeable people.

Hoarding: Definition: Hoarding means buying a commodity and withholding or storing it in such a way that its supply in the market decreases, giving those who have stored it an opportunity to raise its price and causing harm to the people.

Ruling: The Shariah has declared hoarding unlawful and prohibited, because it cultivates such evil qualities as greed, profiteering, dishonesty, and causing hardship to the people.

a. Imam Abu Dawud and al-Tirmidhi narrated from Ma‘mar that the Messenger of Allah (peace and blessings be upon him) said: “Whoever engages in hoarding commits wrongdoing.”

b. Ahmad, al-Hakim, Abu Shaybah, and al-Bazzar narrated that the Messenger (peace and blessings be upon him) said: “Whoever hoards food for forty days has severed his relationship with Allah, and Allah is free of him.”

c. Razine narrated in his hadith collection that the Messenger of Allah (peace and blessings be upon him) said: “How evil is the hoarding servant: he becomes distressed when he hears that goods have become cheap, and happy when he hears that prices have risen.”

d. Ibn Majah and al-Hakim narrated from Ibn Umar that the Messenger of Allah (peace and blessings be upon him) said: “The supplier is provided for, while the hoarder is accursed.”

e. A supplier is a person who brings goods and sells them at a low price.

f. Ahmad and al-Tabarani narrated from Ma‘qil ibn Yasar that the Messenger of Allah (peace and blessings be upon him) said: “If anyone manipulates a commodity needed by the Muslims in such a way as to raise its price, Allah has the right to seat him in a great portion of Hell.”

When hoarding is prohibited: According to a large number of jurists, hoarding is prohibited when the following three conditions are present:

1. The quantity of goods stored exceeds the amount needed for an entire year by the hoarder and his dependents, because it is permissible to store one’s necessities for a year, as the Messenger of Allah (peace and blessings be upon him) used to do.

2. Waiting for the period when the price of the goods normally rises, so that they can be sold at an excessively high price, because people’s demand for those goods increases at that time.

3. Storing goods at a time when the people’s need for them is especially acute, such as food and clothing. If the goods are held by only a few merchants but are not in demand among the people, storing such goods is not prohibited, because it causes no harm to the people.

Some scholars consider it unlawful to hoard only foodstuffs, while others consider hoarding unlawful in the case of all goods. This is because hoarded goods prevent prices from remaining normal and balanced. Some scholars hold that there is no harm in storing crops produced on one’s own land or goods one has made oneself.

Khiyar: Seeking the opportunity to consider which of the two options—upholding or cancelling a sale contract—will be better is called khiyar. There are several types of khiyar. Their details are given below:
Khiyar al-Majlis: When both the buyer and seller conclude a contract, each of them retains the right to uphold or cancel it as long as both remain in that gathering—that is, the gathering or meeting in which the contract was concluded. However, if this right has been cancelled by mutual agreement within the contract, it will not remain.

Sometimes one of the two parties gives an offer or consent in haste. But immediately afterward, he realizes that it would be better for him not to finalize the contract. In such a case, the Shariah has granted him this right so that the loss he was about to suffer because of his haste may be remedied. Imam al-Bukhari and Muslim report from Hakim ibn Hizam (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said:
‘The buyer and seller retain the right to cancel the contract until they separate from each other. If both speak truthfully and clearly state their positions, they will be blessed; but if they lie and conceal the truth, their blessing will be erased.’

That is, both retain the right to uphold or cancel the contract until they physically separate from one another. Separation is to be judged according to the nature of each situation. If the contract was concluded in a small house, one of the two leaving the house will be considered separation. If it was concluded in a large house, going two or three steps away from the meeting place will count as separation. If both leave together and continue walking together, they will be considered not to have separated, and the khiyar—that is, the right to cancel—will remain intact.

The strongest view on this matter is that separation or non-separation is determined according to customary practice. Whatever is considered separation according to custom is separation in the view of the Shariah, and whatever is not considered separation according to custom is not separation in the view of the Shariah either.

Imam al-Bayhaqi reports from Abdullah ibn Umar (may Allah be pleased with him): He said, ‘I sold a piece of land in the valley to the Commander of the Believers, Uthman (may Allah be pleased with him), in exchange for a piece of his land in Khaybar. After the sale contract was concluded, I turned back and left his house so that he would not be able to cancel the sale. For it was customary that the buyer and seller retained the right to cancel the sale contract until they separated from each other.’ This is the opinion of most Companions and Tabi‘un. Among the Imams, al-Shafi‘i and Ahmad also held this view. They said: Khiyar al-Majlis applies to sales, settlements, leases, and all contracts involving financial transactions. It does not apply to marriage, khul‘, and similar matters in which no financial exchange is sought. Likewise, it does not apply to mudarabah, shirkah, wakalah, and the like.

According to Imam Abu Hanifah and Imam Malik, Khiyar al-Majlis is invalid. Concluding the contract verbally is sufficient and makes it binding. Once the sale has been concluded, it cannot be cancelled even while the parties remain in the same gathering. According to them, the separation mentioned in the hadith means verbal separation.

When the right to cancel is relinquished: If both parties relinquish the right to cancel after concluding the contract, it is relinquished. If one party relinquishes it, the other party’s right remains intact. If one of the two dies, this right is relinquished.

Khiyar al-Shart, or the option for a specified period: When either the buyer or seller conducts a purchase or sale on the condition that he will have the freedom or opportunity, until a specified period, to uphold or cancel that purchase or sale, it is called Khiyar al-Shart, regardless of how long that period or opportunity may be. Such a condition may be stipulated for both the buyer and seller or for either one of them. The basis for the validity of such a condition is the following two hadiths:

a. Ibn Umar (may Allah be pleased with him) reported that the Messenger of Allah (peace and blessings be upon him) said: ‘No purchase or sale concluded between any buyer and seller becomes final until they separate from each other, except a sale containing a stipulated option.’ That is, their purchase or sale will not become binding upon them until they separate from each other. However, even after separating, if both of them or one of them takes an opportunity to reconsider until a specified period, the purchase or sale will not become binding until that period ends; rather, there will remain an opportunity to cancel it.

b. It is also reported from Ibn Umar that the Messenger of Allah (peace and blessings be upon him) said: ‘When two people conduct a sale, each has the choice to uphold or cancel it as long as they have not separated from each other. Likewise, when both of them, or one of them, grants the other an option while conducting the sale, they retain the choice to uphold or cancel it.’ When the specified period has elapsed and the sale has not been cancelled during that period, it becomes binding. The option for a specified period may be cancelled verbally, and it may also be automatically relinquished by an act of the buyer. For example, if he endows or donates the purchased item, or expresses an intention to sell it, the option is relinquished, because this proves that he has accepted the sale. As long as his option remains in force, any attempt on his part to transfer the item will be ineffective.

According to Imam Ahmad, the period for reconsideration may be extended as long as the two parties wish, by mutual agreement. According to Imam Abu Hanifah and al-Shafi‘i, the period is no more than three days, while according to Imam Malik, it may be set according to need.

Khiyar al-‘Ayb, or the option due to a defect: Concealing a defect in the goods at the time of sale is unlawful: It is unlawful to sell goods without disclosing their defect to the buyer.

1. It is reported from Uqbah ibn Amir (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: ‘A Muslim is the brother of another Muslim. It is unlawful for a Muslim brother to sell goods to another Muslim without informing him of any defect they contain.’ (Ahmad, Ibn Majah, al-Daraqutni, al-Hakim, and al-Tabarani)

2. Adda ibn Khalid said: The Messenger of Allah (peace and blessings be upon him) wrote for me: ‘This is the document of the goods purchased by Adda ibn Khalid from Muhammad, the Messenger of Allah. He purchased from him a male or female slave who had no disease, no evil trait, and no moral corruption. A sale between a Muslim and a Muslim.’

3. The Messenger (peace and blessings be upon him) said: ‘Whoever deceives us is not one of us.’ Ruling on selling defective goods: When a sale contract is concluded while the buyer knows of the defect, the contract becomes binding and there is no option to reconsider, because he has accepted it. But when the buyer is unaware of the defect and learns of it after the contract has been concluded, the contract is still sound and valid, but it is not binding. In that case, the buyer has the choice either to return the goods to the seller and recover the price paid, or to keep the goods and recover a proportionate part of the price because of the existing defect. However, if he is satisfied with them or performs an act indicating consent, such as attempting to sell the purchased goods, investing them as capital, or transferring them,

Ibn al-Mundhir said: Hasan, Shurayh, Abdullah ibn al-Hasan, Ibn Abi Layla, al-Thawri, and others said: ‘When someone purchases goods and, knowing that they contain a defect, attempts to sell them, he no longer has the right to return them.’ This was also the opinion of Imam al-Shafi‘i.

Dispute between the buyer and seller over a defect in the goods: When a dispute arises over whether a defect appeared while the goods were in the possession of the buyer or seller, and it is possible that the defect occurred while they were in the possession of either one, but neither party has any evidence, the seller’s statement, supported by an oath, will be accepted. Uthman (may Allah be pleased with him) gave this ruling.

Some say that the buyer’s statement, supported by an oath, will be accepted, and he will return the goods to the seller.

Purchasing a rotten egg: Whoever purchases a chicken egg and, after breaking it, finds it rotten may recover the full price from the seller whenever he wishes. This is because the purchase contract is cancelled in this case. The reason is that the item sold is worthless and no longer qualifies as property. The buyer is not obliged to return the rotten egg to the seller, because it has no value or benefit.

Income resulting from liability: When a sale is cancelled and some benefit has previously been obtained from the goods while they were in the buyer’s possession, that benefit belongs to the buyer. A’ishah (may Allah be pleased with her) reported that the Messenger of Allah (peace and blessings be upon him) said: ‘Income is in return for liability.’ (Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah; al-Tirmidhi declared it sound.) The meaning of the hadith is that any gain or profit obtained from the sold goods belongs to the buyer, because had the goods been destroyed while in his possession, he would have been liable for them. If someone buys an animal and enjoys its use for several days, then a pre-existing defect becomes apparent and the testimony of experienced people confirms its truth, he may cancel the sale, and his use of it for those days belongs to him. He is not obliged to give any part of it to the seller. It is reported in some narrations that a man purchased a slave, put him to work, then noticed a defect in him and returned him to the seller. The seller said, ‘What about compensation for the work to which you put my slave?’ The Messenger of Allah (peace and blessings be upon him) said: ‘The work was in return for bearing liability for him.’ (Abu Dawud)

The option due to deceptive overpricing in a sale: When a seller deceives the buyer and cheats him by inflating the price through deception, this is unlawful for the seller. The buyer has a three-day option to return goods sold in this manner. Some say they must be returned immediately. The reason the sale is unlawful is deception or fraud. The Messenger of Allah (peace and blessings be upon him) said: ‘Whoever deceives us is not one of us.’

The evidence for the right to return the goods is the hadith reported by Abu Hurayrah: The Messenger of Allah (peace and blessings be upon him) said: ‘Do not attract people by retaining milk in the udders of camels and sheep for several days so that their udders appear larger.’

Whoever purchases such an animal may keep it after milking it if he wishes; otherwise, he should return it and give one sa‘ of dates as well.’ (Al-Bukhari and Muslim)

That is, in exchange for the extra milk, he must return some quantity of dates or staple grain. Ibn Abd al-Barr said: This hadith is the fundamental proof that deception is prohibited. It also proves that deception does not invalidate the original sale, that the option lasts for three days, and that artificially enlarging the udder establishes the option.

When deception originates from the seller and is unintentional, it does not remain unlawful. However, the buyer retains the option and right to return the goods so that he may be protected from loss.
The option due to being cheated in a sale: Sometimes the seller is cheated—for example, he sells an item worth five coins for three coins. At other times the buyer is cheated—for example, he purchases an item worth three coins for five coins.

When someone is cheated in a purchase or sale, he has the right to return the purchased item and cancel the contract. The condition, however, is that he is unaware of the item’s price and is unable to bargain. This is because cheating someone in such circumstances amounts to deception, from which every Muslim must remain free. When a buyer or seller suffers such deception, cancelling or upholding the contract becomes his choice. The question here, however, is whether merely being cheated is sufficient to establish this right.

According to some scholars, the cheating must be unusual and excessive. Some say it must amount to one-third of the price. Others hold that cheating at any level is sufficient to establish this right.

Since no sale is generally entirely free of being cheated, some impose such conditions regarding cheating. Moreover, minor cheating is generally considered tolerable and forgivable. The best view is that the nature or condition of cheating should be determined according to customary practice. The right to return or retain the goods is established only when the matter is considered cheating according to custom; where it is not considered cheating according to custom, that right is not established. This was the opinion of Imam Ahmad and Imam Malik. As evidence, they cited the following hadith reported by al-Bukhari and Muslim from Ibn Umar (may Allah be pleased with him):

The Messenger of Allah (peace and blessings be upon him) was informed about a man named Habban ibn Munqidh who was often cheated in business. The Messenger of Allah (peace and blessings be upon him) said: ‘When you conduct a transaction with anyone, say: “There is to be no deception.”’ That is, whoever says this will have the right to return or retain his goods, whether he is cheated or not.

Ibn Ishaq added to this hadith: ‘Afterward, you will have the right to reconsider your contract for three days concerning every item. If it is satisfactory to you, keep it; if it is not satisfactory, return it.’ This man lived until the time of Uthman (may Allah be pleased with him), when he was 130 years old. During Uthman’s caliphate, the population increased. Whenever someone purchased something and was told that he would be cheated, he would return. A Companion would then testify on his behalf that the Messenger of Allah (peace and blessings be upon him) had granted him the right to reconsider for three days, and he would return his coins. Most scholars hold that being cheated does not establish the right to reconsider, because the evidence concerning the effectiveness of a sale is not conditional on whether one is cheated. In response to the hadith concerning Habban ibn Munqidh, they say that the man was deficient in understanding. If a person is not so deficient in distinguishing good from bad, his transactions are comparable to those of a discerning minor who has been permitted to engage in commerce; thus, an option to reconsider in the event of being cheated is established for him. Since the Messenger of Allah (peace and blessings be upon him) taught him to say, ‘There is to be no deception,’ his sale was conditional upon being free of deception; therefore, this falls under Khiyar al-Shart.

Purchasing goods on the way: Purchasing goods on the way—that is, before they reach the city and before the seller knows their market price—may cause the seller to be cheated. In this situation, the buyer may purchase the goods more cheaply than the market price. If the seller later realizes that he has been cheated, he has the right to recover the goods and cancel the sale to protect himself from loss. Imam Muslim reported from Abu Hurayrah that the Messenger of Allah (peace and blessings be upon him) prohibited purchasing goods on their way to the market. He said: ‘Do not purchase goods on the way. If anyone does so, the seller will have the right to cancel the sale after the goods reach the market.’ According to most scholars, the prohibition in this hadith indicates unlawfulness.

Pretending to purchase in order to raise the price: This means quoting a higher price, in collusion with the owner, to raise the price of the goods, even though the person quoting the higher price has no intention of buying. Such a pretended buyer is used to encourage ordinary buyers to purchase at a higher price.

Al-Bukhari and Muslim report from Ibn Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) prohibited a third person from pretending to buy at a higher price in order to enable the seller to sell at a higher price. All scholars unanimously stated that this is unlawful.

Hafiz Ibn Hajar says in Fath al-Bari: There is disagreement over whether a sale conducted in this manner is valid. Ibn al-Mundhir said: According to a group of hadith scholars, such a sale is invalid. The Zahiri school and one view of Imam Malik support this position. If the act was carried out in collusion with the owner or at the owner’s initiative, then according to the more well-known view of the Hanbali school, the right to reconsider and cancel the purchase will apply. The Shafi‘is also have a similar view. However, their soundest view is that the sale is effective, though sinful. This is also the view of the Hanafi school.

Iqalah, or rescinding a sale: If a person purchases something and then realizes that he does not need it, or if someone sells something and then realizes that he needs it, he may request permission to cancel the purchase or sale. Islam encourages granting permission for rescission in such cases.

Imam Abu Dawud and Ibn Majah report from Abu Hurayrah that the Messenger of Allah (peace and blessings be upon him) said: ‘Whoever allows a Muslim to rescind a contract, Allah will forgive his sins.’ Such rescission cancels the sale. It is permissible before the sold goods come into the buyer’s possession. Khiyar al-Majlis and Khiyar al-Shart do not apply to it. Nor does shuf‘ah apply to it—that is, the neighboring landowner’s right of pre-emption—because it is not considered a sale. After the contract is cancelled, the buyer and seller will each take back what is due to them: the buyer will recover the price and the seller will recover the goods. If the sold goods have been destroyed, the contracting party has died, or the price has increased or decreased, rescission will be invalid.

Salam sale: Definition: Purchasing something by paying the price in cash under a contract whereby the goods remain the seller’s responsibility until a specified period. The jurists have also called it ‘the sale of need,’ because it is the sale of an absent commodity and both buyer and seller feel a pressing need for it. The owner of capital needs to purchase the goods, while the owner of the goods needs their price. This need arises when the goods are not yet ready with their owner. He will spend the price on his own needs and use it to produce and supply the goods. Thus, it is a necessary and beneficial sale.

Validity of the Salam sale: The validity of the Salam sale is established by the Qur’an, the Sunnah, and consensus.

1. Ibn Abbas (may Allah be pleased with him) said: I testify that Allah made advance payment for a specified period lawful in His Book. He then recited the following verse:

يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنتُم بِدَنِي إِلَى أَجَلٍ مُسَمًّى فَاكْتُبُوهُ .

‘O believers! When you contract a debt for a specified term, write it down.’ (Surah al-Baqarah: 282)

2. Imam al-Bukhari and Muslim report: When the Messenger of Allah (peace and blessings be upon him) came to Madinah, its people used to make advance payments for fruit for a period of one or two years. Seeing this, the Messenger (peace and blessings be upon him) said: ‘Whoever pays in advance for goods should do so for delivery at a specified measure, a specified weight, and within a specified period.’

Ibn al-Mundhir said: ‘All the scholars whose views have reached us agree that the Salam sale is valid.’

It is consistent with the rules of the Shariah: The validity of the Salam sale is consistent with the demands and objectives of the Shariah, compatible with its rules, and does not conflict with analogy. Just as deferred payment of the price is permissible in a sale, deferred delivery of the goods is permissible in a Salam sale. There is no difference between the two. Allah has said: ‘When you contract a debt with one another for a specified period, write it down.’ Here, debt refers to property whose delivery has been guaranteed and for which responsibility has been assumed. When the goods are specifically identified and well known, their delivery is guaranteed and responsibility for them is assumed, and the buyer has confidence that he will receive the goods from the seller before the specified period ends, the goods sold are considered a debt that may permissibly be delivered or transferred later.

It is concerning this that Ibn Abbas (may Allah be pleased with him) said: The prohibition imposed by the Messenger of Allah (peace and blessings be upon him) against selling what a person does not possess does not include the Salam sale. For example, he said to Hakim ibn Hizam (may Allah be pleased with him): ‘Do not sell what you do not have.’ (Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah; declared sound by al-Tirmidhi and Ibn Hibban.) The true meaning of this prohibition is that no one should sell goods he is unable to supply. Anything the seller is unable to supply is not truly in his ownership. Selling such a thing is therefore nothing but deception and fraud. However, goods that are clearly specified, whose delivery has been guaranteed and for which responsibility has been assumed, and which the seller is nearly certain he will be able to supply within the specified period, are not included in this prohibition.

Conditions of the Salam sale: The Salam sale has certain conditions that must be fulfilled for it to be valid. Some of these conditions concern the capital, while others concern the goods.

Conditions of the capital (that is, what is paid in advance as the price):

a. Its category must be specified.
b. Its quantity must be specified.
c. It must be transferred in the same gathering.

Conditions of the goods:

1. Responsibility for delivery must be assumed with certainty.

2. They must be described so clearly that their quantity and qualities are known, and those qualities distinguish the goods from other goods, leaving no possibility of dispute or deception.

3. The time must be specified. Imam Malik said: Specifying the time by reference to the harvest, the arrival of pilgrims, and the like is permissible, provided that the number of years and months is known.
Condition of a specified period: According to most scholars, a period is a relevant consideration in a Salam sale. They say that a Salam sale is not permissible without a delay in delivery. According to the Shafi‘i school, it is permissible, because when a deferred sale is permissible despite uncertainty, a cash sale is even more deserving of permissibility. The specification of a period mentioned in the hadith was not stated as a condition; rather, it means that if the transaction is not immediate and cash, a period must be specified.

Imam al-Shawkani says: The Shafi‘i view is the soundest and most correct. That is, specifying a term is not necessary. There is no evidence supporting it. No matter may be made binding without evidence.
If it is said that without a term the transaction necessarily becomes the sale of something nonexistent—which is not permitted anywhere except in bay‘ al-salam—and that, in reality, there is no difference between bay‘ al-salam and ordinary sales other than the term, the answer is that ordinary sales and bay‘ al-salam differ in their very nature, and that difference is sufficient.

The goods need not be in the seller’s possession in bay‘ al-salam: In bay‘ al-salam, it is not necessary for the seller to own the goods; rather, they must be available to him when the term expires. If the goods are unavailable when the term ends, the sale is cancelled. There is no problem if they are unavailable before the term ends.

Imam al-Bukhari narrated that Muhammad said: ‘Abdullah ibn Shaddad and Abu Burdah sent me to ‘Abdullah ibn Abi Awfa and said, “Ask him: Did the Companions of the Messenger of Allah, during his lifetime, pay an advance price for wheat?” ‘Abdullah replied: “We paid the farmers of Syria (or, according to another version, the Christians of Syria) an advance price for wheat, barley, and oil, according to a specified measure and for a specified term.” I asked: “To those who possessed the source of the goods?” He said: “We did not ask them anything about that.” Then they sent me to ‘Abd al-Rahman ibn Abza. I asked him the same question. He said: “During the time of the Messenger of Allah, the Companions paid in advance. We did not ask them whether they had fields and farms.”

The contract is not cancelled if the place of delivery is not specified: If the buyer and seller remain silent regarding the place where the goods are to be delivered, bay‘ al-salam is valid and the place is determined accordingly. This is because specifying the place is not mentioned as a condition in the hadith. If it were a condition, the Messenger of Allah would have mentioned it, just as he mentioned measure, weight, and term.

Bay‘ al-salam in milk and ripe dates: Imam al-Qurtubi says: ‘Bay‘ al-salam in milk and ripe dates, with their immediate collection, is a social practice widespread throughout the life of the city’s inhabitants. It is based on principles concerning the public interest. People need and are compelled to obtain milk and dates every day. Obtaining them afresh each day with cash is difficult, because cash may not be available to them every day. Moreover, their price may vary from day to day. Yet the owners of date palms and milk need cash, since a person who possesses goods but no cash will not go to the owners of dates and milk. Therefore, since the need is equal on the part of both buyer and seller, this transaction has been permitted for them.’

Accepting different goods in place of the specified goods in bay‘ al-salam: According to most scholars, it is not permissible, while maintaining the bay‘ al-salam contract, to accept different goods in place of the goods agreed upon. Perhaps he sold those goods as a debt before taking possession of them. Moreover, the Messenger of Allah said: ‘Whoever pays in advance for specified goods must not transfer that advance payment to something else.’ (Al-Daraqutni, from Ibn ‘Umar.) However, according to Imam Malik and Ahmad, it is permissible.

Ibn al-Mundhir says: It is narrated from Ibn ‘Abbas that he said: ‘When you pay in advance for goods for a specified term, if you take possession of them within the term, then that is good. Otherwise, accept in their place something inferior to them, and do not gain profit twice.’ Shu‘bah narrated this, and it is a statement of a Companion. In fact, a Companion’s statement is considered conclusive evidence when it does not contradict any other verse or hadith.

After examining the proofs of both sides, Ibn al-Qayyim regarded this view as preferable and stated that it is established that its invalidity has not been proven by any verse or hadith, consensus, or analogy. Rather, the Qur’an, hadith, and analogy support its validity. The principle of the Shariah is to refer every dispute to Allah and His Messenger. If a bay‘ al-salam contract is cancelled because of iqalah or for another reason, some consider accepting different goods in place of the contracted goods invalid, while others consider it valid. The latter is the view of Imam al-Shafi‘i, Qadi Abu Ya‘la, and Imam Ibn Taymiyyah. Ibn al-Qayyim says that the latter view is the soundest and most correct, because accepting substitute goods is the only way to discharge the liability. As with repayment of a loan and other liabilities, a substitute is valid here as well.

Chapter Thirty-Four: Riba or Usury

The Arabic lexical meaning of riba is increase or excess. In the terminology of the Shariah, it means an increase or excess over the principal, whether much or little. Allah says in verse 279 of Surah al-Baqarah:

وان تبتر فلكم رؤوس أموالكر لا تظلمون ولا تظلمون

But if you repent, you may retain your principal. You will neither wrong nor be wronged.

Ruling: Usury is prohibited in all revealed religions, particularly in Judaism, Christianity, and Islam.

The Old Testament says: ‘If you lend anything to a member of my people, do not treat him like a moneylender. Do not take any profit from him on the loan you gave him. When your brother falls into poverty, bear his burden; do not take any profit or benefit from him.’

Even so, the Jews see no obstacle to taking usury from Jews. The Qur’an condemns this conduct in verse 161 of Surah al-Nisa and says:

وَاعْنِ مِرَ الرَّبُوا وَقَدْ تَهُوا عَنْهُ

And for their taking usury, although they had been forbidden from it.

The New Testament says: ‘What merit is there in lending when you expect profit from the person to whom you lend? Rather, show generosity and lend without expecting profit. Then you will be entitled to immense reward.’

In light of these statements in the Bible, the church authorities ruled that usury was entirely forbidden. Socobar says: ‘Whoever says that consuming usury is not a sin is considered an atheist and an apostate.’

Father Buti says: ‘Usurers are deprived of honor in worldly life and are unworthy of being shrouded after death.’ The Holy Qur’an comments on usury in several places and stages. Verse 39 of Surah al-Rum, revealed in the Makkan period, says:

وما المتر من رنا اليربوا فِي أَمْوَالِ النَّاسِ فَلَا يَرْبُوا عِندَ اللهِ ، وَمَا أَتَيْتُم مِّن زَكُوا تَرِيدُونَ وَمَهُ اللَّهِ فَأُولَئِكَ منَ التَضْعِفُونَ

Whatever usury you give, seeking an increase in people’s wealth, does not increase with Allah; but whatever zakat you give, seeking Allah’s pleasure—that is what is multiplied.’ In the Madinan period, verse 130 of Surah Al ‘Imran prohibited usury and said:

يأيها الذين امنوا لا تأكلوا الربوا أشعانا مضعفة من وَاتَّقُوا اللَّهَ لَعَلَّكُمْ تُفْلِحُونَ

O believers, do not consume usury compounded many times over, and fear Allah so that you may prosper. Finally, verses 278 and 279 of Surah al-Baqarah say:

ياتها الَّذِينَ آمَنُوا اتَّقُوا اللهَ وَذَرُوا مَا بَقِي مِن الرِّبوا إن تنصر مُؤْمِنِينَ فَإِنْ لَمْ تَفْعَلُوا فَأْذَنُوا يعرب من الله ورسوله ، وأن تبتر فلكم رؤوس أموالِكُمْ لا تَظْلِمُونَ وَلَا تَعْلَمُونَ

O believers, fear Allah and give up whatever remains due to you from usury, if you are believers. If you do not, then know that this is a declaration of war from Allah and His Messenger. But if you repent, you may retain your principal. You will neither wrong nor be wronged.

The last-mentioned verse shows that those who say usury is not prohibited unless it is compounded are mistaken. Allah has not made lawful anything beyond the principal. This is the final verse concerning usury.
Indeed, usury is a grave major sin. Imam al-Bukhari and Muslim narrate from Abu Hurayrah that the Messenger of Allah said: ‘Avoid the seven destructive sins.’ They asked: ‘O Messenger of Allah, what are they?’ He said: ‘Associating partners with Allah, magic, killing a soul whom Allah has forbidden to kill except for a lawful reason, consuming usury, consuming the property of orphans, fleeing from the battlefield, and slandering chaste, innocent believing women.’

Allah has cursed everyone involved in a usurious contract: the lender who takes usury, the debtor who pays it, the scribe who writes the usurious contract, and the witnesses who testify to it. He has cursed them all.

Al-Bukhari, Muslim, Ahmad, Abu Dawud, and al-Tirmidhi narrate from Jabir ibn ‘Abdullah that the Messenger of Allah said: ‘Allah has cursed the one who consumes usury, the one who pays it, its two witnesses, and its scribe.’ Al-Daraqutni narrates from ‘Abdullah ibn Hanzalah that the Messenger of Allah said: ‘One dirham of usury is more grievous in Allah’s sight than committing adultery thirty-six times.’ The Messenger of Allah also said: ‘Usury has ninety-nine sins; the least of them is equal to committing adultery with one’s own mother.’

The rationale for prohibiting usury: Usury is forbidden in all revealed religions. It is forbidden because of the following grave harms:

1. It creates hostility among people and destroys the spirit of mutual help and cooperation. Yet all religions, especially Islam, call for mutual cooperation and giving preference to others, while hating arrogance, self-conceit, and exploitation.

2. Usury creates a luxurious class that does no work and accumulates vast wealth in its hands, wealth gathered without any effort. Islam, however, honors labor and respects workers. It makes labor the finest means of earning. Through it, skill increases and a person’s morale is strengthened.

3. Usury is an instrument of capitalism and imperialism. Hence it is said: imperialism follows either a businessman or a priest. Through the imperialist rule and exploitation of our country, we have become familiar with usury and its harmful consequences. Therefore, Islam calls for lending to needy people without interest and grants immense reward for it. This was already stated in verse 29 of Surah al-Rum.

Types of usury: There are two types of usury: 1. Usury due to deferment. 2. Usury due to excess.

Usury due to deferment: The additional amount a lender collects from a borrower in exchange for granting him more time to repay the loan is called usury due to deferment. According to the Qur’an, Sunnah, and the unanimous agreement of Muslims, this usury is forbidden.

Usury due to excess: This is an excess given when exchanging currency for currency or goods for goods. It is forbidden according to the Sunnah and the unanimous agreement of Muslims, that is, ijma‘, because it is the cause that leads to usury due to deferment.

Abu Sa‘id al-Khudri narrated that the Messenger of Allah said: ‘Do not sell one dirham for two dirhams, for I fear that you will thereby fall into usury.’ The hadith declares usury forbidden in six commodities: gold, silver, wheat, barley, dates, and salt. Abu Sa‘id narrated that the Messenger of Allah said: ‘Gold for gold, silver for silver, wheat for wheat, and salt for salt must be exchanged hand to hand—that is, in cash—and in equal amounts. Whoever gives or asks for an excess is guilty of a usurious transaction. The giver and receiver are alike.’ (Ahmad, al-Bukhari)

The reason for the prohibition: The six things mentioned in the hadith are basic necessities of human life, to which every person is deeply attached and without which life cannot function. Gold and silver are the basic components of currency, the key to transactions and exchange. They are measures of value and aids in determining the value of goods. The remaining four commodities are foodstuffs and sources of nourishment, providing the energy and nutrition necessary to preserve life. If usury became prevalent in these things, it would cause severe harm to people and create disorder in transactions. Therefore, out of mercy toward people and concern for their interests and welfare, Allah prohibited this usury.

It is therefore clear that the reason usury is prohibited in gold and silver is that they are instruments and means of purchase, while in the case of the other commodities, the reason for its prohibition is that they belong to the category of food.

Therefore, if anything besides gold and silver becomes a means of purchase, the rulings applicable to gold and silver will also apply to it, and it must be exchanged in cash and in equal amounts. Likewise, when a commodity other than wheat, barley, dates, and salt is a foodstuff like these four, it too must be exchanged in cash and in equal amounts.

Imam Muslim narrates from Mu‘ammar ibn ‘Abdullah that the Messenger of Allah prohibited exchanging foodstuffs except in equal amounts. Thus, anything that takes the place of these six commodities will be treated like them, and their rulings will apply to it. Consequently, if the two items exchanged belong to the same category and are subject to the same cause, both giving an excess and deferring the exchange are forbidden. For example, when gold is sold for gold or wheat for wheat, two conditions apply for the validity of the sale or exchange.

1. The two amounts must be equal, regardless of whether their quality is alike or different, good or poor. This is clear from the aforementioned hadith. Imam Muslim also narrates that a man brought some dates to the Messenger of Allah. The Messenger of Allah asked him: ‘Are these not our dates?’ The man said: ‘O Messenger of Allah, sell two sa‘ of our dates for one sa‘ of yours.’ The Messenger of Allah said: ‘That is usury. Return them, then sell our dates and buy from the proceeds for us.’ Fudalah narrated through Imam Abu Dawud that a necklace containing pearls and gold was brought to the Messenger of Allah. A man bought it for nine or seven dinars. The Messenger of Allah said: ‘No—I will not buy it until the two are separated.’ He returned them, and they were separated. Muslim’s narration says that he ordered the gold to be separated from the necklace, and this was done. Then he said: ‘Gold for gold must be sold by equal weight.’ Ibn al-Qayyim says: It is permissible to sell an item mixed with lawful goods for gold of greater weight than it, and an item mixed with silver for silver of greater weight than it.

2. Neither of the two exchanged goods may be deferred in delivery; rather, both must be delivered immediately to each other. The Messenger of Allah said: ‘It must be given hand to hand.’ He also said: ‘When you sell gold for gold, exchange both equally, and do not give one preference over the other. When you sell silver for silver, exchange both equally, and do not give one preference over the other. Do not sell something present for something absent.’ —Al-Bukhari and Muslim.

When the two exchanged items are of different types but subject to the same cause, one may exceed the other in amount, but the transaction may not be deferred. For example, when silver is sold for gold or barley for wheat, immediate delivery is a condition, but equal amounts are not; either may be greater or lesser.

Imam Abu Dawud narrated that the Messenger of Allah said: ‘Wheat may be sold for barley, and barley for wheat, in unequal amounts, but the exchange must be hand to hand.’

Ahmad and Muslim narrate from ‘Ubadah: ‘When these commodities are of different types, sell them as you wish, but exchange them hand to hand.’ When the two exchanged items are different both in type and in cause, neither condition is necessary. They may be exchanged in unequal amounts, and deferred delivery is also permissible. For example, when silver is exchanged for food, both unequal exchange and deferred delivery are permissible. Similarly, one piece of cloth may be exchanged for two pieces, and one vessel for two vessels.

In short, usury is permissible in things other than gold, silver, food, and drink. In transactions involving those other things, unequal exchange and deferred delivery are permissible, and the parties may separate before delivery. For example, one goat may be sold for two goats, whether the payment is immediate or deferred. Likewise, one goat may be sold for another goat. ‘Amr ibn al-‘As narrated that the Messenger of Allah ordered him to take one she-camel in exchange for two from the zakat camels. (Ahmad, Abu Dawud, and al-Hakim.) Ibn al-Mundhir says: The Messenger of Allah bought one slave in exchange for two black slaves and one female slave in exchange for seven goats. This is also the view of Imam al-Shafi‘i.

Selling an animal in exchange for meat: Most imams say that it is not permissible to sell a lawful animal in exchange for the meat of an animal of the same species. For example, a slaughtered cow may not be sold in exchange for a live cow fit for consumption. Sa‘id ibn al-Musayyab narrated that the Messenger of Allah prohibited selling an animal in exchange for meat. (In the Muwatta’ of Imam Malik.) Imam al-Shawkani said that, in view of all the chains through which this hadith was narrated, it is soundly acceptable as evidence. Al-Bayhaqi narrated from a man of Madinah that the Messenger of Allah prohibited selling a live animal in exchange for a dead one. According to the Hanbalis, it is permissible to sell the meat of one animal in exchange for another animal, such as selling a goat in exchange for camel meat.

Selling dates in exchange for dried dates: It is not permissible to sell fresh dates in exchange for dried dates. However, it is permissible to sell them to poor people who have no date palms. They may buy dates from the owners of date gardens, estimating the amount by the quantity of dried dates.

Imam Malik and Abu Dawud narrated from Sa‘d ibn Abi Waqqas that the Messenger of Allah was asked about selling dates in exchange for dried dates. He said: ‘Do dates decrease when they dry?’

They said: Yes. So he prohibited selling dates in exchange for dried dates.

Al-Bukhari and Muslim narrated from Ibn ‘Umar that the Messenger of Allah prohibited selling the dates of a garden, measured, in exchange for dried dates. He also prohibited selling the grapes of a garden, measured, in exchange for raisins, and the grain of a field in exchange for cooked food.

Al-Bukhari narrated from Zayd ibn Thabit that the Messenger of Allah permitted the dates of donated date palms to be sold according to an estimated measure.

Selling on deferred payment at a price higher than the actual value: The Messenger of Allah prohibited selling an item on deferred payment at a price higher than its actual value. This is usury, even though it is carried out in the form of buying and selling. A person in need of money buys a commodity at a specified price for a specified term, then sells it to another buyer for a lower price over a shorter term. His extra gain in this case is benefiting from the amount of money he receives immediately. This type of sale is forbidden and void. This is the view of Imam Abu Hanifah, Imam Malik, and Imam Ahmad. According to Imam al-Shafi‘i and others, it is permissible, because all the elements of a sale are properly present. Intention is not a consideration here, since there is no certainty that the intention will be carried out.

1. Ibn ‘Umar narrated that the Messenger of Allah said: ‘When people become miserly with spending cash, follow the tails of cattle, and abandon jihad in the path of Allah, Allah will send down upon them a calamity which He will not remove until they return to their religion.’ (Ahmad, Abu Dawud, al-Tabarani, and Ibn al-Qattan.)

2. ‘Aliyah (the wife of Abu Ishaq al-Hamdani al-Kufi Sabing), daughter of ‘Uyaynah ibn Shurahbil, said: ‘I went to the slave woman of Zayd ibn Arqam and to his wife, ‘A’ishah. The slave woman of Zayd ibn Arqam said: “I sold a slave to Zayd ibn Arqam on deferred payment for eight hundred dirhams, then bought him back for six hundred dirhams in cash.” ‘A’ishah said: “Your purchase and sale were both wrongful. Tell Zayd ibn Arqam that if he does not repent, his jihad with the Messenger of Allah will be invalidated.”’ (Malik, al-Daraqutni.)

Chapter Thirty-Five: Qard or Loan

Definition: Qard, or a loan, is property that the lender gives to the borrower on the condition that, when able, he will return an equal amount of property.

Its validity in the Shariah: This is an act of worship through which one may draw near to Allah. Through it, one shows mercy and generosity toward people, alleviates their hardship, and solves their problems. Islam recommends that the lender give a loan and permits the borrower to take one; it does not regard this as the contemptible begging. He takes it to fulfill his need and benefit from it, and to return an equal amount at the proper time.

1. Abu Hurayrah narrated that the Messenger of Allah said: ‘Whoever relieves a Muslim of one of the hardships of worldly life, Allah will relieve him of one of the hardships of the Day of Resurrection. Whoever eases the need of a needy person, Allah will ease his need in this world and the Hereafter. Allah continues to help a servant as long as the servant helps his brother (his Muslim brother).’ (Muslim, Abu Dawud, and al-Tirmidhi.)

2. Ibn Mas‘ud narrated that the Messenger of Allah said: ‘If a Muslim lends to another Muslim twice, it is equivalent to giving charity once.’ (Ibn Majah, Ibn Hibban.)

3. Anas narrated that the Messenger of Allah said: ‘On the night of the Ascension, I saw written on the gate of Paradise: The reward for charity is tenfold, and the reward for giving a loan is eighteenfold. I said: “O Jibril, why is giving a loan better than charity?” He said: “Because when a beggar asks, he possesses something; but a borrower does not ask for a loan except out of pressing need.”’

Loan contract: A loan contract is a contract that makes the recipient the owner. Therefore, a loan contract may be concluded only by a person who has the legal authority and capacity to grant it, and it is completed through offer and acceptance, as in contracts of sale and gift. The contract is completed by whatever wording conveys the meaning of granting a loan.

According to the Maliki school, ownership is established for the recipient as soon as the contract is completed, whether or not the loaned item has come into the recipient’s possession. The recipient may return an item similar to, or exactly the same as, the item borrowed, whether or not a similar item is available. However, an identical item may be returned only so long as it has not changed through decrease or increase. If it changes, a similar item must be returned.

The condition of specifying a term: According to most jurists, it is not permissible to stipulate a term for a loan, because it is purely an act of voluntary benevolence. The lender has the right to demand repayment immediately. Thus, if repayment of a loan is postponed until a specified time, it will not actually be postponed but will be regarded as immediately due. Imam Malik said: It is permissible to stipulate a term, and the stipulated condition must be observed. Therefore, when repayment of a loan is deferred until a specified term, it remains deferred until that term, and no one has the right to demand it before the term arrives. For Allah says in verse 282 of Surat al-Baqarah:

“When you contract a debt for a specified term.” Moreover, Amr ibn Awf narrated that the Messenger of Allah, peace and blessings be upon him, said: “Muslims are bound by their conditions.” (Abu Dawud, Ahmad, al-Tirmidhi, al-Daraqutni)

Items in which loans are permissible: Loans are permissible in clothing and living creatures, because it is established that the Messenger of Allah, peace and blessings be upon him, borrowed a two-year-old camel. Likewise, loans may be made in all goods traded by measure or weight, and in all commercial commodities. Loans may also be made in bread and dough.

Aishah, may Allah be pleased with her, said: “I said: O Messenger of Allah, neighbors lend bread and dough and sometimes return less and sometimes more. He said: There is no harm in that. These are matters of people’s convenience; no profit is expected from them.

Muaadh, may Allah be pleased with him, was asked: What is the ruling on borrowing and lending bread and flour? He said: SubhanAllah, this is a characteristic of noble character. You may give more and take less, or take more and give less. However, the best person is the one who repays clearly and fully. I heard the Messenger of Allah, peace and blessings be upon him, say this himself.

A loan that yields profit is usury: The purpose of every loan contract is to benefit people and help facilitate their access to the means of livelihood. A loan is not a means of earning, nor is it a tool for exploiting people. Therefore, it is not permissible for the borrower to return more than the principal loan received from the lender or its equivalent. For the fundamental principle of fiqh is that any loan from which profit is obtained is usury.

However, there is a condition for such profit to constitute usury and be unlawful: the profit or benefit from the loan must have been stipulated as a condition or must be customary practice. If neither applies—that is, no condition was stipulated and it is not customary—then, when repaying the loan, the borrower may give something of better quality than what was borrowed, give somewhat more in quantity, or sell the lender a house if selling him a house had previously been stipulated. It is not disliked for the lender to accept this. For Ahmad, Muslim, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated from Abu Rafi:

The Messenger of Allah, peace and blessings be upon him, borrowed a two-year-old camel from a man. Then the camels collected for zakat came to him, and he ordered me to repay the loan with a two-year-old camel from the zakat herd. I said: There is no camel in that herd except a fine one that has passed six years and entered its seventh. The Messenger of Allah, peace and blessings be upon him, said: “Give him that one, for the best people are those who repay loans in the best manner.”

Jabir ibn Abdullah said: I was owed something by the Messenger of Allah, peace and blessings be upon him. He repaid what he owed me and gave me something extra as well. (Ahmad, al-Bukhari, Muslim)

Hastening to repay debts before death:

1. Imam Ahmad narrated: A man asked about his brother, who had died while indebted. The Messenger of Allah, peace and blessings be upon him, said: “He is held liable for his debt. Repay the debt on his behalf.” He said: O Messenger of Allah, I have repaid all his debts, except for two dinars. A woman claims these two dinars, but she has no witness. He said: “Give her what she claims, for her claim is true.”

2. It is reported that a man said: O Messenger of Allah, if I strive with my life and wealth, then am killed while I have been patient, striving for Allah’s pleasure, advancing only forward without retreating, will I enter Paradise? He said: Yes. The man repeated his question two or three times. The Messenger of Allah, peace and blessings be upon him, said: But if you die indebted and have no means of repaying it, you will not. He then said that an extremely severe warning from Allah had been revealed concerning a matter. The people asked: Concerning what? He said: Concerning debt. By the One in Whose hand is my soul, if a person is killed in the path of Allah and brought back to life, then killed again in the path of Allah and brought back to life, and then killed again in the path of Allah, he still cannot enter Paradise until he repays his debt.”

3. It is narrated from Jabir ibn Abdullah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, would not perform the funeral prayer for anyone who died indebted. One day a deceased person was brought to him. He said: “Does he owe any debt?” They said: Yes. He said: “Perform the funeral prayer for your companion.” Abu Qatadah al-Ansari said: “I undertake responsibility for paying his debt.” Then the Messenger of Allah, peace and blessings be upon him, performed his funeral prayer.

Later, when Allah granted victory to His Messenger, peace and blessings be upon him, he said: “I am closer to every believer than his own self. Whoever dies indebted, his debt is my responsibility. And whoever dies leaving property, his debt is the responsibility of his heirs.” (Al-Bukhari, Muslim, al-Tirmidhi, al-Nasa’i, Ibn Majah, narrated from Abu Hurayrah, may Allah be pleased with him)

4. Al-Bukhari narrated from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “Whoever takes people’s property intending to repay it, Allah will repay it on his behalf. But whoever takes it intending to destroy it, Allah will destroy him.”

A wealthy person’s delay is wrongdoing: Abu Hurayrah, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “A wealthy person’s delay and evasion in repaying a debt is wrongdoing. When one of your debts is transferred to a wealthy person, he should accept it.” (Abu Dawud)

It is recommended to grant an extension to an impoverished debtor: Allah Most High said:

وَإِن كَانَ ذُو عُسْرَة فنظرة إلى ميسرة ، وأن تصَدِّقُوا عَيْرٌ لَكُمْ إِن كُنتُمْ تَعْلَمُونَ

“If the debtor is in hardship, then grant him respite until ease. But if you remit it as charity, that is better for you, if only you knew.” (Al-Baqarah, 280)

a. It is narrated from Abu Qatadah, may Allah be pleased with him, that he was looking for one of his debtors, but the man concealed himself. Then he found him. The debtor said: I am in hardship. He said: Can you swear by Allah? The man said: By Allah! Qatadah said: I heard the Messenger of Allah, peace and blessings be upon him, say: “Whoever is pleased that Allah should relieve him of the distress of the Day of Resurrection should grant respite to an impoverished debtor or remit his debt.”

b. Kaab ibn Umar, may Allah be pleased with him, said: I heard the Messenger of Allah, peace and blessings be upon him, say: “Whoever grants respite to an impoverished debtor or remits his debt, Allah will give him shelter in His shade.” Remitting part of a debt before its term expires: According to most jurists, it is unlawful to remit part of a debtor’s debt in order to hasten repayment before the term agreed upon by both parties expires. If someone lends another person money for a specified period and then says to the debtor, “I will remit part of your debt on condition that you repay the remainder before the term expires,” this is unlawful.

However, Ibn Abbas and Zufar held that this is permissible. Ibn Abbas, may Allah be pleased with him, narrated: When the Messenger of Allah, peace and blessings be upon him, ordered the Banu Nadir (a Jewish tribe) to be expelled from Madinah, a delegation of them came and said: O Prophet of Allah, you have ordered us to leave, yet people still owe us many debts that they have not repaid. The Messenger of Allah, peace and blessings be upon him, said: “Forgo some of the debt and hasten the collection of the remainder.”

Chapter Thirty-Six: Rahn, or Pledge

Definition: In Islamic legal terminology, rahn, or pledge, means making an item possessing economic value according to the Shariah security for a debt, so that the debt, or part of it, may be recovered from that item.

When a person takes a loan from someone else and, in return, places land or an animal in the lender’s possession as a pledge, to remain held until the loan is repaid, that held item is considered rahn, or a pledge, in Islamic law. (This ensures repayment of the loan; otherwise, the pledged item would be lost in whole or in part in proportion to the debt.) The owner of the pledged item, who is the borrower, is called the pledgor, and the lender who holds the item in exchange for the debt is called the pledgee. The item that is pledged is called rahn, or the pledge.

The legality of rahn: Rahn, or pledge, is established as lawful by the Qur’an, the Sunnah, and consensus. Allah says in the Qur’an:

وإِن كُنتُمْ عَلَى سَفَرٍ وَلَمْ تَجِدُوا كَاتِبا قومن مقبوضةٌ ، فَإِنْ أَمِن بَعْضُكُمْ بَعْضًا فَلْيَوْتِ الَّذِي اؤْتُمِنَ أمانته وليَتَّقِ الله ربه .

“If you are traveling and cannot find a scribe, then a pledge may be taken. If you trust one another, let the one entrusted return what was entrusted to him and fear Allah, his Lord.” (Al-Baqarah: 283)

Its legality is established by the Sunnah in that the Messenger of Allah, peace and blessings be upon him, pledged his armor with a Jew. When he asked him to lend him some barley, the man said: Muhammad wants to seize my goods. He said: “He is lying. I am trustworthy on earth and trustworthy in heaven. If he trusted me, I would certainly repay the loan. Leave my armor with him.” Al-Bukhari and others narrated from Aishah, may Allah be pleased with her: The Messenger of Allah, peace and blessings be upon him, purchased some food from a Jew and pledged his armor with him.

The scholars agree on the legality of pledges; no one has disagreed about their permissibility. Some, however, have disagreed over whether a pledge is permissible outside travel. According to most scholars, a pledge is permissible whether one is traveling or residing at home, because the Messenger of Allah, peace and blessings be upon him, did this while residing in Madinah. The reason the verse links it to travel is that it generally occurs during travel.

Mujahid, al-Dahhak, and the scholars of the Zahiri school said: A pledge is permissible only while traveling, because this is what the verse states. However, the hadith provides a decisive reply to them.

Conditions for the validity of a pledge:

1. Soundness of mind.
2. Reaching maturity.
3. The pledged item must be present at the time of the contract, even if it is jointly owned.
4. The pledgee or his representative must take possession of the pledged item.

Imam al-Shafi‘i said: Allah prescribed pledges with the condition of taking possession. Therefore, a pledge is not valid without possession. Maliki scholars said: The pledge becomes binding by virtue of the contract itself. However, the pledgor must be compelled to transfer the pledged item so that the pledgee can take possession of it. Even after the pledgee takes possession, the pledgor may benefit from it. Imam al-Shafi‘i disagreed with this view. According to him, the pledgor may benefit from it only so long as the pledgee is not harmed.

The pledgee benefiting from pledged property: A pledge contract is primarily made to secure repayment of a debt and establish trust. It is not intended to generate profit. Therefore, it is not permissible for the pledgee to benefit from the pledged property, even if the pledgor permits it, because this would turn the pledge into a loan that yields benefit, whereas every loan that yields benefit is usury. This applies only when the pledged property is not a rideable or milkable animal. If it is such an animal, the pledgee may benefit from it in return for bearing the cost of its maintenance.

Thus, if it is a horse, mule, camel, or similar animal, he may ride it in return for bearing its maintenance costs; and if it is a cow, goat, or similar animal, he may milk and use its milk in return for bearing its maintenance costs. (This is the view of Imam Ahmad and Ishaq. According to most scholars, however, the pledgee may not benefit from it in any way. The evidence from hadith is against them.) The evidence supporting the permissibility of benefiting from it is presented below:

a. Abu Hurayrah, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “When a milch animal is pledged, its milk may be taken in return for the pledgee’s expenditure, and while an animal is pledged, it may be ridden in return for the pledgee’s expenditure. Whoever rides or milks it must bear the cost of maintaining the animal.” Imam Abu Dawud said: As far as we know, this hadith is authentic. Others also narrated it, including al-Bukhari, al-Tirmidhi, and Ibn Majah.

b. It is also narrated from Abu Hurayrah that the Messenger of Allah, peace and blessings be upon him, said: “If an animal is pledged, the pledgee may ride it at his own expense; and if a milch animal is pledged, the pledgee may drink its milk at his own expense. The rider and the one who drinks its milk must bear the expenses.” (Narrated by all the major authentic hadith collections except Muslim and al-Nasa’i.) Imam Ahmad’s wording is: “If an animal is pledged, the pledgee must feed it grass. The milk of a milch animal may be drunk, and the one who drinks it must bear the animal’s expenses.”

c. It is also narrated from Abu Hurayrah that the Messenger of Allah, peace and blessings be upon him, said: “Milking a pledged animal and riding on its back are permissible.”

Expenses and benefits of pledged property: The owner must bear the expenses of pledged property, including its maintenance costs and the cost of returning it. The pledgor is entitled to its benefits. Its growth is included with the pledged property and is attached to the original pledged property. Offspring, wool, milk, and crops are included with the pledged property. For the Messenger of Allah, peace and blessings be upon him, said: “All the benefits of pledged property belong to the pledgor, and all its liabilities are also upon him.”

Imam al-Shafi‘i said: None of these are included with the pledged property. Imam Malik said: Nothing is included with the pledged property except offspring and date-palm seedlings. If, with the ruler’s permission, the pledgee bears the expenses of the pledged property in the pledgor’s absence or because of his refusal, those expenses become a debt owed by the pledgor to the person who paid them.
Pledged property as a trust: Pledged property is held by the pledgee as a trust. He is not liable to compensate for it unless he acts wrongfully. This is the view of Imam Ahmad and al-Shafi‘i.

The pledge remains in force until the debt is repaid: Ibn al-Mundhir said: All the scholars whose opinions I have preserved agree that if a person pledges an item in exchange for something and then wishes to release part of the pledged item in return for part of the consideration paid, this is not permissible. He cannot recover the pledged item until he has paid the full amount owed or has been released from the liability.

Loss of the pledge: It was customary among the Arabs that when the pledgor became unable to repay the debt owed to the pledgee, the pledged property left his ownership and became the property of the pledgee. Islam prohibited and abolished this practice.

As soon as the term expires, the pledgor is obliged to repay the debt. If he neither repays the debt nor permits the pledged property to be sold, the ruler will compel him either to repay the debt or to sell the pledged property. If it is sold and part of its price remains after repayment, the surplus belongs to the owner of the pledged property. If the price is insufficient, the remainder remains owed by the pledgor.
Muawiyah ibn Abdullah ibn Ja‘far narrated: A man in Madinah pledged a house for a specified term. As soon as the term expired, the pledgee said: This is my house. The Messenger of Allah, peace and blessings be upon him, said: “The pledged property cannot be lost to the pledgor. He is entitled to its benefits and responsible for its liabilities.” (Narrated by al-Shafi‘i, al-Ahram, and al-Daraqutni)

Stipulating the sale of the pledge when the term expires: It is permissible to stipulate that the pledge will be sold when the term expires. In that case, the pledgee has the right to sell the pledged property. Imam al-Shafi‘i, however, disagreed; according to him, such a condition is invalid.

When is a pledge terminated?

A pledge is terminated whenever the pledged property is returned to the pledgor with the pledgee’s consent.

Chapter Thirty-Seven: Agriculture

The virtue of agriculture: Imam al-Qurtubi said: Agriculture is a communal obligation. Therefore, it is the government’s duty to compel and encourage people to engage in it. Planting saplings is also included within agriculture.

1. Al-Bukhari and Muslim narrated from Anas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “If a Muslim plants a sapling or cultivates a crop, and a person, animal, or bird eats from it, it becomes charity for him.”

2. Imam al-Tirmidhi narrated from Aishah, may Allah be pleased with her, that the Messenger of Allah, peace and blessings be upon him, said: “Seek your sustenance from the produce of the fields.”

Joint farming or sharecropping: Joint farming means assigning land to a farmer on the condition that he will receive an agreed-upon share of whatever crop is produced, such as one-half, one-third, or more or less, as mutually agreed.

The legality of joint farming: Joint farming is a process of mutual cooperation between the landowner and the farmer. The farmer may be skilled in agriculture but have no land, while the landowner may be unable to farm. Therefore, Islam has permitted this arrangement as an expression of compassion toward both parties.

The Messenger of Allah, peace and blessings be upon him, and his Companions practiced joint farming. Al-Bukhari and Muslim narrated from Ibn Abbas, may Allah be pleased with him: The Messenger of Allah, peace and blessings be upon him, arranged with the people of Khaybar that they would cultivate the land in return for a share of whatever fruit or crops it produced. Imam Muhammad al-Baqir said: There was no immigrant family in Madinah that did not farm in return for one-third or one-fourth of the crop. Ali, may Allah be pleased with him, Saad ibn Malik, Abdullah ibn Masud, Umar ibn Abd al-Aziz, al-Qasim, Urwah, and the descendants of Abu Bakr, Umar, Ali, and Ibn Sirin practiced joint farming. (Al-Bukhari)

It is stated in al-Mughni: This is a well-known matter. The Messenger of Allah, peace and blessings be upon him, practiced it until his death; then his Rightly Guided Caliphs practiced it until their deaths, and afterward their descendants did so as well. There was no one among the Ahl al-Bayt in Madinah who did not practice it. After the Messenger of Allah, peace and blessings be upon him, his wives also practiced it. Nor can this practice have been abrogated, because a ruling of the Shariah can be abrogated only during the lifetime of the Messenger of Allah, peace and blessings be upon him. How could a practice that the Messenger of Allah followed until his death, that his caliphs then followed, and in favor of which the Companions reached consensus without any of them opposing it, have been abrogated? If it was abrogated during the Messenger’s lifetime, how did he practice it after its abrogation? And how could this abrogation have remained so concealed that even his caliphs did not know of it, when the incident of Khaybar and their practice there are universally known? Where was the narrator of the report of abrogation, that he failed to mention it and inform them of the matter?”

Response to the hadiths concerning the prohibition of joint farming: In response to the narration of Rafi ibn Khadij that the Messenger of Allah, peace and blessings be upon him, prohibited joint farming, Zayd ibn Thabit said that the prohibition was issued only to settle a dispute. He said:

May Allah forgive Rafi ibn Khadij. By Allah, I know this hadith better than he does. Two Ansari men came to the Messenger, peace and blessings be upon him, after fighting with each other. He said: “Since this is your situation, do not lease the fields for sharecropping.” Rafi heard only the final words, “Do not lease the fields for sharecropping.” (Abu Dawud, al-Nasa’i)

Ibn Abbas also refuted Rafi ibn Khadij’s statement and explained it by saying that the Messenger, peace and blessings be upon him, issued this prohibition only to direct people toward what was beneficial. Ibn Abbas, may Allah be pleased with him, said: The Messenger of Allah, peace and blessings be upon him, did not prohibit joint farming or sharecropping. He merely commanded people to show compassion toward one another and said:

Whoever owns land should cultivate it himself or let his brother cultivate it. If he refuses, then he should retain his land himself.

Amr ibn Dinar, may Allah be pleased with him, said: I heard Ibn Umar say: “We saw no objection to sharecropping until Rafi ibn Khadij said that the Messenger of Allah, peace and blessings be upon him, had prohibited it.” I later mentioned Rafi’s narration to Tawus. Tawus said: “The most knowledgeable among them”—meaning Ibn Abbas—said: “Giving someone one’s land is better than taking a specified amount or rent from the land.” (The five major authentic hadith collections)

Renting land in exchange for currency: Joint farming or sharecropping is permissible in exchange for currency, food grains, or any other property.

Hanzala ibn Qays (may Allah be pleased with him) said: I asked Rafi ibn Khadij about renting land. He said: The Messenger of Allah (peace and blessings be upon him) forbade it. (He probably meant renting it in exchange for a share of the produce.) I asked: In exchange for gold or silver? He said: There is no objection if it is in exchange for gold or silver. (The five authentic hadith collections other than al-Tirmidhi)

This is the opinion of Imam Ahmad and some scholars of Malik’s and al-Shafi‘i’s schools. Imam al-Nawawi said: This is the strongest opinion.

Invalid sharecropping: We have already stated that valid sharecropping is to allow someone to cultivate land on the condition that the owner will receive one-third or one-fourth of the produce. That is, the amount of his share remains unspecified. But if the amount of his share is specified—for example, a certain quantity of the produce is fixed for him, or a specific portion of the land is designated whose produce will belong to the owner while the remainder belongs to the farmer or is shared by both—then such sharecropping is invalid. It involves uncertainty and scope for deception, as well as the risk of disputes and conflicts.

Imam al-Bukhari narrated that Rafi ibn Khadij said: “We owned the most agricultural land in Medina. We used to rent out land on our side, and a particular portion was assigned to the landowner. Sometimes that portion produced crops while the rest of the land remained barren; at other times that portion remained barren and the rest of the land produced crops. Eventually, we were prohibited from engaging in such sharecropping.” It is also narrated from Rafi ibn Khadij that the Messenger of Allah (peace and blessings be upon him) said: “How do you cultivate your fields?” We said: “We rent out fields in exchange for one-fourth of the produce and several wasqs of dates and barley.” He said: “Do not do that.”

Imam Muslim narrated from Rafi ibn Khadij (may Allah be pleased with him): “During the time of the Messenger of Allah (peace and blessings be upon him), people rented land in exchange for what grew along the edges of canals and reservoirs. Some of the crops would be destroyed while others remained intact, although the people had nothing besides these rented fields. Therefore, the Messenger of Allah (peace and blessings be upon him) prohibited this practice.”

Cultivating barren land: Explanation: Cultivating barren land means making land that has previously neither been cultivated nor used suitable for use, habitation, or farming.

Encouragement to do so: Islam wishes people to expand cultivable land, spread throughout the earth, and cultivate uncultivated land. This will increase their wealth and improve their prosperity. And

in this way they will become wealthy and strong. For this reason, Islam encourages people to cultivate barren land and benefit from its potential. The Messenger of Allah (peace and blessings be upon him) said:

1. “Whoever cultivates barren land, it belongs to him.” (Abu Dawud, al-Nasa’i, al-Tirmidhi).

2. Urwah (may Allah be pleased with him) said: “The earth belongs to Allah, and the servants also belong to Allah. Whoever revives dead land has the greatest right to it. Those who conveyed the matter of prayer to us conveyed this statement to us from the Messenger of Allah (peace and blessings be upon him).”

3. “Whoever revives dead land will receive a reward for that deed. Whatever birds, animals, and insects eat from it will become charity for him.” (al-Nasa’i).

4. Hasan ibn Samurah (may Allah be pleased with him) said that the Messenger of Allah (peace and blessings be upon him) said: “Whoever builds a wall around land, it belongs to him.” (That is, barren land.) Abu Dawud.

5. Asmar ibn Mudarris said: I came to the Messenger of Allah (peace and blessings be upon him) and pledged allegiance to him. He said: “Whoever takes precedence over land to which no Muslim had previously laid claim, it belongs to him.” After hearing this, the people enclosed their respective lands.

Conditions for cultivating barren land: For land to be considered barren, it must be situated away from a settlement, so that it is not regarded as part of that settlement. The distance from the settlement will be determined according to customary practice.

Permission of the ruler: The jurists unanimously agree that cultivating barren land is sufficient to establish ownership of it. They differ, however, on whether the ruler’s permission is a condition. Most scholars say that it is not a condition. Whenever anyone cultivates barren land, he becomes its owner, even without the ruler’s permission. When a dispute arises and the ruler undertakes to settle it, it is the ruler’s duty to grant the cultivator his right.

Imam Abu Dawud narrated through Sa‘id ibn Zayd that the Messenger of Allah (peace and blessings be upon him) said: “Whoever cultivates barren land, it belongs to him.”

Imam Abu Hanifah said: “Cultivation establishes ownership. However, the ruler’s permission and recognition are conditions.”

According to Malik, there is a distinction between land far from a settlement and land adjoining a settlement. If it adjoins a settlement, the ruler’s permission is required; if it is distant, permission is not required, and the cultivator becomes its owner.

When is ownership revoked? If someone decides to cultivate land, marks it by planting a flag or encloses it with a wall, but then does nothing to cultivate it or make it usable, his ownership of it will be revoked after three years.

Salim ibn Abdullah said: One day, Umar ibn al-Khattab (may Allah be pleased with him) addressed the people of Egypt: “Whoever cultivates barren land, it will belong to him. But if he holds land without cultivating it, he will not retain ownership of it after three years.” This was because many people would hold land without cultivating it.

Tawus said: The Messenger of Allah (peace and blessings be upon him) said: “The original land belongs to Allah and His Messenger, and thereafter it belongs to you. Whoever cultivates barren land, it belongs to him. Whoever merely holds land, he will not retain ownership of it after three years.”

One who cultivates land owned by another without his knowledge: During the time of Umar ibn al-Khattab and Umar ibn Abd al-Aziz (may Allah be pleased with them), the established practice was that when someone cultivated land believing it had no owner, and another person subsequently proved that he owned it, the claimant was given the choice of one of two actions: either reclaim the land from the cultivator after paying him compensation for his work, or accept the value of the land and transfer it to him. Concerning this, the Messenger (peace and blessings be upon him) said: “Whoever cultivates barren land, it belongs to him. The wrongdoer has no claim to the sweat he expended.”

Granting land, reservoirs, and mines: If a just ruler considers it beneficial, he may grant certain people certain land, mines, or reservoirs. (If it is not beneficial, granting them merely out of favoritism toward relatives is not permissible.)

The Messenger (peace and blessings be upon him) and the caliphs who came after him did this. The following hadiths provide evidence for it:

1. Abd al-Rahman ibn Awf said: The Messenger of Allah (peace and blessings be upon him) and Umar ibn al-Khattab granted me some land. Later, al-Zubayr went to Umar’s relatives and purchased their share from them.
Then he said to Uthman (may Allah be pleased with him):

“Abd al-Rahman ibn Awf claims that the Messenger of Allah (peace and blessings be upon him) and Umar ibn al-Khattab granted him such-and-such land. But I purchased the share belonging to Umar’s descendants.” Uthman (may Allah be pleased with him) said: “Abd al-Rahman’s statement is correct.” (Ahmad)

2. Alqamah ibn Wa’il said: The Messenger of Allah (peace and blessings be upon him) granted him a plot of land in Hadramawt.

3. Umar ibn Dinar said: When the Messenger of Allah (peace and blessings be upon him) came to Medina, he granted land to Abu Bakr and Umar (may Allah be pleased with them).

4. Ibn Abbas (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) granted Bilal ibn al-Harith lowland and highland land along the coast. —Ahmad, Abu Dawud.

Imam Abu Yusuf said: These hadiths establish that the Messenger of Allah (peace and blessings be upon him) granted land to many people, and that the caliphs after him also granted land. When this expressed concern for Islam and helped develop the country, the Messenger of Allah (peace and blessings be upon him) considered it beneficial. The caliphs likewise granted land only to those whom they knew would contribute to Islam’s progress and prosperity and harm its enemies. They performed these actions believing them to be good; otherwise, they would not have done so.

Taking land away from one who leaves it barren: The ruler may grant land only for a beneficial purpose. When it becomes clear that the person to whom land was granted has left it barren instead of cultivating it, it will be taken away from him.

a. Amr ibn Shu‘ayb narrated from his father: The Messenger of Allah (peace and blessings be upon him) had granted some land to certain people from the Muzaynah or Juhaynah tribe. They did not cultivate it, and later another tribe cultivated that land. Consequently, the Juhani or Muzani people complained against them to Umar ibn al-Khattab (may Allah be pleased with him). Umar said: “If I or Abu Bakr had granted the land, I would return it to you. But it was granted by the Messenger of Allah (peace and blessings be upon him).” He then said: “If someone leaves his land uncultivated for three years and someone else subsequently cultivates it, the latter cultivator has the greater right to that land.”

b. Bilal, the father of al-Harith ibn Bilal al-Muzani, said: The Messenger of Allah (peace and blessings be upon him) granted him the entire area of Aqeeq. When the time of Umar (may Allah be pleased with him) came, he said to Bilal: “The Messenger of Allah (peace and blessings be upon him) did not grant you this land so that you could needlessly withhold it from the people. He granted it so that you would make use of it. Therefore, keep from that land whatever you are able to cultivate, and return the rest.”

Thirty-Eighth Chapter: Ijarah, or Leasing

Definition: In the terminology of Islamic law, ijarah, or leasing, is a contract that guarantees obtaining the benefit or service of something in exchange for a specified rent. According to this definition, it is not valid to lease a tree in order to benefit from harvesting its fruit, because a tree is not a service or benefit but rather the source of a service. Similarly, it is not valid to lease gold, silver, foodstuffs, or anything that is given or received by measure or weight, because in order to obtain the service of the relevant object, the object itself would be consumed. For the same reason, it is not valid to lease a cow, goat, or she-camel in order to consume its milk. The purpose of ijarah is to acquire ownership of a service or benefit, whereas in this case ownership of the milk is acquired, which is not a service.

A service may sometimes be obtained from an object, such as the service of residence from a house or transportation from a vehicle. At other times, it may be obtained from work, such as the work of an engineer, mason, or painter. It may also be obtained from a person’s labor, such as that of domestic servants.

The person who owns the service and leases it out is called the lessor, while the person who receives the service is called the lessee. The object whose service is leased is called the leased property, and the payment in exchange for the service is called rent.

When the ijarah is valid, the lessee acquires the right to receive the service or ownership of the service, while the lessor acquires ownership of the rent or the right to receive it, because this is an exchange contract.

The validity of ijarah or leasing: The validity of leasing is established by the Qur’an, the Sunnah, and consensus.

a. In verse 32 of Surah al-Zukhruf of the Noble Qur’an, Allah Most High says:

أهم يَقْسِمُون رحمت ربك – لحن قسمنا بينهم معيشتهم في الحيوة الدنيا ورفعنا بَعْضَهُمْ فَوق بعض ترمس ليَأْهِلَ بَعْضُهُمْ بَعْضاً سخريا ، ورحمت ربك غير مما يجمعونه

“Do they distribute the mercy of your Lord? We have distributed among them their livelihood in the life of this world and raised some of them above others in rank so that some may employ others. The mercy of your Lord is better than what they accumulate.”

b. Allah says in verse 233 of Surah al-Baqarah:

وإِنْ أَرَدْتُمْ أَن تَسْتَرْضِعُوا أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُمْ مَا أَتَيْتُمْ بِالْمَعْرُوفِ ، وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرَه

“If you wish to have your children suckled by a wet nurse, there is no sin upon you provided that you pay what you agreed to pay in a fair manner. Fear Allah and know that Allah sees well what you do.”

c. Allah says in verses 26 and 27 of Surah al-Qasas:

قَالَتْ إِحْدهُمَا يَأْتِي اسْتَاخِرَهُ وَإِن غَيْرَ مِن اسْتَاجَرْتَ الْقَوِي الْآمِينَ قَالَ إِنِّي أَرِيدَ أَنْ أَنْكِحَلَكَ إِحْدَى ابْنَتَيْ مُتَيْنِ عَلَى أَنْ تَاجَرَ لِي تَمْنِي مِجَعَ : فَإِنْ أَتْمَسَ عَمْرًا فَمِنْ عِنْدِكَ ، وَمَا أَرِيدُ أَنْ احق عَلَيْكَ مَا سَتَجِدُ لِي إِنْ شَاءَ

اللهُ مِنَ الصَّلِحِينَ

“One of the two women said: ‘O my father, hire him; surely the best one you can hire is the strong and trustworthy.’ He said to Moses: ‘I wish to marry one of these two daughters of mine to you on the condition that you serve me for eight years. If you complete ten years, that will be of your own accord. I do not wish to make things difficult for you. If Allah wills, you will find me to be one of the righteous.’”

The following hadiths are also noteworthy:

1. Imam al-Bukhari narrated: The Messenger of Allah (peace and blessings be upon him) hired a man named Abdullah ibn al-Arīqit of Banu al-Dil. He was an experienced guide.

2. Imam Ibn Majah narrated that the Messenger of Allah (peace and blessings be upon him) said: “Give the worker his wages before his sweat dries.”

3. Imam Ahmad, Abu Dawud, and al-Nasa’i narrated from Sa‘d ibn Abi Waqqas (may Allah be pleased with him): “I used to lease land in exchange for the crops produced beside my canal. But the Messenger of Allah (peace and blessings be upon him) forbade me from doing this and ordered me to lease it in exchange for gold or silver.”

4. Imam al-Bukhari and Muslim narrated from Ibn Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Have yourself cupped and give the cupper his payment.”

Furthermore, the entire Muslim community agrees on the validity of ijarah. The dissent of the few scholars who opposed this consensus is not considered.

The rationale for the validity of ijarah: The Shariah has made ijarah, or leasing, valid because people greatly need it. People need houses for residence, servants or employees for work, pack animals or vehicles for transportation, land for cultivation, and equipment for economic needs. It is cheaper to obtain all these necessities through leasing than by purchasing them.

Essential elements of an ijarah or lease contract: An ijarah contract is concluded through two statements such as “I have leased it” and “I have accepted the lease,” or statements conveying similar meanings. One represents offer and the other acceptance.

Conditions for the lessor and lessee: An essential condition for both the lessor and lessee is that they be of sound mind and rational enough to understand right and wrong and benefit and loss. If either one is insane or an unintelligent child, the contract will not be valid.

Conditions for a valid ijarah or lease: The following conditions are necessary for an ijarah or lease to be valid:

1. The voluntary consent of both the lessor and the lessee. If either of them is compelled to lease something out or take it on lease, the lease will not be valid, because Allah says:

يَأَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُمْ بَيْنَكُرْ بِالْبَاطِلِ إِلَّا أَن تَكُونَ تِجَارَةٌ عَنْ تَرَاضٍ مِنْكُمْ قَفَ وَلَا تقتلوا انفسكُمْ طَ إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيمًا

“O believers! Do not consume one another’s wealth unjustly, but only conduct business by mutual consent.” (Surah 4, al-Nisa’: verse 29)

2. Clear knowledge of the service for which the contract is being made, so that no dispute arises. Such knowledge may be obtained by directly viewing the leased object; when complete knowledge can be obtained through description, by providing a full description of the object; by specifying the duration of the lease, such as a month, a year, or less or more; and by indicating the nature of the service.

3. The object whose service is being contracted for must be legally and practically transferable. Some scholars added this condition. They maintain that, on this basis, jointly owned property may not be leased without the co-owner, because it cannot be transferred. This is the opinion of Imam Abu Hanifah and Imam Zufar.

But according to most jurists, jointly owned property may be leased or taken on lease without the co-owner. This is because jointly owned property also has services and benefits. It is possible to transfer it by freeing it from the co-owner’s share or by contracting for partial use in proportion to one’s share, as occurs in buying and selling. In fact, ijarah is a type of sale. If the service is not well known and specified, the lease contract will be invalid.

4. The leased object must be capable of being transferred and of providing the intended benefit. Therefore, it is not valid to lease an escaped animal, because it cannot be transferred. Similarly, it is not valid to lease barren land or a disabled animal, because neither can provide the service for which the lease contract was concluded.

5. The intended service must be permissible according to the Shariah; it must be neither forbidden nor obligatory. Therefore, leasing for sinful activities is not permissible, because avoiding sin is obligatory.

If someone hires a person to kill another unjustly, hires someone to bring him wine, rents out a house for selling wine, or rents out a house for gambling or for building a church or temple, the lease will be invalid. Similarly, it is not permissible to pay an astrologer or soothsayer a fee or gratuity for making predictions, because this is payment for a forbidden act and amounts to unlawfully consuming people’s wealth. It is also not permissible to hire someone to perform prayer or fasting, because these are obligatory acts required of every capable Muslim.

Paying remuneration for acts of worship: Scholars differ regarding payment for acts of worship. The Hanafi school’s view is that it is not permissible to pay rent or remuneration for acts of worship, such as having someone pray, fast, perform Hajj, or recite the Qur’an on behalf of the payer and gift the reward to him. Accepting payment for such work is haram. The Messenger of Allah (peace and blessings be upon him) said: “Recite the Qur’an, but do not consume anything in exchange for it.” He said to Amr ibn al-As: “If you are appointed as a muezzin, do not take payment for the adhan.” Moreover, since an act of worship, once completed, is performed on behalf of the person who performs it, it is not permissible to accept payment from anyone else for it. Such practices common in Egypt, such as reciting khatms, tasbihs, and similar things for a fixed payment so that the reciter may send them to the soul of a deceased person, are not lawful in the Shariah. Such practices are also widespread in Bangladesh and other Muslim countries. Scholars and imams should refrain from them, because when a reciter recites for money, he receives no reward. What, then, will he send to the deceased?

The jurists state unequivocally that accepting payment in exchange for devotional acts is haram. However, contemporary scholars have deemed it permissible to accept payment for teaching the Qur’an and spreading knowledge of the Shariah. In earlier times, those who performed these tasks received allowances from the public treasury and from wealthy people, but those allowances are no longer available. Since they and their dependents have no alternative means of livelihood, accepting payment for this work is permissible so that they do not fall into hardship. If they were not paid, they would be forced to engage in farming, trade, industry, or other occupations, causing the number of propagators of the Qur’an and Islam to decline until they disappeared. The dissemination and expansion of knowledge of the Qur’an and Shariah would then be threatened. Therefore, they may be paid for this work.

The Hanbali view: It is not permissible to pay remuneration for the adhan, iqamah, teaching the Qur’an, hadith, and fiqh, representing someone at Hajj, or serving as a judge in a Shariah court. Whoever performs these acts will receive their reward from Allah, and accepting payment for them is also haram. They say: “However, it is permissible to receive a livelihood from the public treasury or from endowed institutions for social services such as judging, teaching the Qur’an, hadith, and religious knowledge, representing others, giving testimony, and calling the adhan. These are works serving the public interest. Such livelihood is not remuneration; rather, it is a state-provided livelihood in support of acts of worship. It does not harm sincerity and devotion in worship. If it did, receiving spoils of war would not be permissible.”

The view of the Malikis, al-Shafi‘i, and Imam Ibn Hazm: It is permissible to accept payment for teaching the Qur’an and disseminating knowledge of the Shariah. This falls under hiring a worker for specified labor in exchange for specified remuneration. Ibn Hazm said: “It is permissible to accept monthly or one-time payment for teaching the Qur’an, disseminating knowledge of the Shariah, writing amulets, writing the Qur’an, writing books containing Islamic knowledge, and similar activities, because no clear prohibition against this has been reported in the Qur’an or hadith; rather, permission has been reported.”

The following hadith narrated by Imam al-Bukhari from Ibn Abbas (may Allah be pleased with him) strengthens Ibn Hazm’s opinion: “A group of the Companions of the Messenger of Allah (peace and blessings be upon him) passed by a waterhole. Someone among the people living there had been bitten by a snake. One of the people of the waterhole said: ‘Is there anyone among you who can perform ruqyah? There is a person in this area who has been bitten by a snake.’ Immediately, one of them went and recited Surah al-Fatihah in exchange for a goat. Then he brought the goat to his companions. They disliked this and said: ‘You accepted payment for reciting the Qur’an?’ Later, they came to Medina and said: ‘O Messenger of Allah, this man accepted payment for reciting the Book of Allah.’ The Messenger of Allah (peace and blessings be upon him) said: ‘The Book of Allah is the most deserving of payment among the things for which you receive payment.’”

Just as the jurists hold differing opinions about accepting payment for reciting and teaching the Qur’an, they also differ regarding payment for Hajj, the adhan, and leading prayers.

Imam Abu Hanifah and Imam Ahmad say: Accepting payment for acts of worship is impermissible; this falls under that principle. Imam Malik says: Just as payment for teaching the Qur’an is permissible, so is payment for Hajj and the adhan. However, accepting payment solely for leading prayers is not permissible. If someone both leads the prayers and gives the adhan, accepting payment is permissible. That payment is considered compensation for giving the adhan and looking after or supervising the mosque, not payment for the prayer.

Imam al-Shafi‘i says: Accepting payment for Hajj is permissible, but accepting payment for leading the obligatory prayers is not. However, payment for teaching arithmetic, handwriting, languages, literature, fiqh, and hadith, and for constructing mosques and madrasas, is unanimously permissible.

According to Imam al-Shafi‘i, accepting payment for washing the deceased, burying him, and teaching him the testimony of faith while standing beside his grave after burial is permissible. Imam Abu Hanifah says: It is not permissible to pay for washing the deceased, but it is permissible for digging the grave and carrying the body.

The Barber’s Earnings: A barber’s earnings are not haram, because the Messenger of Allah ﷺ had his head shaved by a barber and paid him his wages. Imams al-Bukhari and Muslim narrated this on the authority of Ibn Abbas رضي الله عنه. If it had been haram, he would not have paid him.

Imam al-Nawawi says: The hadiths containing the prohibition indicate that this is makruh tanzihi, and that people are being encouraged not to earn through lowly occupations but to engage in noble deeds.

6. The final condition is that the payment must be an asset having market value and capable of being specified by sight or description, because it is the price of a service. Every price must be specified. The Messenger of Allah ﷺ said: “Whoever hires a worker should inform him of his wage.” It is permissible to determine the wage according to customary practice. Imams Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated, and al-Tirmidhi authenticated, that Suwayd ibn Qays said: “I and Mahrama al-‘Abdi came to Makkah from the market with a bundle of cloth. The Messenger of Allah ﷺ came to us and bargained with us for a pair of trousers. We sold it to him. Nearby, a man was weighing goods for payment. He said to him: ‘Weigh and tip the scale.’” He did not specify any payment for him; rather, he paid him according to customary practice.

Imam Ibn Taymiyyah says: “When someone rides on the back of a professional porter’s animal, enters a professional bathhouse, gives his clothes to a professional washer to wash, or has a professional cook prepare food, there is no need to ask about the payment, because his wage is already established.

In leasing or hiring, the customary practice must be followed in determining the payment. This is established by verse 6 of Surah al-Talaq:

فإن أَرْضَعْنَ لَكُمْ لَا تُوَمَنْ أَجُورَهُنَّ

‘If they nurse your children, then give them their wages.’

The verse commands payment as soon as the woman nurses the child. It is well known that the payment is to be determined according to customary practice.

Stipulating Immediate or Deferred Payment: According to the Hanafi school, payment does not become due merely upon conclusion of the contract. If both parties agree, however, it is permissible to pay the entire payment, rent, or part of it immediately or defer it. The Messenger of Allah ﷺ said:

“Muslims shall conduct transactions according to their mutual conditions.” If no agreement has been reached concerning immediate or deferred payment, it becomes obligatory to pay immediately after the specified period has elapsed. For example, if someone rents out a house for one month, the rent must be paid as soon as the month ends. If rent or wages have been stipulated for completing a particular task, they must be paid as soon as the task is completed. If the contract was concluded without imposing any condition, then according to Imam Abu Hanifah, the wages or rent are to be paid in installments in proportion to the service received. Imam al-Shafi‘i and Ahmad say: Rent becomes due as soon as the contract is concluded. When the lessor hands the leased property over to the lessee, he becomes entitled to the full rent, because through the lease contract he has transferred ownership of all the services, and payment is required for handing the leased property over to the lessee. When do wages or rent become due? Rent or wages become due at the following times:

1. As soon as the work is completed. The Messenger of Allah ﷺ said: “Give the worker his wages before his sweat dries.” — Ibn Majah.

2. If the lease concerns a particular object, the rent becomes due after receiving the benefit of that object. If the object is destroyed before any part of the specified term has elapsed, the lease contract is annulled.

3. If enough of the lease term has elapsed for it to have been possible to derive the full benefit from the leased object, the stipulated rent becomes due, whether or not the full benefit was actually taken.

4. When payment is actually made immediately, or when both parties agree to immediate payment.

When the Relevant Object Is Destroyed in a Hiring Contract: When a worker works under the ownership or in the presence of the person who hired him, he becomes entitled to his wages as soon as the work is completed, because he is working under that person’s authority. Whenever he completes a task, it is handed over to the owner. But if the work remains in the worker’s possession and the relevant object is destroyed while in his hands, he receives no payment, because he has not delivered his service. This is the view of the Shafi‘is and Hanbalis.

Hiring a Wet Nurse: A husband may not hire his wife to nurse the child she herself has borne, because this is a duty imposed upon her by Allah. (This is the view of the three Imams. Imam Malik adds that the wife may be compelled to do this, unless she is a woman of such noble status that women of her standing do not do so. According to Imam Ahmad, she may be compelled even if she is of noble status.) It is permissible to hire a wet nurse other than the mother for a specified payment. It is also permissible to hire a wet nurse in exchange for food and clothing. If the amount of payment is unknown in this case, disputes may arise. According to customary practice, wet nurses are treated generously for the child’s welfare.

However, the duration of nursing must be known, the child concerned must be identified by sight, and the place of nursing must be specified. Allah says:

وإِنْ أَرَدْتُمْ أَن تَسْتَرْمِعُوا أَوْلَادَكُر فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلمْتُمْ مَا أَتَيْتُرْ بِالْمَعْرُوفِ مَا وَاتَّقُوا اللَّهَ واعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ

‘If you wish to have your children nursed by a wet nurse, there is no blame upon you provided that you pay what you have agreed to give in a fair manner. Fear Allah and know that Allah sees well what you do.’ (Surah al-Baqarah, verse 233)

A wet nurse is regarded as a personal servant. Therefore, she may not nurse another child.

In addition to nursing the child, the wet nurse must bathe the child, wash his clothes, prepare his food, and attend to all his needs. The child’s father, however, is responsible for all expenses of providing food, perfume, oil, and the other things the child needs. If either the child or the wet nurse dies, the lease or hiring contract is annulled, because the death of the wet nurse makes the desired service impossible, and the death of the child likewise makes it impossible to receive that service.

The Validity of Hiring in Exchange for Food and Clothing: Scholars differ over whether it is permissible to hire a servant solely in exchange for food and clothing. Those who consider it permissible use the following hadith as evidence. Imams Ahmad and Ibn Majah narrated that ‘Utbah ibn al-Nudr said: “We were sitting with the Messenger of Allah ﷺ while he recited Surah al-Qasas. When he reached the story of Moses عليه السلام, he said: ‘Moses worked as a laborer for eight or ten years in order to obtain food for himself and preserve his chastity.’” This hadith was also narrated from Abu Bakr, Umar, and Abu Musa رضي الله عنهم. The Maliki and Hanbali schools hold a similar view. According to Abu Hanifah, only a wet nurse, not a servant, may be hired in exchange for food and clothing.

Imam al-Shafi‘i, Abu Yusuf, and Muhammad say that this is impermissible because of the uncertainty and lack of clarity. In the Maliki school, if this is customary, a servant may also be hired in exchange for food and clothing. They say: If the employer says, “Harvest my crop and I will give you half of it,” or, “Make bread or produce oil,” and he gives him half immediately, it is permissible. But if he means that the worker will receive half of whatever crop is produced, it is impermissible because the amount is unknown.

Leasing Land: It is permissible to lease land. However, the purpose for which it is being leased—growing crops, planting trees, building a house, or something else—must be clearly stated. If it is for farming, the crop to be grown must be specified. If the lessor permits the lessee to grow whatever he wishes, then any crop may be grown. If these conditions are not fulfilled, the lease is annulled, because the benefit of land differs according to what is built or grown on it; crops grown on land, for example, vary in kind. The lessee may grow a crop other than the one both parties agreed upon, provided that the harm caused by the new crop is no greater than, but equal to or less than, the harm caused by the crop they agreed upon. Imam Dawud says: He has no right to grow anything other than the crop upon which both parties agreed.

Leasing Animals: It is permissible to lease an animal. The conditions are that the time, place, purpose of leasing it—such as transport or riding—who will ride it, and what it will carry must be specified. If an animal leased for riding or transport dies, and it already had a defect when it was leased, the lease is considered terminated when it dies. If it had no defect and then died, the lease is not annulled.

When it dies, the lessor must provide another animal and may not cancel the contract, because he leased it after undertaking to provide a specific service and has not yet become unable to provide the service required by the contract. The jurists of the four schools agree on this.

Leasing a House for Residence: If a house is leased for residence, the lessee may live in it, whether he lives there himself or allows someone else to live there as a loan or sublease. The condition is that the occupant must not weaken or damage the foundation of the house, as a blacksmith, for example, might. It is the lessor’s duty to allow the lessee to benefit fully from the house according to customary practice.

Subleasing a Leased Object: The lessee may sublease the object he has leased. If the leased object is an animal, the condition for subleasing it is that the subsequent use be equal or close to the purpose for which it was first leased, so that the animal is not harmed. After taking possession of the leased object, he may sublease it for the same rent, or for a lower or higher rent.

If a Leased Object Is Lost: A leased object is held in trust by the lessee, because he leased it to obtain its permitted benefit. If it is destroyed, he is not liable for its loss unless he was negligent or excessive in maintaining it. If someone leases an animal for riding and then controls it with a rein in the customary manner, he is not liable for it.

Chapter Thirty-Nine: Laborers or Servants

Personal Servant: A person hired to work for a specified period is called a personal servant. If the period is not specified, the hiring is invalid. In such a case, both the hired person and the employer have the right to cancel the contract whenever they wish. If a servant makes himself available to an employer to work for any period, he receives for that period the wage paid to other servants of comparable standing.

During the period for which a personal servant contracts to work for his employer, he may not work for anyone else. If he does, his wage will be reduced in proportion to the work he performed. When he makes himself available for service and does not refrain from the work for which he was hired, he receives his full wage. Likewise, if the employer dismisses him before the period agreed upon by both parties has ended, without a valid reason for dismissal, the servant still receives his full wage. For example, if the servant becomes unable to work or contracts an illness that prevents him from working, this is not considered a valid reason for dismissal. But if a defect or incapacity inherent in the servant is discovered and the employer dismisses him for that reason, he receives nothing beyond the wage for the period he worked; the employer is not obliged to pay the full wage. A personal servant is like an agent. The work entrusted to him is held in trust by him. If it is damaged through his excess or negligence, he is liable and must compensate for it. If he was neither excessive nor negligent, he is not liable.

Joint or Public Servant: A joint or public servant is someone who works for the public, so that everyone may benefit from his service, such as a painter, tailor, blacksmith, or carpenter. If someone hires such a person, he has no right to prevent him from working for others. Such a servant is entitled to wages only for work actually performed. Scholars differ over whether he is liable to compensate for something damaged while in his hands.

Ali, Umar, the judge Shurayh, Imam Abu Yusuf, Imam Muhammad, and the Maliki jurists say: Even if he was neither excessive nor negligent, he must compensate for any damage caused by him, so that people’s property and interests remain protected and secure. Imam al-Bayhaqi narrates that Ali used to hold builders and painters liable for compensation and would say: “Without this, people cannot be reformed.” Imam al-Shafi‘i رحمه الله narrated that Shurayh used to hold painters liable for compensation, and that he once required a painter whose house had burned down to pay compensation. The man said, “You have required me to pay compensation even though my house burned down?” Shurayh replied, “If your opponent’s house had burned down, would you waive the wages owed to you by him?”

Imam Abu Hanifah and Ibn Hazm say that he is not liable for damage if he is not guilty of excess or negligence. This is the sound view of the Hanbali and Shafi‘i schools.

Imam Hazm says: If no damage was caused through negligence or excess, neither a personal servant nor a joint servant is liable.

Cancellation or Termination of a Lease or Hiring Contract: Neither party has the right to cancel a lease or hiring contract, because it is an exchange contract. However, it may be canceled if something occurs that makes cancellation necessary, such as the discovery of a defect. If the leased object remains intact, the lease is not canceled by the death of either party. In that case, the heir takes the deceased’s place, whether the deceased was the lessor or the lessee. The Hanafis, Zahiris, al-Sha‘bi, al-Thawri, and al-Layth ibn Sa‘d disagree with this view.

According to Imam Malik and Imam Ahmad, if the lessor sells the leased object to the lessee or to someone else, the lease is not canceled. If the buyer is someone other than the lessee, he may take possession of the purchased object when the lease term ends. (Imam Abu Hanifah says that it may not be sold without the lessee’s consent. However, if the lessor is indebted to someone and the ruler has detained him to recover the debt, he may sell it to repay the debt.)

A lease may be canceled for the following reasons:

1. If a new defect arises in the leased object while it is in the lessee’s possession, or a pre-existing defect becomes apparent.

2. If the leased object, such as a house or animal, is destroyed.

3. If the person to whom the object was entrusted dies—for example, if a tailor dies after being given cloth to sew. After his death, recovering the cloth is impossible.

4. When the benefit for which the lease was made has been obtained, or when the work for which the laborer was hired has been completed, or when the term has ended. However, it is not canceled if there is an excuse that prevents cancellation. For example, if the lease term for land rented for farming ends before the crop is harvested, the land remains in the lessee’s possession until the harvest, and he receives payment for the additional period according to the wage payable for similar work. If necessary, the lessor may be compelled to leave it in the lessee’s possession during this additional period, so as to protect the lessee from the loss he would suffer if the crop were harvested before its proper time.

5. The Hanafis say: If the excuse also arises on the lessee’s side, the lease may be canceled. For example, if he rents a shop for business and then his goods are burned, stolen, looted, or he becomes bankrupt, the lease may be canceled.

Returning a Leased Object: At the end of the lease term, the lessee must return the leased object. If it can be moved, he must hand it over to its owner. If it is land, he must remove his belongings and return it vacant. If it is farmland, it must be returned without crops. If there is an excuse, a different arrangement applies, as discussed earlier; in that case, the land remains in the lessee’s possession until the crop is harvested.

According to the Hanbalis, as soon as the lease term ends, the lessee must stop using the object. He is not obliged to return it to the owner or bear the cost of returning it, because this is a contract that entails no liability or compensation. They say:

After the term ends, the object remains in the lessee’s hands as a trust. If it is destroyed without any negligence on his part, he is not obliged to compensate for it.

Chapter Forty: Mudarabah

Definition and Ruling: It is a contract between two parties in which one gives the other money for trade, and the profit is divided between them at a rate mutually agreed upon. It is unanimously valid. The Messenger of Allah ﷺ conducted a mudarabah partnership with Khadijah رضي الله عنها using her money, and traveled with it to Syria before his prophethood. It was practiced during the pre-Islamic period, and Islam retained this form of business. Hafiz Ibn Hajar says: We are certain that this method of business existed during the time of the Messenger of Allah ﷺ; he knew of it and approved it. Otherwise, it could never have been valid.

It is reported that the two sons of Umar ibn al-Khattab, Abdullah and Ubaydullah, set out with the army traveling to Iraq. On their return, they met a governor appointed by Umar رضي الله عنه: Abu Musa al-Ash‘ari, the governor of Basra. He welcomed Abdullah and Ubaydullah and said: “If I could do something profitable for you, I would.” Then he said again: “Yes, there is some of Allah’s property here. I want to send it to the Commander of the Believers, but I will lend it to you. Use it to buy goods in Iraq and bring them to Madinah to sell. Preserve the capital and give it to the Commander of the Believers, while the profit will be yours.” They both said: “We agree; we like this.” Abu Musa then did as he had said and wrote to Umar رضي الله عنه asking him to accept the property they would send. When they reached Madinah, sold the goods, and made a profit, Umar رضي الله عنه said: “Did Abu Musa lend this to everyone else in the army as he lent it to you?” They replied: “No.” Umar said: “You are the sons of the Commander of the Believers, so he lent it to you. Return both the capital and the profit.”

Abdullah remained silent, but Ubaydullah said: “O Commander of the Believers, if this property had been destroyed, we would have had to compensate for it.” The Commander of the Believers said: “Return it.” Again Abdullah remained silent, and Ubaydullah repeated what he had said. At that point, a man sitting with Umar رضي الله عنه said: “O Commander of the Believers, you could make this a mudarabah.” Umar agreed. He took half of the capital and profit, and gave the remaining half to Abdullah and Ubaydullah.

The Rationale for Mudarabah: Islam instituted it to create ease and prosperity in people’s lives. Some people may possess wealth but be unable to invest it or use it profitably. Others may have no wealth but know how to invest and increase it and have the ability to do so. Therefore, the Shariah permitted this form of business so that both parties could benefit: the wealthy person from the trader’s experience, and the trader from the wealthy person’s capital. In this way, cooperation between capital and labor becomes effective. Indeed, Allah has permitted various contracts to secure overall benefit and prevent harm.

The Essential Elements of Mudarabah: Its essential element is the offer of one of two legally competent parties and the acceptance of the other. No particular wording is required; rather, a mudarabah contract may be concluded with any wording that conveys its meaning. In every contract, the intended meaning is what matters, not the words or expression.

Conditions of Mudarabah: The following conditions must be fulfilled in a mudarabah:

1. The capital must consist of cash currency; if it consists of gold, silver, jewelry, or merchandise, the mudarabah will not be valid. Ibn al-Mundhir said: All the scholars known to me agree that it is not permissible for someone entering into a mudarabah to impose a debt upon another person.

2. The amount of capital must be clearly specified so that the capital used for business can be distinguished from the profit, since the profit must be divided between the two parties according to their agreement. 3. The proportional share of profit belonging to the owner of the capital and the business operator must be specified, such as one-half, one-third, or one-quarter. For the Messenger of Allah (peace and blessings be upon him) entered into an agreement with the people of Khaybar in return for half of the produce.

Ibn al-Mundhir said: All the jurists from whom we have gathered information about the Shariah agree that the mudarabah becomes invalid if either party stipulates for himself a fixed amount of money as profit.

The reason is that if a fixed amount of profit is stipulated for one party, it is possible that the total profit will amount to exactly that sum. In that case, the party for whom the stipulation was made will take the entire profit, while the other party will receive nothing. Thus, the purpose of mudarabah—both parties benefiting—will not be achieved.

4. The mudarib must be given complete freedom. The owner of the capital may not compel him to conduct business in a particular city, with particular merchandise, at a particular time, or with a particular person, nor impose any similar condition. For imposing conditions often obstructs the purpose of mudarabah, namely, obtaining profit. Therefore, the mudarabah must be free of conditions, restrictions, and pressure; otherwise, it will become invalid. This is the view of Imam Malik and al-Shafi’i.

Imam Abu Hanifah and Imam Ahmad opposed stipulating complete freedom. They said: Mudarabah may be either unrestricted or subject to conditions. If a condition is imposed, it is not permissible for the business operator to violate it; if he does, he must pay compensation.

It is narrated from Hakim ibn Hizam (may Allah be pleased with him) that when merchandise was given to someone for trade, he would impose conditions on him: You must not place my merchandise in anything damp, take it across the sea, or keep it in a low-lying place where water collects. If you do any of these things, you will be liable for my merchandise.

Specifying the duration of a mudarabah is not a condition for its validity, since it is a valid contract that may be terminated at any time. It is also not a condition that a mudarabah be concluded only between two Muslims. It is valid between a Muslim and a non-Muslim as well.

The business operator is a trustee: From the conclusion of the mudarabah contract and the transfer of the capital or merchandise to the business operator, he is considered a trustee regarding that capital or merchandise. He is not liable for any loss or damage except that resulting from his excess or misconduct. In this matter, the statement he makes under oath concerning the cause of the destruction or loss of the property will be accepted as final, because he is presumed not to have committed a breach of trust.

When the business operator transfers the capital to someone else: The business operator has no right to take the mudarabah capital and enter into a mudarabah with another person. If he does so, it will be considered excess or unauthorized conduct on his part. The book Bidayat al-Mujtahid states: “The renowned jurists agree that if the business operator entrusts the mudarabah capital to another business operator, he will be liable for it if a loss occurs, while if a profit occurs, it will be distributed according to the condition he stipulated. (Abu Qilabah, Nafi’, Ahmad, and Ishaq said: When the business operator violates the contract, he is liable, and the profit belongs to the owner of the capital. Other jurists said: The profit belongs to the business operator, and he must give it in charity; if a loss occurs, it will be borne by him. In both profit and loss, he remains liable for the capital.)”

The business operator’s expenses: Whatever expenses the business operator incurs for the mudarabah merchandise must be paid from his own property, whether he remains in his homeland or travels for the mudarabah. For these expenses could equal the profit. In that case, the owner of the capital would be deprived of the profit while the business operator would consume it all. Moreover, the business operator’s share of the profit has already been specified. Therefore, he is not entitled to receive anything additional to it.

However, if the owner of the capital permits the business operator to cover his expenses during travel from the mudarabah funds, or if such an arrangement is customary, he may cover them from the mudarabah funds.

According to Imam Malik, when the amount of the mudarabah funds is large enough to allow expenses to be covered from it, the business operator may cover his expenses from those funds.

Termination of a mudarabah: A mudarabah becomes invalid for the following reasons:

1. Failure to fulfill one of the conditions of validity. If one of the conditions of validity is not fulfilled after the business operator has already taken possession of the capital and conducted business with it, he will receive the customary remuneration paid for similar work. For he handled the capital with the owner’s permission and is entitled to payment for the work he performed. Any profit obtained belongs to the owner, as does any loss. The business operator is merely a wage-earner, and a wage-earner is not liable for loss or damage except when caused by his excess or misconduct.

2. If the business operator exceeds his authority, is negligent in safeguarding the mudarabah property, or does anything contrary to the purpose of the contract, the mudarabah will become invalid. If the property is destroyed, he will be liable for it, since he himself caused its destruction.

3. The mudarabah is terminated if either the business operator or the owner of the capital dies. What the business operator must do when the owner of the capital dies: The mudarabah will be terminated upon the owner’s death, and the business operator will have no right to handle the mudarabah property. If, after learning of the death, he continues to handle it without the heirs’ permission, he will be regarded as an unauthorized handler or usurper and will be liable for any loss or damage. If profit is subsequently earned, it will be divided between the two parties.

Imam Ibn Taymiyyah said: “The Commander of the Believers gave this ruling concerning the profit earned by the sons of the Commander of the Believers, Umar ibn al-Khattab, when they conducted unauthorized business with capital from the Bayt al-Mal.” When a mudarabah is terminated and the capital consists of merchandise rather than cash, the owner of the capital and the business operator may either sell it or divide it between themselves, since this is their right. But if the business operator wishes to sell and the owner of the capital refuses, the owner will be compelled to sell, because the business operator has a share in the profit and cannot obtain it without selling. This is the view of the Shafi’i and Hanbali schools.

The presence of the owner of the capital at the time of distribution is required: The scholars agree that it is not permissible for the business operator to take his share of the profit without the presence of the owner of the capital. The owner’s presence is required for distributing the profit and for the business operator to take his share of it. The presence of merely a witness or anyone else is insufficient.

The Forty-First Chapter: Hawalah

Transfer of a debtor’s liability to another: Definition: In Shariah terminology, hawalah means a debtor transferring his debt to someone who assumes responsibility for paying it. This type of contract involves three persons: the transferor (the debtor), the transferee (the creditor), and the recipient of the hawalah, namely, the person who assumes responsibility for payment.

Hawalah is a transaction that does not require an offer and acceptance. It is sufficient to say, “I have transferred you to so-and-so,” or, “I have assigned the responsibility for paying your debt to so-and-so,” or words conveying a similar meaning.

The legality of hawalah: Islam has permitted this practice in view of the need for it. Imam al-Bukhari and Muslim narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “The delay of a person able to pay a debt is injustice. When one of you is transferred to a wealthy person capable of paying, he should accept the transfer.”

In this hadith, the Messenger commanded the creditor that when his debtor transfers him to a wealthy person capable of paying who agrees to settle the debt, he should accept this transfer, namely the hawalah, and collect the debt from that person.

Is the command obligatory or indicative of recommendation? According to many Hanbali jurists, Ibn Jarir, Abu Thawr, and the Zahiri school, the command makes it obligatory for the creditor to accept the offer of being transferred to a wealthy person capable of paying and willing to settle the debt. However, most scholars hold that the command indicates recommendation.

Conditions for the validity of hawalah: The following conditions must be fulfilled for a hawalah to be valid:

1. The consent of the transferor (the debtor) and the transferee (the creditor) is required. The consent of the person to whom the hawalah is made is not required, because the hadith cited above mentions only these two persons. Moreover, since the transferor has an essential duty to repay the debt from whatever source is possible, and the transferee has a debt owed to him by the transferor, the hawalah cannot be valid without his consent.

Some say that his consent is not a condition, because according to the hadith he is obliged to accept the hawalah. Furthermore, he may collect what is owed to him either from the transferor himself or from someone acting in his place. The consent of the person to whom the creditor is transferred is not required because the Messenger did not mention him in the hadith. However, according to the Hanafi school and the view of al-Ashtakhali in the Shafi’i school, his consent is also required.

2. The two debts must be equivalent in kind, amount, whether immediately due or deferred, and whether of good or poor quality. If the debt is gold and the hawalah is made for repayment in silver, it will not be valid. Similarly, if a debt is immediately payable and the hawalah is made for deferred payment, or if a debt is deferred and the hawalah is made for immediate payment, the hawalah will not be valid.

3. The debt must be established. Thus, if a hawalah is made to an employee who has not yet received his wages, it will not be valid.

4. Both debts must be known to both parties.

Does hawalah release the transferor from liability? If the hawalah is valid, the transferor will be free of liability. However, if the person to whom the hawalah was made becomes insolvent, denies the hawalah, or dies, the creditor may not claim anything from the debtor. This is the view of most scholars.

The Maliki jurists, however, say that if the debtor deceives the creditor by transferring him to an insolvent person, the creditor is entitled to recover what is owed to him from the debtor. Imam Abu Hanifah, the judge Shurayh, and others say that if the person to whom the hawalah was made dies while insolvent or denies the hawalah, the creditor may claim what is owed to him from the debtor. Uthman al-Batti held the same view.

The Forty-Second Chapter: Shuf’ah

Definition: In pre-Islamic Arabia, when someone wished to sell his house or garden, his neighbor, partner, or the owner of adjoining land, a house, or a garden would approach him and ask him to sell to him, rather than to the distant person to whom he was about to sell or had sold it, and to give him priority. This request and recommendation is called shuf’ah in Arabic, and the person making the request is called the shafi’. In Shariah, it means the shafi’ forcibly taking the sold property from the buyer into his own ownership by paying the same price and bearing the related expenses.

Legality: Shuf’ah is established as lawful by hadith. Moreover, Muslims agree on its legality.

Imam al-Bukhari narrated from Jabir ibn Abdullah (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) ruled in favor of shuf’ah concerning property that had not been divided. But when boundaries have been established and the roads have been altered, there is no longer any shuf’ah.

The rationale: Islam legislated shuf’ah in order to prevent harm and avert hostility. If a relatively closer person becomes the owner of property purchased by an unknown person, he will be protected from the harm he might otherwise suffer from that unknown person.

Shuf’ah for a non-Muslim citizen: Just as shuf’ah is the right of a Muslim, it is also the right of a non-Muslim citizen. This is the view of most jurists. Imam Ahmad, Hasan, and al-Sha’bi held that it is not available to a non-Muslim, based on a narration from Anas in Dar Qutni that the Messenger of Allah (peace and blessings be upon him) said: “A Christian will not have the benefit of shuf’ah.”

Seeking the partner’s permission before a sale: A partner must obtain the permission of the other partner before selling his property. If he sells it without his permission, the other partner has the greater right to purchase that property. If he gives permission for the sale and says, “I have no interest in that property,” he may no longer claim it after the sale. This is required by the ruling of the Messenger of Allah (peace and blessings be upon him), and there is no room to oppose it.

1. Imam Muslim narrated from Jabir (may Allah be pleased with him): “The Messenger of Allah (peace and blessings be upon him) established shuf’ah concerning jointly owned property until it is divided, whether it is a house or a garden. It is not permissible to sell it until the partner’s permission has been obtained. If he wishes, he may buy it; otherwise, he may relinquish it. If it is sold without his permission, he has the greater right to purchase that property.”

2. Yahya ibn Adam narrated that the Messenger of Allah (peace and blessings be upon him) said: Whoever has a share in the ownership of a house or garden may not sell his share without the partner’s permission. If he wishes, he may buy it; otherwise, he may relinquish it.

Imam Ibn Hazm said: “It is not permissible for someone who owns a share in property to sell it without informing his other partners. If a partner wishes to buy it at the price offered by another, the partner has the foremost right. If he does not wish to buy it, his right is forfeited, and thereafter, regardless of to whom it is sold, the partner may make no claim to it. If it is sold without informing the partners, a partner may either uphold the sale or cancel it and take the property for himself at the price for which it was sold.”

Imam Ibn al-Qayyim said: “This is the ruling of the Messenger of Allah (peace and blessings be upon him), and no one has the right to oppose it. This is definitive, conclusive, and correct.” The view of some scholars, including certain Shafi’i jurists, is that informing the partners before selling is recommended. Al-Nawawi said: Informing them is recommended, while selling without informing them is disliked, not forbidden.

Using legal stratagems to cancel the right of shuf’ah: It is not permissible to use stratagems to cancel the right of shuf’ah, because this destroys a Muslim’s right. Abu Hurayrah (may Allah be pleased with him) narrated: “Do not do what the Jews used to do, making Allah’s prohibitions lawful through stratagems.” This is the view of Imam Malik and Ahmad. Imam Abu Hanifah and al-Shafi’i, however, considered using such stratagems permissible. An example of using a stratagem to deprive someone of shuf’ah is to acknowledge the person to whom the property will be sold as owning part of it; by this acknowledgment he becomes a partner, after which the remaining part is sold or donated to him.

Conditions of shuf’ah: The following conditions apply for acquiring property by the right of shuf’ah:

The first condition: The property claimed through shuf’ah must be land, a house, or attached immovable property. As mentioned previously, Jabir (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) ruled in favor of shuf’ah concerning every jointly owned property that had not been divided, such as a house or garden. This is the view of most jurists. The people of Makkah and the Zahiri jurists disagree, as does one reported view of Imam Ahmad. They say that shuf’ah applies to every type of property, because the harm a partner may fear in land may also occur in movable property. In one narration, Jabir said: The Messenger of Allah (peace and blessings be upon him) ruled in favor of shuf’ah concerning every property. Ibn al-Qayyim said that the narrators of this latter hadith are trustworthy. A hadith narrated by Ibn Abbas also states that the Messenger of Allah (peace and blessings be upon him) said: “Shuf’ah applies to every thing.” Ibn Hazm supports this view, saying that shuf’ah is obligatory for every sold share of undivided jointly owned property, whether owned by two or more people and whether divisible or indivisible, such as land, one or more trees, male or female slaves, swords, food, animals, or any other sold item.

The second condition: The shafi’, or claimant of shuf’ah, must already have been a partner in the property subject to the claim before it was sold, and the shares of both partners must have remained unidentified. Jabir (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) ruled in favor of shuf’ah concerning every property that had not been divided. When boundaries are established and the roads are altered, there is no longer any shuf’ah. (Narrated by the five major collections of sound hadith.) This means that shuf’ah applies to every jointly owned undivided property. Once it has been divided, its boundaries established, and its roads identified, there is no longer any right of shuf’ah.

Since shuf’ah is established for a partner, it applies to every divisible property, and the partner may be compelled to accept division. This is subject to the condition that the property can be benefited from after division in the same way it could be benefited from before division. Thus, shuf’ah does not apply to property whose usefulness would be lost through division. The book Minhaj states: “There is no shuf’ah in property from which the intended benefit cannot be obtained after division, such as a bathhouse or a mill.” Imam Malik narrated from Ibn Shihab and Sa’id ibn al-Musayyab that the Messenger of Allah (peace and blessings be upon him) granted the right of shuf’ah in property that had not been divided among its partners, but once boundaries had been established among them, there was no longer any shuf’ah. This is the view of Ali, Uthman, Umar, Sa’id ibn al-Musayyab, Sulayman ibn Yasar, Umar ibn Abd al-Aziz, Rabi’ah, Malik, al-Shafi’i, Ahmad, Ishaq, Ubaydullah ibn al-Hasan, and the jurists of the Imami school.

The book Sharh al-Sunnah states: “The scholars agree that when a partner sells his share in divisible property before division, shuf’ah applies, and the other partners may buy it at the price for which it was sold. If clothing or similar movable property is sold, it must likewise be purchased at that price.” According to them, a neighbor does not have the right of shuf’ah.

The Hanafi jurists disagree with this view. They say that shuf’ah is acquired according to an order of priority. First, it belongs to the partner who has not divided his share; then to the partner who has divided his share but still has some part in the road or courtyard; and then to the adjoining neighbor.

Some scholars adopt a middle position. They argue that shuf’ah applies while there is a shared benefit connected with the owned property, such as a road or water, but that it does not apply after each person’s share has been identified. They cite as evidence a hadith narrated by Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah from Jabir, in which the Messenger of Allah (peace and blessings be upon him) said: When two neighbors share one road, each has the greater right to shuf’ah over the other. Even if one is absent, the other must wait for him.

Ibn al-Qayyim said: The hadiths narrated by Jabir support this view. All three of these opinions exist in the school of Imam Ahmad. Of them, the third and final opinion is the most balanced and best.

The third condition: The property concerning which shuf’ah is claimed must leave the owner’s possession through a sale, a penalty paid in exchange for an offense, or some other transfer involving consideration. There is disagreement over whether shuf’ah is permissible when ownership passes without consideration, such as through a gift, inheritance, or another means. Three views are reported from Imam Malik: one says it is permissible, another says it is impermissible, and the third says that there is no shuf’ah when land is exchanged between partners, but there is shuf’ah when it is exchanged between non-partners.

The fourth condition: When possible, the shafi’, or claimant of shuf’ah, must assert his claim as soon as he learns of the sale. If he delays without an excuse after learning of it, his right of shuf’ah will lapse. For if the shafi’ does not assert his claim immediately and delays it, the buyer will be harmed: his ownership of the purchased property will not be secure, and he will be unable to develop and use it, fearing that his efforts will come to nothing and that someone will take it by claiming shuf’ah.

This is the view of Imam Abu Hanifah, the preferred view of Imam al-Shafi’i, and one of the several views reported from Imam Ahmad. This rule applies only when the claimant is neither absent nor unaware of the sale, and is not unaware of this ruling. If he is absent, unaware of the sale, or unaware that delaying causes his claim of shuf’ah to lapse, his right remains intact. (The more authentic of the two views reported from Imam Abu Hanifah is that asserting the claim immediately upon learning of the sale is not a condition, since the claimant may need time to consider the matter. He must therefore be given that opportunity. This can be done by allowing him to decide whether to assert his claim for as long as he remains in the gathering in which he learns of the sale. His right of shuf’ah does not lapse until he leaves the gathering or begins engaging in another activity.)

Ibn Hazm and others hold that the right of shuf’ah is a right granted by Allah. Therefore, even if a person does not assert his claim for eighty years or longer, his right will not lapse; it lapses only when he himself renounces the claim. He considers those who say, “Shuf’ah belongs only to the person who immediately rushes to assert it,” to be speaking in a highly improper manner, and he says it is impermissible to attribute such a statement to the Messenger of Allah (peace and blessings be upon him). Imam Malik said: It is not obligatory to assert it immediately; rather, the period for doing so is quite broad.

Ibn Rushd says: There is disagreement in Imam Malik’s view as to whether its time is unlimited or limited. At times he says that its duration is unlimited and never ends. However, if the purchaser begins construction or extensive renovation on the land, and the seller, knowing this, remains silent and indifferent, he will no longer have the right to claim pre-emption.

At other times, he determines this period to be one year, or, according to another view, more than one year. It is also reported that he said: The right of pre-emption remains intact for up to five years.

Fifth condition: The pre-emptor, or claimant of pre-emption, must pay the purchaser exactly the price for which he concluded the contract. In a hadith narrated by Jabir, may Allah be pleased with him, it says: “The purchaser has the greatest right to receive the price.” (Juzjani)

If he is unable to pay the entire price, his right of pre-emption is forfeited.

The jurists of the Maliki and Hanbali schools hold that if all or part of the price remains outstanding, the pre-emptor may leave it unpaid or pay it in installments, as stipulated in the contract. The condition is that he must be solvent or provide a solvent guarantor. Otherwise, he must pay the price in cash, as demanded by the purchaser. According to the Shafi‘i and Hanafi scholars, the pre-emptor has a choice. If he wishes to take the property immediately, he may do so immediately; otherwise, he may defer it until the specified term.

Sixth condition: The pre-emptor must take the entire property. If he wishes to take only part of it, his right to the entire property is forfeited. If there is more than one pre-emptor and one of them relinquishes his share, the remaining claimant must take the whole property, so that the purchaser’s entitlement is not divided.

When there is more than one pre-emptor: When there are multiple pre-emptors and their shares are unequal, each of them will take from the sold property a share corresponding to his own share. This is the view of Imam Malik, and it is also the stronger of the two views reported from Imam al-Shafi‘i and Ahmad. This is because it is a right enjoyed on account of ownership; therefore, each person’s pre-emption corresponds to the extent of his ownership.

The Hanafi jurists and Ibn Hazm say: The property shall be divided equally among all the claimants according to their number, because they are equal with respect to the right.

Inheritance of the right of pre-emption: Imam Malik and al-Shafi‘i hold that the right of pre-emption passes to the heirs and is not annulled by death. If someone acquires the right of pre-emption and dies without knowing of it, or knows of it but dies before taking possession, it passes to his heirs like the rest of his property. Imam Ahmad says: It does not pass to the heirs if the deceased had not asserted the claim. The Hanafi jurists say: Even if the deceased had asserted the claim, this right does not pass to the heirs, nor may it be sold. However, if the ruler had issued a judgment granting him the right of pre-emption and he then died, it passes to the heirs.

The purchaser’s dealings: If the purchaser deals with the purchased property before the pre-emptor takes possession of the property subject to pre-emption, the dealing is valid, because he has dealt with property he owns. Even if he sells it, that sale is valid. In that case, however, the pre-emptor may claim his right through either of the two sales.

But if he gives the property as a gift, charity, endowment, dowry, or the like, the right of pre-emption is forfeited. This is because such an act harms the person from whom it is taken: property belonging to him would leave his possession without any consideration. If the purchaser deals with the property after the pre-emptor has exercised his right of pre-emption, that dealing is deemed invalid, because ownership has transferred to the pre-emptor.

If the purchaser builds on the purchased property before the claim of pre-emption: If the purchaser constructs something or plants seedlings on the property claimed through pre-emption before the right is exercised, and the pre-emptor subsequently acquires the right, then according to Imam Abu Hanifah and al-Shafi‘i, the pre-emptor may pay the value of the structure in its demolished state or the value of the plants in their uprooted state, or assign the purchaser responsibility for demolishing and uprooting them. Imam Malik says: The pre-emptor does not acquire the right of pre-emption until he pays the purchaser the value of the construction or the planted seedlings.

Settlement to relinquish pre-emption: If the pre-emptor agrees, by settlement, to relinquish his right of pre-emption or sells it to the purchaser, this act forfeits his right of pre-emption, and if he received anything from the purchaser in exchange, he must return it. This is the view of Imam al-Shafi‘i. According to the other three leading imams, however, this is permissible, and the purchaser may own what he spent for it.

Chapter Forty-Three: Wakalah, or Representation

Definition: In Arabic, wakalah means entrusting a responsibility to someone. In Islamic legal terminology, it means one person appointing another as his representative in a matter for which appointing a representative is legally valid.

The validity of wakalah: Islam has permitted wakalah, or appointing a representative, in view of people’s needs, because not everyone is capable of handling all his own affairs. Thus, a person is compelled to appoint another as his representative so that he may carry out his affairs on his behalf. In the Holy Qur’an, Allah says concerning the story of the People of the Cave:

وكَذَلِكَ بَعَثْنَهُمْ لِيَتَسَاءَلُوا بَيْنَهُمْ ، قَالَ قَائِلٌ مِنْهُمْ كَمْ لَبِثْتُمْ ، قَالُوا لَبِثْنَا يَوْمًا أَوْ بَعْضَ يَوْمٍ ، قَالُوا رَبُّكُمْ أَعْلَمُ بِمَا لَبِثْتُمْ فَابْعَثُوا مَا أَحَدَكُمْ بِوَرِقِكُمْ هَذِهِ إِلَى الْمَدِينَةِ فَلْيَنْظُرْ أَيُّهَا أَزْكَى طَعَامًا فَلْيَأْتِكُمْ يرزق منه وليتَلَطَّفْ وَلَا

يَشْعِرَن بِكُمْ أَحَدًاه

“Thus We awakened them so that they might question one another. One of them said: ‘How long have you remained?’ They said: ‘We remained for a day or part of a day.’ They said: ‘Your Lord knows best how long you remained. Now send one of you to the city with this silver coin of yours; let him see which food is best and bring some of it to you. Let him act discreetly and not let anyone become aware of you.’” (Surah al-Kahf, verse 19)

Likewise, Allah has informed us concerning Yusuf, peace be upon him, that he said to the king:

اجْعَلْنِي عَلَى مَزَائِنِ الْأَرْضِ : إِنِّي حَقِيق عَلِيمٌ (سورة يوسف : ۵۵)

“Appoint me over the storehouses of the land; indeed, I am a trustworthy and knowledgeable guardian.”

Numerous hadiths have also declared wakalah, or appointing a representative, permissible. One of them is that the Messenger of Allah, peace and blessings be upon him, appointed Abu Rafi‘ and a certain Ansari as representatives, and the two of them married Maymunah, may Allah be pleased with her, to the Messenger of Allah, peace and blessings be upon him. It is also established that he appointed representatives to repay debts, establish the hudud, and carry them out, among other matters. The consensus of the Muslims proves not only its permissibility but also its recommendation, because it is a form of cooperation in righteousness and piety, to which the Qur’an calls and the Sunnah encourages.

وتعاولُوا على البر والتقوى وَلا تَعَاوَلُوا عَلَى الْإِثْرِ وَالْعُدْوَانِ

“Help one another in righteousness and piety, and do not help one another in sin and transgression.”

The Messenger of Allah, peace and blessings be upon him, said: “As long as a servant is engaged in helping his brother, Allah remains engaged in helping the servant.”

It is stated in the work al-Bahr: There is consensus regarding the validity of wakalah. There are two views as to whether wakalah is representation or guardianship. Some say it is representation, in the sense that the person who appoints a representative may not act contrary to his instructions. Others say it is guardianship, in the sense that it is permissible to do what is more beneficial in opposition to the appointing person’s instructions—for example, selling for cash when the representative was instructed to sell on credit.

The essential elements of wakalah: Wakalah is a contract like other contracts. Therefore, it is not valid without its essential elements, offer and acceptance. There is no obligation to use any particular wording; rather, wakalah is valid whenever representation is understood from any statement or action. Either party to the contract may terminate the wakalah at any time, because it is not a binding contract but a permissible one.

Conditional and unconditional wakalah: A wakalah contract may be made unconditionally, conditionally, contingent upon a future act, limited to a specified period, or dependent on a specified act. An example of unconditional wakalah is: “I appoint you as my agent and representative to purchase such-and-such.” An example of conditional wakalah is: “If such a thing occurs, you are my representative.” An example contingent upon the future is: “When Ramadan arrives, I will appoint you as my representative.” An example limited to a specified period is: “I appoint you as my representative for one year in such-and-such matter.” This is the view of the Hanafi and Hanbali schools. According to the Shafi‘i school, wakalah is not valid subject to any condition.

Wakalah may be without remuneration or may be based on remuneration. When it is remunerated, the employer may stipulate that the representative may not release himself from the representation before the specified term ends; if he does so, he must pay compensation. If remuneration is stipulated for the representative in the contract, he is considered an employee or hired worker, and all the rules relating to employees apply to him. (If someone says to another: “Sell this for ten coins; if you can sell it for more, the excess is yours,” this is valid and he will receive the excess. This is the view of Ishaq and others; Ibn Abbas saw no harm in it.)

Conditions of wakalah: Wakalah is not valid unless its conditions are fulfilled. Some of these conditions relate to the representative, some to the appointing person, and some to the matter for which the representative is appointed.

Conditions relating to the muwakkil, or the person appointing the representative: The appointing person must have full authority over the matter for which the representative is appointed. If he does not have full authority, his appointment of a representative is invalid, as in the case of an insane person or a child incapable of distinguishing right from wrong. It is not valid for either of these two to appoint someone as a representative, because both are legally incompetent in this matter and are considered to have been incapable from the outset. However, it is permissible to appoint a discerning child as a representative in an act that is purely beneficial, such as accepting a gift, charity, or bequest. Conversely, it is not valid to appoint such a child for an act that is purely harmful, such as pronouncing divorce, giving a gift, or giving charity.

Conditions for being a representative: The condition for being a representative is that one be of sound mind and intelligent. It is not valid to appoint an insane person or a child who cannot distinguish good from bad as a representative. According to the Hanafi school, it is valid to appoint a child who can distinguish good from bad, because he has mastered worldly matters like an adult. The Messenger of Allah, peace and blessings be upon him, married Umm Salamah to himself while her son ‘Amr was still a minor.

Conditions relating to the matter for which the representative is appointed: The representative must have knowledge of the matter, or, even if he is unaware, he must not be completely unaware of it. However, if the appointing person makes an unconditional appointment, complete ignorance is not a problem—for example, if he says: “Buy for me whatever you wish.” Another condition is that the matter must be suitable for representation. Representation applies to all contracts that a person may conclude for himself, such as purchasing, selling, leasing or renting out, establishing a debt, litigating, claiming a due, settling a dispute, claiming pre-emption, giving a gift, giving charity, pledging, taking a pledge, lending, borrowing, marriage, divorce, financial transactions, and so forth, whether the person appointing the representative is present or absent, and whether male or female.

Imam al-Bukhari narrates from Abu Hurayrah, may Allah be pleased with him, that a man was owed a camel of a specified age by the Messenger of Allah, peace and blessings be upon him. He came to claim what was owed to him. The Messenger of Allah, peace and blessings be upon him, ordered that the camel due to him be given to him, but a camel of that age could not be found. Rather, one older than it was found. The Messenger of Allah, peace and blessings be upon him, said: “Give that to him.” The man said: “You have fully paid me; may Allah fully repay you.” The Messenger of Allah, peace and blessings be upon him, said: “The best of you are those who repay debts in the best manner.”

Imam al-Qurtubi says: This hadith proves that a sound and present person may also appoint a representative. The Messenger, peace and blessings be upon him, ordered his Companions to give the creditor whichever camel of the required age was available on his behalf. This falls under appointing them as representatives on his behalf, even though the Messenger of Allah, peace and blessings be upon him, was neither ill nor travelling. This disproves the view attributed to Imam Abu Hanifah and Imam Sahlgun that it is invalid for a sound and present person to appoint a representative without the opposing party’s consent. The hadith under discussion refutes their view.

In what matters is representation valid? The jurists have formulated a principle concerning the matters in which representation is valid. The principle is: “A person may appoint a representative to conclude any contract that he is permitted to conclude for himself. However, representation is not valid in an act that cannot be delegated to another, such as prayer, oaths, and purification. It is not permissible to appoint someone as a representative in these matters, because their purpose is to test each person individually. Having someone else perform them does not achieve that purpose.”

The representative is responsible: Once the appointment of a representative is completed, he is responsible for the matter for which he was appointed. However, he is not liable for any loss or damage except that caused by his negligence or excess, and if damage occurs, his statement concerning it will be accepted. (An example of negligence is selling goods and handing them over to the purchaser without receiving the price, or using the goods for personal purposes or keeping them in an unprotected place.)

Appointing a representative or lawyer to recover a claim: It is valid to appoint a representative or lawyer to recover debts, claims to property, and all other dues, whether the muwakkil, or appointing person, is the claimant or the defendant, whether male or female, and whether the opposing party agrees or not. The effort to recover a due is the exclusive right of the muwakkil. He may undertake it himself, or he may appoint someone else to do it on his behalf. The question now is: May the representative or lawyer appointed to recover a claim make an admission on behalf of his muwakkil? And may the lawyer take possession of property awarded to the muwakkil by a court judgment? The answer follows:

A lawyer’s admission on behalf of the muwakkil: If a lawyer’s admission on behalf of the muwakkil concerns the hudud (penal punishments prescribed by Islamic law) or qisas (retaliatory punishment, including capital punishment), it is not acceptable at all, whether made during a court session or outside it. If it concerns other matters, the imams unanimously state that it is unacceptable except during a court session. They differ regarding an admission made during a court session. Imam Abu Hanifah says: The admission is valid, unless the muwakkil stipulated that no admission might be made against him; in that case it is invalid. The other three imams—al-Shafi‘i, Malik, and Ahmad—say: It is invalid under all circumstances, because making an admission is beyond his authority and constitutes acting without authorization.

A lawyer appointed to recover a claim is not a representative for taking possession of property: A lawyer appointed to recover a claim is not a representative appointed and authorized to take possession of property. He may be experienced and trustworthy in recovering claims and presenting arguments, yet he may not be trustworthy with respect to taking possession of property. This is the view of the three imams other than Imam Abu Hanifah. The Hanafi jurists hold that the lawyer may take possession of property adjudged in favor of the muwakkil. This completes his effort to recover the claim; otherwise, his effort would not be complete. Therefore, he may also be considered a representative for this task.

Appointing a representative to carry out qisas: Scholars differ regarding appointing a representative to carry out qisas. Imam Abu Hanifah says: This is valid only when the muwakkil is present, not when he is absent, because the muwakkil himself owns the right due to him. If he were present, he could pardon the offender. Therefore, in view of this uncertainty, it is not valid for the lawyer to carry out qisas. Imam Malik says: Qisas may be carried out even when the muwakkil is absent. This is also the correct of the two views reported from Imam al-Shafi‘i and Imam Ahmad.

The sales representative: If someone appoints another to sell something on his behalf without specifying a price, making an unconditional appointment, and without stating whether it should be sold on credit or for cash, the representative may sell it only for the prevailing price and for cash. If he sells it at a price that is not ordinarily considered deceptive, or sells it on credit, the sale is invalid without the muwakkil’s consent, because it is contrary to his interest; therefore, he may reject it. The absence of a condition does not mean giving the representative freedom to do whatever he wishes. Rather, it means a form of sale known and acceptable among merchants and more beneficial for the muwakkil. Imam Abu Hanifah, however, says that the sale is valid whether for cash or on credit, at the prevailing price or a deceptive price, and in the currency customarily used in the country or another currency. This, he says, is the meaning of imposing no condition, because a person may sometimes be eager to dispose of certain property he owns even by selling it at a greatly reduced price. When the appointment is unconditional, this applies only to that situation. But when conditions are imposed, the representative must act in accordance with them and may not do otherwise. If he does something more beneficial for the muwakkil, however, it is valid. For example, if the muwakkil sets a specific price and the representative sells for more, or if he instructs him to sell on credit but he sells for cash, the sale is valid.

If the representative cannot sell in a manner more beneficial to the muwakkil after violating a condition, the sale is invalid according to Imam al-Shafi‘i. The Hanafis hold that it is valid if the muwakkil consents; otherwise, it is invalid. (According to Hanbali scholars, if the representative purchases at a price so much higher than the specified or prevailing price that it is not ordinarily considered deceptive by the public, the purchase is valid for the muwakkil, but the representative is liable for the excess. The same applies to the validity of purchases and sales. If he sells at a lower price, he is likewise liable, just as he is liable for obtaining a higher price.)

However, the representative is not liable for items in which people are ordinarily deceived; this is considered excusable, and he need not be penalized for it.)

A representative purchasing for himself: When a representative is appointed to sell an item, is it valid for him to purchase that item for himself? Imam Malik says: He may purchase it for himself by slightly increasing the price. Imam Abu Hanifah, al-Shafi‘i, and Ahmad say: This is not permissible, because people naturally desire to buy cheaply for themselves, whereas the muwakkil’s objective is to sell at an increased price. These two objectives are incompatible.

Appointing a representative to make a purchase: If the muwakkil imposes a condition on a representative appointed to make a purchase, that condition must be observed, whether it concerns the purchased item or the price. If he violates the condition by purchasing something other than what he was instructed to buy, or by paying more than the price specified by the muwakkil, the purchase is his own, not the muwakkil’s. If, while violating the condition, he purchases something better or at a more favorable price, it is permissible. It is narrated from ‘Urwah al-Bariqi, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, gave him one dinar to buy a sheep or another sacrificial animal. ‘Urwah bought two sheep for one dinar, sold one of them for one dinar, and brought one sheep and one dinar to the Messenger of Allah, peace and blessings be upon him. The Messenger of Allah, peace and blessings be upon him, prayed for blessing in his sale. As a result, had he bought soil, he would have made a profit from it. (Al-Bukhari, Abu Dawud, al-Tirmidhi.)

This proves that if the muwakkil gives the representative one dinar and instructs him to buy one sheep of a specified type, and he buys two sheep of that type for one dinar, it is permissible, because the muwakkil’s objective was achieved and the representative did something additionally beneficial for him. Similarly, if he instructs him to sell one sheep for one dirham and he sells it for two dirhams, or instructs him to buy it for one dirham and he brings it for more than one dirham, that too is permissible. Imam al-Nawawi said that this is the correct view according to the Shafi‘i school. If the appointment was unconditional, however, it is not permissible for the representative to obtain more than the prevailing price or an excessively deceptive price. When the representative violates a condition, his purchase does not take effect for the muwakkil; rather, the purchase is for himself.

Termination of the wakalah contract: The wakalah contract ends for the following reasons:

1. The death or insanity of either party to the contract. One of the conditions of representation is that the parties be alive and of sound mind. When death or insanity occurs, the basis for the contract’s validity collapses.

2. Completion of the task intended to be carried out through the representation. When the task for which the representation was created is completed, the representation no longer serves any purpose.

3. The muwakkil dismissing the representative, even if this occurs without the representative’s knowledge. (This is the view of the Shafi‘i and Hanbali schools. After dismissal, whatever belonging to the muwakkil remains in the representative’s possession is considered a trust.) According to the Hanafi school, the representative must be informed of the dismissal. Before he becomes aware of it, all acts he performs are treated as acts performed before the dismissal.

4. The representative’s resignation: In this case, it is not a condition that the muwakkil know of the representative’s resignation. According to the Hanafis, however, such knowledge is a condition so that he does not suffer any loss.

5. The subject matter for which he was appointed as an agent leaving the ownership of the principal.

Forty-Fourth Chapter: Lending

Definition: Lending is an act of benevolence to which Islam has called and encouraged. Allah says:

وتعاولُوا عَلَى البر والتقوى ، وَلَا تَعَاوَلُوا عَلَى الْإِثْمِ وَالْعُدْوَانِ من

“Help one another in righteousness and piety, and do not help one another in sin and transgression.” (Surah 5, al-Ma’idah: 2).

Anas (RA) said: Once, panic spread in Madinah. The Messenger of Allah (SAW) borrowed a horse from Abu Talhah and mounted it. The horse was called al-Mandub. When he returned, he said: “We saw nothing, although we had thought it was a sea.”

In legal terminology, its definition is: “The owner allowing another person to use the benefit or service of something he owns, without any compensation.”

How lending is effected: It is effected by any words or actions that indicate lending.

Conditions of lending: The following conditions must be fulfilled for it to be valid:

1. The lender must be qualified to make a voluntary donation.

2. The item lent must be capable of providing a service while remaining intact.

3. The service or benefit must be lawful.

Relending and renting a borrowed item: Imam Abu Hanifah and Imam Malik said: If the borrowed item is such that the user’s use does not cause any change in it, then after borrowing it, it is permissible to lend it to someone else without the lender’s permission.

According to the Hanbali school, only the borrower himself or his substitute may benefit from a borrowed item. He may not lend or rent it to anyone else without the owner’s permission. If he lends it to a second person without permission and the item is destroyed while in that person’s possession, the owner may hold either of the two liable. However, liability rests with the second person, because he accepted liability when taking it into his possession, and it was destroyed while in his hands. Thus, liability falls upon him. When one usurper takes something from another usurper, the second usurper is liable.

When may the lender demand his item back? The lender may ask for its return whenever he wishes, provided this is done without harming the borrower. If requesting its return may harm the borrower, he should delay taking it back in order to protect him from the anticipated harm.

When return becomes obligatory: Once the borrower has finished benefiting from the borrowed item, he must return it. Allah says:

إِنَّ اللَّهَ يَأْمَرَكُمْ أَنْ تُؤْدُّوا لَأَسْنَسِ إِلَى أَهْلِهَا

“Indeed, Allah commands you to return trusts to their rightful owners.” (Surah al-Nisa: 58).

Abu Hurayrah (RA) narrated that the Messenger of Allah (SAW) said: “Return the trust to the one who entrusted you, and do not betray the one who betrayed you.” (Abu Dawud, al-Tirmidhi).

Abu Dawud and al-Tirmidhi narrated from Abu Umamah that the Messenger of Allah (SAW) said: “A loan must certainly be repaid.”

Lending something that does not harm the lender but benefits the borrower: The Messenger of Allah (SAW) forbade preventing a neighbor from inserting a piece of wood into one’s wall, if doing so would not harm the wall. Abu Hurayrah (RA) narrated that the Messenger of Allah (SAW) said: “Do not prevent your neighbor from inserting a piece of wood into your wall.”

The jurists expressed various opinions in interpreting this hadith. Regarding whether it establishes that permitting the insertion of wood into a wall is recommended or obligatory, the soundest view of Imam Malik and Imam al-Shafi‘i is that it is recommended. Imam Abu Hanifah and the jurists of Kufa held the same view. The second view is that it is obligatory. This was the opinion of Imam Ahmad, Abu Thawr, and the hadith scholars. The apparent meaning of the hadith also supports it. Everything from which the borrower benefits without harming the lender falls under this ruling. It is not permissible to refuse to lend such a thing. If someone refuses, the ruler shall decide the matter.

Imam Malik narrated from Umar ibn al-Khattab (RA): al-Dahhak ibn Qays dug and extended a broad canal. He then wished to run it across the land of Muhammad ibn Maslamah, but Muhammad refused. Al-Dahhak said to him: “You are preventing me, although this benefits you. You can irrigate your land with this canal from beginning to end, and it will not harm you.” Muhammad still refused. Al-Dahhak then raised the matter with Umar ibn al-Khattab. Umar (RA) summoned Muhammad ibn Maslamah and ordered him to allow al-Dahhak to dig the canal through his land. Muhammad still said no. Umar (RA) said: “Allow your brother to do something that will benefit you alone and cause you no harm.” Muhammad still refused. Umar (RA) then said: “By Allah, he will certainly take the canal through—even if it passes over your belly.” Umar (RA) ordered al-Dahhak to take the canal through, and al-Dahhak did so. In addition, Amr ibn Yahya al-Mazani narrated from his father: There was a spring belonging to Abd al-Rahman ibn Awf in my grandfather’s garden. Abd al-Rahman wanted to move it to one edge of the garden, and the owner of the garden objected. Umar (RA) ordered that it be moved. This is the view of Imam al-Shafi‘i, Ahmad, Abu Thawr, Dawud, and a group of hadith scholars. Imam Abu Hanifah and Imam Malik, however, held that such a judgment may not be issued, because no judgment may be given concerning a loan. The hadiths cited earlier, however, support the first view.

The borrower’s liability: When the borrower takes the borrowed item into his possession and it is then destroyed, he is liable for it, whether or not he was negligent. This was the view of Ibn Abbas, A’ishah, Abu Hurayrah, Imam al-Shafi‘i, and Ishaq. Samurah (RA) narrated that the Messenger of Allah (SAW) said: “Whoever takes something from someone remains liable for it until he returns it to him.” According to the Hanafi and Maliki schools, however, the borrower is not liable if he was not negligent. Their evidence is the hadith of the Messenger of Allah (SAW): “The borrower who does not betray is not liable; the trustee who does not betray is not liable.” (al-Daraqutni).

Forty-Fifth Chapter: Deposited Property

Definition and ruling: Deposited property refers to property that a person places with another for safekeeping.

Both depositing property and accepting it for safekeeping are permissible. For one who is confident in his ability to safeguard it, accepting a deposit is recommended. The custodian must keep the deposited property in a safe and secure place. It must be returned whenever its owner requests it. Allah says: “If you trust one another, then let the one entrusted fulfill his trust and fear Allah, his Lord.” (Surah al-Baqarah 2:283).

The following hadith was mentioned earlier as well: “Return the trust to the one who trusted you.”

Compensation: The custodian of deposited property is not liable to compensate for its loss or damage if he was not negligent in safeguarding it and did not commit a wrongful act against it. The hadith narrated earlier by al-Daraqutni is evidence for this.

Amr ibn Shu‘ayb narrated that the Messenger of Allah (SAW) said: “Whoever safeguards deposited property bears no liability for any loss.” (Ibn Majah). In another hadith narrated by al-Bayhaqi, the Messenger of Allah (SAW) said: “The trustee bears no liability for any loss.”

Regarding deposited property kept in a pouch or bag that is lost when the pouch or bag tears, Abu Bakr (RA) ruled that no compensation was required.

Urwah ibn al-Zubayr had deposited some property belonging to Banu Mus‘ab with Abu Bakr ibn Abd al-Rahman. The property was wholly or partially damaged while with Abu Bakr. Urwah sent him a message: “You do not have to pay any compensation. You are only a trustee.” Abu Bakr said: “I knew that I was not liable for compensation, but do not let Quraysh know that my trust was lost.” He then bought some items and returned them.

The trustee’s statement is accepted with his oath: When a trustee claims that deposited property kept with him was destroyed without any transgression on his part, his claim will be accepted if he makes an oath to that effect. Ibn al-Mundhir claimed that the jurists known to him unanimously supported this view.

If he claims that deposited property was stolen: Ibn Taymiyyah’s Fatawa states: “Whoever claims that he kept deposited property together with his own property, and that only the deposited property was stolen while none of his own property was stolen, must compensate for the deposited property that was stolen.”

Umar (RA) held Anas (RA) liable to compensate for deposited property that Anas claimed had been stolen, while none of his own property had been stolen.

When the custodian of deposited property dies: If a person dies and it is established that another person’s property had been deposited with him, but that person cannot be found, the deceased remains liable for it as a debt, which must be paid from the estate he left behind. If a handwritten acknowledgment is found among the deceased’s writings stating that someone’s property had been entrusted to him, he will be held liable, because an acknowledgment written in a recognizable handwriting is like a verbal acknowledgment.

Forty-Sixth Chapter: Usurpation

Definition: Usurpation is a person’s forcibly taking and possessing another person’s property or right. (When someone’s property is secretly taken from its place of safekeeping, it is called theft. When it is taken brazenly, it is plunder; when it is taken through influence, it is embezzlement; and when something entrusted to a person is treated in this way, it is called betrayal.)

Allah says in verse 79 of Surah al-Kahf:

أَمَّا السَّفِينَة فَكَانَتْ لِمَسْكِينَ يَعْمَلُونَ فِي الْبَحْرِ فَأَرَدْتُ أَنْ أَعِيبَهَا وَكَانَ وَرَاءَهُمْ مُلِكَ يَا عَلَ كُلَّ سفينة غصبان

“As for the boat, it belonged to some poor people who worked at sea. I intended to damage it because there was a king ahead of them who seized every boat by force.” (That is, he seized sound boats.)

The Shariah ruling on usurpation: It is forbidden, and whoever commits such an act is sinful. Allah says:

ولا تظلُّوا أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ

“Do not consume one another’s wealth unjustly.” (Surah al-Baqarah, verse 188).

1. In the Farewell Hajj sermon narrated by al-Bukhari and Muslim, the Messenger of Allah (SAW) said: “Your blood, property, and honor are sacred to you, just as this day, this month, and this city are sacred.”

2. Al-Bukhari and Muslim narrated from Abu Hurayrah (RA) that the Messenger of Allah (SAW) said: “When an adulterer commits adultery, he is not a believer while committing adultery. When a drinker drinks wine, he is not a believer while drinking it. When a thief steals, he is not a believer while stealing. When a plunderer plunders and people look at him, he is not a believer while plundering.”

3. It was narrated from al-Sa’ib ibn Yazid that the Messenger of Allah (SAW) said: “None of you should ever take his brother’s property, whether jokingly or intentionally. If any of you has taken his brother’s stick, let him return it to him.” (Ahmad, Abu Dawud, al-Tirmidhi).

4. Al-Daraqutni narrated from Anas (RA) that the Messenger of Allah (SAW) said: “A Muslim’s property is not lawful unless he gives it willingly.”

5. The Messenger of Allah (SAW) said: “Whoever takes his brother’s property by force, Allah will make Hell obligatory for him and forbid Paradise to him.” A man asked: “O Messenger of Allah, even if it is something insignificant?” He said: “Even if it is a twig from the arak tree.”

6. Al-Bukhari and Muslim narrated from A’ishah (RA) that the Messenger (SAW) said: “Whoever usurps even a handspan of someone’s land, Allah will place seven earths around his neck.”

Building or farming on usurped land: If someone farms usurped land, the crop belongs to the landowner, while the usurper receives only the cost of farming. This applies only when the crop has not been harvested. Once it has been harvested, the landowner receives only the rent for the land. If tree saplings have been planted, they must be uprooted; and if construction has been carried out, it must be demolished.

Rafi‘ ibn Khadij (RA) narrated that the Messenger of Allah (SAW) said: “Whoever farms another person’s land without his permission has no share of the crop. However, he is entitled to recover whatever he spent.” —Abu Dawud, Ibn Majah, al-Tirmidhi, and Ahmad. (Imam Ahmad said: “Although it conflicts with analogy, I adopt this view solely in adherence to the hadith.”) Abu Dawud and al-Daraqutni narrated from Urwah ibn al-Zubayr (RA) that the Messenger of Allah (SAW) said: “Whoever cultivates barren land, it belongs to him. But a usurper has no right merely because he made it sweat.”

The narrator said: The person who narrated this hadith to me reported that two men came to the Messenger of Allah (SAW) to have their dispute settled. One of them had planted date palms on the other’s land. The Messenger of Allah (SAW) awarded the land to its owner and ordered the man who owned the date palms to uproot them. The narrator said: “I saw an axe striking the roots of the tree, which was a tall date palm.”

It is forbidden to benefit from usurped property: Since usurpation is forbidden, benefiting from usurped property is also forbidden, regardless of how it is used. If something else has been produced from it, that product must be returned, whether attached to it or separate from it. Samurah narrated that the Messenger of Allah (SAW) said: “The hand that takes another person’s property remains liable until it returns it.” —Ahmad, Abu Dawud, al-Hakim, and Ibn Majah. If the newly produced item resulted from the usurper’s efforts, some scholars hold that it should be divided between the usurper and the owner according to the rules of mudarabah. If the usurped item is destroyed, the usurper must return an equivalent item or its value to the owner, whether it was destroyed through his actions or by a natural disaster. According to the Maliki school, if movable property, animals, and similar items that are not measured by weight or volume are destroyed after being usurped, their value must be returned. According to the Hanafi and Shafi‘i schools, whoever destroys or consumes it must return an equivalent item. This may be departed from only when no equivalent item can be found. The jurists agree that if an item measured by weight or volume is usurped and then destroyed, an equivalent item must be returned whenever available. Allah says in verse 194 of Surah al-Baqarah:

فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُوا عَلَيْهِ بِمِثْلِ مَا اعْتَدى عَلَيْكُم

“So whoever transgresses against you, then transgress against him in the same manner as he transgressed against you.”

Whatever the cost and labor involved in returning usurped property, the usurper must bear it. If the usurped property has diminished, he must return its value equivalent to the amount of the decrease, whether the decrease is in its physical form or in its qualities.

Protecting property: When someone attempts to seize another person’s property, it is obligatory to repel the attempt. It must first be repelled by the milder means. If that does not work, it must be repelled by stronger means, even if the matter escalates to fighting and killing. The Messenger of Allah (SAW) said: “Whoever is killed defending his property is a martyr. Whoever is killed defending his life is a martyr. Whoever is killed defending his religion is a martyr. Whoever is killed defending his family is a martyr.” (Al-Bukhari, Muslim, al-Tirmidhi).

The person who finds his property with another is more entitled to it: If the owner whose property was usurped finds it with someone else, he is the person most entitled to it, even if the usurper sold it to that person. When the usurper sold it, he was not its owner; therefore, the sale was invalid. In such a case, the buyer may recover the price he paid from the usurper. Abu Dawud and al-Nasa’i narrated from Samurah (RA) that the Messenger of Allah (SAW) said: “Whoever finds his exact property with another person is most entitled to it, and the buyer should recover the price from the seller.”

Opening a birdcage: Whoever opens the door of a cage containing a bird and drives it out must pay compensation. If the bird flies away on its own after the door is opened, the jurists differed about the ruling. The same difference applies if an animal escapes after its tether is released. Imam Abu Hanifah said that compensation is never required. According to Imam Malik and Ahmad, it is required, whether the animal or bird inside comes out immediately or later. Two opinions are reported from Imam al-Shafi‘i. The first is his earlier opinion: no compensation is required. The second is his later opinion: compensation is required if it escapes immediately, but not if it escapes after a delay.

Forty-Seventh Chapter: Foundlings

Definition and ruling: A minor child found in the street, or one who has become lost and whose lineage is unknown, is called a foundling.

Like any other unprotected item, taking in such a child is a communal obligation. If he is not taken in, he may go astray or perish. If found in a Muslim country, such a child must be considered Muslim.

Who is most qualified to care for a foundling? The person who finds him is the most entitled to assume responsibility for raising him. The condition is that he be free, sound, trustworthy, and intelligent, and that he undertake the child’s upbringing and education. Sa‘id ibn Mansur narrated in his Sunan that Sanin ibn Jamilah said: I found a child and brought him to Umar ibn al-Khattab (RA). The child said: “O Commander of the Believers, the man who brought me to introduce me to you is an upright man.” Umar (RA) said: “Is that really so?” He replied: “Yes.” Umar (RA) then said to me: “Take him. He is free, and you are responsible for his guardianship and upbringing. We will cover his expenses.” If such a child falls into the hands of an immoral person, he will be taken away from him, and the ruler will assume responsibility for his upbringing.

Maintenance: If a foundling has money or property with him, it will be spent on him. Otherwise, his expenses will be paid from the Bayt al-Mal, because the Bayt al-Mal was established to meet the needs of Muslims. If the Bayt al-Mal is insufficient, anyone who knows the child’s condition must assume responsibility for his maintenance, since this is the way to save him from destruction. A person who assumes this responsibility may request payment of his expenses from the Bayt al-Mal only if the judge authorizes him to undertake the child’s maintenance. If the judge does not authorize him, his expenditure on the child will be considered a charitable donation.

Inheritance of a foundling: If a foundling dies and leaves property but has no heir, the Bayt al-Mal will be his heir. Similarly, if he commits a homicide, liability will fall upon the Bayt al-Mal. The person who found him will not inherit from him.

Claiming the lineage of a foundling: If a man or woman claims the lineage of a foundling, and that lineage is considered possible in relation to the claimant, the child’s lineage will be attributed to that person, since this protects the child’s interests without harming anyone. In such a case, the child’s lineage will be established with the claimant, who will also inherit from him. If there are multiple claimants, the child’s lineage will be established with the person who can prove the claim through evidence. If none has evidence, or if all bring evidence, the lineage will be determined according to the opinion of a just, experienced, adult male expert.

It was narrated from A’ishah (RA): Ali (RA) came to the Messenger of Allah (SAW) in great delight and said: “Mujazziz al-Mudliji has just looked at Zayd and Usamah while both had covered heads and uncovered feet. Mujazziz said: ‘These feet belong to one another’s kin.’” (Al-Bukhari and Muslim). If the matter cannot be resolved even by an expert, lots will be drawn. The child will belong to the person whose name is drawn.

According to the Hanafi school, lineage will be established neither through an expert nor by drawing lots. Rather, when several people claim a child as theirs and all are found equal in every respect, they will all inherit from him, and he will inherit from all of them.

Forty-Eighth Chapter: Unclaimed or Abandoned Property

Definition: Any property that is entirely innocuous but at risk of being destroyed and whose owner is unknown is called lost property. This term is generally used for inanimate property. If it is an animal, it is called a stray animal.

Ruling: Picking up lost property is mustahabb. Some say it is wajib. Others say that if it is in a place where it is certain to remain safe even if left there, then picking it up is mustahabb; but if its safety cannot be assured, picking it up is wajib. If a person who sees the lost item realizes that taking it home would cause him himself to fall into wrongdoing concerning it, then it is haram for him to pick it up. This difference of opinion applies to a person who is free, mature, and of sound mind, whether Muslim or non-Muslim. If he is not free, mature, and of sound mind, he is not obliged to pick up lost property. A hadith narrated from Zayd ibn Khalid (may Allah be pleased with him) indicates the principle in this matter. He said: A man came to the Messenger of Allah (peace and blessings be upon him) and asked about lost property. He said: “Preserve both the container in which it was kept and the cord with which it was tied. Then announce it for one year. If its owner comes, give it to him; otherwise, use it yourself.” (The purpose of preserving the container and cord is that the item should not become mixed with the property of the person who found it, but remain separate. Also, if the owner comes, he can be asked about the item’s identifying features so that his claim may be verified as true or false.) The man asked: What about a lost goat or sheep? The Messenger of Allah (peace and blessings be upon him) said: “It is yours, or your brother’s (that is, its owner’s or another finder’s), or the wolf’s.” The man asked: What if the lost item is a camel? The Messenger of Allah (peace and blessings be upon him) said: “Leave it as it is. It has its water reservoir and its shoes on its feet; it will drink water, eat from the trees, and eventually meet its owner.” (Bukhari).

Lost property in the Sacred Precinct: Everything said so far concerns lost property found in places other than the Sacred Precinct. Lost property found in the Sacred Precinct may be picked up only for the purpose of announcing it. The Messenger of Allah (peace and blessings be upon him) said: “Only one who will announce it may pick up lost property in Makkah.” (If, where the lost property is found, there is a trustworthy government with a well-known place and system for preserving it, it is permissible to hand it over to that government, since this is easier and safer for the people.)

Announcing lost property: Whoever picks up lost property must become thoroughly acquainted with all its identifying features by which it can be distinguished from other items—for example, the container in which it was kept and what it was tied with. Likewise, he must determine precisely its type, kind, and quantity. He must then preserve it as he would his own property, regardless of whether it is valuable or insignificant. The item remains a trust in the custody of the person who found it. If it is destroyed for a reason other than his own negligence or excess, he is not liable for it. He must announce it throughout all densely populated areas, in the markets, and wherever its owner is likely to be found. If the owner comes and accurately describes its identifying features, by which it can be distinguished from other items, it may be handed over to him even without witnesses or proof. If the owner does not come, it must be announced for one year. If the owner is still not found after one year, it is permissible either to give it in charity or to use it oneself, whether one is rich or poor. He will not be liable for the item. Imam Bukhari and Tirmidhi narrate from Suwayd ibn Ghafalah that Suwayd said: I met Aws ibn Kabir. He said: I found a purse containing one hundred dinars and went to the Messenger of Allah (peace and blessings be upon him). He said: “Announce the purse for one year.” I announced it for a whole year but did not find its owner. Then I went to the Messenger of Allah (peace and blessings be upon him) a third time. He said: “Preserve its container and cord. If its owner comes, give it to him; otherwise, use it yourself.”

When asked about lost property found in a populated area, the Messenger of Allah (peace and blessings be upon him) said: “Announce it for one year. Then, if you find someone seeking it, give it to him; otherwise, it is yours.” The questioner asked about what is found in an uninhabited place. He said: “There is one-fifth due on what is found in an uninhabited place and on buried treasure beneath the earth.”

Exception for food and insignificant items: All that was said above concerns items other than pure food and insignificant things. Food need not be announced; it is permissible to eat it. Anas (may Allah be pleased with him) narrated: While the Messenger of Allah (peace and blessings be upon him) was passing along a road where some fruit lay, he said: “If I did not fear that these fruits might be from charity, I would eat them.” (Bukhari and Muslim).

Likewise, if it is an insignificant item, it need not be announced for one year. It is sufficient to announce it for as long as it is reasonably expected that the owner will no longer claim it. If the owner is not found, the person who picked it up may use it. Jabir (may Allah be pleased with him) said: “The Messenger of Allah (peace and blessings be upon him) permitted us to use a stick, whip, rope, or similar item when we found one.” (Ahmad, Abu Dawud).

Ali (may Allah be pleased with him) said that when he brought a dinar found on the road to the Messenger of Allah (peace and blessings be upon him), he said: “Announce it for three days.” He announced it for three days, but no one came. Then the Messenger (peace and blessings be upon him) said: “Now you may consume it.” (Abd al-Razzaq).

Lost goats and sheep: It is permissible to take a lost goat or sheep, because it is a weak animal, vulnerable to destruction and attack by predators. However, it must be announced. If its owner does not come forward, the finder may take it, but he must compensate the owner for it. According to the Maliki school, whoever finds it becomes its owner as soon as he takes possession of it, and even if the owner comes, no compensation is due. This applies when the owner claims it after the animal has been eaten; if he comes before it is eaten, it must be returned by consensus. Lost camels, cattle, horses, donkeys, and mules: The scholars agree that it is not permissible to take a lost camel. The hadith narrated earlier by Zayd ibn Khalid is proof of this. A lost camel does not need the supervision of the person who finds it. Enduring thirst is natural to it, and because of its long neck it can easily eat leaves from trees. Therefore, it does not need anyone’s help. Moreover, its owner can easily find it. This rule remained in force until the time of Uthman (may Allah be pleased with him). When Uthman saw that lost camels were being taken and sold, he would take their price when the owner came.

Ibn Shihab al-Zuhri said: During the time of Umar ibn al-Khattab (may Allah be pleased with him), there were many lost camels, and people used them for amusement and sport. During the time of Uthman (may Allah be pleased with him), orders were given that they be announced. After the announcement, they were sold. If the owner came, their price was given to him. (Muwatta of Imam Malik).

After Uthman, Ali (may Allah be pleased with him) ordered that a house be built for them and that they be kept there and fed grass in a way that would make them neither too fat nor too thin. If someone established his ownership with evidence and testimony, the animal was given to him; otherwise, it was left as it was and not sold. Ibn al-Musayyab preferred this practice. According to Imam al-Shafi‘i and Ahmad, the ruling on cattle, horses, donkeys, and mules is like that of camels. (However, Imam al-Shafi‘i considered it permissible to take young ones.) Imam Abu Hanifah said: It is permissible to take them. Imam Malik said: If there is fear that predators will attack them, it is permissible to take them; otherwise, it is not permissible.

Expenses for a lost animal: The person who finds a lost animal may recover from its owner whatever he spends on it. However, if he incurs the expense in exchange for milking it or riding on its back, he may not recover it.

Forty-ninth Chapter: The Lawful and Unlawful in Foodstuffs

Definition of food: Anything that people eat and by which they sustain life and obtain nourishment is called food.

Allah says in the Noble Qur’an:

قُلْ لا أَجِلٌ فِي مَا أُوحِيَ إِلَى مُحَرَّمًا عَلَى طَاعِ يُطْعَمَهُ

“Say: In what has been revealed to me, I find nothing forbidden for anyone to eat, except …” (Surah al-An‘am, 145).

Only food that is pure and appealing to the heart is lawful. Allah says:

يَسْتَلُونَكَ مَاذَا أُحِلَّ لَهُمْ قُلْ أُحِلَّ لَكُم الطيب .

“They ask you what has been made lawful for them. Say: The pure things have been made lawful for you …” (Surah al-Ma’idah, verse 4).

Here, pure things means those things to which the heart is drawn. Thus it is stated in verse 157 of Surah al-A‘raf:

ويحلُّ لَهُمُ الطَّيِّبِ وَيُحَرِّمُ عَلَيْهِمُ الْخَبِية

“He makes lawful for them all pure things and forbids them impure things.”

There are two kinds of food: inanimate food and animal food. Among inanimate foods, everything is lawful except what is impure, rendered impure by contact with an impure substance, harmful, intoxicating, or connected with another person’s rights. Blood is an example of an impure substance. An example of something rendered impure by contact with an impure substance is ghee into which a mouse has fallen. Imam Bukhari narrated from Maymunah (may Allah be pleased with her) that the Messenger of Allah (peace and blessings be upon him) was asked about the ruling on ghee into which a mouse had fallen. He said: “Throw out the mouse and the ghee surrounding it, then eat the rest of your ghee.”

This hadith shows that if a dead animal falls into inanimate food, it must be discarded, along with the food surrounding it. Whatever is known with certainty not to have been reached by any part of the dead animal remains pure. Liquid substances become impure as soon as they come into contact with an impure substance.

Examples of harmful foods include poison and the like: venom from scorpions, bees, and venomous snakes; poisonous plants; and arsenic. Allah says:

ولا تقتلوا انفسكم ، إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيْمان

“Do not kill yourselves. Indeed, Allah is Merciful to you.” (Al-Nisa’, 29).

He also says:

ولا تلقوا بأيديكم إلى التهلكة

“Do not throw yourselves with your own hands into destruction.” (Surah al-Baqarah, 195).

Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever throws himself from a mountain and kills himself will continue falling from above into the Fire of Hell forever.” Imam Bukhari narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever kills himself by drinking poison will continue drinking that poison in Hell forever, holding it in his hand. Whoever kills himself by stabbing himself with an iron weapon will continue stabbing himself with that weapon and killing himself forever.”

Only the amount of poison that causes harm is haram. Other things that are harmful to particular people—such as soil, mud, stones, and coal—are haram for those to whom they are harmful. The Messenger of Allah (peace and blessings be upon him) said: “There must be neither harming nor reciprocating harm.” (Ahmad, Ibn Majah). Smoking and consuming intoxicants are also forbidden in light of this hadith. Everything connected with another person’s rights, such as stolen or usurped property, is haram. All aquatic animals—that is, all animals that live in water—are halal. Among land animals, whether beasts or birds, some are halal and some haram. Islam has explained this in detail. Allah says:

وَتَن نَمَّلَ لَكُرْمًا حَوْا عَلَيْكُمْ إِلا مَا اسْطَرِرْتُمْ إِلَيْهِ

“He has explained in detail to you what He has forbidden you, except when you are compelled.” (Surah al-An‘am, 119).

This detailed explanation includes three categories: first, an explanation of forbidden things.

Second, an explanation of permissible things. Third, an explanation of those things about which Islam has remained silent.

Permissible: The things described as permissible are mentioned below:

Aquatic animals: Every aquatic animal is halal except one that carries harmful poison, whether it is a fish or something else, whether it is hunted or found dead, whether it was hunted by a Muslim, Jew, Christian, or pagan, and whether or not there is a similar animal among land animals. Aquatic animals do not need to be slaughtered. The proof is verse 96 of Surah al-Ma’idah:

أمل لكر سيد البحر وطعامة متاعا لكم وللسيارة

“Lawful for you is the game of the sea and its food, as provision for you and travelers.” Ibn Abbas (may Allah be pleased with him) said: The game of the sea and its food means whatever the sea casts onto the shore. —Al-Daraqutni.

It is also narrated from Ibn Abbas (may Allah be pleased with him) that the food of the sea means dead sea creatures. Abu Hurayrah (may Allah be pleased with him) narrated that a man asked the Messenger of Allah (peace and blessings be upon him): O Messenger of Allah, we travel by sea and carry only a small amount of water. If we use it for ablution, we will become thirsty. May we perform ablution with seawater? The Messenger of Allah (peace and blessings be upon him) said: “Its water is pure and its dead creatures are halal.” Narrated in the five authentic hadith collections. Tirmidhi called it hasan and sahih, and Bukhari called it sahih.

Salted fish: Fish is often preserved with salt so that it remains unspoiled for a long time. This is called salted fish. Every kind of salted fish is halal as long as it is not harmful to health; if it is harmful to health, it is haram. The eminent Maliki jurist al-Dardir (may Allah have mercy on him) said: “The ruling of Allah that I follow is that salted fish is halal, because it is not salted before death. Flowing blood is impure only after it flows, not before. If blood is found in a fish after its death, it is like the blood remaining in the veins after slaughtering it in the lawful manner. The moisture that comes out of it after slaughter is undoubtedly pure.” This is the view of the Hanafis, Hanbalis, and some Maliki scholars.

Aquatic and amphibious animals: Imam Ibn al-Arabi said: The correct view concerning aquatic and amphibious animals is that they are prohibited, because evidence exists for both their permissibility and their prohibition. Nevertheless, as a precaution, we give preference to the evidence for prohibition. Other scholars besides Ibn al-Arabi hold that all dead aquatic animals are halal, even if they are able to live on land. The frog alone is haram, because killing it has been prohibited. Abd al-Rahman ibn Uthman (may Allah be pleased with him) narrated that a physician asked the Messenger (peace and blessings be upon him) about frogs, which he used in medicine. The Messenger forbade him from killing frogs. (Abu Dawud, al-Nasa’i, Ahmad). Lawful land animals: We now mention the lawful land animals whose descriptions are found in the Qur’an and Sunnah:

Livestock: Allah says in verse 5 of Surah al-Nahl:

وَالْأَنْعَامَ خَلَقَهَا ، لَكُمْ فِيهَا دِنى ومعلعُ وَمِنْهَا تَأْكُلُونَ

“He created livestock for you; in them is warmth and many benefits, and from them you eat.” In verse 1 of Surah al-Ma’idah, Allah says:

يأَيُّهَا الَّذِينَ آمَنُوا أَوْنُوْا بِالْعُقُودَه أُحِلَّتْ لَكُم بَهِيمَةُ الْأَنْعَامِ إِلَّا مَا يُتْلَى عَلَيْكُمْه

“O believers, fulfill your covenants. Livestock has been made lawful for you, except what is recited to you.”

Lawful quadrupeds include camels, cattle, buffalo, goats, sheep, wild cattle, wild camels, and deer. All these animals are unanimously halal. It is also known from hadith that chickens, ducks, horses, wild donkeys, rabbits, monitor lizards, hyenas, locusts, and sparrows are halal. (According to Imam Malik and Imam Abu Hanifah, eating horse meat is makruh, because Allah mentioned horses as riding animals, not as animals for eating.)

It is narrated in Sahih Muslim from Umar ibn al-Khattab (may Allah be pleased with him) that Abu al-Zubayr said: I asked Jabir about the monitor lizard. He said: Do not eat it. He also described it as filthy. On the other hand, Umar ibn al-Khattab (may Allah be pleased with him) said: “The Messenger of Allah (peace and blessings be upon him) did not declare the monitor lizard haram. Allah benefits many people through it. It is merely not found among the food of ordinary shepherds. If it were available to me, I would eat it.”

Ibn Abbas (may Allah be pleased with him) narrated from Khalid ibn al-Walid: He went with the Messenger of Allah (peace and blessings be upon him) to his maternal aunt Maymunah bint al-Harith. Maymunah offered the Messenger of Allah (peace and blessings be upon him) the meat of a monitor lizard that one of her relatives had sent from Najd. It was the Messenger’s practice not to eat anything offered to him until he knew what it was. The women had decided not to tell him what kind of meat it was, so they could see how he tasted it and whether he would recognize it by tasting it.

But he asked what it was. After learning this, he left the meat and disliked it. Khalid asked him: Is it haram? The Messenger of Allah (peace and blessings be upon him) said: No, but it is a food not customary among my people, so I dislike it. Khalid said: I then drew the dish of meat toward me and ate, while the Messenger of Allah (peace and blessings be upon him) watched me eat.

Abd al-Rahman ibn Ammar (may Allah be pleased with him) narrated: I asked Jabir ibn Abdullah: May we eat hyena? He said: Yes. I asked: May it be hunted? He said: Yes. I asked: Did you hear this from the Messenger of Allah (peace and blessings be upon him)? He said: Yes. (Tirmidhi).

Imam al-Shafi‘i, Abu Yusuf, Muhammad, and Ibn Hazm also considered eating hyena permissible. Imam al-Shafi‘i said regarding this: The Arabs greatly like and praise it, and it is openly bought and sold between Safa and Marwah. However, because it is predatory, some scholars consider it haram to eat. The hadith mentioned above refutes them.

Abu Dawud and Ahmad mentioned that when Ibn Umar (may Allah be pleased with him) was asked about the porcupine, he recited this verse from Surah al-An‘am: “Say: In what has been revealed to me, I find nothing forbidden except carrion, flowing blood, and pork …” At that time, an elderly man sitting with Ibn Umar said: I heard Abu Hurayrah say that when the Messenger of Allah (peace and blessings be upon him) was asked about the porcupine, he said: “It is a filthy animal.” Ibn Umar (may Allah be pleased with him) then said: If the Messenger of Allah (peace and blessings be upon him) said this, then his statement is decisive. However, Isa ibn Namila, one of the narrators of this hadith, is weak. Therefore, al-Shawkani said: This hadith is not suitable for making the porcupine an exception to the general principle of permissibility. In light of al-Shawkani’s statement, eating porcupine is halal. Imam Malik, Abu Thawr, al-Shafi‘i, and al-Layth considered eating porcupine permissible, because the Arabs like it and the cited hadith is weak. The Hanafis, however, consider it makruh. A’ishah (may Allah be pleased with her) said regarding mice: They are not haram. Then she recited the aforementioned verse from Surah al-An‘am.

According to Imam Malik, it is permissible to eat insects, lizards, bugs, bee larvae, date worms, and similar creatures. Al-Qurtubi said: Imam Malik’s proof is the statement of Ibn Abbas and Abu al-Darda’: “What Allah has forbidden is haram, what Allah has made lawful is halal, and what He has remained silent about is pardoned.”

Regarding vegetables containing worms, Imam Ahmad said: In my view, it is better to avoid them. However, if someone does not consider them filthy, he may eat them. He considered it preferable to select and eat dates containing worms. It is narrated that when some old dates were brought to the Messenger of Allah (peace and blessings be upon him), he began sorting them and removing the insects from them. Ibn Qudamah said: This is preferable.

Ibn Shihab, Urwah, al-Shafi‘i, the Hanafi jurists, and some scholars of Madinah said: It is not permissible to eat insects, snakes, mice, or creatures that may be killed lawfully. Slaughtering them serves no purpose. Regarding eating sparrows, the Messenger of Allah (peace and blessings be upon him) said: “Whoever kills a sparrow or anything larger than it without giving it its due right, Allah will question him about it.” They asked: O Messenger of Allah, what is its due right? He said: “That it be slaughtered and eaten, and not that its head be cut off and thrown away.” (Al-Nasa’i). Abu Dawud and Tirmidhi narrate that some Companions ate the meat of wild birds with the Messenger of Allah (peace and blessings be upon him).

Explicitly mentioned unlawful foods: The foods declared haram in the Qur’an are limited to ten. Allah says:

مرسم عليكم البيئة والدم ولحم الخنزير وما أمل لغير الله ……

“Forbidden to you are carrion, blood, pork, animals slaughtered in the name of anyone other than Allah, animals killed by strangling, by a violent blow, by a fall, by goring, and those partly eaten by wild animals—unless you are able to slaughter them. Also forbidden is what is sacrificed on idols’ altars, and determining fate by drawing lots with arrows. All this is sinful.” (Surah al-Ma’idah 5:3)

“Carrion” means an animal that has died naturally. Since an animal that dies naturally has inevitably died from some disease, eating its meat is sure to cause harm. “Blood” means flowing blood. Since flowing blood is more conducive to the growth of disease-causing germs, eating it has been prohibited. The reason pork has been prohibited is that the pig is a filthy animal, and all filthy and impure things are its favorite food. Experience has proven that its meat is harmful on every continent of the world, particularly in tropical regions. Its meat produces deadly worms. It is also known to have an adverse effect on sexual chastity. The purpose of prohibiting animals slaughtered in a name other than Allah’s or on the altars of idols is to safeguard tawhid. If a lawful animal injured by the attack of a beast of prey is found alive and slaughtered, it will be lawful to eat.

The description given in this verse of Surah al-Ma’idah is actually a detailed explanation of verse 145 of Surah al-An‘am, where it is said: “Say: I do not find in what has been revealed to me anything prohibited to an eater to eat except carrion, flowing blood, the flesh of swine, or that which has been dedicated to other than Allah.” The verse of Surah al-An‘am mentions the four things briefly, whereas this verse mentions all the prohibited things in detail.

Parts severed from a living animal: A part severed from the body of a living animal is also prohibited, like carrion. Abu Waqid al-Laythi said that the Messenger of Allah (peace and blessings be upon him) said: “Whatever part is cut from an animal while it is alive is a carcass.” (Abu Dawud and al-Tirmidhi. Al-Tirmidhi graded it hasan and said: Scholars act according to this hadith.) However, the following things are not prohibited:

a. The carcasses of fish and locusts. Both are pure and lawful. Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Two carcasses and two types of blood have been made lawful for us: the two carcasses are fish and locusts, and the two types of blood are the liver and spleen.” —Narrated by Ahmad, al-Shafi‘i, Ibn Majah, al-Bayhaqi, and al-Daraqutni. When the carcass of an animal is declared prohibited, what is intended is the prohibition of eating its meat. Its other parts, apart from the meat, are pure, and using them is lawful.

b. The bones, horns, claws, hair, feathers, skin, and similar parts of a dead animal are pure. There is no evidence that these are impure; therefore, they are pure. The basic state of everything is purity until evidence is found that it is impure.

Imam al-Zuhri said concerning the bones of dead elephants and other animals: “I saw many of the earlier scholars combing their hair with combs made from the bones of dead animals and using oil made from them. They saw nothing wrong with this.” (Al-Bukhari.)

Ibn Abbas (may Allah be pleased with him) said: “A goat was given in charity to a freed woman belonging to Maymunah. The goat later died. When the Messenger of Allah (peace and blessings be upon him) saw it, he said: ‘Why do you not take its skin, tan it, and benefit from it?’ They said: ‘It is carrion.’ The Messenger of Allah (peace and blessings be upon him) said: ‘Allah has only prohibited you from eating its meat.’” (Narrated by all the authentic hadith collections except Ibn Majah.)

It is reported that Ibn Abbas (may Allah be pleased with him) recited the verse of Surah al-An‘am: “Say: I do not find in what has been revealed to me any prohibited food…” and said: “Allah has only prohibited eating the meat of these things. Their skins, leather goods, teeth, bones, hair, and wool are lawful.” —Ibn al-Mundhir and Ibn Hatim. Similarly, curdled milk extracted from the stomach of a dead animal is lawful. When the Companions conquered Iraq, they ate cheese made by the fire-worshippers there from curdled milk extracted from the stomachs of animals they had slaughtered. Yet the fire-worshippers are polytheists, and animals slaughtered by them fall under the category of carrion. It is narrated from Salman al-Farisi (may Allah be pleased with him) that he was asked about cheese and clarified butter. He replied: “Whatever Allah has prohibited in His Book is prohibited, and whatever He has not mentioned is permissible.” It is well known that he was asked this when he was the representative of Umar ibn al-Khattab in Mada’in; in fact, the question concerned the cheese of the fire-worshippers.

c. Blood: A small amount of blood is lawful. Ibn al-Mundhir narrated that Ibn Jurayj, explaining the “flowing blood” mentioned in the Qur’anic verse, said: “There is no objection to the blood remaining in the veins of a slaughtered animal.” Abu Mijlaz said concerning the blood at the place where a goat is slaughtered or on the upper surface of a cooking pot: “There is no problem with it; what is prohibited is flowing blood.” Narrated by Ibn Hamid and Abu al-Shaykh. A’ishah (may Allah be pleased with her) said: “We used to eat meat while there was a streak of blood on the cooking pot.”

Prohibition of donkeys and mules: Domestic donkeys and mules are among the prohibited foods. Allah says:

والغَيْل وَالْبِغَالَ وَالْعَمِيرَ لِتَرْكَبُوها وزينة .

“And He created horses, mules, and donkeys for you to ride and as an adornment.” (Surah al-Nahl, verse 8.)

It is incorrect to assume that the verse describing prohibited foods means that the prohibition is restricted to the list mentioned in the verse and that nothing else is prohibited. Al-Qurtubi refutes this notion, saying: This verse was revealed in Makkah. Thereafter, if the Messenger of Allah (peace and blessings be upon him) prohibited anything, or if something else was prohibited in the Qur’an, it is to be added to this list. Whatever the Messenger prohibited is an additional command from Allah conveyed through the Messenger. This is the view of most jurists and hadith scholars.

1. Imam Abu Dawud and Imam al-Tirmidhi narrated from al-Miqdam ibn Ma‘dikarib (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Know that I have been given the Book and something similar along with it. Know that soon a person, reclining satiated on his couch, may say: ‘Hold fast to this Qur’an. Whatever you find lawful in it, regard as lawful, and whatever you find prohibited in it, regard as prohibited.’ (That is, he will reject hadith and confine himself to the Qur’an.) Know that domestic donkeys are not lawful for you, nor are beasts of prey with canine teeth, nor the lost property of a protected non-Muslim citizen until its owner renounces his claim. If a person is a guest of a people, it is their duty to entertain him. If they do not, he has the right to take from them, even by force, the minimum necessary provisions.”

2. It is narrated from Anas (may Allah be pleased with him): When the Messenger of Allah (peace and blessings be upon him) conquered Khaybar, we found some donkeys. We slaughtered some of them and cooked them. At that point, the Messenger of Allah (peace and blessings be upon him) announced: “Beware! Allah and His Messenger have prohibited you from eating this. It is impure and an act of Satan.” The cooking pots were immediately overturned, even though the cooked food in them was still boiling. —The five authentic hadith collections.

3. Jabir (may Allah be pleased with him) said: On the day of the Battle of Khaybar, the Messenger of Allah (peace and blessings be upon him) prohibited us from eating donkeys and mules, but he did not prohibit us from eating horses.

It is narrated from Ibn Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) permitted domestic donkeys. However, the sound report is that Ibn Abbas refrained from taking a position on this matter and said: “I do not know whether the Messenger of Allah (peace and blessings be upon him) prohibited domestic donkeys because they were means of transport for people and he feared their depletion, or whether he declared domestic donkeys prohibited on the day of the Battle of Khaybar.” (Al-Bukhari.)

Predatory animals and birds are prohibited: Among the animals Islam has prohibited are predatory animals and birds. Imam Muslim narrated from Ibn Abbas (may Allah be pleased with him): “The Messenger of Allah (peace and blessings be upon him) prohibited every beast with canine teeth and every bird with talons.” Beasts with canine teeth are those that attack human lives and property with their teeth, such as tigers, lions, dogs, wolves, leopards, and wild cats. These are prohibited according to most jurists. According to Imam Abu Hanifah, every animal that eats meat is a beast of prey. Elephants, hyenas, cats, and mice are therefore prohibited in his view. According to Imam al-Shafi‘i, the prohibited predatory animals are those that attack people, such as lions and tigers.

Imam Malik narrated in the Muwatta’ from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Eating every beast with canine teeth is prohibited.” After citing this hadith, Imam Malik said: “This is the ruling followed among us.” Ibn al-Qasim narrated that eating them is makruh, and that this was the view of most of the Companions. Imam al-Shafi‘i and the disciples of Imam Abu Hanifah permitted eating foxes. Ibn Hazm permitted eating elephants and weasels. Eating monkeys is prohibited. Abu Umar said: “There is consensus among Muslims that eating monkeys is not permissible, because the Messenger of Allah (peace and blessings be upon him) prohibited eating them.” Birds with talons are those that attack with their claws, such as kites, vultures, and eagles. According to most scholars, these are prohibited, even if they do not eat carrion.

Animals that eat filth are prohibited: It is prohibited to ride, eat the meat of, or drink the milk of camels, cattle, goats, sheep, roosters, hens, ducks, and similar animals that eat excrement.

1. It is narrated from Ibn Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) prohibited drinking the milk of animals that eat excrement. —The five authentic hadith collections except Ibn Majah. According to al-Tirmidhi, the hadith is authentic. According to Abu Dawud’s narration, the Messenger of Allah (peace and blessings be upon him) also prohibited riding animals that eat excrement.

2. Amr ibn Shu‘ayb (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) prohibited eating the meat of animals that eat excrement and domestic donkeys, and prohibited riding them. (Ahmad, al-Nasa’i, and Abu Dawud.) However, if such an animal is kept away from excrement for a period and fed pure food, its meat becomes pure and its designation as an excrement-eating animal is removed; it then becomes lawful, because the cause of its prohibition has disappeared.

Impure things are prohibited: In addition to this explanation, the Noble Qur’an has provided a comprehensive principle for determining what is prohibited. It appears in verse 157 of Surah al-A‘raf:

وَيُحِلُ لَهُمُ الطَّيِّبِسِ وَيُحَرِّأُ عَلَيْهِرُ الْخَبَيْنَ“He will make lawful for them the pure things and prohibit for them the impure things.” Pure things means those things that people instinctively regard as pure and are attracted to, even without a revelation prohibiting anything. If people instinctively regard something as impure, it is prohibited.

According to the Shafi‘i and Hanbali schools, pure things are those that Arabs—that is, inhabitants of towns and cities—regard as pure and are attracted to, but not villagers and Bedouins. However, the book al-Durar al-Mudiyyah states that whatever the general population regards as pure is pure, not merely what Arabs or inhabitants of refined regions regard as such. The book states:

An animal is considered impure not because of any particular reason or unfamiliarity, but solely because ordinary people instinctively regard it as filthy and impure. If some people regard it as impure and others do not, the attitude of the majority is to be accepted. For example, the general public has refrained from eating insects and many animals without any specific textual proof. In reality, these animals have mainly been avoided because they are considered filthy and impure. Spittle, phlegm, semen, dung, lice, and similar things are also included among these filthy and impure substances.

Animals that the Shariah commands to kill are prohibited: According to many scholars, the animals that the Messenger of Allah (peace and blessings be upon him) commanded people to kill, as well as those whose killing he prohibited, are prohibited.

The five animals that the Messenger of Allah (peace and blessings be upon him) commanded people to kill are the kite, scorpion, crow, mouse, and rabid dog. Al-Bukhari, Muslim, al-Tirmidhi, and al-Nasa’i narrated from A’ishah (may Allah be pleased with her) that the Messenger of Allah (peace and blessings be upon him) said: “There are five wicked animals that may be killed even in the Sacred Precinct: the crow, kite, scorpion, mouse, and rabid dog.”

The animals whose killing the Messenger of Allah (peace and blessings be upon him) prohibited are the ant, bee, hoopoe, and shrike. Abu Dawud narrated from Ibn Abbas (may Allah be pleased with him): “The Messenger of Allah (peace and blessings be upon him) prohibited killing ants, bees, hoopoes, and shrikes.”

Imam al-Shawkani reviewed this opinion and said: “It has been said that commanding the killing of certain animals, such as the five wicked animals, and prohibiting the killing of certain animals, such as ants, bees, hoopoes, shrikes, and frogs, are among the reasons for their prohibition. Yet no statement of the Shariah establishes that the animals whose killing the Messenger commanded or prohibited are forbidden to eat. Therefore, a command or prohibition alone cannot be taken as proof of prohibition. There is no rational or customary necessity connecting the two. Thus, there is no reason to adopt the command or prohibition to kill as a principle for declaring something forbidden. Rather, if an animal commanded to be killed or whose killing is prohibited is impure, it will already be prohibited under the relevant verse; otherwise, it will be lawful. We have already mentioned that everything is originally lawful until evidence is found that it is prohibited.” (According to the Maliki school, all birds, including crows, are lawful.)

Things about which silence has been maintained: Whatever the Shariah has remained silent about, and for which no evidence of prohibition has been found, is lawful under the unanimously accepted principle that everything is fundamentally lawful. Indeed, this is one of the fundamental principles of Islam.

Several statements in the Qur’an and Sunnah support this principle. For example, Allah says:

مَوَ الَّذِي عَلَقَ لَكُمْ مَّا فِي الْأَرْضِ جَمِيعًا

“He is the One who created for you everything on the earth.” (Al-Baqarah 2:29.)

2. Abu Tha‘labah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Allah has made certain duties obligatory upon you, so do not neglect them. He has set certain limits, so do not transgress them. He has remained silent about certain matters, as a mercy to you, not out of forgetfulness; so do not concern yourselves with them.”

3. It is narrated from Salman al-Farisi (may Allah be pleased with him): When the Messenger of Allah (peace and blessings be upon him) was asked about cheese and clarified butter, he said: “Whatever Allah has made lawful in His Book is lawful, whatever Allah has made prohibited in His Book is prohibited, and whatever He has remained silent about is among the matters regarding which He has given you freedom.” (Ibn Majah and al-Tirmidhi.)

4. Al-Bukhari and Muslim narrated from Sa‘d ibn Abi Waqqas that the Messenger of Allah (peace and blessings be upon him) said: “The greatest criminal among Muslims is the one who asks about something that had not previously been prohibited, and because of his question it becomes prohibited.”

5. Abu al-Darda’ (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whatever Allah has made lawful in His Book is lawful, whatever He has made prohibited is prohibited, and whatever He has remained silent about, He has exempted you from. So accept Allah’s exemption, for Allah is not one to forget anything. Then he recited this part of verse 64 of Surah Maryam:وَمَا كَانَ رَبُّكَ نَسِيَّان“Your Lord is never forgetful.” (Al-Bazzar.)

Imported meat: Meat imported from non-Muslim countries is lawful to eat subject to two conditions:

1. It must be the meat of an animal Allah has made lawful.

2. It must have been slaughtered in the manner prescribed by the Shariah.

If these two conditions are not met—if it is the meat of a pig or another similarly prohibited animal, or if it was slaughtered in a manner contrary to the Shariah—then it is prohibited and may not be eaten. Because of the media and information channels made widespread by modern science, it has now become easy to determine whether these two conditions have been met. Information about this is often written on the packages of such meat, and this information may be relied upon, since it is often truthful.

The jurists have previously issued fatwas concerning what should be done in such cases. Among the books of the Shafi‘i school, al-Iqna’ states:

If a sinful person, or a Jew or Christian, states that he slaughtered this goat, it may be eaten, because he is qualified to slaughter it. On the other hand, if both polytheists and Muslims live in a country, and it is unknown whether the animal was slaughtered by a polytheist or a Muslim, it may not be eaten, because there is room for doubt as to whether it was slaughtered lawfully. However, if Muslims are the majority in that country, it may be eaten.

The permissibility of eating prohibited food in cases of dire necessity

For a person who is completely unable to obtain lawful food, eating carrion, pork, the meat of other prohibited animals, or any other prohibited food in order to survive and avoid death is not merely permissible; it is obligatory. Allah says in verse 29 of Surah al-Nisa’:

وَلَا تَقْتُلُوا الْفَسَتَرْطَ إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيمًا“Do not kill yourselves. Surely Allah is Merciful to you.”

The limits of dire necessity

A person is considered to be in dire necessity only when hunger is driving him toward death or when it is about to cause an illness that could throw him into the jaws of death. It makes no difference whether the person in such a situation is obedient or disobedient to Allah. Allah says:

في انظُرْ غَيْرَ بَاغ ولا عَادٍ فَلَا إِلى عَلَيْهِ ، إِنَّ اللَّهَ غَفُورٌ رَّحِيمه

“But whoever is compelled, without willful disobedience or transgression, shall incur no sin. Allah is All-Forgiving, Most Merciful.” (When eating prohibited food, seizing the right of another person in the same state of dire necessity, eating alone without allowing him to eat, and pushing him toward death fall under disobedience. Eating more than enough to become satiated—or, according to another opinion, more than is needed to preserve life and remove harm to health—constitutes transgression.)

Imam Abu Dawud narrated: Fuday‘ al-Amiri (may Allah be pleased with him) came to the Messenger of Allah (peace and blessings be upon him) and asked: “Under what circumstances does carrion become lawful for us?” The Messenger of Allah (peace and blessings be upon him) asked: “What is your food?” Fuday‘ replied: “Only liquid drinks, morning and evening.” The Messenger of Allah (peace and blessings be upon him) said: “This is the hunger that makes carrion lawful.” He then permitted them to eat carrion. Ibn Hazm said:

The limit of dire necessity is that a person must remain for an entire day and night without finding any food or drink. In such a situation, if he fears a debilitating weakness that, if prolonged, could cast him into death or prevent him from earning his livelihood, then it is lawful for him to eat and drink anything that can save him from death caused by hunger and thirst. I have mentioned one day and one night as the limit of going without food because the Messenger of Allah (peace and blessings be upon him) prohibited continuous fasting without eating or drinking for an entire day and night.

According to the Maliki school, if someone goes without food for three consecutive days, it is permissible for him to eat any prohibited thing, even if it belongs to someone else.

It should be noted that according to the Shafi‘i and Zaidi opinions, if nothing else is available, it is also permissible to eat human flesh. They, however, impose certain conditions for this. According to the Hanafi and Zahiri schools, eating human flesh is not permissible under any circumstances.

The amount of prohibited food that may be eaten: A person in dire necessity may eat from carrion or any other prohibited food no more than what is sufficient to preserve his life. He may also take some of it as provisions for his journey according to his need.

According to one narration, Imams Malik and Ahmad said that when a person in dire necessity eats prohibited food, he may eat until satiated. Imam Abu Dawud narrated from Jabir ibn Samurah (may Allah be pleased with him): A man stopped for a rest at Harrah. Shortly afterward, his she-camel died. His wife said: “Skin it; we will render its fat and cook its meat, then eat it.” He said: “Let me first ask the Messenger of Allah (peace and blessings be upon him).” He then went to the Messenger of Allah (peace and blessings be upon him) and asked him. The Messenger said: “Do you have any other property?” He replied: “No.” He said: “Then eat it.”

The disciples of Imam Abu Hanifah said: In such a situation, one may not eat until satiated. Two opinions have been narrated from Imam al-Shafi‘i.

A person is not considered to be in dire necessity if someone else’s food is available: A person is considered to be in dire necessity when he cannot find any food to eat, even if the only available food belongs to someone else. When food owned by another person is within his reach, he may eat it without the owner’s permission. There is no disagreement among the scholars on this point. The disagreement concerns only whether compensation must be paid. Most scholars hold that if someone becomes compelled by hunger and has no food available except food owned by another person, while the owner of that food is absent, he may take some of it but must compensate the owner. Dire necessity does not cancel another person’s right.

Imam al-Shafi‘i said: He is not obliged to pay compensation, because his state of dire necessity removes his liability. Allah Himself has permitted him to do this, and where Allah has granted permission, the question of compensation does not arise.

If food is available but its owner refuses to provide it, a person in dire necessity may seize it by force if he has the ability. According to the Maliki school, in such a case the person in dire necessity should inform the owner of his condition and warn him that if he does not give him food, he will fight him with weapons. If the owner still refuses, he may engage him in armed combat. If the owner of the food is killed in the fighting, the person who killed him will not be held liable for the killing. The owner was obliged to provide food to the person in dire necessity.

Imam Ibn Hazm says: Whoever is unable to obtain anything except unlawful food, and has no access to the property of any Muslim or protected non-Muslim (dhimmi), may eat that unlawful food to his fill and may also take some of it as provision for meeting his future needs. But whenever he finds lawful food, that unlawful food again becomes unlawful for him as before. If he finds the food of a Muslim or a dhimmi, then he has an established right to that food, for the Messenger of Allah (peace and blessings be upon him) said: “Give food to the hungry.” By this command of the Messenger of Allah (peace and blessings be upon him), he is entitled to that food. In such a case, he is not compelled to eat carrion or any other unlawful food. However, if the owner of the food unjustly deprives him of it, he is considered compelled.

Is Alcohol Lawful for Medical Treatment?: The scholars agree that it is permissible to eat unlawful food to save oneself from death by starvation. They differ, however, over the permissibility of using alcohol solely for medical treatment. Some say it is permissible, while others say it is not. The view that it is not permitted is the stronger one, because before the advent of Islam, during the Age of Ignorance, people treated illnesses with alcohol. Islam came and prohibited it. Imam Ahmad, Muslim, Abu Dawud, and al-Tirmidhi report from Tariq ibn Suwayd al-Ju‘fi that when Suwayd asked the Messenger of Allah (peace and blessings be upon him) about alcohol, he forbade him to touch it. Suwayd said: “I want to use it as medicine.” The Messenger of Allah (peace and blessings be upon him) said: “Alcohol is not medicine; rather, it is a disease.”

Abu Dawud reports from Abu al-Darda’ (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Allah Most High has sent down both illness and medicine, and has created a medicine for every illness. So seek treatment for your illnesses, but do not seek treatment with anything unlawful.” Before Islam, people drank alcohol to protect themselves from the cold. Islam also prohibited them from drinking alcohol for that purpose.

Abu Dawud reports that Daylam al-Himyari asked the Messenger of Allah (peace and blessings be upon him): “O Messenger of Allah, we live in a very cold region and must perform hard labor. We make a drink from wheat by which we gain strength for our work and withstand the cold of the region.” The Messenger of Allah (peace and blessings be upon him) said: “Does that drink intoxicate you?” Daylam said: “Yes.” The Messenger of Allah (peace and blessings be upon him) said: “Then abstain from it.” Daylam said: “The people will not abstain from it.” The Messenger of Allah (peace and blessings be upon him) said: “If they do not abstain from it, fight them.”

Some jurists, however, have permitted treatment with alcohol. They stipulated that the patient must be unable to find a lawful medicine equally effective as the unlawful one, must have no desire to become intoxicated or enjoy it, and must not use more than the amount prescribed by the physician. The jurists likewise permitted drinking alcohol in comparable situations of dire necessity. For example, if someone swallows a glass of food that becomes stuck in his throat, and nothing other than alcohol is available to make it go down, he may drink alcohol. Or if someone is near death from extreme cold and can find no way to save himself except by drinking a mouthful or a glass of alcohol. Or if someone faces a risk of death from heart disease and physicians inform him that he cannot escape the risk without drinking a specified amount of alcohol. In all such circumstances, prohibited things become permissible.

Chapter Fifty: Slaughter Permitted by the Shariah

Definition: Slaughter according to the Shariah means killing an animal whose consumption is lawful by cutting its windpipe or esophagus. Apart from fish and locusts, no lawful animal becomes lawful without being slaughtered in this manner.
Requirements for Valid Slaughter: The following are necessary for slaughter according to the Shariah:

1. The slaughterer must be mentally sound, whether male or female, Muslim, Jewish, or Christian. If he is intoxicated, insane, or underage, he is not qualified to slaughter, and the animal he slaughters may not be eaten. Likewise, animals slaughtered by polytheists, idolaters, atheists, or apostates are not lawful.

Animals Slaughtered by the People of the Book: Imam al-Qurtubi says that Ibn Abbas (may Allah be pleased with him) said: Allah Most High said:

ولا تَأْكُلُوا مِمَّا لَمْ يُذْكَرِ اسْرُ اللَّهِ عَلَيْهِ وَاللَّهُ لَفِسْقٌ

“And do not eat of that over which the name of Allah has not been pronounced; indeed, it is sinful.” (Al-An‘am: 121).

Then He said:

وَطَعَامُ الَّذِينَ أُوتُوا الْكِتَبَ حِلٌّ لَكُم من وَطَعَامُكُمْ حِلٌّ لَهُرْه

“The food of those who were given the Scripture is lawful for you, and your food is lawful for them.” (Al-Ma’idah: 5).

That is, animals slaughtered by Jews and Christians are lawful, even if, at the time of slaughter, Christians dedicate them “in the name of Christ” and Jews “in the name of Ezra.” ‘Ata says: “Even if a Christian slaughters in the name of Christ, you may eat it, because Allah Himself has declared their slaughter lawful, although He knows what they say.”

Al-Zuhri, Rabi‘ah, al-Sha‘bi, Makhul, and the two Companions Abu al-Darda’ and ‘Ubadah ibn al-Samit also held this view.

Another group of jurists says: If you hear that a Jew or Christian slaughtered an animal in the name of someone other than Allah, do not eat it. Tawus and al-Hasan, and among the Companions ‘Ali (may Allah be pleased with him) and ‘A’ishah (may Allah be pleased with her), supported this view. Their evidence is the verse in Al-An‘am 121: “Do not eat an animal over which the name of Allah has not been pronounced; indeed, it is sinful.” According to Imam Malik, it is disliked, not unlawful.

Animals Slaughtered by Fire Worshippers and Sabians: The jurists differ regarding animals slaughtered by fire worshippers. This is because they differ concerning the origin of the fire worshippers’ religion. Some jurists believe that they follow a revealed scripture called the “Farfa.” ‘Ali (may Allah be pleased with him) held a similar view. Others say that they are polytheists. Those who consider them followers of a revealed scripture regard their slaughtered animals as lawful, as stated in verse 5 of Surat al-Ma’idah. The Messenger (peace and blessings be upon him) said: “Treat them like the People of the Book.”

Ibn Hazm says concerning the fire worshippers: “They are People of the Book, so their ruling in all matters is like that of the People of the Book.” Abu Thawr and the Zahiri school held the same view. However, according to most jurists, animals slaughtered by them are unlawful, because they consider them polytheists. As for animals slaughtered by the Sabians, some consider them permissible and others impermissible. (The religion of the Sabians lies between that of the fire worshippers and the Christians. They believe in the influence of the stars.)

2. The slaughtering instrument must be sharp enough to cause blood to flow rapidly and cut the windpipe, such as a knife, stone, piece of wood, sword, glass, or bamboo whose edge is sharp enough to cut like a knife. Slaughter may also be performed with a bone, but not with teeth or claws.

a. Imam Malik reports that a woman was tending goats. One of her goats was injured, so she immediately slaughtered it with a stone. When the Messenger of Allah (peace and blessings be upon him) was asked about this, he said: “The slaughter is valid.”

b. It is reported that the Messenger of Allah (peace and blessings be upon him) was asked: “May we slaughter with a hard stone or a broken piece of a stick?” The Messenger (peace and blessings be upon him) said: “Do it quickly and cut. If the blood flows rapidly and the name of Allah has been pronounced, eat it. But do not cut with teeth or claws.” — Muslim.

c. The Messenger of Allah (peace and blessings be upon him) prohibited slaughtering like Satan: cutting only the skin without cutting the veins of the neck, then leaving the animal to die slowly. — Abu Dawud.

3. The windpipe and esophagus must be cut, but they do not have to be severed completely. Nor is it necessary to cut the two thick veins on either side of the neck, because food and drink pass through them and they are not essential to life, whereas the purpose of slaughter is to end life. If the head is severed, the slaughtered animal does not become unlawful. Likewise, slaughter from behind is valid if the instrument strikes the place of slaughter.

4. Pronouncing the name of Allah: Imam Malik says that any animal slaughtered without pronouncing the name of Allah is unlawful, whether the omission was deliberate or accidental. Ibn Sirin and a group of scholars held the same view. Imam Abu Hanifah says that it is unlawful if the name of Allah was deliberately omitted, but lawful if omitted accidentally. Imam al-Shafi‘i says that if the slaughterer is qualified to slaughter, the animal is lawful whether the name of Allah was omitted deliberately or accidentally. ‘A’ishah (may Allah be pleased with her) said: Some people said, “O Messenger of Allah, people bring us meat, and we do not know whether the name of Allah was pronounced over it or not.” The Messenger of Allah (peace and blessings be upon him) said: “Pronounce the name of Allah over it and eat.” ‘A’ishah said: “They had only recently been unbelievers.” (Al-Bukhari).

Disliked Practices in Slaughter:

1. Slaughtering with a blunt instrument, because Imam Muslim reports from Shaddad ibn Aws (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Allah has commanded excellence in everything. So when you slaughter an animal, slaughter it well. You should sharpen the knife properly and spare the slaughtered animal suffering.”

2. Ibn ‘Umar (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) ordered that the slaughtering instrument be sharpened and that it be sharpened out of the animal’s sight. (Ahmad).

3. It is disliked to break the neck of a slaughtered animal or skin it before its life has left it. Al-Daraqutni reports from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Do not hurry before the life has departed.” However, there is no statement in the Qur’an or hadith that facing the qiblah before slaughter is recommended.

Slaughtering an Animal Facing Death or in a Diseased Condition: If an animal is alive at the moment it is slaughtered, it is lawful to eat, even if it is certain that its life would have lasted only a very short time and that no animal survives in such a condition. Likewise, if a diseased animal with no hope of recovery is slaughtered while it is still alive, it is lawful to eat. Its being alive at the time of slaughter can be recognized by movement of its legs, feet, and tail, breathing, and so forth. But if it has reached the stage at which its life is departing and it does not move its limbs, it is regarded as dead and cannot be made lawful through slaughter. Allah says in verse 3 of Surat al-Ma’idah:

حرمت عَلَيْكُمُ الْمَيْتَةُ وَالدَّمَ وَلَحْمُ الْخِنْزِيرِ وَمَا أُهِلَّ لِغَيْرِ اللهِ بِهِ وَالْمُنْخَنِقَةُ وَالْمُوْقُونَة والمتربية والنَّطِيعة وما أكل السبع إلا ما ذكيتم .

“The dead animal, blood, swine flesh, animals slaughtered in the name of other than Allah, strangled animals, animals killed by a blow, animals killed by a fall, animals killed by a goring, and those eaten by wild beasts are forbidden to you, except what you are able to slaughter.”

That is, all these animals are unlawful for you, except those among them that you find alive and slaughter. This slaughter makes them lawful.

Imam ‘Abbas (may Allah be pleased with him) was asked: A tiger attacked a goat and tore open its abdomen, causing its intestines to spill out, and it was slaughtered at that very moment. What is its ruling? He said: “Eat it, but do not eat whatever of its intestines has spilled out.”

Stopping Before Completing the Slaughter: If the slaughterer lifts his hand before completing the slaughter, then immediately brings it back and completes the slaughter, it is valid. He injured the animal and then slaughtered it while it was still alive. In this case, the animal falls under Allah’s statement: “Except what you are able to slaughter.”

Injuring an Animal When Slaughter Becomes Impossible: An animal that becomes lawful through slaughter must be slaughtered at the proper place if this is possible. If that is impossible, striking it anywhere on its body completes the slaughter, provided that the wound causes blood to flow and is capable of killing it.

Rafi‘ ibn Khadij (may Allah be pleased with him) said: We were on a journey with the Messenger of Allah (peace and blessings be upon him). A camel belonging to one of our companions suddenly ran away, and we had no horses with us. A man threw a spear at it and stopped it. The Messenger (peace and blessings be upon him) said: “Some of these animals are wild by nature. So when one of them behaves in this way, treat it in the same manner.” (Al-Bukhari and Muslim).

Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah report from Abu al-‘Ashra’ that his father said: “O Messenger of Allah, slaughter is only performed at the throat or upper chest, is it not?” The Messenger of Allah (peace and blessings be upon him) said: “Striking it in the thigh is sufficient.” Imam Abu Dawud said: “This applies only to animals killed by a fall and wild animals.” Imam al-Tirmidhi said: “This applies only in abnormal circumstances, such as with disobedient, unruly, or fleeing animals that cannot be controlled, or an animal that has fallen into water and is feared to drown. If such an animal is struck with a knife or spear and dies as a result of its blood flowing, it is lawful.”

Imam al-Bukhari reports from ‘Ali, Ibn ‘Abbas, Ibn ‘Umar, and ‘A’ishah (may Allah be pleased with them): “An animal that escapes your control is like hunted game. An animal that falls into a well may be slaughtered in whatever manner and at whatever place it can be brought under control.”

Slaughtering a Fetus: If the fetus of an animal emerges from its mother’s womb still alive, it must then be slaughtered. If its mother is slaughtered while it is still in the womb, the mother’s slaughter is sufficient for it, whether it emerges alive or dead. Regarding a fetus, the Messenger (peace and blessings be upon him) said: “The slaughter of the mother is the slaughter of the fetus.” (Ahmad, Ibn Majah, Abu Dawud, al-Tirmidhi, al-Daraqutni, and Ibn Hibban).

Ibn al-Mundhir says: Among those who say that the mother’s slaughter is sufficient for the fetus, without distinguishing whether the fetus is fully formed or malformed, are ‘Ali ibn Abi Talib, Sa‘id ibn al-Musayyab, Ahmad, Ishaq, and al-Shafi‘i. Al-Shafi‘i says: It is not known that any Companion or scholar held that a fetus is not lawful unless it is slaughtered separately. Only Imam Abu Hanifah is reported to have held this view. Ibn al-Qayyim says: The hadith states in clear and decisive language that the slaughter of the fetus is completed by slaughtering its mother. This accords with the basic principle, which is that a dead animal is unlawful.

It may be said concerning this: The Messenger of Allah (peace and blessings be upon him) declared dead animals unlawful, and exempted fish and locusts from the category of dead animals. But how can this apply to a fetus? A fetus is not a dead animal, for it is part of its mother’s body. Slaughtering the mother has already included all parts of her body in the slaughter. Therefore, there is no need to slaughter each part separately. The fetus is subordinate to its mother and is part of her body. This is what the sound basic principle requires. Even if no hadith had stated that it is lawful, the basic principle would support this reasoning; and when there is a hadith as well, what problem remains? In fact, the hadith, the basic principle, and reason all support the lawfulness of the fetus through the mother’s slaughter.

Chapter Fifty-One: Hunting

Definition and Ruling: In Islamic terminology, hunting means capturing a lawful animal that is naturally untameable, disobedient, and beyond control.

It is permissible and lawful. Allah made it lawful through the following statement in verse 2 of Surat al-Ma’idah:وَإِذَا خَلَلْتُرْ فَاسْطَادُوا“When you are free from ihram, then hunt.” All hunting in every place except the Sacred Sanctuary is lawful and permissible. Hunting in the Sacred Sanctuary has been discussed in detail in the chapter on Hajj. Hunting in the sea is permissible in all circumstances, while hunting on land is lawful except during ihram. Allah says:

أُحِلَّ لَكُمْ مَيْنَ الْبَحْرِ وَطَعَامُهُ مَتَاعًا لكم وللسيارة ، وحرم عَلَيْكُمْ مِينَ الْبَرِ مَا دُمْتُم حرمان

“Lawful for you is the game of the sea and its food, as provision for you and travelers; and forbidden to you is the game of the land so long as you remain in ihram.” (Al-Ma’idah: 96).

Hunting That Is Forbidden: Hunting intended for slaughter is permissible. Hunting that is not intended for slaughter is forbidden.

Killing Animals Without a Beneficial Purpose: The Messenger of Allah (peace and blessings be upon him) prohibited killing any animal except for the purpose of eating. Al-Nasa’i and Ibn Hibban report that the Messenger of Allah (peace and blessings be upon him) said: “Whoever kills a sparrow needlessly, that sparrow will complain on the Day of Resurrection, saying: ‘O Allah, so-and-so killed me without reason and did not kill me for any beneficial purpose.’” Muslim reports from Ibn ‘Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Do not use any animal as a target.”

One day the Messenger of Allah (peace and blessings be upon him) was going somewhere. On the way, he saw some people using a bird as a target and trying to kill it. He then said: “May Allah curse those who do such a thing.”

Conditions for the Hunter: The conditions required of a slaughterer are also required of a hunter for the animal hunted to be lawful to eat. The hunter must be Muslim or from the People of the Book. The game hunted by a Jew or Christian is as lawful as an animal slaughtered by him. Likewise, all the other conditions mentioned in the chapter on slaughter according to the Shariah apply here as well.

Hunting with Wounding Weapons and Animals: Hunting is sometimes carried out with weapons that cause wounds, such as spears, arrows, and swords. Concerning this, Allah says in verse 94 of Surat al-Ma’idah:

يَأَيُّهَا الَّذِينَ آمَنُوا لَيَبْلُونَكُمُ اللهُ بِشَيْءٍ مِنَ الصَّيْلِ تَنَالَةٌ أَيْدِيكُمْ وَرِمَا حُكُمْ

“O believers, Allah will certainly test you with some game within reach of your hands and spears.”

At other times, hunting is carried out with trained animals, as Allah says in verse 4 of Surat al-Ma’idah:

يسْتَلُوْنَكَ مَاذَا أُحِلَّ لَهُمْ ط قُلْ أُحِلَّ لَكم الطيبة لا وما علمتم من الجَوَارِحِ مُكَلِّبِينَ تَعْلَمُونَهُنَّ مِمَّا عَلَيْكُمُ اللهُ وَ فَكُلُوا مِمَّا اسْتَكْنَ عَلَيْكُمْ وَاذْكُرُوا اسْمَ اللهِ عَلَيْهِ مِن وَاتَّقُوا اللَّهَ وَ إِنَّ اللَّهَ سَرِيعُ العنابة

“They ask you what has been made lawful for them. Say: All good things have been made lawful for you, and whatever the hunting animals you have trained to hunt for you, as Allah has taught you, catch for you—eat from it and pronounce the name of Allah over it, and fear Allah. Surely Allah is swift in reckoning.”

Abu Tha‘labah al-Khushani said: I said, “O Messenger of Allah, we live in a hunting region where we hunt with bows and with trained and untrained dogs. What should I do?” The Messenger of Allah (peace and blessings be upon him) said: “Eat the animal you hunt with your bow and over which you pronounce the name of Allah, and eat the animal you hunt with an untrained dog if you are able to slaughter it.” (Al-Bukhari and Muslim).

Conditions for Hunting with Weapons: The following conditions apply to hunting with weapons:

1. The weapon must wound the animal and penetrate its body. ‘Adi ibn Hatim said: “O Messenger of Allah, we are accustomed to shooting arrows. What is lawful for us?” The Messenger of Allah (peace and blessings be upon him) said: “Eat what you slaughter, and eat the animal over which you have pronounced the name of Allah and which you have wounded.” Imam al-Shawkani says: This hadith proves that causing a wound is all that is necessary, even if it is done with a blunt weapon. Therefore, game killed by shooting with a modern gun is also lawful. Since a bullet causes a greater wound than other weapons, game killed with a gun is lawful just as game killed with other weapons is lawful. It is sufficient to pronounce the name of Allah when firing; there is no harm if one later has no opportunity to slaughter it.

On the other hand, the hadith prohibiting the eating of an animal wounded by a gun but not slaughtered, and regarding it as an animal killed by a blow, refers to a type of gun made from clay, which is then dried and used to fire projectiles. It is not like a gun that fires bullets and gunpowder. Just as Islam prohibits eating game killed with a clay gun, it also prohibits eating animals killed with bricks, stones, or similar objects. Explaining this, the Messenger of Allah (peace and blessings be upon him) said: “It neither kills game nor kills an enemy, but it breaks an animal’s teeth and tears out its eyes.”

Likewise, an animal struck with a stick or another blunt object is unlawful if it is not slaughtered while still alive. ‘Adi (may Allah be pleased with him) said to the Messenger of Allah (peace and blessings be upon him): “I hunt by shooting arrows.” The Messenger of Allah (peace and blessings be upon him) said: “If the arrow penetrates its body, eat it; but if the arrow passes by it, do not eat it.”

2. The hunter must pronounce the name of Allah when shooting the arrow or bullet at the game. In light of the hadith narrated earlier by Abu Tha‘labah and other hadiths and verses, the Imams do not differ that pronouncing the name of Allah is required according to the Shariah. They differ only over whether it is a condition. Abu Thawr, al-Sha‘bi, Dawud al-Zahiri, and a group of hadith scholars hold that pronouncing the name of Allah is a condition in all circumstances. If it is not pronounced, whether deliberately or accidentally, the game is not lawful. According to the most well-known report, this was also the view of Imam Ahmad.

Imam Abu Hanifa says: If one deliberately refrains from pronouncing Allah’s name, it is unlawful; if one refrains unintentionally, it is lawful. Imam Malik held the same view. Imam al-Shafi‘i and a group of Maliki jurists say: Pronouncing Allah’s name is Sunnah. Therefore, if someone omits it even deliberately, the game will not be unlawful; rather, eating it will be lawful. In their view, the command to pronounce Allah’s name indicates recommendation.

Conditions for hunting with predatory animals: The following conditions apply to hunting with hawks, leopards, dogs, and other animals capable of being trained:

a. The animal must be trained to hunt. Its training is considered effective when it does what it is commanded to do and refrains from what it is forbidden to do.

b. It must leave some of the captured game for its owner without eating from it itself. If it eats, it is understood to have caught it for itself, and its game will not be lawful. In the hadith narrated by ‘Adi ibn Hatim, the Messenger of Allah told him: ‘When you send your trained dogs to catch game and pronounce Allah’s name over them, eat what they bring back for you. But do not eat if the dog itself eats, for I fear that it caught the game for itself.’

c. The owner must send the predatory animal after pronouncing Allah’s name. The ruling on pronouncing Allah’s name has already been discussed. Deliberately sending the animal is also one of the conditions for the game to be lawful. If the predatory animal goes out to catch game on its own, even though its owner did not send it or encourage it in any way, then according to Imam Malik, al-Shafi‘i, Abu Thawr, and others, it is not lawful to eat its game. For although it was not sent, it hunted only for itself, and the owner had no role in it. Therefore, it cannot be said that this game belongs to him, since the hadith of ‘Adi ibn Hatim does not apply to it. The implication of the condition is that an animal not sent out is not a legally valid hunter. ‘Ata’ and al-Awza‘i, however, say: If the predatory animal has been trained to hunt and kept ready for hunting, its game may be eaten.

Two predatory animals sharing in catching one game animal: When the owner sends two predatory animals to catch game and both catch the same animal, it is lawful. But when one is sent and the other is not, it may not be eaten. The Messenger of Allah said: ‘You pronounced Allah’s name when sending your dog, but you did not do so when sending the other.’ Hunting with the hunting dogs of Jews and Christians: Hunting with the trained dogs and hawks of Jews and Christians is permissible if the hunter is Muslim.

Finding the game alive: If a hunter finds the game alive, but its windpipe and throat have been cut, its intestines have been torn apart, and its liver, stomach, and the like have come out of its abdomen, the animal becomes lawful without any further slaughter. But if the hunter finds it in a condition in which it still has stable life, it must be slaughtered; it will not be lawful without slaughter.

Finding the game dead after it has been wounded: If the hunter wounds the game and then moves away from it, subsequently finding it dead, the game will be lawful under three conditions:

1. It must not have fallen from a mountain or been found in water. In such a case, it may have died by falling from above or by drowning. Al-Bukhari and Muslim narrate from ‘Adi ibn Hatim: I asked the Messenger of Allah. He said: ‘Pronounce Allah’s name when you shoot your arrow. Then, if you find that it has been killed, eat it. But if you find it fallen into water, do not eat it, for you do not know whether your arrow killed it or the water.’

2. The hunter must be certain that the game was killed by his shot, and there must be no sign indicating that it was struck by someone else’s shot or by another animal. It is narrated from ‘Adi: I said: O Messenger of Allah, I shoot at game and find my arrow in its body the next day. The Messenger of Allah said: ‘Eat it when you are certain that your arrow killed it and you find no mark of a predatory animal’s attack on its body.’ One narration in al-Bukhari states:

‘We shoot arrows at game, then follow it for two or three days, and afterward find it dead with the arrow still embedded in its body.’ The Messenger of Allah said: ‘He may eat it if he wishes.’

3. The game’s body must not deteriorate so much that it becomes foul-smelling. In that condition it becomes harmful refuse that people find repulsive to eat. It is narrated from Abu Tha‘labah al-Khushani that the Messenger of Allah said: ‘When you shoot at game, then it remains hidden for three days and you find it afterward, you may eat it so long as it has not become foul-smelling.’ (Muslim).

Chapter Fifty-Two: Sacrifice

Definition: The camels, cattle, goats, sheep, and rams slaughtered on the days of sacrifice—that is, during Dhu al-Hijjah and the Days of Tashriq—with the aim of seeking closeness to Allah are called udhiyah. The legal ruling on sacrifice: Allah Most High established sacrifice as a religious injunction through the following words:

إِنَّا أَعْطَيْنَاكَ الْكَوْثَرَةِ فَصَلِّ لِرَبِّكَ وَانْحَرْه إِنْ شَانِئَكَ هُوَ الْأَبْتَره

‘Indeed, We have granted you al-Kawthar. So pray to your Lord and sacrifice. Indeed, your enemy is the one cut off and without offspring.’ (Surah al-Kawthar)

Allah says: ‘We have made camels among the symbols of Allah; in them is goodness for you. So pronounce Allah’s name over them as they stand in rows.’

Moreover, the Messenger of Allah offered sacrifices, the Muslims offered sacrifices, and the consensus of the Muslims on this matter has been established.

The virtue of sacrifice: Imam al-Tirmidhi narrates from ‘A’ishah that the Messenger of Allah said: ‘The son of Adam does no deed more beloved to Allah on the Day of Sacrifice than slaughtering a sacrificial animal. It will come on the Day of Resurrection with its horns, hair, and hooves, and its blood reaches a place near Allah before it falls upon the ground’—that is, it is accepted as soon as it is slaughtered. ‘So rejoice in your sacrifice.’

The ruling on sacrifice: Sacrifice is an emphasized Sunnah. It is disliked to omit it despite having the means. Al-Bukhari and Muslim narrate from Anas that the Messenger of Allah offered sacrifice by slaughtering two black-and-white, horned ram lambs, between two and four years old, with his own hands, pronouncing Allah’s name and saying, ‘Allah is the Greatest.’

Muslim narrates from Umm Salamah that the Messenger of Allah said: ‘When you see the crescent of Dhu al-Hijjah and one of you intends to offer a sacrifice, let him refrain from cutting his hair and nails.’

Thus, the Messenger of Allah’s statement, ‘when one of you intends to offer a sacrifice,’ proves that sacrifice is not obligatory but Sunnah. It is narrated from Abu Bakr and ‘Umar that they would not offer sacrifices on behalf of their families, so that it would not be thought obligatory.

Ibn Hazm says: It has not been authentically narrated from any Companion that sacrifice is obligatory. According to Imam Abu Hanifa, however, sacrifice is obligatory for a solvent person who possesses the nisab and is not a traveler. This is because Imam Ahmad and Ibn Majah narrated, and al-Hakim declared authentic, that the Messenger of Allah said: ‘Whoever has the means but does not offer a sacrifice should not approach our prayer place.’ The imams, however, consider the view that this hadith is mawquf to be more authoritative.

When sacrifice becomes obligatory: Sacrifice does not become obligatory except in two circumstances:

a. When someone makes a vow to offer a sacrifice. The Messenger of Allah said: ‘Whoever vows to obey Allah should obey Him.’ Even if the person who made the vow dies, it is permissible for someone else to fulfill on his behalf what he vowed before his death.

b. If someone says, ‘This animal is for Allah,’ or, ‘This is a sacrificial animal.’ According to Imam Malik, if someone buys an animal with the intention of sacrifice, offering it becomes obligatory.

The rationale for sacrifice: Allah instituted sacrifice as a religious injunction in order to revive the memory of Ibrahim and extend the celebration of Eid for people. As the Messenger of Allah said: ‘These days are days of eating, drinking, and remembering Allah.’

Which animals may be sacrificed: Sacrifice is not valid with any animal other than camels, cattle, goats, sheep, and rams. Allah says in verse 34 of Surah al-Hajj:

ليل كرو اسم الله على مَا رَزَقَهُم مِّن بَهِيمَةِ الْأَنْعَامِ .

‘For every community We have appointed a rite of sacrifice, so that they may pronounce Allah’s name over the livestock He has provided for them.’

A six-month-old sheep, a one-year-old goat, a two-year-old cow, and a five-year-old camel are sufficient for sacrifice, whether male or female.

1. Imam Ahmad and Imam al-Tirmidhi narrate from Abu Hurayrah that the Messenger of Allah said: ‘A jaza‘ from among sheep is an excellent sacrificial animal.’ (According to the Hanafi school, jaza‘ refers to a six-month-old sheep, while according to the Shafi‘i school it refers to a one-year-old sheep.)

2. ‘Uqbah ibn ‘Amir said: I said: O Messenger of Allah, I have obtained a jaza‘. The Messenger of Allah said: ‘Offer that one as a sacrifice.’ (Al-Bukhari and Muslim)

3. Imam Muslim narrates from Jabir that the Messenger of Allah said: ‘Do not offer a sacrifice except a musinnah. If that is difficult for you, then sacrifice a jaza‘ from among sheep.’

A musinnah is a five-year-old camel, a two-year-old cow, a one-year-old goat, and a one-year-old or six-month-old sheep. The disagreement among the imams regarding the last-mentioned animal was noted earlier.

Sacrifice with a castrated animal: It is permissible to sacrifice a castrated animal. Imam Ahmad narrates from Abu Rafi‘ that the Messenger of Allah offered two black-and-white castrated ram lambs as sacrifices because their meat is tastier and better.

Animals with which sacrifice is not valid: Freedom from defects is one of the conditions of sacrifice. Therefore, sacrifice with a defective animal is not valid. (By defective is meant an animal with an obvious defect that reduces the amount of its meat; minor defects do not matter.) Examples: 1. One that is visibly ill. 2. One-eyed. 3. Visibly lame.

4. So emaciated that its brain has deteriorated. The Messenger of Allah said: ‘The sacrifice is not valid if any of four types of animals is slaughtered: one-eyed with an obvious defect, visibly ill, visibly lame, or so emaciated that there is no marrow in its bones.’—Al-Tirmidhi.

5. An animal missing most of its ear or horn, whether its ear has been cut or its horn broken. Sacrifice is also invalid with an animal whose four front teeth have been uprooted from the roots, whose horn covering has been broken, which is completely blind, or which roams in the pasture but does not eat grass. Sacrifice is likewise invalid with an animal suffering from an excessively severe skin disease.

But sacrifice is valid with an animal whose tongue or tail has been cut, one that is pregnant, born without ears, missing half an ear, or missing half its rump. The soundest view of Imam al-Shafi‘i is that sacrifice is not valid with an animal whose rump or udder has been cut, because it has lost a portion fit to eat. Likewise, slaughtering an animal with a cut-off tail is not valid. Imam al-Shafi‘i says: We have found nothing from the Messenger of Allah concerning teeth.

Time of slaughter: A condition for sacrifice is that it be slaughtered on the day of Eid after sunrise and after the time sufficient to perform the Eid prayer has passed, not before that. Afterward, it may be slaughtered at any time during the three days, by day or night. When these three days have passed, the time for sacrifice ends. It is narrated from al-Bara’ that the Messenger said: ‘Our first act on the day of Eid is to pray, then return home and offer the sacrifice. Whoever does this has followed our Sunnah. Whoever slaughters before that may provide some meat for his family, but it will not be a sacrifice.’

Abu Burdah said that in a sermon delivered to us on the tenth of Dhu al-Hijjah, the Messenger of Allah said: ‘Whoever prays our prayer, faces our qiblah, and offers our sacrifice must not slaughter before the Eid prayer.’ Al-Bukhari and Muslim narrate from the Messenger of Allah: ‘Whoever slaughters before the prayer slaughters only for himself. Whoever slaughters after the prayer and the two sermons has completed his sacrifice and followed the Sunnah of the Muslims.’

One sacrifice suffices for one family: If someone offers a sacrifice with one goat or sheep, it suffices for him and the members of his household. A Companion would offer one goat on behalf of himself and his entire family, because this is the Sunnah of the Prophet and the Companions. Ibn Majah and al-Tirmidhi narrate that Abu Ayyub said: ‘During the time of the Messenger of Allah, a man would slaughter one goat as a sacrifice on behalf of himself and his family. They would eat from it, feed others, and people would take pride in this practice among themselves. This practice has continued, as you can see.’

It is permissible for several people to share in a sacrifice: When a camel or cow is offered as a sacrifice, several people may share in it. If all sincerely intend sacrifice and seeking closeness to Allah, up to seven people may share one cow or camel. Jabir said: ‘At al-Hudaybiyyah, we sacrificed one camel on behalf of seven people and one cow on behalf of seven people together with the Messenger of Allah.’ (Muslim, Abu Dawud, and al-Tirmidhi)

Distribution of sacrificial meat: It is Sunnah for the person offering the sacrifice to eat from its meat, give gifts to relatives, and give charity to the poor. The Messenger of Allah said: ‘Eat from the sacrificial meat, feed others, and store it.’ The scholars say that it is best to eat one-third, distribute one-third, and store one-third. It is permissible to send this meat elsewhere, even outside the country. However, it is not permissible to sell the meat or hide. (It is not permissible to give any part of the animal to the butcher as his wage, though it is permissible to pay him a separate wage for his work.) The person offering the sacrifice may give the hide of the sacrificial animal in charity and benefit from it himself. According to Imam Abu Hanifa, it is permissible to sell the hide, give its price in charity, and buy it himself for use at home.

The person offering the sacrifice may slaughter it himself: For someone skilled in slaughtering, it is Sunnah to slaughter his own sacrificial animal. At the time of slaughter he should say:

الله اللَّهُ أَكْبَرُ الأَمُرْ هَذَا عَنْ فُلَانٌ‘Bismillah, Allahu Akbar, Allahumma hadha ‘an fulan’ (In the name of Allah, Allah is the Greatest; O Allah, this is on behalf of so-and-so; in place of ‘so-and-so,’ he should mention his own name.) The Messenger of Allah slaughtered a sheep and said: ‘Bismillah, Allahu Akbar. O Allah, this is from me and from those among my community who do not offer a sacrifice.’ (Abu Dawud, al-Tirmidhi)

If one is not skilled at slaughtering, one should be present and watch during the slaughter. The Messenger of Allah said to Fatimah: ‘O Fatimah, stand and watch your sacrifice, for as soon as its first drop of blood falls, all your past sins will be forgiven. Say:’

إن مَلَاتِي وَنُسُكِي وَمَحْيَايَ وَمَمَاتِي لِلَّهِ رَبِّ الْعَالَمِينَ لأَشَرِيكَ لَهُ وَ بِذلِكَ أَمِرْتُ وَأَنَا أَولُ المسلمين

‘Indeed, my prayer, my sacrifice, my life, and my death are for Allah, Lord of the worlds. He has no partner. This is what I have been commanded, and I am the first of those who submit.’ A Companion asked: ‘Is this exclusively for you and your family, or is it for all Muslims?’ The Messenger of Allah replied: ‘Rather, it is for all Muslims.’

Chapter Fifty-Three: ‘Aqiqah

Definition and ruling: The animal slaughtered on behalf of a newborn is called ‘aqiqah.

‘Aqiqah is an emphasized Sunnah, even if the father is poor. The Messenger of Allah and his Companions practiced it. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrate that the Messenger of Allah performed ‘aqiqah by slaughtering one sheep each on behalf of Hasan and Husayn. According to Imam al-Layth and Dawud al-Zahiri, it is obligatory. All other rulings of ‘aqiqah are like those of sacrifice, except that several people cannot share in an ‘aqiqah.

Virtue: Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrate from Samurah that the Messenger of Allah said:

1. ‘Every newborn is pledged for his ‘aqiqah.’ (That is, his sound growth and complete security depend upon the ‘aqiqah.) On the seventh day after birth, the ‘aqiqah animal should be slaughtered, the child’s hair should be shaved, and the child should be named.

2. Salman ibn ‘Amir al-Dabbi narrated that the Messenger of Allah said: ‘With every newborn there is an ‘aqiqah. So slaughter an animal on his behalf and remove from him all filth and impurity.’ (Narrated by the five canonical hadith collections.)

What should be slaughtered for a boy and a girl: It is preferable to slaughter two goats of approximately the same age and type on behalf of a boy, and one goat on behalf of a girl.

Umm Kurz al-Ka‘biyyah said that the Messenger of Allah said: ‘On behalf of a boy, two goats approximately equal in age and size, and on behalf of a girl, one goat.’ It is also permissible to offer one goat on behalf of a boy, because the Messenger slaughtered one goat each on behalf of Hasan and Husayn, as mentioned earlier in the hadith. Time of slaughter: If possible, it should be slaughtered on the seventh day after birth; otherwise, on the fourteenth day; otherwise, on the twenty-first day. If that too is not possible, it may be done on any day. A hadith narrated by al-Bayhaqi states: It should be slaughtered on the seventh, fourteenth, or twenty-first day.

Combining ‘aqiqah and sacrifice: The Hanbalis say: If the day of ‘aqiqah coincides with the day of sacrifice, it is possible to perform either one and thereby receive the merit of performing both, just as when Eid and Friday coincide, performing ghusl for either one suffices for both.

Naming and shaving the hair: It is Sunnah to choose a good name for the newborn, shave the child’s hair, and, if possible, give silver in charity equal to the weight of the shaved hair. Imam Ahmad and al-Tirmidhi narrate from Ibn ‘Abbas that the Messenger of Allah performed ‘aqiqah for Hasan with one goat and said: ‘O Fatimah, shave his head and give silver in charity to the poor equal to the weight of his hair.’ Then we weighed the hair and found it to be one dirham or slightly less.

The best names: According to a hadith narrated by Muslim, the best names are ‘Abdullah and ‘Abd al-Rahman. According to an authentic hadith, Hammam and Harith are the most truthful names. It is also permissible to name children after angels and prophets, and with the names Taha and Yasin.

Imam Ibn Hazm says: It is unlawful to name someone after any deity, idol, or place of worship other than Allah, such as ‘Abd al-‘Uzza, ‘Abd Hubal, and ‘Abd ‘Umar. However, ‘Abd al-Muttalib is permissible. The Messenger of Allah prohibited naming children with certain names, including Yasar (prosperity), Rabah (profit), and Najih.

He also prohibited the names Aflah (more successful) and others. This is because they may in some circumstances become a cause for considering something an evil omen. In a hadith narrated by Samurah, the Messenger of Allah said: ‘Do not name your sons Yasar, Rabah, Najih, or Aflah. For you may one day ask, “Is he there?” while he is not there, and the reply will be, “No.”’ (Muslim)

Calling the adhan in a newborn’s ear: It is Sunnah to call the adhan in the newborn’s right ear and the iqamah in the left, so that Allah’s name will be the first thing to enter the child’s ears. Ahmad, Abu Dawud, and al-Tirmidhi narrate from Abu Rafi‘: I saw the Messenger of Allah call the adhan for prayer in the ear of Hasan ibn ‘Ali after Hasan was born. Ibn al-Sunni narrates from Hasan ibn ‘Ali that the Messenger of Allah said: ‘Whoever calls the adhan in the right ear and the iqamah in the left ear of a child after its birth, that child will not be afflicted by childhood epilepsy.’

Some ignorant practices concerning newborns: The Arabs used to slaughter the first offspring of a she-camel in the name of their idols; it was called far‘. They also slaughtered an animal in honor of Rajab and called it ‘atirah. Islam prohibited slaughtering animals in honor of idols, changed the practices of the Age of Ignorance, and permitted slaughtering in Allah’s name to seek closeness to Him. Abu Hurayrah narrated that the Messenger of Allah said: ‘Far‘ and ‘atirah are not valid.’ Nubayshah said: A man asked the Messenger of Allah: We used to slaughter ‘atirah in Rajab during the Age of Ignorance. What do you command concerning it? The Messenger of Allah said: ‘Slaughter in Allah’s name in any month, give in charity in Allah’s name, and feed others.’ The man then asked: We used to slaughter far‘ during the Age of Ignorance. What do you command concerning it? The Messenger of Allah said: ‘Every grazing animal has offspring raised by your livestock. When that offspring grows into a mature camel, if you slaughter it and give its meat to travelers, that is a good deed.’ (Abu Dawud, al-Nasa’i)

Abu Rubein said: I asked, ‘O Messenger of Allah, we used to slaughter animals in Rajab, eat from them ourselves, and feed our guests.’ The Messenger of Allah said: ‘There is nothing wrong with that.’ Imam Ahmad and al-Nasa’i narrate from ‘Umar ibn al-Harith that he met the Messenger of Allah during the Farewell Pilgrimage. A man said: ‘O Messenger of Allah, tell us about far‘ and ‘atirah.’ He said: ‘Whoever wishes may slaughter far‘, and whoever wishes may refrain; whoever wishes may slaughter ‘atirah, and whoever wishes may refrain. But sacrifice is with goats and sheep.’

Piercing a child’s ears: It is stated in Hanbali works that piercing a girl’s ears for adornment is permissible, but it is disliked for boys. In the Fatawa of Qadi Khan it is stated that there is no harm in piercing a girl’s ears, because people did so during the Age of Ignorance and the Messenger did not disapprove of it afterward.

Chapter Fifty-Four: Kafalah (Suretyship)

Definition: Linguistically, kafalah means attaching something to oneself and drawing it close to one’s breast. In verse 37 of Surah Aal ‘Imran, it says: كَفَّلَمًا زكريا‘He placed her (Maryam) under the care of Zakariyya.’ Here, the expression ‘placed under care’ derives from the meanings of attaching her to him and drawing her close.

In Shariah, or in juristic terminology, kafalah means attaching to one’s own liability—or assuming as one’s own—the liability of a person responsible for producing an animal, repaying a debt, producing a person, or fulfilling a claim, by someone who has agreed to assume that liability as his guardian, custodian, or guarantor. This is the definition of kafalah according to the Hanafi school. According to the other Imams, kafalah means combining two liabilities with regard to a debt or a claim.

According to both definitions, four parties or entities are connected with this transaction: the kafil or custodian (that is, the guarantor who assumes the liability); the liable person, namely the debtor; the person for whose benefit the liability is assumed, namely the creditor; and the thing whose delivery is guaranteed—namely the animal, debt, object, or task that the debtor is responsible for delivering or fulfilling.

The kafil, custodian, or guarantor: the person who assumes responsibility for paying the debt owed to the creditor. Such a person must be an adult, sane, fully authorized to dispose of his own property, and voluntarily willing to collect or repay what is owed to another. (Basically, this duty does not rest upon him; it is assigned to him only because he voluntarily assumes it.)

Therefore, a madman or a minor cannot be a custodian, even if he is capable of distinguishing between good and bad.

The liable person or debtor: It is not a condition that this person be an adult, sane, present, or consenting to the kafalah. Rather, it is valid to act as kafil or custodian on behalf of a minor, an insane person, or an absent person. However, when the kafil pays the debt on behalf of the debtor, he cannot claim it from him. Rather, it will be regarded as a voluntary gift from him. If the kafalah is made on behalf of a minor who has been permitted to conduct business, and the kafil acts on his instructions, then the kafil is the guarantor for whom the kafalah has been made.

The person for whom another has become a guarantor, namely the creditor: The condition regarding this person is that the kafil or guarantor must know him. People differ in the degree of strictness and leniency with which they pursue claims, and the purpose of kafalah consequently differs as well. Thus, guaranteeing an unknown person may result in deception. However, it is not a condition that the creditor know his guarantor.
The object, debt, task, or animal for which the guarantee is given: This is the thing that the debtor is responsible for delivering or repaying. It has certain conditions, which will be discussed in their proper place.

The validity of kafalah or guarantee in Shariah: Kafalah or guarantee is valid according to the Qur’an, Sunnah, and consensus. In the Qur’an, Allah says in verses 66 and 72 of Surah Yusuf, respectively:

قَالَ لَنْ أُرْسِلْهُ مَعَكُمْ حَتَّى تُؤْتُونِ مَوْثِقًا مِّنَ اللهِ لَتَأْتَننِي بِهِ . وَلِمَنْ جَاءَ بِهِ مِيْلٌ بَعِيرٍ وَأَنَا بِهِ زميره

(Ya‘qub) said, ‘I will never send him with you until you give me a covenant in Allah’s name that you will surely bring him back to me.’

And, ‘Whoever brings it will receive a camel-load, and I am its guarantor.’ Imam Abu Dawud and al-Tirmidhi narrated from Abu Umamah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: ‘A guarantor is liable.’
The scholars agree regarding the validity of kafalah or guarantee. From the time of Prophethood until the present, Muslims have guaranteed one another, and none of the scholars disapproved of it.

Immediate, conditional, and time-dependent guarantees: Kafalah or guarantee may be of three types: immediate, conditional, and time-dependent. An example of immediate kafalah is that the kafil or guarantor says: ‘From this moment, I become the guarantor of so-and-so and assume responsibility for him.’ Likewise, if someone says, ‘I have assumed responsibility, become a kafil, become a guarantor, become a custodian, become a guardian,’ or ‘He is under my responsibility’ or ‘He has been entrusted to me,’ all of these constitute kafalah or guarantee.

Once the kafalah is completed, the kafil or guarantor must repay the relevant debt in whatever manner has been agreed—immediately, after a specified term, or in installments. However, if the debt is immediately payable but the kafil stipulates that payment be deferred until a specified term, this condition is valid. Ibn Majah narrated from Ibn ‘Abbas that the Messenger of Allah (peace and blessings be upon him) guaranteed a debt of ten dinars owed by a man, which the debtor had undertaken to repay, and he paid it after one month. This hadith proves that even if a debt is immediately payable, a kafil may assume liability on the condition that he will pay after a specified term; such conditional assumption is valid, and payment cannot be demanded from the kafil before that term expires.

An example of conditional kafalah is: ‘If you lend so-and-so money, I will be responsible for him.’ The statement in verse 72 of Surah Yusuf—‘Whoever brings it will receive a camel-load, and I am his guarantor’—is also an example of a conditional guarantee.

An example of a time-dependent guarantee is: ‘When Ramadan arrives, I will be your guarantor.’

This is the view of Imam Abu Hanifah and some Hanbali jurists. According to Imam al-Shafi‘i, conditions do not apply to kafalah.

Demanding repayment from both the kafil and the debtor at the same time: Once the kafalah contract is completed, it is valid to demand payment of the debt from both the kafil, that is, the guarantor, and the debtor. It is likewise valid to demand it from either one of them. This is the view of the majority of scholars.

Types of kafalah: Kafalah is of two types: personal kafalah and financial kafalah.

Personal kafalah: Personal kafalah means that the kafil undertakes to physically deliver to the claimant the person for whom he has assumed responsibility. Personal kafalah is concluded through statements such as, ‘I am the guarantor of so-and-so’ or ‘I am the guarantor of so-and-so’s person.’ This type of kafalah is permissible when another person has a claim against the person whose delivery has been guaranteed. It is not a condition to know the amount of that claim, because responsibility has been assumed for the person himself, not for his property.

However, when the kafalah concerns a punishment prescribed by Allah, or a hadd punishment, kafalah or guarantee is not permissible, whether the punishment relates to Allah’s right, such as the punishment for drinking alcohol, or to a person’s right, such as the punishment for slander. This is the view of the majority of scholars. Its evidence is the hadith narrated by ‘Amr ibn Shu‘ayb, in which the Messenger of Allah (peace and blessings be upon him) said: ‘There is no kafalah regarding a punishment prescribed by Shariah.’ (Al-Bayhaqi.) The reasoning is that such punishments are waived on account of any doubt; someone’s guarantee makes no difference, because the punishment cannot be exacted from anyone other than the offender.

According to Imam al-Shafi‘i, it is permissible to guarantee the physical delivery of someone upon whom a punishment relating to a person’s right applies, such as qisas or the punishment for slander, because this is a certain and incontrovertible right. However, kafalah is not permissible in matters involving Allah’s rights. Ibn Hazm considered personal kafalah invalid. He said: ‘Assuming responsibility for producing a person, whether concerning property, punishment, or anything else, is not permissible, because every condition not found in the Book of Allah is invalid. Those who consider personal kafalah valid should be asked: If the person for whom the guarantee was given disappears, what is to be done with the guarantor? Will he be held liable for what was owed by the missing person? If so, that would be wrongdoing and unlawful appropriation of wealth, because he never assumed responsibility for it. Or will he be released? That would invalidate personal guarantee. Or will he be held liable for the claim? That would burden him with responsibility for an impossible and unattainable matter, responsibility for which Allah never placed upon him.’

Nevertheless, a group of scholars ruled that personal kafalah is permissible. They argued that the Messenger of Allah (peace and blessings be upon him) had acted as guarantor in a doubtful matter. However, this report is based on such a weak hadith that it is unacceptable.

In any case, when the kafil has undertaken to deliver him physically, he must do so. But if delivering him while alive becomes impossible, or if the kafil refrains from delivering him, the kafil must pay what was owed by him. The Messenger (peace and blessings be upon him) said: ‘The kafil is liable.’ However, if the kafil stipulated that he would physically deliver the debtor but would not assume responsibility for the property, he is not obliged to pay what was owed. This is the view of the Maliki school and the jurists of Madinah. The Hanafis say that the kafil will be detained until he produces the person for whom he stood guarantor or learns of his death. They also say that when the principal debtor dies, the kafil is not liable for what was owed by the deceased, because he undertook to deliver him physically, not to pay what he owed. Therefore, he is not liable for something he did not undertake. This is the more well-known of Imam al-Shafi‘i’s several views. If the principal debtor surrenders himself, the kafil has no further responsibility. If the person whose debt the kafil guaranteed dies, the kafil is not released from liability; rather, the deceased’s heirs have the right to demand that the debtor be delivered to them physically.

Financial kafalah: Financial kafalah means that the kafil assumes a financial liability. It is of three types:

1. Guaranteeing repayment of a debt: that is, taking upon oneself the burden of another person’s debt. Salamah ibn al-Akwa‘ narrated: The Messenger (peace and blessings be upon him) refused to perform the funeral prayer for a person who was in debt. Abu Qatadah then said: ‘O Messenger of Allah, perform his funeral prayer; I will assume responsibility for his debt.’ The Messenger of Allah (peace and blessings be upon him) then performed his funeral prayer. (Al-Bukhari and Ahmad.)

According to the majority of scholars, it is valid to guarantee a debt on behalf of a deceased person, and the guarantor may not claim anything from the deceased’s estate. There are two conditions for guaranteeing repayment of a debt:

a. The debt must exist when the guarantee is given: such as a loan debt, a debt resulting from an unpaid price, unpaid wages for labor, or an unpaid dower. If these debts do not yet exist, the kafalah is invalid, because guaranteeing a debt that is not owed is unsound. An example is saying to someone: ‘Sell the item to so-and-so; I will be responsible for its price,’ or, ‘Lend money to so-and-so; I undertake to repay it.’ According to Imam al-Shafi‘i, Imam Muhammad, and the Zahiri school, this is not permissible. Abu Hanifah, Imam Malik, and Imam Abu Yusuf, however, considered it permissible. In their view, it is also permissible to guarantee something that has not yet become due.

b. The property being guaranteed must be known and specified. Guaranteeing unknown property is invalid, because it allows for deception. For example, if someone says, ‘I guarantee whatever you are owed by so-and-so,’ while neither party knows the amount, this is not permissible. This is the view of Imam al-Shafi‘i and Ibn Hazm. Imam Abu Hanifah, Imam Malik, and Imam Ahmad, however, considered it permissible to guarantee unknown property.

2. Guaranteeing delivery of a specified object: This means undertaking to deliver a particular object that is in another person’s possession, such as returning a usurped object to the usurper or delivering sold goods to the buyer. The condition is that the guaranteed object must be one for which compensation is assured to the person on whose behalf the guarantee is made, namely the debtor. This applies in the case of a usurped object. If compensation is not assured, as with a borrowed item or an item held in trust, kafalah is not permissible.

3. Guaranteeing against risk: This means guaranteeing goods sold when they are exposed to a risk arising from a cause that existed before the sale. In other words, if another claimant to the sold property appears after the sale, it means assuring the buyer’s protection from the risk he faces and securing his position against the seller. For example, after the sale it becomes known that the seller was not the owner of the goods, or that they had been pledged.

The guarantor’s right to claim repayment from the debtor: When the guarantor pays the debtor’s debt, he may claim it from the debtor if he became guarantor and made the payment with the debtor’s permission or at his request. This is because he benefited that person by spending his own property with his permission. The four Imams agree on this. There is disagreement, however, over whether he may claim it if he became guarantor and paid without the debtor’s permission or instruction. Imam al-Shafi‘i and Imam Abu Hanifah say that he spent voluntarily and therefore may not claim it. According to Imam Malik, he may claim it. Two views are reported from Imam Ahmad: according to one, he may claim it; according to the other, he may not. Imam Hazm said that whether he became guarantor and spent at the debtor’s request or permission, or did so without permission or request, he may not claim what he spent. If, however, the debtor had borrowed it from him, he may claim it. Ibn Hazm said: Ibn Abi Layla, Ibn Shubrumah, Abu Nur, and Abu Sulayman expressed views similar to ours.

Several rulings concerning kafalah:

1. When a person guarantees someone, and the person guaranteed disappears or dies, the guarantor remains liable for him. He cannot escape this liability except by paying what is owed himself or collecting it from the person guaranteed, by the creditor releasing him from repayment, or by releasing himself from the guarantee. He may withdraw from the guarantee because this is his right.

2. The creditor has the power to cancel the kafalah contract, whether or not the debtor or guarantor agrees. The debtor or guarantor, however, does not have this power.

Chapter Fifty-Five: Musaqat

Definition: In Shariah terminology, musaqat means irrigating and cultivating trees and producing fruit in exchange for dividing a specified share of the trees’ fruit between the owner and the irrigator. It is essentially a joint agricultural activity undertaken to produce fruit from trees. The trees belong to one party, while the other works on them, and the fruit obtained from the trees is divided between the two parties according to their agreed shares, such as one-half or one-third. The person who irrigates the trees is called a musaqi. It applies to trees that remain in the land for at least one year and have no specified time for being cut, whether they are fruit-bearing or forest trees. If the trees are forest trees, the musaqi or irrigator receives, in exchange for his work, a share of the firewood, planks, and similar products obtained from them.

Ruling: Musaqat is established as permissible by the Qur’an and Sunnah. It is also valid according to all jurists except Imam Abu Hanifah. Those who consider it permissible cite the following evidence:

a. Imam Muslim narrated from Ibn ‘Umar (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) contracted with the people of Khaybar to work the land in exchange for half of its produce.

b. Imam al-Bukhari narrated that the Ansar said to the Messenger of Allah (peace and blessings be upon him): ‘Divide the date gardens between our Muhajir brothers and us.’ The Messenger of Allah (peace and blessings be upon him) said: ‘No.’ They then said: ‘Then let them undertake the labor, and we will give them a share of the produce.’ The Messenger (peace and blessings be upon him) said: ‘I hear and accept.’

The Ansar wanted to make the Muhajirs partners in the date gardens and proposed this to the Messenger (peace and blessings be upon him). He rejected it. They then proposed that he assume overall responsibility for the date gardens in exchange for giving them half the produce. He accepted this proposal.

In the book Nayl al-Awtar, al-Hazimi says: ‘Ali ibn Abi Talib, ‘Abdullah ibn Mas‘ud, ‘Ammar ibn Yasir, Sa‘id ibn al-Musayyab, Muhammad ibn Sirin, ‘Umar ibn ‘Abd al-‘Aziz, Ibn Abi Layla, Ibn Shihab al-Zuhri, Judge Abu Yusuf, and Muhammad ibn al-Hasan said: Joint agricultural work in exchange for a share of the crops or fruit is permissible, as occurred at Khaybar.’
The essential elements of musaqat: Musaqat has two essential elements: 1. ijab (making an offer); 2. qabul (accepting the offer). If a person legally qualified under Shariah to conclude a contract makes an offer and another accepts it—verbally, in writing, or by gesture—the musaqat contract is concluded.

Conditions: The conditions of musaqat are as follows:

1. The trees covered by the musaqat contract must be known either by being seen or through a description, because a contract concerning an unknown thing is not permissible.

2. Its duration must be known, so that there is no possibility of uncertainty, ambiguity, or deception. Imam Abu Yusuf and Imam Muhammad say that specifying the duration is not a condition for musaqat, because almost everyone knows when fruit or crops ripen and there is little variation. According to the Zahiri school, it is not a condition at all. Their evidence is a hadith narrated by Imam Malik in which the Messenger of Allah (peace and blessings be upon him) told the Jews: ‘I establish for you the ruling that Allah has established for you.’ The Hanafi view is that if the duration of musaqat ends before the fruit ripens, the trees will remain under the supervision of the musaqi, who will continue working without wages until the fruit ripens.

3. The musaqat contract must be concluded before the fruit reaches maturity. This is because work on it is essential while it is at that stage. According to some jurists, musaqat is not permissible after maturity, because it is no longer needed; if the work is done afterward, it is ijara, not musaqat. Other jurists consider musaqat permissible even after maturity, reasoning that if Allah permitted musaqat before the fruit was created, then it is even more appropriate to permit it after the fruit has been created.

4. A share of the fruit, whether one-half or one-third, must be specified in advance for the musaqi. It is invalid to specify a particular tree or quantity for the musaqi or the owner. The book Bidayat al-Mujtahid states: ‘Those who favor the permissibility of musaqat agree that all irrigation expenses are the owner’s responsibility, while the musaqi has no responsibility other than labor. Musaqat is not permissible on the basis of this principle, because such a contract is made in exchange for something that has not yet even been created.’

If any one of the stated conditions is absent, the musaqat is invalid. Nevertheless, if the musaqi works on the basis of such a contract and fruit grows on the trees because of his work, he will receive the customary wage, while the fruit will belong to the owner.

For which plants is musaqat permissible? The jurists disagree about the plants for which musaqat is permissible. According to Imam Dawud, it is permissible only for date palms; according to al-Shafi‘i, for date palms and grapevines; and according to the Hanafis, for all plants whose roots become firmly established in the ground and which grow again from their roots even when their tops are consumed, such as sugarcane. When no duration is specified for musaqat, its term extends from the conclusion of the contract until the first harvest time arrives.

According to Imam Malik, musaqat is permissible, even without necessity, for all plants with permanent roots, such as pomegranates, grapes, and olives. For plants that do not grow from their roots, such as melons, musaqat is permissible if their owner is unable to cultivate them. Likewise, musaqat is permissible for producing grain. In the Hanbali school, musaqat is permissible for every fruit that people eat. The book al-Mughni states: ‘Musaqat is permissible for both trees that require irrigation and those that do not.’ This is also Imam Malik’s view, and there is no disagreement on this matter.

The musaqi’s responsibilities: Imam al-Nawawi says: It is the musaqi’s duty to perform everything necessary to increase and improve the production of crops and fruit, even if it must be done more than once a year, such as irrigation, repairing canals, cleaning around the trees, pollinating the trees, removing weeds, pruning branches, and protecting the fruit and its seedlings. However, work that protects the tree’s trunk and roots and does not need to be performed more than once a year, such as building walls and digging canals, is the owner’s responsibility.

When the musaqi becomes unable to work: If the musaqi becomes unable to fulfill his responsibility because of a calamity or an unavoidable journey, the musaqat contract is considered terminated. However, if the owner did not stipulate that the musaqi must work personally, it is not terminated; rather, he may appoint someone else in his place. This is the Hanafi view. Imam Malik, however, says that if the musaqi becomes unable to work when the time for selling the fruit approaches, it is not permissible for him to appoint another musaqi. Instead, he must hire another worker, and if he cannot pay the worker’s wages, he must pay him from his share of the crop. According to al-Shafi‘i, the musaqat contract is terminated when the musaqi becomes unable to work.

If either party to the musaqat contract dies: When one of the two parties dies while the fruit on the trees has not yet ripened, the musaqi or his heir will continue working for the benefit of both parties until the fruit ripens. If necessary, the owner or his heirs may be compelled to allow this, because neither party is harmed by it. The musaqi will receive no wage for the period from termination of the contract until the fruit ripens. If the musaqi or his heirs refuse to work after the term ends or the contract is terminated, they may not be compelled. However, if they wish to harvest the fruit before it ripens, they may not be allowed to do so. In this case, the owner or his heirs may adopt any one of the following three approaches:

1. Harvest the fruit and divide it by mutual agreement.

2. Pay the musaqi or his heirs, in currency, the value of the share due to them that is ready for harvest.

3. Continue spending on the trees until the fruit ripens, then claim that expenditure from the musaqi or his heirs, or take the fruit in exchange for it. The last approach is the Hanafi view.

Chapter Fifty-Six: Contracts for Uncertain Work (Ju‘alah)

A contract offering payment for work whose success is possible but uncertain is permissible when necessary. For example, someone may announce: ‘Whoever finds or brings my lost property or runaway animal, builds a wall for me, digs a well until water is found, makes my son a hafiz of the Qur’an, treats a sick person and cures him, or wins a certain competition will receive such-and-such a prize or compensation.’

Validity: The Holy Qur’an states in verse 72 of Surah Yusuf:

ولمن جَاءَ بِهِ حِيْلٌ بَعِيرٍ وَأَنَا بِهِ زَعِيْره

‘Whoever brings it will receive a camel-load, and I am its guarantor.’

Furthermore, it was mentioned earlier in the chapter on ijārah that the Messenger, peace and blessings be upon him, permitted receiving payment for treating someone with an amulet containing Surah al-Fātiḥah. These two proofs establish its validity. It has been permitted out of necessity, and a degree of uncertainty that is invalid in other contracts is valid here. The success of the undertaking is unknown.

The presence of both parties is not required in a contract for this kind of undertaking, as it is in other contracts. It is a valid contract that either party may cancel unilaterally. Even the party who has agreed to perform the specified task may cancel the contract before beginning the work, and after beginning it if he is willing to relinquish what is due to him. However, the commissioning party has no right to cancel the contract unilaterally after the other party has begun the work.

Some jurists have held that a contract of this kind is not valid at all. Ibn Ḥazm is one of them. He says:

It is not valid to contract for an uncertain, unspecified task. If someone says, ‘If you bring back my runaway horse, I will give you one dinar,’ or, ‘If you perform such-and-such a task, I will give you one dirham,’ and the person then brings it back or performs it, he is not to be ordered to give him anything. However, if he fulfills his promise, that is considered recommended. But if he hires or appoints someone for this purpose for a specified period, or asks him to bring it from a known place, then he must pay him the wage stipulated for him. Another group of jurists has ruled that fulfilling such a contract is obligatory once it is made. Their proof is the statement in the first verse of Surah al-Mā’idah: ‘O believers, fulfill your contracts.’ The aforementioned verse 72 of Surah Yusuf is also proof of this.

Chapter Fifty-Seven: Partnership, or Shirkah

Definition: In the terminology of fiqh, shirkah, or partnership, is a contract between two people who share in capital and profit. (This is the approved definition according to the Hanafi school.)

Validity: Its validity is established by the Qur’an, Sunnah, and consensus. Allah says in verse 12 of Surah al-Nisā’:نمر فرَكَاءُ فِي الثَّلْفِ’They will share in one-third.’ And it is stated in verse 24 of Surah Ṣād:

وَإِنْ كَثِيرًا مِنَ الْخَلَطَاءِ لَيَبْغِي بَعْضُهُمْ عَلَى بَعْضٍ إِلَّا الَّذِينَ آمَنُوا وَعَمِلُوا الصَّلِحْتِ وَقَلِيلٌ مَا هُره

‘Many partners wrong one another.’ However, those who believe and perform righteous deeds are an exception, and they are very few.

The Messenger of Allah, peace and blessings be upon him, said that Allah says: ‘I am the third partner of two partners so long as one of them does not betray the other. If one of them betrays his companion, I withdraw from between them.’ —Abu Dawud. That is, Allah blesses and safeguards the property of two partners so long as they do not act treacherously or betray one another. When one of them betrays the other, Allah withdraws the blessing.

Zayd said: Bara’ and I were both partners. (Bukhari) Ibn al-Mundhir said: The scholars agree on the validity of shirkah.

Types of Shirkah: Shirkah is of two types: ownership partnership and contract-based partnership.

Partnership in ownership, or joint ownership: The ownership of the same thing by several people without a contract is called partnership in ownership. It is of two types: voluntary and compulsory. An example of voluntary ownership partnership is when something is gifted or bequeathed to several people and they accept it. In this case, the thing obtained by gift or bequest becomes their collective or joint property. Likewise, when two or more people purchase something for themselves, the purchased item remains under their joint ownership. Compulsory ownership partnership is a partnership established involuntarily for several people, as occurs in inheritance. Here, the heirs become owners of property without choosing to do so, and their ownership is partnership ownership, or joint ownership.

Ruling on joint ownership: The ruling concerning this type of partnership is that one partner may not interfere with the share of another partner without his permission. One partner has no right over the share of the other; in this matter, he is like a stranger to him.

Contract-based partnership: A contract-based partnership is an agreement by two or more people to share ownership of property and to share the profit obtained from it.

Types of contract-based partnership: Contract-based partnership, or joint ownership, is of four types:

1. Joint ownership based on unequal partnership (shirkah al-ʿinān)

2. Joint ownership based on equal partnership (shirkah al-mufāwaḍah)

3. Joint business without capital (shirkah al-wujūh)

4. Joint business based on partnership in labor (shirkah al-abdān)

Essential element of shirkah: The essential element of shirkah is offer and acceptance. One person says, ‘I have made you a partner in such-and-such an undertaking,’ and the other says, ‘I accept.’

Ruling: According to the Hanafi school, all the aforementioned types of shirkah are valid subject to the fulfillment of specified conditions. According to the Maliki school, all are valid except shirkah al-wujūh, that is, joint business without capital. In the Shafi‘i school, all are invalid except shirkah al-ʿinān, that is, partnership based on unequal shares. In the Hanbali school, all are valid except shirkah al-mufāwaḍah, that is, partnership based on equal shares.

Shirkah al-ʿinān, or partnership based on unequal shares: Shirkah al-ʿinān is when two people agree to conduct business with some of their property on the condition that the profit will be distributed between them. It does not require equality in property, authority, or profit. One partner may have more property than the other, and one partner may bear responsibility while the other does not. It is valid for them to agree to equal or unequal shares of the profit. If the business incurs a loss, it will be distributed in proportion to the capital invested.

Shirkah al-mufāwaḍah, or partnership based on equal shares: This is when two or more people enter into a partnership in an undertaking subject to the following conditions:

1. The amount of property invested by each partner must be equal. If one partner has more property, the shirkah will not be valid. (In this partnership, the partners’ capital, profit, and authority are equal. If one partner’s capital is one hundred units and the other partner’s is less than that, the shirkah will not be valid.)

2. Equality in exercising authority. Thus, a shirkah between an adult and a minor is not valid.

3. Equality in religion. Therefore, a shirkah between a Muslim and a disbeliever is not valid.

4. When buying and selling becomes necessary, each partner will stand as guarantor and representative for the other partners. Therefore, no partner’s authority may exceed that of the others.

When equality is established in all these respects, the shirkah will be valid and effective, and each partner will be the representative and guarantor of the other. Each may question the other concerning all his activities and the exercise of his authority. This shirkah is valid according to the Hanafi and Maliki schools, but not according to the Shafi‘i school. Imam al-Shafi‘i says: ‘If partnership based on equality is not invalid, then I know of nothing else in the world that is invalid. This is because it is a contract for which there is no precedent in the Shariah. It is difficult to implement equality in this partnership, because it allows room for uncertainty and deception. As for the traditions stating, “Enter into mufāwaḍah, for it contains the greatest blessing, and when you enter into mufāwaḍah with one another, do so properly,” none of them is an authentic hadith.’

According to Imam Malik, mufāwaḍah, or partnership based on equality, is described as follows: ‘One partner delegates all his authority to the other, whether he is present or absent, and the authority and control of both are equal. In mufāwaḍah, it is not a condition that the property of all the partners be equal or that all of their property be invested.’

Shirkah al-wujūh, or joint business without capital: Shirkah al-wujūh is when two or more people become partners without any capital, relying solely on their influence, standing, and the trust merchants place in them. The only condition in this case is participation in the profit. In short, it is a partnership based solely on influence and authority, without any skill or property. It is permissible according to the Hanafi and Hanbali schools, because it constitutes an undertaking. Partnership based on it is therefore valid, and it is also valid for their ownership shares in the purchased goods to differ. However, the profit must be distributed between them according to their ownership shares. It is impermissible according to the Shafi‘i and Maliki schools, because a partnership must be based on property or work, whereas neither exists here.

Shirkah al-abdān, or joint business based on partnership in labor: This is when two people undertake any work on the condition that its remuneration will be distributed between them by mutual agreement. This type of partnership usually occurs among professional craftspeople such as builders, blacksmiths, and tailors. It is valid whether their professions are the same or different. It is also valid whether both work or only one works, and whether they work together or separately. A hadith narrated by Abu Dawud, al-Nasa’i, and Ibn Majah supports its validity. Abu ʿUbaydah narrated from ʿAbdullah: I, ʿAmmar, and Saʿd agreed on the day of the Battle of Badr that whatever we obtained would be shared by all of us. However, Saʿd brought back two prisoners, while ʿAmmar and I obtained nothing.

According to al-Shafi‘i, this partnership is invalid, because in his view partnership is connected only with property, not with work. The book Rawḍat al-Nadiyyah contains a valuable discussion of this matter. It is as follows:

The names of the various types of shirkah found in extensive works containing the detailed rules of fiqh—namely mufāwaḍah, ʿinān, wujūh, and abdān—are not names prescribed by the Shariah or derived from the dictionary. They are newly coined technical terms. In principle, there is no obstacle in the Shariah to two people pooling their property and conducting business with it, which is the essence of the term mufāwaḍah. The owner of property may use it in any way not declared unlawful by the Shariah. The only questions here concern equality between their properties, pooling both properties in the form of cash, and the condition of entering into a contract. There is no proof that these conditions are necessary. Rather, the mutual agreement of both parties to pool their capital and conduct business with it is sufficient.

Likewise, there is no obstacle in the Shariah to two people jointly purchasing something on the condition that each will receive a share of it in proportion to his share of its price. This is the meaning of ʿinān. This type of shirkah existed during the time of the Messenger of Allah, peace and blessings be upon him, and a group of the Companions participated in such partnerships. Several of them would purchase something together, each contributing part of its price, and then one of them or both together would complete the purchase. There is no evidence anywhere requiring the imposition of a condition that they enter into a contract or pool their capital. Similarly, there is no obstacle to one of two people purchasing goods on credit for the other and granting him authority to conduct business with them, with both sharing in the profit; this is the technical meaning of shirkah al-wujūh. Yet there is no evidence supporting any of the conditions mentioned in this regard. Likewise, there is no obstacle in the Shariah to one of two people employing the other to conduct business on his behalf for a wage; technically, this is shirkah al-abdān. Here too, imposing conditions has no meaning.

In short, mutual agreement between the two parties is sufficient for joining any of these types of shirkah. In all these cases, each partner’s use of what he owns depends on mutual consent. Nothing besides mutual consent is necessary. In cases where the shirkah falls under ijārah or wakālah, the rules of shirkah and wakālah applicable to it are likewise sufficient. In such circumstances, there is no justification for the jurists’ classifications and imposition of these conditions; nor is there any proof behind them. In reality, this matter is neither difficult nor complicated. The essence of shirkah—whether it is called mufāwaḍah, ʿinān, or wujūh—is that several people may freely participate in buying and selling any lawful item, and each receives profit in proportion to his share of the price. This is a simple matter that any ordinary person understands, let alone a scholar or jurist. Generally, a fatwa is given affirming its validity, whether each partner contributes an equal share of the price of the purchased item

or different amounts, whether the price is paid in cash or in goods, whether the capital invested in the business consists of all of both parties’ property or only part of it, and whether both conduct the buying and selling together or only one of them does so. We may accept that they have given these types of shirkah different names, since defining terminology is not objectionable. Nevertheless, the question remains: what was the need to impose so many conditions and make the matter so complicated? If you ask a farmer or a vegetable seller whether it is permissible and simple for people to share in buying and selling something and in its profit, he will answer very easily that it is permissible and simple. But if you ask whether shirkah al-mufāwaḍah, ʿinān, and wujūh are permissible, he will not even understand these terms. If he has studied some fiqh and remembers it, he may understand a little. It cannot be the work of a true mujtahid to unnecessarily elaborate matters unsupported by evidence. The work of a true mujtahid is to declare truth plainly as truth and falsehood plainly as falsehood, without caring who opposes him in this regard.

Partnership in raising animals: According to Ibn al-Qayyim, partnership is also permissible in raising livestock. The animal remains owned by one person while the other raises it, and the proceeds are distributed by mutual agreement. In his book Iʿlām al-Muwaqqiʿīn, he says: ‘In our view, coconut and similar trees may be cultivated through a joint venture. The owner gives his land to the cultivator and says, “Plant such-and-such seedlings here; we will divide the trees equally between us.” This is just as permissible as giving someone capital to conduct business and dividing the profit equally. Likewise, giving land for cultivation and dividing the crop equally, entrusting someone with trees to tend and dividing the fruit equally between them, entrusting someone with cows, goats, or camels to raise and dividing the milk and offspring equally, giving a beast of burden to someone for commercial transport and sharing the transport fees received, and similar arrangements—all of these are valid partnerships. The Qur’an, Sunnah, analogy, the consensus of the Companions, and public interest support their validity. There is nothing in them that makes them unlawful. Those who ruled them invalid argued that they all fall under ijārah. Since ijārah is invalid when the compensation is unknown, and the compensation here is unknown, they said it is invalid. Some jurists have ruled that musāqāt and muzāraʿah are directly validated by hadith and that muḍārabah is validated by consensus. Others have held only muḍārabah valid, while some have held certain forms of musāqāt and muzāraʿah valid. Some say that if a worker is paid for his work with part of the thing on which he works, the arrangement is invalid; but when the original property remains with the owner and the worker receives a share of its produce, such as the milk and offspring of a cow, it is valid.’

The truth is that all the activities mentioned above are valid, and this is what the principles and rules of the Shariah require. They all fall under partnership, in which the worker is a partner with the owner: one contributes his property and the other contributes his work. Whatever profit Allah grants will be divided between them. Some jurists regard this as falling under ijārah and being permissible. Indeed, Shaykh al-Islam Ibn Taymiyyah says that all these partnerships are a better form of lawful arrangement than ijārah. The person who takes land on lease invests his capital, yet his objective may or may not be achieved. By contrast, the person who leases out the land is assured of receiving the invested capital. The tenant, however, remains subject to uncertainty, because the crop may yield well or may not. The risks of success and failure are equal. If Allah grants profit, they will share it; and if He does not grant profit, both will be deprived equally. This ensures the greatest justice. Therefore, the Shariah

cannot validate ijārah while declaring shirkah invalid. Before Islam, muḍārabah was practiced in a certain manner, and the Messenger of Allah, peace and blessings be upon him, retained it in that form. Thus, the Companions practiced muḍārabah during the lifetime of the Messenger of Allah and after his death, and the entire community agreed on its validity. Khaybar was entrusted to the Jews, who cultivated it in return for half of its produce. This occurred before the Messenger of Allah, peace and blessings be upon him, and he neither annulled nor prohibited it. After him, the Companions and the Rightly Guided Caliphs did not discontinue it. Rather, in return for a share of the profit or crop, they entrusted others with land for cultivation and capital for business, because they could not perform these activities themselves while engaged in jihad and other matters. They did not prohibit anything the Messenger of Allah, peace and blessings be upon him, had not prohibited. Ibn al-Qayyim then says: Nothing that Allah and His Messenger have not prohibited is unlawful. Allah and His Messenger did not prohibit the aforementioned shirkah, muḍārabah, or similar arrangements, yet some jurists prohibit them. If someone is compelled to use them and considers doing so beneficial, he may do so in any manner, because Allah and His Messenger have not prohibited them.

Some permissible forms of shirkah: Imam Ibn Qudāmah mentioned several permissible forms of shirkah. In his book al-Mughnī, he says: ‘If one launderer has a machine and another has a shop, and they enter into a partnership agreement that they will both work in that shop using the machine and then divide whatever they earn, this is permissible, and the wages will be determined according to the condition they stipulated. This is because the ruling of the partnership is based on their work. In shirkah, profit is earned on the basis of work; nothing is earned merely by virtue of the machine or the shop, since both are used for the joint work. Thus, when two people hire two animals to carry goods of their choice, the situation of the launderer using the machine and shop and his partner is similar. If the partnership becomes invalid for some reason, whatever they earned will be distributed in proportion to the wages for their work and the rent of the shop and machine. If one of the two has a machine and the other has nothing, or one has a shop and the other has nothing, and they then agree to perform some work with that machine or in that shop and to divide the wages, that too is permissible.’

Ibn Qudāmah also says: If someone entrusts his animal to another person on the condition that he will use it for work and that whatever it earns will be divided equally between them or in some other manner, this is valid. This was the opinion of al-Athram, Muhammad ibn Abi Harb, Ahmad ibn Saʿid, and al-Awzāʿī. Al-Nakhaʿī and al-Ḥasan considered it disliked, while Imam al-Shafi‘i, Abu Thawr, Ibn al-Mundhir, and the rationalist jurists considered it invalid. In their view, the entire profit belongs to the owner of the animal, because only the transport is an activity deserving profit here. However, the person using the animal is entitled to the customary wage for doing so, since this does not fall under shirkah. If it were muḍārabah, he would receive a share of the profit. Abu Dawud narrated from Ahmad: If someone gives his horse to another person to use in battle on the condition that half the spoils be given to him, the horse’s owner, there is nothing objectionable in it. But Abu ʿAbdullah said: It is permissible if he agrees to give three-quarters to the owner. This was also the opinion of Imam al-Awzāʿī. Some jurists say: If someone gives a fisherman a net on the condition that half of whatever fish he catches will belong to the person who provided the net, the shirkah is valid and effective; but all the fish belong to the fisherman, while the net owner receives only the customary rent for the net. This is also reported to have been Imam Ahmad’s opinion.

Chapter Fifty-Eight: Life Insurance

Shaykh Ahmad Ibrahim issued a fatwa declaring life insurance invalid. He says: When a person who has entered into an insurance contract with a life-insurance company completes payment of all his installments during his lifetime, he becomes entitled to take back from the company the entire amount of his installments, together with the profit agreed upon with the company. The question is: How is this compatible with the muḍārabah contract permitted by the Shariah?

An example of muḍārabah is that Zayd gives Bakr one hundred pounds for conducting business on the condition that the profit will be distributed in a proportion agreed upon by both of them. Suppose the capital provider receives half the profit and the muḍārib (the businessman) receives the other half. The first receives his share in return for providing the capital, and the second receives his share in return for his work. In some cases, two-thirds may be stipulated for the capital provider and one-third for the muḍārib, or the reverse.

The fundamental condition for the validity of muḍārabah is that the capital provider receives his stipulated share of the profit generated in the business through his capital as a result of the muḍārib’s business activities. If the business earns no profit, neither the capital provider nor the muḍārib receives anything. The capital provider’s capital, however, remains intact. When the business incurs a loss, the loss is borne by the capital provider’s capital. The muḍārib suffers no loss, but he is not owed any wage, because he is not an employee; rather, he is a partner.

If the capital provider imposes the condition that, whether the business makes a profit or a loss, he will take a fixed amount of profit in addition to his capital, then this condition is invalid. It blocks participation in the profit and violates the rules of muḍārabah. To fulfill such a condition of the capital provider, the muḍārib would have to pay something from his own pocket, which amounts to unlawfully appropriating another person’s wealth.

Because of the capital investor’s aforementioned condition, the mudarabah becomes invalid, and whatever profit the business generates goes entirely into the capital provider’s pocket. This very condition exists in life insurance. However, the mudarib remains entitled to reasonable remuneration from the owner of the capital, whatever its amount may be. For when the mudarabah becomes invalid, he changes from a partner into a wage-earner. This is Imam Muhammad’s view. According to Imam Abu Yusuf, the mudarib will receive reasonable wages, but they may not exceed the agreed wage fixed in the contract. (Such wages should be determined by a group of impartial, disinterested experts appointed with the consent of both parties or at the ruler’s discretion.) For even if the mudarabah were valid, the mudarib would not receive a share greater than that fixed by mutual agreement. Therefore, when the mudarabah becomes invalid, it is not appropriate for the mudarib to receive a share greater than the profit of a valid mudarabah. This is the true form of a Shariah-approved mudarabah and this is its ruling. If it is asked whether an insurance contract falls within a genuine mudarabah, the answer is that it does not. Thus, an insurance contract is an invalid mudarabah. In the light of Shariah, it is entirely unlawful. It cannot be argued that what the company makes obligatory for itself, it leaves optional for the insured. Since the very nature of an insurance contract is that it is a contract for a possible and uncertain return, that argument does not apply.

It is said that what the insured gives the company is given as a loan, which he may recover with profit during his lifetime. If we accept this as correct, it means that this is a loan that generates profit. Yet that is haram, because it is prohibited interest.

In short, however the matter is twisted or turned, you will find no resemblance between it and Islamic Shariah.

What I said above applies when the insured remains alive after paying all the installments of his premium. On the other hand, when he dies before paying all the installments—even sometimes after paying only one installment—a large amount of money may remain payable. For the amount of the insurance payment depends on what the two parties stipulated in their contract. Thus, when the insurance company pays the stipulated amount to the insured’s heirs, or to the person the insured nominated to receive the company’s payment after his death, in exchange for what did the company pay this amount? Is this not mutual risk-taking and reckless gambling? Can it be imagined that the Shariah which has declared unlawful the consuming, appropriating and embezzling of people’s wealth without right would turn a person’s death into a source of unlawful profit for his heirs? Would this unlawful profit—which is unlawful both because of uncertainty and because of interest—become lawful merely because, before his death, the deceased contracted with another person to give an estimated profit to his heir or nominee after his death?

Indeed, it is only when human life and death become objects of trade that an opportunity for such enormous profiteering can arise. There are many things in the world whose financial value does not stop at any fixed limit, but depends on the assessment determined by both parties. The business of insurance, however, does not fall within this category, because here the insurance payment is not restricted to the amounts determined by the two parties.

In this respect too, it is an uncertain risk. If the insured pays all the installments during his lifetime, his entitlement is one thing; if he dies before paying them, his heirs’ entitlement is something else. Is this not risk-taking and gambling? Since neither the insured nor the insurance company knows what the payable amount will be, it is certainly gambling.

Chapter Fifty-Nine: Settlement and Reconciliation

Definition: Linguistically, settlement or reconciliation means resolving a dispute. In the terminology of Shariah, it is a contract that ends the dispute and disagreement between two litigants. The two contracting parties are called the parties accepting the settlement; the matter relating to the dispute is called the settled matter; and the thing one party gives the other to conclude the reconciliation is called the consideration for the settlement.
Legality of settlement: Reconciliation and settlement are established as acts sanctioned by Shariah through the Qur’an, Sunnah and consensus, with the aim of transforming mutual disagreements and conflicts into friendship and solidarity and ending the hatred and hostility of the plaintiff and defendant. It is stated in verse 9 of Surah al-Hujurat:

وَإِنْ طَائِفَتِي مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا فَأَصْلِحُوا بَيْنَهُمَا ، فَإِنْ بَغَتْ إِحْدَاهُمَا عَلَى الْأَمْرَى فَقَاتِلُوا الَّتِي تَبْغِي حَتَّى تَفِيءَ إِلَى أَمْرِ الله ج فَإِن فَاء فَأَصْلِحُوا بَيْنَهُمَا بِالْعَدْلِ وَأَقْسِطُوا مَا إِنَّ اللَّهَ يُحِبُّ المقسطين

“If two groups of believers fight, make peace between them. Then, if one of them attacks the other, fight the attacking group until it returns to Allah’s command. If it returns, reconcile between them with justice and act equitably. Indeed, Allah loves those who act equitably.” Abu Dawud, al-Tirmidhi, Ibn Majah, al-Hakim and Ibn Hibban narrate from ‘Amr ibn ‘Awf (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said:

“All settlements and reconciliations concluded among Muslims are valid, except a settlement that makes lawful what is unlawful or makes unlawful what is lawful.” Al-Tirmidhi added: “Muslims must abide by all the conditions they impose.”

‘Umar (may Allah be pleased with him) said: “Send the plaintiff and defendant back so that they may settle the matter themselves, for a judge’s settlement creates hatred and resentment between them.” There is also a consensus among Muslims on the validity of reconciliation between a plaintiff and a defendant.

Essential elements of settlement: The two essential elements of reconciliation are offer and acceptance, expressed in words that indicate settlement. For example, the defendant says: “Regarding the one hundred coins you are owed by me, I have settled with you for fifty coins.” The other says: “I accept.”

Once reconciliation has been completed in this way, it becomes binding on both the plaintiff and the defendant. Neither party may then cancel it unilaterally without the consent of the other. The plaintiff becomes the owner of whatever is due to him in exchange for the settlement according to the contract, and the defendant may not demand its return. The dispute is thereby finally resolved, and thereafter no new claim by the plaintiff will be heard.

Conditions of settlement: The conditions of settlement are of three kinds: conditions relating to the person accepting the settlement; conditions relating to the thing given in exchange for the settlement; and conditions relating to the thing or right concerning which settlement is sought.
The party accepting the settlement: Such a person must be capable of voluntarily giving something to another. If he is someone who lacks the legal capacity to give voluntarily—such as an insane person, a minor, a guardian of an orphan, or a trustee of waqf property—then his acceptance of a settlement is invalid, because it is a voluntary gift and these persons lack the capacity for it. However, the acceptance of a settlement by a minor who understands good and evil and right and wrong, by a guardian of an orphan, or by a trustee of waqf property is valid when the settlement benefits the minor, the orphan, or the waqf property. If someone is owed a debt but has no evidence of it, it is permissible to settle by taking part of the debt and releasing the debtor from the remainder, even if the party accepting the settlement is a minor.

Conditions concerning the consideration for settlement:

1. The consideration must be property whose value can be assessed and which can be transferred, or it must be a service or something beneficial.

2. When the consideration must be delivered and received, it must be well known and precisely specified, without any ambiguity that could give rise to dispute. The Hanafi jurists say that when delivery and receipt of the consideration are not required, it need not be well known and precisely specified. For example, two people each claim something from the other, and then both settle by relinquishing their respective claims in exchange for the other’s claim. According to Imam al-Shawkani, it is permissible to settle a known matter with an unknown thing. As evidence, he cites the following hadith narrated from Umm Salamah (may Allah be pleased with her):

Two men came to the Messenger of Allah (peace and blessings be upon him) to settle an old dispute between them concerning an inheritance. They had no evidence regarding it. The Messenger of Allah (peace and blessings be upon him) said: “You have come to the Messenger of Allah to settle your dispute, whereas I am only a human being. Perhaps one of you is more persuasive in presenting his claim than the other. I will settle between you only on the basis of what I hear. If I therefore give someone what belongs to his brother, he should not take it, for in such a settlement I would only be giving him a piece of fire, which he will carry around his neck as a bar of iron burning him on the Day of Resurrection.” Hearing this, both men began to weep, and each said, “I give my right to my brother.”

The Messenger of Allah (peace and blessings be upon him) said: “Since you have said this, go and divide your entitlement between you. Then draw lots to determine which portion belongs to whom. Then each of you should dedicate his portion to the other.” Ahmad, Abu Dawud and Ibn Majah report; another narration of Abu Dawud states: “Regarding matters about which no revelation has come to me, I will judge only according to my own opinion.” Imam al-Shawkani says: This hadith proves that relinquishing a claim to an unknown entitlement is permissible, since the entitlement of both parties here was unknown. It also proves that settling an unknown debt in exchange for a known thing is valid. Nevertheless, both parties must relinquish their own claim to the other. Al-Imam al-Lahri reports from al-Shafi‘i and Nasir that settling an unknown debt with a known thing is not valid.

Conditions of the disputed right concerning which settlement is sought: The following conditions apply to the disputed right concerning which settlement is sought:

1. It must either be assessable property or something in the nature of a service.

It is narrated from Jabir (may Allah be pleased with him) that his father was martyred at the Battle of Uhud while in debt. The creditors then began pressing for repayment. Jabir (may Allah be pleased with him) said: I went to the Messenger of Allah (peace and blessings be upon him). The Messenger of Allah asked them to accept the produce of my garden in exchange for releasing my father from the debt, but they refused. The Messenger of Allah did not give them the produce of my garden; instead, he told me: “I will come to you tomorrow morning.” He came to me the next morning, walked around my garden and prayed for blessing in its produce. Then I picked the produce and repaid their debt. Even after repayment, some of my produce remained.

Another narration reads: “Jabir’s father died leaving a debt of thirty wasaq owed to a Jew against Jabir. Jabir asked the Jew for some time, but the Jew refused to grant him time. Jabir then asked the Messenger of Allah (peace and blessings be upon him) to intercede on his behalf. The Messenger of Allah went to the Jew and asked him to take the dates from Jabir’s garden in payment of what was owed to him, but he rejected his request. Then the Messenger of Allah entered Jabir’s garden and walked around in it for a while. He then said to Jabir (may Allah be pleased with him): ‘Pick the produce for the Jew and give him what he is owed.’”

After the Messenger of Allah (peace and blessings be upon him) had left, Jabir paid the Jew thirty wasaq, and seventeen wasaq remained with him.” (Al-Bukhari) Imam al-Shawkani says: This proves that it is valid to settle a known matter with an unknown thing.

2. It must be a right of a servant for which substitution is permissible, even if it is not property, such as qisas. But no settlement is permitted regarding a right of Allah. If a thief, adulterer or wine-drinker settles with the person who apprehended him to hand him over to the court, in exchange for property so that he will release him, that settlement is invalid, because accepting consideration in this matter is impermissible. In such a case, accepting consideration is considered taking a bribe. Similarly, settlement is not valid concerning the punishment for slander, because that punishment was prescribed to warn people against violating the honor of others. Although this relates to a servant’s right, Allah’s right is predominant in it. If a witness settles in exchange for property in order to conceal testimony concerning either a right of Allah or a servant’s right, it is invalid, because concealing testimony is haram. Allah says:

ولا تَكْتُمُوا الشَّهَادَةَ ، وَمَنْ يَكْتُمْهَا فَاللَّهُ أَثِيرٌ قَلْبَهُ .

“Do not conceal testimony. Whoever conceals it, his heart is sinful.” (Surah al-Baqarah 2:283).

Allah also says: “وَأَقِيمُوا العمادة اGive upright testimony for Allah.” (Surah al-Talaq 65:2).

Settlement is also invalid concerning relinquishing the right of pre-emption. If the purchaser of land settles with the person claiming pre-emption to make him relinquish his right, that settlement is void, because pre-emption was instituted to remove harm from a partner, not to obtain financial benefit through it. Likewise, settlement concerning a claim to a marital relationship is invalid.

Types of settlement: Reconciliation may be based on an admission, on a denial, or on silence.

Settlement based on admission: This is when one person claims from another a debt he gave him or some other entitlement, and the person from whom it is claimed acknowledges it. Then the two settle on the basis of partial repayment. This is valid, because a person cannot be prohibited from releasing a debtor from part of a debt, even if not from all of it.

Imam Ahmad (may Allah have mercy on him) said: If someone intercedes in such a case, there is no sin in it. The Messenger of Allah (peace and blessings be upon him) interceded with the creditors of Jabir (may Allah be pleased with him) and had half the debt remitted, and he interceded for Ka‘b ibn Malik and had half of his debtors’ debt remitted. Imam Ahmad alluded to the hadith of Imam al-Nasa’i, narrated from Ka‘b ibn Malik (may Allah be pleased with him). Ka‘b demanded what was owed to him from Ibn Abi Hadrad in the Prophet’s Mosque. They raised their voices in argument over it. The Messenger of Allah (peace and blessings be upon him) heard them while sitting in his house. He immediately came out, approached them and called: “O Ka‘b.” Ka‘b replied: “Here I am, O Messenger of Allah.” The Messenger of Allah said: “Forgive half of your debt.” Ka‘b said: “O Messenger of Allah, I have forgiven it.” Then the Messenger of Allah said to Ibn Abi Hadrad: “Rise and repay.”

If the defendant acknowledges a cash debt and settles by paying cash, this is a cash transaction, and the rules of cash transactions apply. If he acknowledges a cash debt but settles with goods, or acknowledges a debt in goods and pays in cash, this is a sale, and all the rules of sale apply. If he acknowledges a cash or goods debt and settles by providing a service, such as accommodation in a house or another service, this is an ijara, and the rules of ijara apply. When the disputed right is established in the settlement as belonging to the plaintiff, the defendant may demand the return of what he gave in exchange for the settlement, because he gave it to safeguard that right. When the consideration becomes established as due, the plaintiff may demand from the defendant the thing that had been claimed, because he relinquished the claimed thing in order to safeguard the consideration.

Settlement based on denial: This is when one person claims an entitlement from another, the latter denies the claimed thing, and then the two enter into a settlement.

Settlement based on silence: This is when one person claims an entitlement from another, and the defendant remains silent, neither acknowledging nor denying it.

The Shariah ruling on settlement based on denial or silence: Most scholars consider settlement based on denial or silence valid. Imam al-Shafi‘i, however, says that no settlement is permissible except one based on admission. This is because settlement requires an established right, which is absent in cases of denial and silence. Where the defendant denies the claim, the right is not established, because a right is established by a claim, whereas denial refutes the claim. A right cannot be established when the claim has been refuted.

On the other hand, settlement based on silence is invalid because one who remains silent is treated in practice as a denier until evidence is found against him. It is unlawful for either party to spend money in pursuing the claim, because the claim is void. Thus, spending money here is equivalent to taking a bribe. Allah says in verse 188 of Surah al-Baqarah:

وَلَا تَأْكُلُوا أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ وَتَدلُّوا بِهَا إِلَى الحَلامِ لِتَأْكُلُوا فَرِيقًا مِنْ أَمْوَالِ النَّاسِ بِالْإِثْرِ وانتم تعلمون

“Do not consume one another’s wealth unjustly, nor present it to the judges so that you may knowingly consume a portion of people’s wealth wrongfully.” Some scholars have adopted a middle position. They neither prohibit it entirely nor permit it entirely. In their view, the best approach is that if the plaintiff is certain that his opponent owes him something, it is permissible for him to take the thing agreed upon in settlement, even if his opponent denies it. But if he is making an unjust claim, then presenting the claim and taking possession of the thing agreed upon in settlement are haram.

Conversely, if the defendant certainly knows that he owes a right, but denies it for a self-interested purpose, he must transfer the thing settled upon. If he knows that he owes no right to anyone, it is permissible for him to give part of his wealth to the claimant to resolve the dispute with him and relieve his distress. But it is haram for the claimant to accept it.

Therefore, it cannot be said that settlement based on denial is wholly invalid, nor can it be said that it is wholly valid. Rather, both positions must be stated with their detailed qualifications.

Those who consider settlement based on denial or silence valid argue that, for the plaintiff, it amounts to receiving what is owed to him, while for the defendant it is compensation for taking an oath and an act by which he ends the dispute. If the consideration accepted in the settlement is money or goods, it falls under sale and all the rules of sale apply. If the consideration is a service, it is an ijara and all the rules of ijara apply. The matter concerning which settlement is sought, however, is not of this nature, because it is the consideration for ending the dispute, not a substitute for property. When the consideration for the settlement is established as belonging to someone, the plaintiff will call upon the defendant to fulfill his claim, because he relinquished his claim hoping that the consideration would be safeguarded. When the thing concerning which settlement was sought is established as due, the defendant may demand its consideration back from the plaintiff, because he gave that consideration so that the thing he claimed would remain intact. Since it has been established as due, his purpose has not been achieved, and he may therefore demand it back from the plaintiff.

Settlement by making an early payment of part of a long-term debt: If settlement is made by paying part of a long-term debt early, it is not valid according to the Hanbali school and Imam Ibn Hayr. Ibn Hazm says in al-Muhalla: “In a settlement that releases a person from part of a debt, it is not permissible at all to stipulate a delay, because such a condition is invalid as contrary to the Book of Allah. Rather, the settlement should be immediate, and time may be granted without condition for as long as desired, because this is a good deed.” According to Ibn al-Musayyab, Malik, al-Shafi‘i and Imam Abu Hanifah, it is makruh; according to Ibn ‘Abbas, Ibn Sirin and al-Nakha‘i, it is permissible.

Chapter Sixty: The Judicial System

The principal purpose of the coming of all of Allah’s prophets was to establish justice: There is not the slightest doubt that justice is one of Islam’s sublime values. Establishing truth, justice and rights spreads comfort, peace and security throughout the world, strengthens relations among people, reinforces trust between ruler and ruled, increases wealth, happiness and prosperity, and makes circumstances and the environment sound and free of corruption. As a result, society is freed from instability, uncertainty and conflict. Both rulers and subjects become committed to work, production and service to the country, and symptoms that disrupt the working environment or obstruct development cannot halt the progress of the country and nation.

Justice is established and implemented only when every creature receives its rightful due, the country is governed according to Allah’s law, and arbitrariness and the worship of desires are eliminated by ensuring an equitable distribution of wealth in human society.

The proper and complete fulfillment and implementation of this task was the purpose and objective of Allah’s Messengers’ coming to the earth. Continuing this work is the only path and method of following the Messengers, so that prophethood may forever shelter humanity beneath its blissful shade. Allah says:

لَقَدْ أَرْسَلْنَا رُسُلَنَا بِالْبَين والزلنا معهم الكتب والمِيزَانَ لِيَقُوْمَ النَّاسُ بِالْقِسْطَانِ

“Indeed, I sent My Messengers with clear proofs and sent down with them the Scripture and the balance so that people may uphold justice.” (Surah al-Hadid 57:25).

The judicial system of Islam: In Islamic terminology, adjudication means settling people’s mutual disputes and disagreements according to the laws and rulings instituted by Allah. One of the principal means of establishing justice, protecting rights, and ensuring the security of life, property and honor is to establish and implement the judicial system instituted by Allah, which He made one of His teachings and described as one of His most necessary and important fundamental rulings. The first person to undertake this great responsibility in Islam was the Messenger of Allah himself, peace and blessings be upon him. The agreement concluded after the Hijrah between the Muslims, Jews and other communities stated: “Whatever event or dispute occurs among the parties to this agreement that threatens to cause unrest and instability in society shall be referred to Almighty Allah and His Messenger Muhammad, peace and blessings be upon him.”

Allah has commanded His Messenger to judge and decide according to whatever He has revealed through revelation. He says:

إِنَّا أَنزَلْنَا إِلَيْكَ الْكِتَبَ بِالْحَقِّ لِتَحْكم بَيْنَ النَّاسِ بِما أراك اللهُ طَ وَلَا تَكُن لِلْخَالِنِينَ عَصِيْمان واستغفر الله ط إِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا .

“Indeed, We have revealed to you the Book in truth so that you may judge between people according to what Allah has shown you, and do not argue on behalf of those who betray trust; and seek Allah’s forgiveness. Indeed, Allah is Most Forgiving, Most Merciful.” (See Surah al-Nisa 4:105–113.) During the lifetime of the Messenger of Allah, Attab ibn Usayd was responsible for the judiciary of Makkah, and Ali was responsible for the judiciary of Yemen. Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Majah and others narrate that when the Messenger of Allah sent Ali to Yemen as a judge, Ali said: “O Messenger of Allah, you are sending me to the people of Yemen, although I am only a young man and do not know what judgment is.” Ali said: “The Messenger of Allah immediately struck my chest and said: ‘O Allah, guide him to the right path and make his tongue restrained and firm.’” Ali said: “By the oath of the Almighty Allah, after that I never fell into doubt when settling a dispute between two people.” Ali said: “The Messenger of Allah said: ‘O Ali, when two disputants sit before you, do not issue a judgment between them until you have heard the statement of the second just as you heard the statement of the first. When you have heard both statements, it will become clear to you how justice is to be done.’”

What matters are to be judged: Judgment is required in all matters involving rights, whether they concern the rights of Allah or the rights of people. Ibn Khaldun says: “The office of the judge has ultimately come to include, alongside settling disputes between plaintiffs and defendants, restoring certain general rights of the people; protecting the interests and rights of disadvantaged groups, such as the insane, orphans, the destitute and the foolish; properly administering the bequests and endowments of Muslims; arranging marriages for orphaned unmarried young women; developing and maintaining roads and buildings; supervising witnesses, ascetics and representatives of the people; and imparting to them knowledge and experience of justice, so that the judge may have confidence in them. All this is connected with the judge’s duties.”

The status of justice: Administering justice to prevent the strong from oppressing the weak and to settle disputes and conflicts among people is a communal obligation. It is the ruler’s responsibility to appoint judges for the people. If a qualified person refuses to undertake this responsibility, the ruler may compel him to accept it. When a person is in a position where no one besides him is qualified to be a judge, accepting this responsibility becomes obligatory for him. Islam has encouraged judgment based on truth and justice and has described it as an honorable task.

Imam al-Bukhari narrates from Abdullah ibn Umar that the Messenger of Allah said: “There are only two people worthy of envy: one whom Allah has given wisdom and sound judgment, and who uses it to settle disputes among people and teaches it to them; and one whom Allah has given wealth and enabled to spend it in the right way.” Islam has promised Paradise to the just judge. It is narrated from Abu Hurayrah that the Messenger of Allah said: “Whoever seeks and obtains the position of judge over the Muslims, and whose justice exceeds his injustice, will have Paradise; and whoever’s injustice exceeds his justice will have Hell.” (Abu Dawud.) It is narrated from Abdullah ibn Abi Awfa that the Messenger of Allah said: “As long as the judge administers justice, Allah remains with him. When he commits injustice, Allah abandons his company and Satan becomes his companion.” (Ibn Majah, al-Tirmidhi.)

However, the warnings found in some hadiths against accepting the office of judge apply only to those who do not possess the full qualifications, competence, courage, selflessness and self-restraint required for this work. The Messenger of Allah said: “Whoever becomes a judge has been slaughtered without a knife.” —Abu Dawud, al-Tirmidhi.

Imam Muslim narrates that Abu Dharr said: “O Messenger of Allah, will you not appoint me to a position?” (That is, will you not appoint me to a government office?) The Messenger of Allah placed his hand on his neck and said: “O Abu Dharr, you are weak. It is a trust”—that is, a difficult responsibility, whose unavoidable demand is fulfilling the rights and claims of the people. “On the Day of Resurrection it will be a cause of disgrace and remorse. Except for the one who fulfills its due.”

Abu Musa al-Ash‘ari said: “I and two of my cousins came to the Messenger of Allah. One of them said: ‘O Messenger of Allah, appoint us to some of the responsibilities Allah has entrusted to you.’ The other said the same. The Messenger of Allah replied: ‘By Allah, I do not appoint anyone to this responsibility who asks for it or covets it.’” Anas narrates that the Messenger said: “Whoever seeks the office of judge and seeks the help of intercessors for it, Allah will leave him to himself”—that is, He will not help him. “But whoever is compelled to undertake it, Allah sends down upon him an angel who guides him toward truth and justice.” —al-Tirmidhi, Abu Dawud.

Some imams did not accept judicial office out of fear that they would be unable to discharge its duties properly and soundly. A curious incident is related in this regard: When Haywah ibn Shurayh was invited to accept the office of judge in Egypt, he refused. The ruler then ordered that a sword be brought. Seeing this, Haywah took a ring of keys to his house from his pocket and said: “Here are the keys to my house. I am eager to meet my Lord.” Seeing his steadfastness, the ruler released him.

Qualifications of a judge: The office of judge can be held only by someone proficient in the Qur’an and Sunnah, possessing subtle and detailed knowledge of Allah’s religion, able to distinguish right from wrong, free from an inclination toward injustice and capable of restraining his desires. The jurists stipulated that a judge must possess the ability to perform ijtihad. In particular, he must know the verses and hadiths containing legal rulings, the opinions of the early jurists, the matters on which they agreed and differed, and be skilled in lexicography and analogy. They also stipulated that he be an adult, mentally balanced, upright, a good listener, a good observer, an eloquent speaker and a man. (According to Imam al-Shafi‘i and Imam Malik, a judge must be a mujtahid. According to Imam Abu Hanifah, being a mujtahid is not a condition.)

In reality, it is desirable that these conditions be fulfilled as far as possible. It is essential to appoint the person in whom they are found to the greatest extent. A blind follower, non-Muslim, minor, insane person, evildoer or woman is not qualified for the office of judge. Abu Bakrah narrates that when the Prophet of Allah was informed that the Persians had made the daughter of the Persian emperor their empress, he said: “A people who entrust their rule to a woman will never prosper.” —al-Bukhari, al-Nasa’i, al-Tirmidhi, Ahmad.

According to Imam Abu Hanifah, a woman may be a judge in financial matters. Imam al-Tabari says that a woman may be a judge in all matters. In the book Nayl al-Awtar, citing Fath al-Bari, it is stated that all jurists except the Hanafis stipulated that a judge must be a man. However, even according to the Hanafis, it is not permissible for a woman to judge cases involving the hudud (criminal penalties) of the Shari‘ah. Most jurists say that intellectual maturity is required of a judge, whereas a woman’s intellect is immature, especially where men are also serving. In addition to these conditions, the jurists stipulated that a judge must be appointed by the government. This is a condition for the validity of his judgment. On the other hand, if the plaintiff and defendant voluntarily agree to appoint someone as an arbitrator to settle their dispute, this condition does not apply. According to Imam Malik and Ahmad, he may judge even if he was not appointed by the government. According to Imam Abu Hanifah, his judgment will be valid if it accords with the judgment of the country’s official judge; otherwise, it will not be valid.

According to Imam Ahmad and Imam Malik, when the judge appointed by the plaintiff and defendant gives a ruling, accepting it becomes obligatory for both of them. Their consent to his ruling is not relevant. It is not permissible for the government to annul that judge’s ruling either. Two opinions have been narrated from Imam al-Shafi‘i on this matter. One is that both parties must accept his ruling. The other is that they need not accept it if it is not to their liking; like a fatwa, they may accept it if they wish and may reject it if they wish. With the consent of the plaintiff and defendant, appointing such an arbitrator is limited to settling financial disputes. Arbitration in hudud cases, marriage and li‘an is unanimously invalid.

Regarding the finest standard and ideal for a judge, Allah says:

يَدَاوُدَ إِنَّا جَعَلَتُكَ خَلِيفَةً فِي الْأَرْضِ فَاحْكُمْ بَيْنَ النَّاسِ بِالْحَقِّ وَلَا تَتَّبِعِ الْهَوَى فَيُضِلُّكَ عَنْ سَبِيلِ الله ط إِنَّ الَّذِينَ يَضِلُّونَ عَنْ سَبِيلِ اللَّهِ لَهُمْ عَذَابٌ شَدِيدٌ بِمَا نَسُوا يَوْمَ الْحِسَابِ

“O David, We have made you a vicegerent on earth. So judge between the people with justice and do not follow desire, lest it lead you astray from the path of Allah. Indeed, those who stray from the path of Allah will have a severe punishment because they have forgotten the Day of Reckoning.” (Surah Sad 38:26)

Although this verse is addressed to David, peace be upon him, it is in reality addressed to all rulers. Allah has mentioned it only to present to us the finest standard and ideal of governance. Despite being an infallible prophet, David, peace be upon him, was told by Allah: “Do not follow desire, for it will lead you astray from the path of Allah.” If following desire is feared even in relation to an infallible prophet, then those who are not prophets and are not infallible should be even more likely to follow their desires.

It is narrated from Abu Buraydah that the Messenger of Allah said: “Judges are of three types: one type will be in Paradise and two types will be in Hell. The judge who will be in Paradise is the one who knows and understands what truth and justice are, and judges accordingly. The second judge is one who knows and understands what truth and justice are, yet judges unjustly, and will be in Hell. The third judge is one who does not know what truth and justice are, so he judges among people on the basis of ignorance and will be in Hell.” (Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Majah and al-Hakim.) Even after the era of ijtihad had passed, a judge who was proficient in the Qur’an and Sunnah would, when issuing a judgment, examine the opinions of the imams and follow whichever of them was stronger and more consistent with the truth.

Muhammad ibn Yusuf al-Kindi states: Ibrahim ibn al-Jarrah assumed the office of judge in 204 AH. Umar ibn Khalid said of him: “I never kept company with a judge like Ibrahim ibn al-Jarrah. Whenever I prepared a case file for him and read it to him, he would remain there as long as he wished and determine his opinion on it. Then, when he decided to announce his ruling on the matter, he would give it to me so that I could prepare a written statement based on it. I would then see written on the back of that statement: ‘Imam Abu Hanifah said…’ On another line he would write: ‘Ibn Abi Layla said.’ On another line he would write: ‘Abu Yusuf and Malik said.’”

Then, on another line, he would make a mark like a line, by which I could understand that his ruling had been determined according to that opinion. I would then write the ruling accordingly. Some scholars believe that, in order to avoid scattered thinking, it should be obligatory for a judge to follow a particular madhhab. The hadith scholar Dehlawi said: When judges acted unjustly in their rulings, the rulers required judges to issue rulings according to a particular madhhab and not exceed its limits. They would accept only a ruling for which someone had previously expressed a similar opinion, without creating doubt or unrest among the people.

Judgment by an unqualified judge: The scholars say that it is invalid for one who is not qualified to judge to do so. If he nevertheless judges, he is sinful and his ruling will not be enforceable, whether or not it accords with truth and justice. For even if it happens to be just, that would be mere coincidence; his judgment did not arise from principles sanctioned by the Shari‘ah. Such a judge is sinful in all his rulings, whether or not they are just. All his rulings are invalid, and none of his excuses or objections is acceptable.

The Shari‘ah method of judging: When the Messenger of Allah sent Mu‘adh to Yemen, he explained the method a judge should follow. He asked Mu‘adh: “By what will you judge?” Mu‘adh replied: “By the Book of Allah.” He said: “What if you do not find it there?” Mu‘adh replied: “Then by the Sunnah of the Messenger.” The Messenger again said: “What if you do not find it there either?” Mu‘adh then replied: “Then by my own judgment.”

It is the judge’s duty to investigate thoroughly in order to discover the truth and to avoid anything that might scatter and confuse his thoughts. Therefore, he should refrain from judging when extremely angry, hungry, anxious, afraid, sleepy, suffering from excessive heat or cold, or when his mind is so preoccupied with thoughts that this becomes an obstacle to uncovering the truth and perceiving matters deeply.

It is narrated from Abu Bakrah in al-Bukhari and Muslim that the Messenger of Allah said: “No ruler or judge should settle a dispute between two people while he himself is angry.”

However, if a judge does issue a judgment while in one of these conditions, then, if it is just, it will be valid and acceptable according to most scholars.

The mujtahid receives a reward: The more a judge thinks, investigates and performs ijtihad in seeking the truth and the correct decision, the greater his reward, even if he ultimately does not discover the truth. It is narrated from Amr ibn al-As that the Messenger said: “When a ruler or judge exercises ijtihad and reaches the correct decision, he receives two rewards; when he exercises ijtihad and reaches an incorrect decision, he receives one reward.” (Al-Bukhari and Muslim.)

Imam al-Khattabi says: A mujtahid receives a reward when he reaches the correct decision, because his ijtihad is an act of worship. He does not receive a reward for an incorrect decision, but he is free from sin.

This refers to a person who possesses all the qualifications and means required for ijtihad, is knowledgeable about the fundamental principles and is experienced in analogy. But one who lacks the qualifications for ijtihad and nevertheless performs it is a false mujtahid. If he gives an incorrect ruling through his ijtihad, he cannot be excused; rather, there is fear that he has committed a grave sin. It is narrated from Umm Salamah that the Messenger of Allah said: “I am only a human being. You bring your claims and counterclaims before me. Perhaps one of you is more eloquent than the other in presenting his argument. I judge between you on the basis of what I hear from you. Therefore, if I give someone the right belonging to his brother, he should not take it, for I am only preparing for him a piece of Hell”—that is, I may, being influenced by the words of the more eloquent person, mistakenly give one person’s right to another. —al-Bukhari, Muslim, Abu Dawud, al-Tirmidhi, al-Nasa’i and Ibn Majah.

Abu Hurayrah narrates that the Messenger of Allah said: “There were two women, each with a son. Suddenly, a wolf came and took away the son of one of them. One woman then said to the other: ‘The wolf has taken your son.’ The second woman said to the first: ‘It has taken your son.’ They then went to David, peace be upon him, to settle their dispute. David ruled in favor of the older woman. Then both of them went to David’s son Solomon, peace be upon him, and informed him of David’s judgment. Solomon said: ‘Bring me a knife; I will cut the boy in two and divide him between you.’ Immediately, the younger woman said: ‘Do not do this. The boy belongs to that woman. Give him to her.’” Solomon then awarded the boy to the younger woman.

This was Solomon’s, peace be upon him, wisdom and just judgment. He adopted this strategy in order to identify the real mother. As soon as he said, “Bring a knife; I will cut the boy in two,” the true mother’s compassion overflowed. She could not allow him to be killed; rather, she preferred that he remain away from her and live instead of being killed. From this reaction Solomon proved that the boy was hers. Allah the Exalted has related another judgment of David and Solomon, peace be upon them, in verses 78 and 79 of Surah al-Anbiya:

وَدَاوُدَ وَسَلَيْمَنَ إِذْ يَحْكُمْ فِي الْعَرْمِ إِذْ نَقَضَتْ فِيْهِ غَيْرُ القَوْمِ، وَكُنَّا لِعَليهِمْ عَمِدِينَ ، فَقَمِّنَهَا سلیمن : وكلا أَتَيْنَا حُكْمًا وعلما ز

“And remember David and Solomon, when they judged concerning the field, when the sheep of a people entered it at night. We were witnesses to their judgment. We gave Solomon understanding of the matter, and We gave each of them wisdom and knowledge.”

The commentators mention that the flock of sheep entered the field and destroyed the crops. Consequently, the owner of the field disputed with the owners of the sheep. Eventually, the dispute was brought before David, peace be upon him, for settlement. David ruled that the sheep should be given to the owner of the field.

After the plaintiff and defendant left David’s court, they met Solomon. Solomon, peace be upon him, asked: “How was your dispute settled?” They told him about the judgment. Solomon then said: “Had your case come before me, I would have given a settlement that was more lenient toward both parties.” When David learned of this, he summoned him and asked: “How would you judge?” Solomon, peace be upon him, said: “Give the sheep temporarily to the owner of the field, so that he may benefit from their milk, wool, offspring and other services. Meanwhile, let the owner of the sheep cultivate the field for the owner of the field as though it were his own. When the crops grow to the size they had reached on the day the sheep ate them, then the owner of the field

will take possession of the field, and the owner of the sheep will take back his sheep.” Hearing this, David, peace be upon him, said: “Your settlement is correct.” He declared this settlement to be his own judgment.

The judge’s duties: It is the judge’s duty to treat the plaintiff and defendant equally in five matters:

1. Allowing them access to the judge.

2. Allowing them to take their seats before the judge.

3. Giving both of them the judge’s attention.

4. Listening to both of their statements.

5. Administering justice to both of them.

It should be noted here that treating both parties equally is necessary in outward conduct, not in matters of inclination. If his heart inclines toward one of the two and he prefers that person to overcome his opponent through argument, he will not be sinful, because refraining from this is impossible. However, it is improper for him to teach either party arguments or to teach a witness what testimony to give, because this would harm one of the plaintiff and defendant. The judge should not teach the plaintiff how to present his claim or take an oath, nor teach the defendant how to admit or deny; he should not tell witnesses to testify or refrain from testifying; and he should not entertain one of the plaintiff and defendant while excluding the other, because this would hurt the other’s feelings. The judge himself should not accept hospitality from the plaintiff or defendant, or from either one of them, as long as they remain opposing parties.

It is reported that the Messenger of Allah did not entertain either the plaintiff or the defendant without the other’s opponent present, and did not accept a gift from either one. However, if a person had been accustomed to giving gifts to the judge before he assumed judicial office, the judge may accept his gift. If the person had no such habit, his gift will be regarded as a bribe. It is narrated from Buraydah that the Messenger of Allah said: “Whomever we appoint to a position and provide with a livelihood in return for it, whatever he accepts thereafter is treachery.” (Abu Dawud.)

The Messenger also said: “Allah’s curse is upon both the one who takes a bribe and the one who gives a bribe in judicial and governing affairs.”

Al-Khattabi says: The curse applies equally to both only when both voluntarily engage in bribery in the same manner. When the bribe-giver gives a bribe for an unlawful purpose and with the intention of wronging someone, he too is accursed like the bribe-taker. But if he gives it to obtain a rightful due or to ward off oppression from himself, he does not fall under this threat. It is reported that Ibn Mas‘ud was unjustly arrested as a prisoner of war while he was in Abyssinia. He secured his release from arrest by paying two dinars. Hasan, al-Sha‘bi, Jabir and Ata said: If someone makes a settlement to protect his life and property out of fear of oppression, there is no sin in it. Similarly, the threat of the curse against the bribe-taker applies when he accepts something in return for carrying out a duty entrusted to him, and will not carry out that duty until he is given a bribe; or when he fails to abandon an unlawful act that he should abandon, until he is given a bribe. The book Fath al-‘Allam states: The money judges receive is of four types: bribes, gifts, remuneration and salaries.

1. Bribes: If a bribe is given so that the judge will judge unjustly in favor of the giver, it is unlawful for both the giver and the recipient. If it is given so that the judge will secure the giver’s rightful due, it is unlawful for the judge but not for the giver, because the latter gave it in order to obtain his rightful due. According to some, it is unlawful for the giver as well, because it causes the judge to commit a sin.

2. Gifts: If a gift was given to the judge before he was appointed to the judicial office, continuing to give it after his appointment is not unlawful. If it began only after he was appointed judge, it must be determined whether the giver has a dispute with anyone. If not, the gift is permissible, though disliked. If he does have a dispute, the gift is unlawful for both the judge and the giver.

3. Remuneration: If a judge is given a salary or allowance by the government, this is unanimously unlawful, because such payment is given on account of his position as a judge. In such circumstances, there is no justification for taking anything as remuneration. If he is not given any salary or allowance by the government, then he may receive remuneration, in proportion to the amount of work, for serving in any position other than that of a judge. Taking more than this would be unlawful. Receiving any remuneration as a judge is unanimously unlawful. For this reason, it has been said that appointing a poor person as a judge is preferable to appointing a wealthy person. If he were not receiving a government salary, something that was not permissible for him to accept would become permissible for him because of his poverty. These statements apply to Sharia courts or the Islamic judicial system. The prevailing laws and judicial system are entirely unjust, oppressive, and transgressive. Islamic courts and Sharia-based justice cannot be established without establishing an Islamic state. Therefore, no one may be punished separately for adultery or theft. Society must first be changed; only then should Islamic penal law be implemented.

Umar’s letter concerning judicial matters: In a letter written to Abu Musa al-Ash‘ari, Umar laid down enduring principles for the administration of justice. The letter reads as follows:

In the name of Allah, the Most Merciful, the Especially Merciful,

From the servant of Allah, the Commander of the Believers, Umar ibn al-Khattab, to Abdullah ibn Qays: Peace be upon you.

Administering justice is an unequivocal obligation and an established sunnah followed from time immemorial. Understand that when a case is entrusted to you, there is no benefit in making grand statements about a truth that will not be put into effect. Treat everyone equally in your presence, in your justice, and in your assembly, so that no person of rank may covet your partiality toward him, and no weak person may despair of your justice. The claimant must produce proof for his claim, while the one who denies it must take an oath. Reconciliation among Muslims is permissible, except a settlement that makes the unlawful lawful or the lawful unlawful. You may reconsider a judgment you announced today and return to what you deem true and correct. Truth is eternal, and returning to the truth is better than clinging to falsehood. If you become involved in uncertainty and dispute over a matter not found in the Qur’an and Sunnah, try to understand the matter repeatedly. Learn the precedents, then compare the new matter with them. Seek what is closest to Allah and most consistent with the truth. Set a final deadline for anyone who claims a right and wishes to present evidence. If he brings the evidence within that period, grant him his right; otherwise, dismiss his claim. This is more effective in removing doubt. Muslims are qualified to testify for one another, except a person who is proven to be an adulterer, has received the lashes, has given false testimony, or has been accused in matters of lineage or inheritance. Allah has arranged for you to safeguard what is hidden through evidence and oaths. At the time of dispute and separation, do not lose patience or become confused because of the distress caused by your opponent. Truth remains in its proper place, and through hardship and suffering Allah increases reward and rank. For the one whose intention is sound and who practices self-restraint, Allah is sufficient in all matters relating to Allah and people. Whoever artificially behaves toward people in a manner contrary to his intention—of which Allah knows that it is not his spontaneous conduct—Allah will disgrace him. So what is your view regarding Allah’s prompt provision and the treasures of His mercy? Can anyone other than Allah give these to you?

A judge’s recommendation: A judge may recommend a settlement if he considers it appropriate. For example, he may ask the claimant and the defendant to reconcile or to waive part of what is owed to them. It was reported in a previously mentioned hadith that the Messenger of Allah advised Ka‘b ibn Malik to relinquish half of his debt, and Ka‘b accepted this and settled the matter.

The external effect of a judge’s judgment: A judge’s judgment does not make a lawful thing unlawful, nor an unlawful thing lawful. A hadith narrated earlier by Umm Salamah states that the Messenger of Allah said: “I am only a human being. You bring your disputes before me. Perhaps one of you is more eloquent than the other and can present his arguments more effectively. So I judge on the basis of what I hear. Therefore, if I give someone the right belonging to his brother, he should not take it, for I am only giving him a piece of Fire.” (Bukhari, Muslim, Abu Dawud, Tirmidhi, Nasa’i, and Ibn Majah). Imam al-Shafi‘i said that a judge’s judgment cannot make the unlawful lawful; this is a unanimous view. Thus, when a person brings a claim against another, produces witnesses for it, and the judge rules in favor of the claimant, it is permissible for him to take the right awarded by the judge if the evidence is true. But if the evidence is false and the judge has ruled on the basis of false testimony and evidence, that judgment does not make it permissible for the claimant to take the claimed right; rather, it remains under its owner’s ownership. No jurist opposed this view except Imam Abu Hanifah. Imam Abu Hanifah said that a judge’s judgment is fully effective, externally and internally, regarding the validity and annulment of contracts.

Thus, if a false witness testifies before a judge that a woman has been divorced, and the judge subsequently rules for divorce on that basis, her marital bond with her husband will be severed and she may marry another husband. She may even marry the person who falsely testified to her divorce. Similarly, if someone falsely testifies that a woman is so-and-so’s wife, although she is not his wife, and the judge rules according to that testimony, then the woman will be lawful for him under that judgment. Imam Abu Hanifah, however, distinguished between cases concerning the continuation or annulment of contracts and cases involving murder and property. But this distinction is not correct, for there is no difference between these two types of cases. In this matter, Imam Abu Hanifah’s disciples opposed his view.

A judge’s judgment concerning an absent person who has no representative: A person who is absent and has no representative or attorney may be sued by the claimant. If the claim is proven, the judge may also issue a judgment against that absent person.

The first proof: Verse 26 of Surah Sad: “O David, judge between people with truth.” Since what is established by testimony is considered truth, it is obligatory to judge accordingly.

The second proof: Hind, the wife of Abu Sufyan, told the Messenger of Allah that Abu Sufyan was a miserly man, and asked whether she could take something from his property without his permission. The Messenger told her: “Take as much as is sufficient for you and your child.” This is a judgment issued against an absent person.

The third proof: Imam Malik mentions in the Muwatta that Umar said: “Whoever is owed something by another person should come to me tomorrow. I will sell the debtor’s property and distribute it among his creditors.” The person whose property was ordered to be sold was absent.

The fourth proof: If a judge refrained from judging against an absent person, the right of the rightful claimant would be lost; therefore, issuing such a judgment is not invalid. Absence is not a sufficient excuse for failing to repay a debt. This is the view of Imam Malik, al-Shafi‘i, and Ahmad. They say: “No right of an absent person is lost. When he appears, his argument is heard and action is taken accordingly; the judgment may even be annulled as a result, because hearing his statement is a condition.” Judge Shurayh, Umar ibn Abd al-Aziz, Ibn Abi Layla, and Imam Abu Hanifah say:

A judge may not issue a judgment against an absent person without the presence of a representative for that person, because he may possess evidence that nullifies the claimant’s claim. Moreover, it was narrated earlier in a hadith that the Messenger of Allah said to Ali: “O Ali, when the claimant and defendant sit before you, do not issue a judgment until you have heard both statements. Once you have heard both statements, it will become clear to you how the case should be judged.”

Al-Khattabi said: Some jurists favor issuing judgments against an absent person in certain matters, notably matters concerning the deceased and children. They also say that if a person leaves his property in someone’s custody and travels abroad, and his wife claims maintenance and brings before the judge the person with whom the property was entrusted, the judge may compel him to provide the wife’s maintenance.

He also said: If a claimant of pre-emption brings a claim of pre-emption before the judge against an absent person and proves that the person sold his property and received its price, the judge will rule in favor of the claimant’s pre-emption. All these are judgments issued against an absent person.

A judge’s judgment against non-Muslims: It is permissible for non-Muslims to bring their disputes before Muslim judges. The judge will settle their matters according to the rulings of Islam.

فَإِنْ جَاءَ وَلَكَ فَاحْكُمْ بَيْنَهُمْ أَوْ أَعْرِضْ عَنْهُمْ وَإِن تَعْرِضْ عَنْهُمْ عَلَى يُشَرُوكَ هَيْئًا وَإِن حَكَمْتَ فَاحْكُمْ بَيْنَهُم بِالْقِسْطِ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ

“If they come to you, judge between them or turn away from them. If you turn away from them, they cannot harm you in any way. But if you judge, then judge between them with justice. Allah loves those who act justly.” (Surah al-Ma’idah, 42).

Can a creditor recover what is owed without making a claim if the debtor procrastinates? The Shafi‘i jurists say: If a person is owed something by another, but has no proof or witness, and the debtor denies it, then he may take the very item owed from the debtor’s property if he is able to do so. Despite being able to take that exact item, he may not take what is owed from another item. If there is no alternative but to take another item, he may take it from another item.

If it is possible to recover the debt with the judge’s assistance—for example, if the debtor admits the debt but procrastinates, or denies it while the creditor has evidence and witnesses, or if the creditor expects the debtor to admit it when brought before the judge and asked to take an oath—may the creditor still recover it directly at his own discretion, or is he required to bring the matter before the judge? There is a difference of opinion on this matter. The preponderant view is that direct recovery is permissible. The evidence is the incident of Hind, the wife of Abu Sufyan. Moreover, because settlement through the court is difficult, costly, and time-consuming, resorting to the court is not obligatory.

The Shafi‘i jurists further say: When direct recovery is permissible, if recovery cannot be made without breaking down the debtor’s door or piercing his wall, that too is permissible. The creditor is not required to compensate him for the resulting damage. This is just as, if defending oneself against an aggressor cannot be done without destroying his property, it is permissible to do so and no compensation is required.

This view of the Shafi‘i jurists does not contradict the hadith of the Messenger of Allah: “Safeguard the trust of the one who safeguards your trust, and do not betray the one who betrays your trust.” A betrayer is one who, through oppression and aggression, seizes what he has no right to take. A person who has the right to recover his rightful due from his opponent and is permitted to redress the wrong done to him is not a betrayer. The true meaning of the hadith is: “Do not betray the one who betrayed you in the same way as he betrayed you.” The person under discussion here has not betrayed anyone; he has merely recovered his rightful due. The betrayer mentioned in the hadith usurps another person’s right.

When a new decision occurs to a judge: When a judge issues a judgment in a case through his ijtihad, that is, through comprehensive thought and investigation, and then a new opinion occurs to him that is contrary to his first judgment, he must not annul that judgment. Similarly, when the judgment of another judge is brought before him but he does not approve of it, he must not annul it. Proof of this is the judgment Umar ibn al-Khattab issued concerning a certain woman, as narrated by Abd al-Razzaq. The woman died leaving a husband, a mother, a father, two maternal and paternal half-brothers, and two maternal half-brothers. Umar made the maternal and paternal half-brothers and the two maternal half-brothers partners in one-third of the estate. Seeing this, a man said to him: “In such-and-such a year, when you settled an inheritance dispute, you did not make them partners in this way.” Umar said: “On that day I settled it according to that day’s circumstances, and today I have settled it according to today’s circumstances.” Ibn al-Qayyim said: The Caliph settled each matter according to what he independently considered true and correct in the ijtihad of each day.

An example of judicial decisions in the early period of Islam: Abu Nu‘aym mentions in his book Hilyah that Ali ibn Abu Talib found his armor with a Jew. The Jew had picked it up from the road. Ali recognized the armor immediately. He said: “This is my armor. It fell from a gray-colored camel of mine.” The Jew said: “The armor is mine and is in my possession.” Then the Jew said: “Let us go to a Muslim judge to settle our dispute.” They both went to Judge Shurayh. When Shurayh saw Ali coming, he moved from his seat and Ali sat there. Ali then said: “If my opponent were a Muslim, I would arrange a seat equal to mine for him. But I heard the Messenger of Allah say: ‘Do not seat non-Muslims on equal seats.’”

Shurayh then said: “O Commander of the Believers, what do you want?” Ali said: “My armor fell from one of my gray-colored camels, and this Jew picked it up.” Shurayh said: “O Jew, what is your statement?”

He said: “It is my armor, and it is in my possession.”

Shurayh said: “O Commander of the Believers, you have spoken the truth. It is your armor. But two witnesses are required in this matter.”

He immediately summoned Qanbar and Hasan, the son of Ali, and both testified that the armor belonged to Ali.

Shurayh said: “I accept the testimony of your freed slave Qanbar, but I cannot accept your son’s testimony on your behalf.” Ali said: “Have you not heard that Umar ibn al-Khattab said that the Messenger of Allah said: ‘Hasan and Husayn are the leaders of the young people of Paradise’?”

Shurayh said: “Yes, I have heard that.”

Ali said: “Even so, you do not accept the testimony of the leaders of the young people of Paradise?” Then he said to the Jew: “Take it; you keep the armor.”

The Jew said: “The Commander of the Believers came with me to the judge of the Muslims, and the judge ruled in my favor, while the Commander of the Believers accepted it. O Commander of the Believers, by Allah, you are truthful; this is indeed your armor. It had fallen from one of your camels, and I picked it up. I testify that there is no deity except Allah and that Muhammad is His Messenger.” Ali then gave the armor to the Jew as a gift. In addition, he gave him nine hundred coins. Later, the Jew fought on Ali’s side in the Battle of Siffin and was martyred.

The Sixty-First Chapter: Claims and Proof

Definition: In Sharia terminology, this means claiming as one’s rightful property something that is in another person’s possession or custody. The person who makes the claim is called the claimant or plaintiff, and the person against whom the claim is made is called the defendant or accused. If the plaintiff remains silent about his claim, he is not regarded as a claimant and his claim will be disregarded. If the defendant remains silent, he is not thereby acquitted.

Whose claim is valid: Only the claim of a free, sane, mature person who understands right and wrong is valid and worthy of consideration. The claim of a slave, an insane person, a mentally unsound person, a child, or an imbecile is not worthy of consideration. These conditions are as essential for the claimant as they are for the person rejecting the claim.

A claim has no value without proof: Proof is required to establish a claim, through which the truth becomes clear. Ibn Abbas narrated that the Messenger of Allah said: “If people were given whatever they claimed merely by making a claim, many people would claim the lives and property of others. Rather, the person against whom the claim is made must take an oath.” (Ahmad, Muslim).

The plaintiff must produce the proof: The responsibility for proving the validity and truth of a claim rests with the plaintiff. This is because the defendant or accused is fundamentally free of liability and innocent. The responsibility for proving him guilty rests solely with the plaintiff.

Al-Bayhaqi and al-Tabarani narrated with an authentic chain that the Messenger of Allah said: “Producing proof is the responsibility of the claimant, and taking an oath is the responsibility of the one who rejects the claim.”

The condition that proof be conclusive: The condition for proof is that it be conclusive, certain, and free from doubt, because proof based on conjecture does not provide certainty. Allah says:

وإِن الظَّي لا يُغْنِي مِنَ الْحَقِّ شَيْئًا“Conjecture has no value against the truth.” (Surah al-Najm, 28).

It is narrated from Ibn Abbas that the Messenger of Allah said to a man: “Can you see the sun?” He replied: “Yes.” The Messenger of Allah said: “Then testify as clearly as the sun; otherwise, refrain.” Methods of proving a claim: There are four methods of proving a claim: 1. Admission 2. Testimony 3. Oath 4. Formal documentary evidence. Each of these four methods has certain rules, which we will explain in detail one by one.

The Sixty-Second Chapter: Admission

Definition: Admission means the defendant or accused accepting a claim or accusation made against a person. It is the strongest proof for establishing the truth of the plaintiff’s claim. For this reason, it is called the “best evidence.” It is also called testifying against oneself.

Validity of admission: Scholars unanimously agree that admission is established as sanctioned by the Sharia through the Qur’an and Sunnah. Allah the Exalted says in verse 135 of Surah al-Nisa:

يأَيُّهَا الَّذِينَ آمَنُوا كُونُوا قَوْمِينَ بِالْقِسْطِ عُمَدَاءَ لِلَّهِ وَلَوْ عَلَى الْفُسِكُرْه

“O believers, stand firmly for justice as witnesses for Allah, even if it is against yourselves, your parents, or your relatives.” The Messenger of Allah said to the Companion Unays: “O Unays, go to this man’s wife. If she confesses, stone her.”

He also said: “Maintain relations with the one who severs relations with you, treat kindly the one who mistreats you, and speak justly, even if it is against you.” (Al-Jami‘ al-Saghir, 5004).

Abu Dharr narrated that he said: “My friend, the Messenger of Allah, advised me to look at those below me and not at those above me; to love poor people and remain close to them; to maintain strong ties with blood relatives even if they sever relations with me and cause me distress; to speak the truth even if it is bitter; not to fear anyone’s criticism in the way of Allah; not to ask anyone for anything; and to frequently sayلَا حَوْلَ وَلَا قُوَّةَ إِلَّا بِ‘La hawla wa la quwwata illa billah,’ because it is a treasure of Paradise.

The Messenger of Allah used admissions to settle cases involving murder, hudud, and financial disputes.

Conditions for a valid admission: The following conditions are necessary for an admission to be valid: the person making the admission must be sane, mature, and making the admission voluntarily; he must be legally entitled to dispose of his property independently; he must not be making the admission jokingly; and he must not be admitting to something impossible. Therefore, the admission of an insane person, a minor, someone forced to confess, a mentally deficient person, a joker, or someone admitting to something impossible by nature or reason is invalid. In all such cases, everyone can understand that the admission is false. Yet it is not permissible for a judge to issue a judgment or adjudicate on the basis of a false statement.

Withdrawal of an admission: Once an admission becomes valid by fulfilling all the conditions, it becomes binding on the person making it. When it relates to an interest or right of people, it is not permissible for him to withdraw it. However, when an admission relates to a right of Allah, such as the punishment for adultery or drinking alcohol, it is permissible to withdraw it, because the Messenger of Allah said: “Avert the hudud on the basis of doubts.” The hadith of Ma‘iz was mentioned earlier in the chapter on hudud. The Zahiri school, however, opposes this view. According to them, withdrawing an admission is never permissible, whether it relates to the right of Allah or the right of a servant.

Admission is limited proof: Admission is limited proof. It establishes no one’s involvement except that of the person making the admission. If a person makes an admission implicating someone else, the admission is not accepted against that other person. Testimony, however, is different. Testimony can establish another person’s offense as well. If a plaintiff claims against several people that they owe him money from a debt, and some of them admit the claim while others deny it, the claim is established against no one except those who made the admission. But if the plaintiff proves his claim through witnesses, it will be established against all of them.

Admission is indivisible: An admission is a single, integrated statement. It is not permissible to accept part of it and reject part of it.

Confession of a debt: When a person acknowledges that he owes a debt to one of his heirs, that acknowledgment will not be valid until the other heirs confirm it if he made it while bedridden with the illness preceding his death. His illness suggests that, through this acknowledgment, he may have intended to deprive his heirs. If he made the acknowledgment while healthy, however, it is valid. In that case, the possibility that he intended to deprive the heirs is merely remote and imaginary, and cannot prevent the acknowledgment from taking effect.

According to the Shafi‘i school, the acknowledgment of a healthy person is valid, since there is no impediment when all the conditions of validity are fully present. If, during the illness preceding death, he acknowledges something in favor of a non-heir, his acknowledgment is valid. Some say that it is to be given from one-third of the estate. If he acknowledges something in favor of an heir, the acknowledgment is valid; this is the predominant view of the Shafi‘i school. For the acknowledgment has been made at a stage of his life when even a liar speaks the truth and a sinner repents. At this extreme stage, it outwardly appears that the person making the acknowledgment has done so truthfully and does not intend to deprive anyone. Some Shafi‘i scholars consider it invalid, because he may have intended to deprive some heirs. They further say that if he makes an acknowledgment in favor of one person while healthy and in favor of another while ill, the two persons shall divide between themselves the corresponding entitlement, without giving priority to the first. Imam Ahmad said: An ill person’s acknowledgment in favor of an heir is not permissible. Imam al-Awza‘i and a group of scholars consider it permissible for an ill person to acknowledge part of his property in favor of an heir. For it is far-fetched to harbor a bad opinion of one whose death is near. The rulings of Islamic law depend on outward circumstances. Thus, it is not appropriate to reject his acknowledgment on the pretext of a mere possibility. His affair will be entrusted to Allah.

Chapter Sixty-Three: Testimony

Definition: Testimony is the equivalent of the Arabic word shahadah. Linguistically, it means seeing. Since a witness conveys to another what he sees or knows, his statement is called testimony. In the terminology of Islamic law, testimony is expressing what a person has learned through phrases such as “I testify” or “I testified.” A witness is one who bears or conveys testimony, because he expresses and communicates what others do not know.

Giving testimony without knowledge is unlawful: It is not permissible for a person to testify about something without knowing it. A witness may know the matter about which he is testifying through direct observation, hearing, or widespread renown that produces knowledge or a strong presumption.

According to the Shafi‘i school, testimony based on widespread renown is permissible in the following matters: lineage, birth, death, emancipation, inheritance, guardianship, endowment, family relations, marriage, other matters relating to marriage, declaring someone upright or immoral, bequests, sanity, insanity, and ownership. According to Imam Abu Hanifah, testimony based on widespread renown is permissible only in these five matters: marriage, the seclusion of husband and wife after marriage, lineage, death, and appointment to judicial authority. According to Imam Ahmad and some Shafi‘i jurists, it is permissible in seven matters solely on the basis of widespread renown: marriage, lineage, death, emancipation, inheritance, endowment, and ownership.

Ruling of Islamic law concerning testimony: When a person possesses information suitable for testimony, is called to testify, and failure to testify may result in someone’s right being lost, testifying becomes an individual obligation. Indeed, if there is a fear that a right will be lost, testifying is obligatory even when he has not been summoned. Allah says in verse 283 of Surah al-Baqarah: “Do not conceal testimony. Whoever conceals it—his heart is sinful.” In verse 2 of Surah al-Talaq, He says: “Give testimony for Allah.” An authentic hadith states: “Help your brother, whether he is an oppressor or oppressed.” Testifying helps him.
Zayd ibn Khalid narrated that the Messenger of Allah ﷺ said: “Shall I tell you who the best witnesses are? … The one who gives testimony before being asked.”

However, testifying is obligatory only when he is able to do so without harm to his person, honor, property, or family. Allah says in verse 282 of Surah al-Baqarah: “Let neither a scribe nor a witness be harmed.”

When there are many witnesses and there is no fear that anyone’s right will be lost, giving testimony is recommended. In such a case, there is no sin in failing to testify. When the entire judicial proceeding depends on a person’s testimony, accepting payment for testifying is unlawful. If walking is difficult, however, he may accept transportation fare. When the judicial proceeding does not depend on a person’s testimony, accepting payment is permissible.
Conditions for accepting testimony: The necessary conditions for accepting testimony are as follows:

1. The witness must be Muslim: Therefore, the testimony of a non-Muslim concerning a Muslim will not be accepted, except in the case of a bequest while traveling. In this case, according to Imam Abu Hanifah, Judge Shurayh, Ibrahim al-Nakha‘i, and al-Awza‘i, the testimony of a non-Muslim concerning a Muslim is permissible. Allah says in verses 106 and 107 of Surah al-Ma’idah:

يَأَيُّهَا الَّذِينَ آمَنُوا شَهَادَةً بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتِ مِيْنَ الْوَمِيَّةِ الَّتِي ذَوَا عَدْلٍ مِّنْكُمْ أَوْ أَمَانِ من غَيْرِكُمْ إِنْ أَنْتُمْ ضَرَبْتُمْ فِي الْأَرْضِ فَأَصَابَتْكُمْ مُّصِيبَةُ الْمَوْسِ ، تَحْبِسُولَهُمَا مِنْ بَعْدِ الصَّلوة فَيُقْسِي بِاللَّهِ إِنِ ارْتَبْتُمْ لَا

تَشْتَرِى بِهِ ثَمَنًا وَلَوْ كَانَ ذَاقْرَبَى لَا وَلَا نَكْتُمُ شَهَادَةَ اللَّهِ إِنَّا إِذَا لَمِنَ الألمين، فَإِن عَشرَ عَلَى أَنَّهُمَا اسْتَعَقَّا إِنَّمَا فَاعَونِ يَقُوْمِي مَقَامَهُمَا مِنَ الَّذِينَ اسْتَحَقُّ عَلَيْهِمُ الْأَوْلَيْنِ فَيُقْسِي بِاللَّهِ لَشَهَادَتَ

ا أَحَقُّ مِنْ شَهَادَتِهِمَا وَمَا اعْتَدَيْنَا إِنَّا إِذًا لَمِنَ الظَّلِمِ

“O believers, when death approaches any of you, let two just men from among you witness the bequest. If you are traveling and the calamity of death befalls you, then let two others from outside your community bear witness. If you doubt them, detain them after the prayer, and let them swear by Allah: ‘We will not sell it for any price, even if the beneficiary is a relative, nor will we conceal Allah’s testimony. If we did so, we would surely be among the sinners.’ But if it is discovered that the two were guilty of sin, then let two others from among those whose interests were harmed take their place—the nearest of those with a rightful claim—and let them swear by Allah: ‘Indeed, our testimony is truer than their testimony, and we have not transgressed. If we did, we would surely be among the wrongdoers.’”

Similarly, the Hanafis accept the testimony of non-Muslims against other non-Muslims. For the Messenger of Allah ﷺ had two Jews stoned on the testimony of two Jews concerning adultery.

Imam al-Sha‘bi said: A Muslim in Daqūqā was nearing death, but no Muslim could be found to witness his bequest. So he appointed two People of the Book as witnesses. Later, those two witnesses reached Kufa, went to Abu Musa al-Ash‘ari, informed him of the bequest, and deposited the deceased’s belongings with him. Al-Ash‘ari said: This is an incident that has not occurred since a similar incident took place during the time of the Messenger of Allah ﷺ. He then had them swear, after the ‘Asr prayer, that they had not betrayed their trust, lied, altered anything, or concealed anything, and that this was the deceased’s bequest and property left behind. He then accepted the testimony of the two.

Al-Khattabi said: This proves that the testimony of dhimmis concerning a Muslim’s bequest while traveling is accepted. Imam Ahmad said: The testimony of dhimmis is accepted only in such a case, due to unavoidable necessity, and nowhere else. Imam al-Shafi‘i and Malik said: Whether it concerns a bequest while traveling or anything else, the testimony of a non-Muslim concerning a Muslim is never accepted. In their view, these two verses—that is, their rulings—have been abrogated.

Testimony of a dhimmi concerning another dhimmi: There is disagreement regarding the testimony of a dhimmi concerning another dhimmi, that is, of a non-Muslim concerning another non-Muslim. Imam al-Shafi‘i and Imam Malik said: The testimony of a non-Muslim will not be accepted concerning either a Muslim or a non-Muslim. Imam Ahmad said: The testimony of People of the Book concerning one another will not be accepted. The Hanafis said: Their testimony concerning one another is valid, and all non-Muslims belong to the same category.

Imam al-Sha‘bi, Ibn Abi Layla, and Ishaq said: A Jew’s testimony concerning a Jew is valid, but it is not valid concerning a Christian or a fire worshipper, because these are different religions. The testimony of a follower of one religion concerning a follower of another religion is not valid.

2. Integrity: This is an additional quality beyond Islam that must be present in witnesses, so that upright witnesses prevail over immoral witnesses and people accustomed to lying cannot serve as witnesses. For Allah says:

وَاحْمِدُوا نَوَى عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ.

“Appoint two just men from among you as witnesses, and give true testimony for Allah.” (Surah al-Talaq, verse 2)

ل مين ترضون من الشهداء“Among the witnesses whom you approve.” (Surah al-Baqarah, 282)

يَأْيُّهَا الَّذِينَ آمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبًا فَتَبِينُوا“O believers, if a sinful person brings you any news, verify it …” (Surah al-Hujurat, 6)

Abu Dawud narrated that the Messenger of Allah ﷺ said: “The testimony of a treacherous man or woman, and of an adulterous man or woman, is not valid.” Therefore, the testimony of a person known as a liar, immoral, ill-mannered, or sinful will not be accepted. This is the generally accepted meaning of integrity. Imam Abu Hanifah said: For integrity, it is sufficient that the witness outwardly be Muslim and that nothing contrary to his decency and good reputation be apparent. This applies to the settlement of financial disputes, but is not sufficient in hudud, that is, criminal cases. Regarding marriage, he permits the testimony of a sinful person, saying that a marriage is concluded through the testimony of two sinful men. According to the Maliki school, judgment may be based on the testimony of an immoral person in cases of necessity, and in minor matters the testimony of a person whose uprightness or immorality is unknown may be accepted.
The jurists say: A witness must genuinely follow Islam and be decent. Genuine adherence to Islam is established by performing obligatory and supererogatory acts, avoiding what is prohibited and disliked, refraining from major sins, and not repeatedly committing minor sins. Decency means doing what is proper in word and deed and avoiding what is improper. If a sinful person repents, his testimony will be accepted. All jurists agree on this. Imam Abu Hanifah, however, said: If the reason he became known as sinful was that he falsely accused someone, his testimony will not be accepted, because Allah says: b252

وَالَّذِينَ يَرْمُونَ الْمُحْصَنَسِ لَمْ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِلٌ وَهُمْ لَيْنِيْنَ جَلْدَةٌ وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا وَأُولَئِكَ هُمُ الْفَسِقُونَ

“Those who accuse chaste women and do not produce four witnesses—flog them with eighty lashes and never accept their testimony. They are indeed transgressors.” (Surah al-Nur, 4)

3, 4. Being an adult and of sound mind: Just as integrity and uprightness are conditions for testimony to be accepted, adulthood and soundness of mind are also conditions of integrity. Therefore, a child’s testimony will not be accepted, even when he testifies concerning another child like himself. Similarly, the testimony of an insane or mentally impaired person will not be accepted, because it does not help produce the certainty on which judgment can be based. Imam Malik permitted the testimony of children in cases of injury, provided that they do not separate and do not contradict one another. Abdullah ibn al-Zubayr likewise permitted children’s testimony under similar conditions. The Companions and the jurists of Medina also accepted children’s testimony in cases where they injured one another during play, and this is the preferred view. For adults are generally not present during their games. If their testimony were not accepted, and women’s testimony alone were not accepted, many people’s rights and rightful claims would be lost and neglected. Yet ordinary people develop a strong presumption or firm conviction regarding their truthfulness. This is especially so when they come together before dispersing and returning to their homes, and all give the same account of an incident; the impression produced by their testimony is then much stronger than that produced by the testimony of two men. This cannot be denied. Islamic law is a complete and noble system that guarantees the interests and welfare of people in this world and the Hereafter. Therefore, it cannot be imagined that it would disregard and destroy such an incontrovertible right despite clear and conclusive evidence.

5. The power of speech: A witness must be capable of speech. If he is mute, his testimony will not be accepted, even if he expresses his intention through understandable gestures. If, however, he gives testimony in his own handwriting, it will be accepted according to Imam Ahmad, Imam Abu Hanifah, and the reliable position transmitted from Imam al-Shafi‘i.

6. Memory: The testimony of a person known to have a weak memory and to make many mistakes will not be accepted. The same ruling applies to an inattentive person.

7. Not being accused or suspect: The testimony of a person who is accused or suspected because of hostility or love will not be accepted. However, according to Umar ibn al-Khattab, may Allah be pleased with him, Judge Shurayh, Umar ibn Abd al-Aziz, Abu Thawr, Ibn al-Mundhir, others, and one of the two reported views of Imam al-Shafi‘i, a father’s testimony for his child and a child’s testimony for his father will be accepted as long as both are upright, just, and acceptable witnesses. On the other hand, an enemy’s testimony against an enemy will not be accepted when their hostility is worldly, because in that case the witness is accused and suspect. If the hostility is religious, however, it does not create suspicion, since Islam forbids false testimony; thus there is no room for suspicion in this case. Similarly, a father’s testimony in favor of his child and a child’s testimony in favor of his father will not be valid, but testimony against them will be accepted. The same ruling applies to a mother’s testimony for her son and a son’s testimony for his mother. It likewise applies to the testimony of a household servant whose maintenance is provided by the head of the household. These testimonies will not be accepted because the witnesses are suspect. A’ishah, may Allah be pleased with her, narrated that the Messenger of Allah ﷺ said: “The testimony of a treacherous man or woman, and of a spiteful person against his Muslim brother, will not be accepted. Similarly, a child’s testimony for his father and a father’s testimony for his child will not be accepted.”

Hostility is recognized through words and actions. One sign of hostility is rejoicing at an enemy’s misfortunes, being saddened by an enemy’s happiness, and wishing every kind of harm upon him. The jurists mention false accusation, forcibly seizing and usurping property, murder, and robbery as among the causes of hostility. Thus, if the owner of usurped property testifies against the usurper, the victim of an accusation testifies against the accuser, the owner of stolen property testifies against the thief, or the heir of a murdered person testifies against the murderer, that testimony will not be accepted.

Ahmad and Abu Dawud narrated from Amr ibn Shu‘ayb that the Messenger ﷺ said: “The testimony of a treacherous man or woman or a spiteful person against a Muslim, and the testimony of a household servant in favor of the head of the household, will not be accepted.” The Messenger of Allah ﷺ also said: “The testimony of a plaintiff or defendant against his opponent will not be accepted.”

The testimony of a husband and wife for one another will not be accepted, because there is room for suspicion of partiality. Such favoritism often occurs in these cases. Imam Malik, Ahmad, and Abu Hanifah followed this view. Imam al-Shafi‘i, Abu Thawr, and al-Hasan, however, consider the testimony of spouses for one another acceptable. The testimony of other relatives for one another—for example, a brother’s testimony for his brother—is valid. Similarly, a friend’s testimony for his friend is valid. According to Imam al-Tirmidhi, the hadith stating that a relative’s testimony for a relative is invalid is not authentic. Imam Malik said: The testimony of a estranged brother for his brother and of a friend for his friend will not be accepted.

Testimony of a person whose character is unknown: The testimony of a person whose character is unknown will not be accepted. A man gave testimony before Umar, may Allah be pleased with him, and he said to him: “I do not know you.” The man replied: “Not knowing me does not harm you. Bring someone who knows you.”

Someone among those present said: “I know him.”

Umar, may Allah be pleased with him, said: “How do you know him?”

He said: “Through his integrity and nobility.”

Umar, may Allah be pleased with him, said: “Is he your closest neighbor, such that you know him day and night and know where he goes and from where he comes?” He said: “No.”

Umar, may Allah be pleased with him, said: “Have you ever engaged in a financial transaction with him through which his piety could be known?” He said: “No.”

Umar, may Allah be pleased with him, said: “Has he ever traveled with you, through which you came to know the goodness of his character?”

He said: “No.”

Umar, may Allah be pleased with him, said: “Then you do not know him at all.”

Then he said to the witness: “Go and bring someone who knows you.”

Ibn Kathir said: Imam al-Baghawi narrated the hadith with a hasan chain.

A nomad’s testimony concerning a city dweller: Imam Ahmad, a group of his disciples, Abu Ubayd, and, according to one report, Imam Malik held that a nomad’s testimony concerning a city dweller is not acceptable. Abu Hurayrah narrated that the Messenger of Allah ﷺ said: “The testimony of a nomad concerning a city dweller will not be accepted.” (Abu Dawud, Ibn Majah)

The reason a nomad’s testimony is rejected is that he lives in great hardship, is ignorant, and rarely observes what takes place in settled communities. Therefore, his testimony is not reliable.

The correct view, however, is that if he is upright, just, and Muslim, his testimony will be accepted. The Qur’an makes no distinction between a city dweller and a nomad regarding the acceptance of an upright person’s testimony. Being a nomad is like being an inhabitant of another city. This is the view of Imam al-Shafi‘i and most jurists.

The hadith narrated by Abu Hurayrah concerns an ignorant person and does not include every nomad. For the Messenger ﷺ accepted a nomad’s testimony concerning the sighting of the moon.

Testimony of a blind person: If a blind person can recognize people by their voices, then according to Imam Malik and Imam Ahmad his testimony is valid in matters such as marriage, divorce, sale, lease, establishing lineage, endowment, ownership, and acknowledgment, whether the event came to his attention after he became blind or before.

Ibn al-Qasim said: I asked Imam Malik about a person who hears his neighbor speaking from behind a wall without seeing him, hears him divorcing his wife, and recognizes his voice: Would his testimony concerning him be valid? Imam Malik said: It would be valid.

According to the Shafi‘i school, a blind person’s testimony is not accepted except in five matters: lineage, death, ownership, translation, and matters that came to his attention before he became blind.

Imam Abu Hanifah said: A blind person’s testimony is never accepted.

Minimum number of witnesses: Testimony may concern financial rights, bodily rights, or matters of hudud and qisas. Islamic law has specified the minimum number of witnesses necessary to establish a claim in each case. Each of them is set out below:

Where four witnesses are required: At least four male witnesses are required to establish the punishment for adultery.

According to the Zahiri school, two women’s testimonies may take the place of each man’s testimony. In their view, the testimony of eight women alone will also be accepted.
Allah says:

وَالَّتِي يَأْتِينَ الْفَاحِشَةَ مِنْ تَسَادِكُمْ فَاسْتَحْمِلُوا عَلَيْهِنَّ أَرْبَعَةٌ مِنْكُمْ

“As for those among your women who commit indecency, call four witnesses from among you to testify against them.” (Surah al-Nisa’, 15)

وَالَّذِينَ يَرْمُونَ الْمُحْصَنَتِ ثُمَّ لَمْ يَأْتُوا بِارْبَعَةِ عُمَدَاءَ فَاجْلِدُ وَهُمْ تَمِنِينَ جَلْدَةٌ

“Those who accuse chaste women and do not produce four witnesses—flog them with eighty lashes.” (Surah al-Nur, 4)

ا لَوْلَا جَاءَ وَ عَلَيْهِ بِأَرْبَعَةِ عُمَدَاءَ“Why did they not produce four witnesses concerning it?” (Surah al-Nur, 13)

The Requirement of Three Witnesses: The Hanbali jurists say that if a person reputed to be well-off claims to be needy in order to receive zakat, his claim will not be accepted without three witnesses. In support of this view, they cite the following hadith of Qabisah ibn Mukhariq: Qabisah ibn Mukhariq al-Hilali (may Allah be pleased with him) said: I was responsible for paying blood money, so I went to the Messenger of Allah (peace and blessings be upon him) and asked him for assistance. He said, “Stay for a while, until zakat comes to us; then we will instruct that something be given to you from it.” Then he said: “O Qabisah, asking for assistance is lawful only for one of three people: a person who has incurred liability for blood money or a fine; it is lawful for him to ask for assistance until he discharges that liability, after which he must exercise self-restraint. Another is a person upon whom a calamity has fallen and destroyed his property; it is lawful for him to ask for assistance so that he can secure the means of subsistence or employment. The third is a person afflicted by such severe hunger that three intelligent people of his tribe testify that so-and-so is suffering from hunger; it is lawful for him to ask for assistance so that he can secure the means of subsistence or employment. O Qabisah, all other forms of asking for and receiving assistance are unlawful.” (Muslim, Abu Dawud, al-Nasa’i).

Testimony of Only Two Men: In all cases involving rights and hudud, the testimony of only two men is admissible. The testimony of a woman is not accepted. Four witnesses are required only in cases of adultery. According to the jurists of all schools except the Zahiri school, women’s testimony is invalid in hudud cases. Allah says concerning divorce: “And call two just men from among you to witness.” (Surah al-Talaq 65:2).

Al-Bukhari and Muslim narrated that the Messenger of Allah (peace and blessings be upon him) said to Ayyash: “Either you produce two witnesses, or he must swear an oath…”

Testimony of Two Men or One Man and Two Women: The Almighty Allah says in verse 282 of Surah al-Baqarah:

واسْتَشْهِدُوا عَمِيدَ بْنِ مِنْ رِجَالِكُمْ فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجَلٌ و امراتي مِينَ تَرْضَوْنَ مِنَ السَّمَدَاءِ أَن تَضِلُّ إِحْدَاهُمَا فَتُلَ كَرَ إِحْدهُمَا الأخرى

“And bring to witness two witnesses from among your men whom you approve. If two men are not available, then one man and two women, so that if one of the women errs, the other may remind her.”

This rule applies to all financial transactions, such as business, loans, leases, pledges, acknowledgments, and usurpation. According to the Hanafi school, in all financial transactions, as well as marriage, divorce, and every other matter except hudud and qisas, a woman’s testimony alongside that of a man is admissible. Imam Ibn al-Qayyim gave preference to this view, saying: “When the Shariah has permitted women’s testimony in a written debt document prepared by men, which is generally written in gatherings of men, then accepting women’s testimony in gatherings attended by many women—such as those involving wills and revocable divorce—is even more appropriate and permissible.”

According to Imam Malik, the Shafi‘i jurists, and many other jurists, women’s testimony is admissible specifically in financial matters and transactions. However, in matters such as hudud, qisas, marriage, and divorce, which are connected with physical matters, a woman’s testimony will not be accepted. Conversely, there is disagreement concerning physical matters that are regarded purely as financial matters, such as agency and wills. Some say that in such cases the testimony of one man and two women will be accepted. Others say that no woman’s testimony will be accepted, but only the testimony of two men. Regarding why a woman’s testimony is accepted only in financial matters and not in other matters, Imam al-Qurtubi says: “Since the means and sources of acquiring wealth are numerous and irregularity and dishonesty frequently occur in them, Allah broadened the means of strengthening matters related to wealth. He reinforced their foundation and solidity sometimes by recording transactions, sometimes by appointing witnesses to them, and sometimes by arranging pledges and compensation; and in all of these He granted women access alongside men.”

Testimony of One Man: The testimony of a single upright and just man is admissible in acts of worship such as the adhan, prayer, and fasting. Ibn Umar (may Allah be pleased with him) said: “I informed the Messenger of Allah (peace and blessings be upon him) that I alone had seen the crescent. On that basis he fasted and ordered the people to fast.”

In addition, Hanafi jurists have ruled that the testimony of one man is admissible in certain exceptional cases, such as the testimony of one teacher concerning matters involving children; the testimony of any one upright man in disputes concerning birth; the testimony of one expert concerning spoiled goods; the testimony of one upright person in selecting and examining witnesses; and the testimony of one upright person concerning the removal of an agent and a defect in sold goods. The jurists disagree concerning the translation of a just interpreter.

Imam Malik, Imam Abu Hanifah, and Imam Abu Yusuf support accepting his translation. However, the other Imams and Muhammad ibn al-Hasan say: “Translation is like testimony; one translator is not acceptable.” Some jurists have accepted the testimony of one truthful man, among them Ibn al-Qayyim. He says: “The true matter is that anything which clearly manifests the truth is considered testimony and evidence. Once the truth has become manifest by any means, Allah has not rendered it ineffective. Rather, the judgment of Allah and His Messenger—beside which no one else’s judgment has any value—is that whenever the truth is uncovered by any means, it must be implemented, and it is forbidden to render it ineffective or null.”

Imam Ibn al-Qayyim further says: “If the judge is certain of the truthfulness of one male witness, he may judge on the basis of his testimony in all matters except hudud. Allah did not make it obligatory for judges that they may judge only on the testimony of two witnesses. He merely commanded the right-holder to obtain two male witnesses or one male and two female witnesses in order to secure his right. This does not prove that a judge may not judge on the basis of fewer witnesses. Rather, the Messenger of Allah (peace and blessings be upon him) himself sometimes judged on the basis of one witness’s oath and sometimes on the basis of the testimony of only one witness.”

Thus, the scope available to a judge in conducting a trial is broader than the means Allah commanded the right-holder to pursue in order to secure his right. For example, the Messenger of Allah (peace and blessings be upon him) accepted the testimony of a single Bedouin concerning sighting the crescent; in cases involving stolen property, he accepted the testimony of one witness; and in matters about which no man knew the correct information apart from women, he accepted the testimony of one trustworthy woman. He accepted Khuzaymah’s solitary testimony as equivalent to the testimony of two men and said: “The testimony of Khuzaymah is sufficient for anyone in whose favor he testifies.”

This is not restricted to Khuzaymah; the same applies to those among the Companions who were his equals or superior to him. Had Abu Bakr, Umar, Uthman, Ali, or Ubayy ibn Ka‘b (may Allah be pleased with them) testified, their testimony would have taken precedence even over Khuzaymah’s solitary testimony. Imam Abu Dawud entitled a chapter in his hadith collection: “If the judge is certain of the truthfulness of one witness, he may judge on its basis.”

Testimony Concerning a Child’s Nursing: According to Ibn Abbas and Ahmad, the solitary testimony of a wet nurse will be accepted. Imam al-Bukhari narrated that when Uqbah ibn al-Harith married Umm Yahya, a woman came and said, “I nursed both of you.” Uqbah then asked the Messenger of Allah (peace and blessings be upon him), who said: “How can the marriage remain valid after this has been said?” Immediately Uqbah separated from that woman, and she married another man. The Hanafi jurists say that two witnesses are also required concerning nursing; the testimony of a wet nurse alone is not sufficient. According to Imam Malik, the testimony of two women is required. Imam al-Shafi‘i says that the testimony of the wet nurse together with three women is acceptable on the condition that she may not demand payment. Their interpretation of Uqbah’s hadith is that it indicates recommendation and encouragement to avoid doubtful matters.

Testimony Concerning a Child’s Cry at Birth: Ibn Abbas (may Allah be pleased with him) approved accepting the sole testimony of a midwife as to whether a child cried at birth. Al-Sha‘bi and Ali (may Allah be pleased with him) also approved it, and Ali and Shurayh judged accordingly. According to Imam Malik, the testimony of two women is also required in this matter. Although Imam al-Shafi‘i accepts a woman’s testimony in this matter, he stipulates the testimony of four women. Imam Abu Hanifah says that the testimony of two men or one man and two women is required, because this establishes inheritance. However, if the child dies after crying, the testimony of one woman is sufficient for its funeral prayer and washing. According to the Hanbalis, the testimony of one upright woman is admissible in matters about which men are generally unaware. It was narrated from Hudhayfah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) accepted only the testimony of the midwife.

Conversely, concerning matters related to women that are private and of which men are often unaware—such as virginity, menstruation, childbirth, a child’s crying at birth, nursing, and the like, at which men are generally not present—the jurists say that a man’s testimony is equal to a woman’s testimony. However, because a man is more mature in intellect than a woman, his testimony takes precedence.

Chapter Sixty-Four: Testimony and Oaths

An Oath When Testimony Cannot Be Produced: When a plaintiff claims a right from someone but is unable to produce evidence supporting the claim, and the defendant—the person against whom the right is claimed—denies it, the plaintiff has no recourse except what the defendant says under oath. The case will be settled by that oath. However, this is limited to claims concerning immovable and movable property. This procedure does not apply to cases involving hudud or penal law. Al-Bayhaqi and al-Tabarani narrated with an authentic chain: “Producing evidence is the responsibility of the plaintiff, and taking an oath is the responsibility of the defendant.”

Al-Bukhari and Muslim narrated through Iyas ibn Qays that Iyas said: “I had a dispute with a man over a pool. We brought the matter before the Messenger of Allah (peace and blessings be upon him). He said to me: ‘Either produce two witnesses, or let your opponent swear an oath.’ I said: ‘He is a reckless man; he will swear.’ The Messenger of Allah (peace and blessings be upon him) said: ‘Whoever appropriates a Muslim’s property through an oath will meet Allah while He is angry with him.’”

Muslim narrated from Wa’il ibn Hujr (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said to al-Kindi: “Do you have any evidence?” He said, “No.” The Messenger (peace and blessings be upon him) said: “Then your due is the oath of your opponent.” He said: “O Messenger of Allah, the man is sinful; he will not hesitate to swear any oath. He makes no distinction between right and wrong.” The Messenger of Allah (peace and blessings be upon him) said: “Even so, that is all you are entitled to from him.” An oath must be sworn only by Allah or by one of Allah’s other names. The Messenger of Allah (peace and blessings be upon him) said: “Whoever swears an oath should swear by Allah, or else remain silent.” Ibn Abbas (may Allah be pleased with him) said that the Messenger of Allah (peace and blessings be upon him) instructed a man to swear and said: “Swear by Allah, besides whom there is no deity, that he owes you nothing.” (Abu Dawud, al-Nasa’i).

Will Evidence Be Accepted After an Oath Has Been Taken?: If the defendant swears an oath, the plaintiff’s claim will be rejected. There is no disagreement on this matter. Thereafter, if the plaintiff appears again with evidence, the jurists disagree about what should be done. Some say it will not be accepted; others say it will be accepted; and still others say it will be accepted subject to conditions. Those who say it will not be accepted are the followers of the Zahiri school, Ibn Abi Layla, Abu Ubayd, and Imam al-Shawkani. Al-Shawkani says: “Since the Messenger of Allah (peace and blessings be upon him) said, ‘Either bring two witnesses, or let him swear,’ evidence may not be accepted after the oath. When the defendant is asked to swear, this is based on a definitive and clear ruling. Evidence presented contrary to it after the oath has been taken cannot be accepted, because at that point both the oath and the evidence produce only conjecture. Certainty is achieved by neither of them, and one conjecture cannot refute another.”

Those who say that evidence brought after the oath will be accepted include the Hanafis, Shafi‘is, Hanbalis, Tawus, Ibrahim al-Nakha‘i, and Judge Shurayh. They say that the testimony of a truthful person takes precedence over the oath of a sinful person; this was also the view of Umar ibn al-Khattab (may Allah be pleased with him). Their reasoning is that an oath is weak evidence and cannot settle a dispute. Therefore, evidence will be accepted after the oath, because evidence is the original basis. An oath is a substitute for evidence; when the original is present, the substitute is no longer effective.

Imam al-Ghazali, conveying the view of the Maliki and Shafi‘i schools, says that evidence after an oath is admissible subject to a condition. The condition is that if the person was unaware that evidence was available before the oath was offered, then after the oath he may present evidence establishing the validity of his claim. But where this condition is absent—where he knew that he had evidence, nevertheless agreed to the defendant’s taking an oath, and then decided to present evidence after the oath—his evidence will not be accepted, because by taking the oath he forfeited the opportunity to present it.

Refusal to Take an Oath: When the defendant is asked to take an oath because the plaintiff has not produced evidence, and he refuses to swear, this refusal will be regarded as an admission of the plaintiff’s claim. For if he were sincere in denying it, he would not refuse to swear. This refusal may be expressed directly or may be indicated by silence.

In such a case, the plaintiff will not be required to swear to the truth of his claim, because an oath is always taken by the party denying the claim. The Messenger (peace and blessings be upon him) said: “The claimant is responsible for producing evidence, and the denier is responsible for taking an oath.” This is the view of the Hanafi school. The second view of Imam Malik, al-Shafi‘i, and Imam Ahmad is that refusal to take an oath alone is sufficient for judgment against the defendant, because it is weak evidence. To strengthen it, the plaintiff must swear to the truth of his claim, whether or not the defendant refuses to do so. If the plaintiff swears, judgment will be given in his favor; otherwise, his claim will be rejected. As evidence, they cite that the Messenger (peace and blessings be upon him) instructed a claimant to swear. However, the chain of this hadith is weak for several reasons. According to Imam Malik, this rule is limited to financial claims, whereas Imam al-Shafi‘i says it applies to all types of claims.

The Zahiri school and Ibn Abi Layla do not regard the defendant’s refusal to take an oath as legally significant and hold that no matter can be settled on that basis. They say that the plaintiff will not be asked to swear. Rather, the defendant must either accept the plaintiff’s claim or deny it and swear that he is free of liability.

According to Imam al-Shawkani, the latter view is preferable. He says: “It is not valid to settle a case on the basis of refusal to take an oath, because at most this proves that the person who was responsible under the Shariah for taking the oath did not do so and failed to fulfill that responsibility. Failure to do so does not mean that he has accepted the plaintiff’s claim. It only means that he abandoned the responsibility assigned to him by the Shariah. Therefore, after the defendant refuses to swear, the judge should compel him to do one of two things: either take the oath he is required to take or accept what the plaintiff has claimed. Judgment may be rendered on the basis of whichever of these two things he does.”

The Oath Is Based on the Intention of the Person Who Requests It: When either the plaintiff or the defendant takes an oath, it is based on the intention of the judge and the person requesting the oath—whose claim depends on that oath—not on the intention of the person taking it. The following hadith of the Messenger has already been mentioned: “The oath is based on the intention of the person who requests it.” Therefore, if the person taking the oath conceals his intended meaning—giving a meaning different from what his words apparently indicate—that is not permissible. Some hold that it is permissible if a person is compelled to do so because he is being oppressed.

Judgment by Adding the Plaintiff’s Oath to the Witness’s Testimony: When the plaintiff has no evidence other than one witness, judgment will be given on the basis of that witness’s testimony together with the plaintiff’s oath. Al-Daraqutni narrated through Amr ibn Shu‘ayb that the Messenger of Allah (peace and blessings be upon him) would judge on the testimony of two witnesses. If a person could produce two witnesses, the plaintiff would receive what was due to him. If he brought one witness, the plaintiff would also take an oath along with the witness’s testimony. In all cases except hudud and qisas, judgment may be given by combining the testimony of one witness with the plaintiff’s oath. However, some scholars have restricted settlement on the basis of testimony and an oath to financial matters and matters related to them. More than twenty transmitters narrated hadiths concerning judgment on the basis of one witness and an oath. Al-Shafi‘i says: Judging on the basis of one witness and an oath does not contradict the explicit wording of the Qur’an. This procedure does not undermine the number of witnesses that the Qur’an explicitly specifies as necessary.

Abu Bakr, Ali, Umar ibn Abd al-Aziz, and most early and later jurists supported this method, including Imam Malik and his disciples, Imam al-Shafi‘i and his followers, Imam Ahmad, Ishaq, Abu Ubayd, Abu Thawr, and Dawud. The Hanafi jurists, al-Awza‘i, Zayd ibn Ali, al-Zuhri, al-Nasa’i, and Ibn Shubruma opposed it, saying that judgment can never be completed on the basis of one witness and an oath. However, the hadiths narrated concerning this matter are against them.

Conclusive Circumstantial Evidence: Circumstantial evidence is an indication that produces certainty. An example is a person emerging terrified from a secluded room with a bloodstained knife in his hand, while someone is immediately found inside the room with his throat cut. In such a case, there is no room for doubt that this person is the murderer of the dead man. There is no opportunity here to investigate fanciful possibilities, such as that the man may have committed suicide. Once the judge is certain that this is what actually happened, he will arrest the person on that charge.

The Hanafi jurists have given further examples. For instance, two men are on a boat loaded with flour: one is a merchant and the other is the boatman. A dispute arises between them over ownership of the flour and the boat, although neither has any evidence. In this case, the merchant will be deemed the owner of the flour and the boatman the owner of the boat. Likewise, if a dispute arises over the paternity of a couple’s newborn child, the husband will be deemed its father, because the Messenger of Allah (peace and blessings be upon him) said: “The child belongs to the bed.”

Dispute over Household Furniture: When two people are in dispute but the circumstances favor one of them, those circumstances must be taken into account. This is the view of the Hanbali jurists. For example, if a husband and wife dispute ownership of household furniture, the items suited to men will be given to the husband, and those suited to women will be given to the wife. Items suited to both will be divided equally between them. If both have an equal claim and possession, but one has greater predominance, judgment will be given in that person’s favor. For example, if one person is leading an animal by its reins and another is riding it, the animal will be deemed to belong to the rider, because he exercises greater predominance and control over it than the other person.

Handwritten Evidence and Documents: Since people became accustomed to conducting transactions by cheque and placing reliance on it, some scholars have issued fatwas supporting the acceptance of handwritten evidence and acting upon it. Such evidence is accepted in courts, and debt cheques, drafts, and commercial documents are recognized when they are free from forgery and fraud. Handwritten acknowledgments and depositions are regarded as equivalent to oral acknowledgments and depositions. Similarly, official documents are accepted if they are not forged.

Chapter Sixty-Five: Contradiction

There are two types of contradiction: 1. Contradiction by witnesses. 2. Contradiction by the plaintiff.

Contradiction by a Witness or Retraction of Testimony: If witnesses retract their testimony after giving it, in the presence of the judge and before the judgment is announced, their testimony will be nullified and they will be punished. This is the view of most jurists. However, if they retract their testimony in the presence of the judge after the judgment has been announced, the judgment will not be annulled, but the witness will be required to compensate the opposing party harmed by the judgment. Two men testified before Ali (may Allah be pleased with him) against another man for theft, as a result of which his hand was cut off. Then both men brought another person and said, “Actually, this man is the thief.” Ali (may Allah be pleased with him) said: “I do not acknowledge you as truthful concerning the second man. However, I will compel you to pay blood money for the cutting off of the first man’s hand. If I learn that you deliberately did this, I will cut off both your hands.”

Analyzing the reason for this view held by most jurists, Shihab al-Din al-Qarafi says: “Judgment was given on the basis of the testimony of upright witnesses and for a legally valid reason. Thereafter, by confessing to their own falsehood, the witnesses testified in a manner amounting to an admission that they were sinful. Since a judgment cannot be annulled by the statement of a sinful person, the judgment will remain as it was.” However, Ibn al-Musayyab, al-Awza‘i, and the jurists of the Zahiri school hold that if a witness retracts his testimony, the judgment will be annulled in every case. Their reasoning is that the judgment was based on the testimony; when the witnesses retracted their testimony, the judgment was left without any basis. According to some jurists, the same applies to hudud and qisas. If witnesses retract their testimony before the judgment is enforced, the judgment will not be enforced, because hudud are waived on account of any doubt.

Contradiction by the Plaintiff: If the plaintiff says something that contradicts his claim, his claim will be nullified. If he acknowledges that property is due to someone else and then claims that it belongs to him, this claim, being contrary to his acknowledgment, will nullify his claim and prevent its acceptance. When someone releases another person from all claims, it will no longer be lawful for him to raise any claim against that person for himself after granting that release.

Refuting the Plaintiff’s Evidence: If the defendant possesses evidence by which he can prove the plaintiff’s claim false and unjust and thereby free himself of liability, it is permissible for him to present that evidence. If he has no such evidence, he may, if he wishes, produce evidence that undermines the credibility of the plaintiff’s witnesses.

Conflicting testimony of two witnesses: When two witnesses contradict each other and nothing is found giving one precedence over the other, the claimed property shall be divided between the plaintiff and the defendant. It is narrated from Abu Musa (may Allah be pleased with him): During the time of the Messenger of Allah (peace and blessings be upon him), two men claimed a camel. Each produced two witnesses in support of his claim. Consequently, the Messenger of Allah (peace and blessings be upon him) divided the camel equally between them. (Abu Dawud, al-Bayhaqi, al-Hakim)

Ahmad, Abu Dawud, Ibn Majah and al-Nasa’i narrated from Abu Musa: “Two men came to the Messenger of Allah (peace and blessings be upon him) claiming an animal. Neither of them had any evidence. The Messenger (peace and blessings be upon him) divided the animal equally between them.” This is the view of Imam Abu Hanifah. If the claimed property is in the possession of one of the two, the opposing party must produce evidence. If he cannot do so, the statement confirmed by the oath of the person in possession shall be accepted. Likewise, if both produce evidence, possession gives precedence to the evidence. Jabir (may Allah be pleased with him) narrated that two men disputed over a camel. Both said, “It was born for me,” and produced witnesses. The Messenger (peace and blessings be upon him) ruled in favor of the person who possessed the camel. (Al-Bayhaqi; Imam al-Shafi‘i also narrated a similar report.)

Administering an oath to a witness: In this age, the reliability of witnesses has become uncertain. Therefore, it is necessary to strengthen their credibility through an oath. It is stated in the Majallat al-Ahkam al-‘Adliyyah: “When the defendant asks the judge to make the witnesses swear, before issuing the judgment, that they were not lying in their testimony, the judge may administer an oath to them and say: If you swear, your testimony will be accepted; otherwise, it will not be accepted.

Ibn Abi Layla, Ibn al-Qayyim, the judge of Córdoba Muhammad ibn Bashir, and Ibn Nujaym supported this view. The Hanafi jurists, however, hold that it is unnecessary for a witness to take an oath, because the meaning of an oath is implicit in the word shahadah, or testimony. According to the Hanbali school, an oath shall not be administered to a witness who is unwilling to assume responsibility; to a judge who rejects the judgment; or to an executor of a will in order to make him deny the testator’s debt.

No oath shall be administered to one who denies a marriage, divorce, revocation of divorce, ila, lineage, retaliation, or an accusation. This is because these matters do not concern property, acquiring property is not their purpose, and judgment shall not be based on refusal to take an oath.

Giving false testimony: Giving false testimony is one of the gravest major sins. It amounts to supporting the oppressor, depriving the oppressed of his rights, misleading the judge, causing psychological suffering to those deprived of their rights, and spreading hostility and hatred in human society. Allah Most High says in verse 30 of Surah al-Hajj:فَاجْتَنِبُوا الرِّجْسَ مِنَ الْأَوْلَانِ وَاجْتَنِبُوا قَوْلَ الزَّوْرِه“So shun the filth of idols and shun false speech.

It is narrated from Ibn Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “The one who gives false testimony will not move his feet until Allah makes Hell incumbent upon him.” (Ibn Majah)

Imam al-Bukhari and Muslim narrated from Anas (may Allah be pleased with him): The Messenger (peace and blessings be upon him) was asked about the major sins. He said: Associating partners with Allah, killing, and disobedience to parents. He further said: “Shall I tell you what the greatest major sins are? They are telling lies and giving false testimony.”

It is narrated from Abu Bakr (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Shall I tell you what the greatest major sins are?” We said, “O Messenger of Allah, tell us.” He said: “Associating partners with Allah and disobedience to parents.” He had been reclining, but suddenly sat upright and said: “Beware: telling lies and giving false testimony.” He continued repeating this so often that we said, “If only he would stop now.” Giving false testimony is a greater offense than adultery and theft. This is why the Messenger of Allah (peace and blessings be upon him) placed such emphasis on warning against it: false testimony is relatively easy to utter, and people often regard it lightly. As a result, hatred and hostility become widespread, so it was necessary to give it such importance.

Punishment of one who gives false testimony: According to Imam Malik, Imam al-Shafi‘i and Imam Ahmad, the one who gives false testimony must be punished, and it must be publicly announced that he is a false witness. Imam Malik further said that in every market, congregational mosque and public gathering, he should be identified and publicized as a false witness, so that he is punished and others are warned.

Chapter Sixty-Six: Prison and Imprisonment

Prison and imprisonment are an ancient institution. The Holy Qur’an states that Joseph (peace be upon him) said:

قَالَ رَبِّ السجن أَحَبُّ إِلَى مِمَّا يَدْعُونَنِي إِلَيْهِ

“Joseph said: My Lord, prison is dearer to me than that to which these women invite me.” (Surah Yusuf, 33)

The Qur’an also mentions that he entered prison and remained there for several years. Prisons existed during the time of the Messenger of Allah (peace and blessings be upon him), during the time of the Companions, and in the periods that followed them; they still exist today.

Imam Ibn al-Qayyim said: In legal terms, imprisonment does not mean confinement in a narrow place; rather, it means preventing a person from acting and moving about freely, whether he is kept in a house, in a mosque, or under the supervision of an opponent or his representative. For this reason, the Messenger (peace and blessings be upon him) called such a detained person a prisoner. Imam Abu Dawud and Ibn Majah narrated from Hirmas ibn Habib that Hirmas’s father said: I went to the Messenger (peace and blessings be upon him) with one of my debtors. The Messenger said to me: “Detain him.” Then he said: “O brother of Banu Tamim, what do you intend to do with your prisoner?” Ibn Majah’s narration states that later in the afternoon he asked me again: “O brother of Banu Tamim, what is your prisoner doing?” Imam Ibn al-Qayyim further said: This was how detention was practiced during the time of the Messenger (peace and blessings be upon him) and Abu Bakr (may Allah be pleased with him). No specific prison existed for detaining accused persons. But during the time of Umar ibn al-Khattab (may Allah be pleased with him), when the population had greatly increased, he bought a house in Makkah and turned it into a prison for detaining the accused. For this reason, scholars disputed whether establishing prisons is the ruler’s responsibility. There are two views. Those who say it is not the ruler’s responsibility argue that the Messenger (peace and blessings be upon him) and the Rightly Guided Caliphs had no prison. Instead, the accused should be kept in some place, a guard should be appointed over him, or the opposing party should order him to remain with him at all times, as the Messenger of Allah (peace and blessings be upon him) did. Those who say that establishing a prison is the ruler’s responsibility cite as evidence that Umar ibn al-Khattab bought a house from Safwan ibn Umayyah for four thousand coins and converted it into a prison.

Prison as a place of security and welfare: Imam al-Shawkani said: “There is no denying that imprisonment was practiced in the era of the Messenger of Allah (peace and blessings be upon him), the Companions and the Followers, and in every subsequent age and every country. Prison protects the community and serves the public interest by ensuring that society remains safe and free from the domination of criminal groups continually engaged in harming the people. The character and activities of such criminals are generally not of the kind that entails the application of hudud or retaliation. If they were, hudud and retaliation could be applied to them and they could be removed from society and the country. Although the crimes they commit are less serious than those requiring hudud and retaliation, releasing them would cause corruption and disorder to reach an extreme level. Killing them for such crimes, however, would constitute unlawful bloodshed. Thus, the only remaining means of protection from their domination was to imprison them, so that society could temporarily be freed and kept safe from their crimes, they could have an opportunity to repent and reform themselves, or Allah’s decision concerning them could be carried out.”

Regarding such wicked and crime-prone people, Allah has commanded us to enjoin good and forbid evil. To carry this out, however, it is necessary for the time being to detain them and create a barrier between them and the people. Those familiar with the character and nature of this class understand its necessity.

Types of detention: Imam al-Khattabi said: Detention is of two kinds: punitive and investigative.

Punitive detention is imposed as a punishment after judgment has been passed for a crime. An accused person is detained in order to investigate the truth of the allegation and adjudicate the case. It is reported that the Messenger of Allah (peace and blessings be upon him) detained a man for several hours during the day on account of an allegation, then released him.

Beating the accused: It is not lawful to detain anyone without cause. When someone is detained because of an allegation, it is necessary to investigate the matter. If the investigation establishes his guilt, he should be detained for that specific charge; otherwise, he must be released. Beating the accused is forbidden because it humiliates him. The Messenger of Allah (peace and blessings be upon him) prohibited Muslims from beating one another. There are, however, two views concerning beating a person detained on suspicion of theft.

The view of Imam al-Ghazali, among the Hanafis and Shafi‘is, is that a person arrested on suspicion of theft may not be beaten, because he may be innocent. Refraining from beating a guilty person is better than beating an innocent person. It is stated in a hadith: “A ruler’s mistake in pardoning is better than his mistake in punishing.”

Imam Malik permitted imprisoning a person accused of theft. According to Imam Malik’s disciples, it is also permissible to beat him, because this may lead him to return the stolen property and may serve as a lesson to others. If he confesses in such circumstances, his confession has no validity, because a confession must be given voluntarily and spontaneously. He confessed only because he was compelled through torture.

Requirements of detention: The place where an accused or criminal is detained should be spacious. The state treasury must cover the cost of food and all basic necessities for the detainee. Depriving a detainee of basic needs such as food, clothing and medical care is ظلم, and Allah’s punishment is assured for it. Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “A woman detained a cat, and it died as a result; therefore, the woman entered Hell. While it was detained, she neither fed nor gave it water, nor released it to eat the insects and other things found on the ground.” (Al-Bukhari and Muslim)

Chapter Sixty-Seven: Coercion

Definition: Linguistically, coercion means forcing a person to do something that he does not wish, spontaneously or legally, to do. In the terminology of Shariah or jurisprudence, it means forcing someone to do what he is not voluntarily prepared to do by threatening him with killing, beating, imprisonment, destruction of property, severe suffering, or harsh physical abuse.

In this case, it is required that the person subjected to coercion develop a strong belief that what the coercer has threatened will necessarily be carried out. It makes no difference whether the coercion is exercised by a ruler, a bandit or anyone else. Umar (may Allah be pleased with him) said: When you frighten, bind or beat someone, he is not safe. Ibn Mas‘ud (may Allah be pleased with him) said: If a powerful person threatens to beat me with a stick and thereby forces me to say something, I will say it. Ibn Hazm said: No Companion expressed opposition to Ibn Mas‘ud’s statement.

Types of coercion: Coercion is of two kinds: 1. Coercion to utter words. 2. Coercion to perform an act.

Coercion to utter words: When someone is coerced into saying something, he bears no liability for it, because he is not responsible for it. If, under coercion, he says something that would make a person a disbeliever if said under normal circumstances, he will not be held liable. If he falsely accuses someone under coercion, the punishment for slander will not be applied to him. If he makes a confession under coercion, he bears no liability for it. If he concludes a marriage, gift or sale contract under coercion, the contract is neither valid nor effective. If he takes an oath or makes a vow under coercion, nothing is incumbent upon him. Divorce or revocation of divorce pronounced under coercion is likewise ineffective. The basis for this is verse 106 of Surah al-Nahl:

منْ كَفَرَ بِاللَّهِ مِنْ بَعْدِ إِيْمَالِهِ إِلَّا مَنْ أكْرِهَ وَقَلْبَهُ مُطْمَئِن بِالْإِيمَانِ وَلَكِن مِّن فَرَحَ بِالْكُفْرِ مَدْرًا فَعَلَيْهِمْ غَضَبٌ مِنَ اللهِ : وَلَهُمْ عَذَابٌ عَظِيره

“Whoever disbelieves in Allah after having believed—except one who is compelled while his heart remains secure in faith—upon them is Allah’s wrath, and for them is a great punishment. But not the one who is compelled to utter disbelief while his heart remains firm in faith.”

Keeping the heart open means voluntarily rejecting Allah, preferring the pleasures of this world to the everlasting Hereafter. Whoever rejects Allah in this way will inevitably incur His wrath and a great punishment.

The occasion of revelation: Allamah Ibn Kathir narrated in his exegesis, through Muhammad, the son of Ammar ibn Yasir, the reason for the revelation of this verse. He said: The polytheists seized Ammar ibn Yasir and tortured him. As a result, he agreed to say almost everything they wanted him to say. Later, when he informed the Messenger (peace and blessings be upon him) of this, he asked him: “How do you feel in your heart?” Ammar replied: “Steadfast and firm in faith.” The Messenger of Allah (peace and blessings be upon him) said: “If they do this to you again, say the same again.” Imam al-Bayhaqi narrated this hadith in greater detail, saying that Ammar insulted the Messenger of Allah (peace and blessings be upon him) and praised their idols. Later, he informed the Messenger (peace and blessings be upon him) of what had happened and said: “They did not release me until I insulted you and praised their idols.”

The Messenger of Allah (peace and blessings be upon him) said: “How did you feel in your heart at that time?” Ammar said: “Steadfast and firm in faith.” The Messenger (peace and blessings be upon him) said: “If they do this again, then say the same again.” It was on this occasion that Allah revealed this verse.

The verse also provides guidance concerning matters other than disbelief: Although the verse concerns uttering words of disbelief, it also provides guidance regarding other matters. Imam al-Qurtubi said: When Allah permitted a person compelled by coercion to utter disbelief in Him and did not blame him for verbally expressing disbelief, even though faith is the foundation of Shariah, the scholars extended this principle to all branches and subsidiary rulings of Shariah. Thus, if someone violates any rule of Shariah under coercion, he will not be held liable and will not suffer any legal consequence for it. In this regard, the following famous hadith is narrated from the Messenger of Allah (peace and blessings be upon him): “My ummah has been excused for mistakes, forgetfulness, and whatever they are compelled to do.” Although this hadith is not authentic in terms of its chain, the scholars agree that its meaning is correct. Imam Abu Bakr Ibn al-‘Arabi and Abu Muhammad Abd al-Haqq, however, said that the hadith is authentic. Abu Bakr al-Usayli cited it in his Fawa’id, and Ibn al-Mundhir in his work al-Iqna‘.

Remaining steadfast to the principle while being coerced to utter disbelief is better: Although uttering words of disbelief is permitted under coercion, remaining steadfast to the principle and patiently enduring oppression and torture is better, even if it leads to death. In this way, the honor and dignity of Islam will remain exalted. Yasir and Sumayyah did this. This is not casting oneself into destruction; rather, it is akin to striving in jihad and attaining martyrdom.

Ibn Abi Shaybah narrated through Hasan, and Abd al-Razzaq narrated through Mu‘ammar in his exegesis: “Musaylimah captured two men and asked one of them: ‘What is your view of Muhammad?’ He replied: ‘He is the Messenger of Allah.’ Musaylimah asked: ‘And what about me?’ He replied: ‘You are also.’ So he released him.

Then he asked the second: ‘What do you think of Muhammad?’ He replied: ‘The Messenger of Allah.’ Musaylimah asked: ‘And what about me?’ He replied: ‘I cannot hear.’ Musaylimah asked him the same question three times. Each time he replied: ‘I cannot hear.’ Then Musaylimah killed him.

When the Messenger of Allah (peace and blessings be upon him) heard this, he said: “The first man took advantage of the permission granted by Allah. The second proclaimed the truth in a thundering voice. Glad tidings are for him.”

Being forced to commit an unlawful act: The second type of coercion is being forced to commit an unlawful act. This is of two kinds: 1. Acts that become permissible in a state of necessity. 2. Acts that do not become permissible in a state of necessity.

Examples of the first kind include being forced to drink wine, eat carrion or pork, usurp another person’s property, or consume or possess any other unlawful thing. In such circumstances, consuming these things is permissible. Indeed, according to some jurists, it is obligatory, because there is no alternative to eating, and no one is harmed by it. No right of Allah is violated by it either, because Allah says:

: تقُوا بِأَيْدِيكُمْ إِلَى التَّهْلَكَةِ“Do not throw yourselves into destruction.” (Surah 2, al-Baqarah: 195)

Likewise, if someone is forced to break the Ramadan fast, pray facing a direction other than the qiblah, or prostrate before an idol or a cross, it is permissible for him to break the fast, pray facing any direction, and prostrate before any object. However, he must inwardly intend to prostrate before Allah.

Examples of the second kind include forcing someone to kill, injure, beat, commit adultery, or destroy property. Imam al-Qurtubi said: “The scholars agree that a person who is forced to kill another may not proceed to commit the killing; it is not even permissible for him to humiliate the person by striking him with a whip or the like. He should be patient with the calamity that has befallen him. It is not lawful to save one’s own life by killing another. He should seek Allah’s grace in this world and the Hereafter.

No prescribed hadd is applied when a crime is committed under coercion: If it is assumed that a person commits adultery because he was forced to do so, the prescribed punishment for adultery will not be applied to him, whether male or female. The Messenger (peace and blessings be upon him) said: “My ummah has been pardoned for mistakes, for obligatory acts omitted through forgetfulness, and for unlawful acts committed under coercion.” According to Imam Malik, al-Shafi‘i, Ahmad, Ishaq, Abu Thawr, Ata and al-Zuhri, if a woman is forced into adultery, she must be given the mahr al-mithl.

Chapter Sixty-Eight: Clothing

Clothing is among the blessings with which Almighty Allah has adorned His servants.

يُبَنِي آدَمَ قَدْ الْوَلْنَا عَلَيْكُمْ لِبَاسِ يُوَارِي سَوَاتِكُمْ وَرَيْشًا وَلِبَاسُ التَّقْوى لَا ذَلِكَ خَيْرٌ ذَلِكَ مِنْ أَيْتِ اللهِ لَعَلَّهُمْ يَن كرون

“O children of Adam! We have provided you with clothing to cover your nakedness and as adornment, but the clothing of piety is best. That is one of Allah’s signs, so that they may take heed.” (Surah al-A‘raf, 26)

Clothing should be beautiful, attractive and clean. Allah says:

يُبَنِي آدَمَ عَلُوا زِينَتَكُمْ عِنْدَ كُلِّ مَسْجِرٍ وَكُلُوا وَاشْرَبُوا وَلَا تُسْرِفُوا إِنَّهُ لَا يُحِبُّ الْمُسْرِفِينَ قُلْ مَنْ حَوْمَ زِينَةَ اللَّهِ الَّتِي أَعْرَجَ لِعِبَادِهِ والطيب من الرزق ط قُلْ هِيَ لِلَّذِينَ آمَنُوا فِي الْحَيَوةِ الدُّنْيَا خَالِصَةٌ يوْمَ الْقِيمَةِ ، كل لكَ

نُفَصِّلُ الْأَمْسِ لِقَوْمٍ يُعْلَمُونَ

“O children of Adam, wear beautiful clothing at every prayer. Eat and drink, but do not waste. Indeed, He does not like those who waste. Say: Who has forbidden the adornment and wholesome provision Allah has produced for His servants? Say: They are for those who believe in this worldly life, and exclusively for them on the Day of Resurrection. Thus We explain the signs in detail for a people who know.” (Surah al-A‘raf, 31–32)

It is narrated from Abdullah ibn Mas‘ud (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “No one with even a particle’s weight of arrogance in his heart will enter Paradise.” A man said: “People like fine clothing and fine shoes.” The Messenger of Allah (peace and blessings be upon him) said: “Allah is beautiful and loves beauty. Arrogance is rejecting the truth and looking down on people.” (Muslim, al-Tirmidhi)

Imam al-Tirmidhi narrated that the Messenger of Allah (peace and blessings be upon him) said: “Allah is pure and loves purity; He is clean and loves cleanliness; He is generous and loves generosity; He is munificent and loves munificence. Keep your courtyards clean and do not be like the Jews.”

The Shariah ruling concerning clothing: Clothing is of three types: obligatory, recommended and forbidden.

Obligatory clothing: Clothing that covers the ‘awrah, protects the body from heat and cold, and prevents harm is obligatory. The father of Hakim ibn Hizam said: I asked, “O Messenger of Allah, how much of our ‘awrah should we cover, and how much may we leave uncovered?” He said: “Cover your entire ‘awrah before everyone except your wife and your slave woman.” I asked: “What if people are staying together in one place?” The Messenger of Allah (peace and blessings be upon him) said: “If you can, do not let anyone see your ‘awrah.” I asked: “What if one of us is alone?” He said: “Then Allah is more deserving that you should feel shy before Him.” (Ahmad, Abu Dawud, Ibn Majah, al-Tirmidhi, al-Hakim. Al-Tirmidhi and al-Hakim declared it hasan.)

Recommended clothing: Clothing that contains beauty is recommended. It is narrated from Abu al-Darda (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “You will appear before your brothers. Therefore, make your dwellings and your clothing beautiful and clean, so that you may be recognized among the people as distinguished. Remember: Allah does not like indecency or obscenity.” (Abu Dawud)

Abul Ahwas’s father said: I came to the Messenger of Allah (peace and blessings be upon him) wearing poor-quality clothes. Seeing this, he said: “Do you have any wealth?” I replied, “Yes.” He asked, “What kind of wealth?” I replied, “Allah has given me camels, sheep, horses, and male and female slaves.” He said: “Then, since Allah has given you wealth, the signs and dignity of Allah’s blessing should be apparent in your dress and appearance.” (Abu Dawud). Its importance is even greater at times of various acts of worship, on Fridays, on the two Eids, and in places of public gatherings.

Muhammad ibn Yahya ibn Hibban said that the Messenger of Allah (peace and blessings be upon him) said: “When one of you is able, let him prepare a pair of garments for Friday, apart from the clothes he uses for his occupation.” (Abu Dawud).

Prohibited clothing: Prohibited clothing includes silk garments and gold for men; men wearing clothing designated for women; women wearing clothing designated for men; and wearing clothing intended for fame, pride, and extravagance.

Wearing silk and sitting on it: The hadiths clearly prohibit men from wearing silk garments and sitting on them. Several such hadiths are mentioned below:

1. Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Do not wear silk. Whoever wears silk in this world will not wear it in the Hereafter.”

2. It is narrated from Abdullah ibn Umar (may Allah be pleased with him) that Umar (may Allah be pleased with him) saw a thick silk garment being offered for sale. He brought it to the Messenger of Allah (peace and blessings be upon him) and said: “O Messenger of Allah, buy this and adorn yourself with it for the Eid and for delegations.” The Messenger (peace and blessings be upon him) said: “This is the garment of one who has no share of it in the Hereafter.” Several days passed after that. Then one day the Messenger (peace and blessings be upon him) sent Umar another silk cloak. Umar came to the Messenger (peace and blessings be upon him) and said: “O Messenger of Allah, you said: ‘This is the garment of one who has no share of it in the Hereafter,’ and yet you have sent it to me.” The Messenger of Allah (peace and blessings be upon him) said: “I did not send it to you for you to wear; I sent it so that you could sell it and meet your needs with the proceeds.” (Bukhari, Muslim, al-Nasai, Abu Dawud, and Ibn Majah).

3. Hudhayfah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) forbade us from eating and drinking from gold and silver vessels, wearing silk garments, and sitting on them. He said: “They are for them”—that is, those who disobey Allah—in this world, and for us in the Hereafter. (Bukhari).

In light of these hadiths, the view of most scholars is that wearing and spreading silk is haram. Mahdi mentioned in al-Bahr that this is the unanimous position.

However, Qadi Iyad said: According to some scholars, including Ibn Ulayyah, it is permissible. They support their view with the following hadiths:

1. Ubbah (may Allah be pleased with him) said: An open-backed silk qaba (garment) was sent as a gift to the Messenger of Allah (peace and blessings be upon him). He wore it and prayed in it, then removed it with such force that it seemed he disliked it. He then said: “It is not appropriate for the God-fearing.” (Bukhari and Muslim).

2. It is narrated through al-Miswar ibn Makhramah: Some qaba garments were brought to the Messenger (peace and blessings be upon him) as a gift. Al-Miswar and his father went to the Messenger (peace and blessings be upon him) hoping to receive something from them. The Messenger (peace and blessings be upon him) came out wearing a silk qaba and said: “O Makhramah, I have kept this hidden for you.” Then he began showing Makhramah the garment’s embroidery and said: “Is Makhramah pleased?”

3. It is narrated through Anas (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) wore an extremely fine silk garment that the Roman emperor had given him as a gift. He later sent it to Jafar. When Jafar came to the Messenger of Allah (peace and blessings be upon him) wearing it, he said: “I did not give it to you so that you would wear it.” Jafar asked: “Then what should I do with it?” He said: “Send it to your brother, the Negus.” (Abu Dawud).

4. More than twenty Companions wore silk. Among them were Anas (may Allah be pleased with him) and al-Bara ibn Azib. (Abu Dawud).

Imam Abu Hanifa, the Maliki jurist Ibn Majishun, and some Shafi‘i jurists consider spreading silk and sitting on it permissible. They say that only wearing silk is prohibited. However, this view contradicts the authentic hadith.

The majority of scholars who consider silk haram for men respond to those who consider it permissible by citing the hadiths containing the prohibition. They say:

The hadith narrated by Uqbah also contains the Messenger’s statement that it is not appropriate for the God-fearing. Indeed, whatever is not appropriate for the God-fearing should preferably be prohibited. The hadiths of al-Miswar and Anas show an action of the Messenger of Allah (peace and blessings be upon him), but it cannot override his statements containing the prohibition. There is no doubt, however, that the Messenger of Allah (peace and blessings be upon him) wore silk, and that it was ultimately prohibited. Jabir (may Allah be pleased with him) said: The Messenger (peace and blessings be upon him) wore a qaba sent to him as a gift, then immediately removed it and sent it to Umar ibn al-Khattab. It was said: “O Messenger of Allah, you removed it.” The Messenger (peace and blessings be upon him) said: “Jibril has forbidden it to me.” Shortly afterward, Umar went to him and began to weep. He said: “O Messenger, you disliked something and then gave it to me. What should I do with it now?” The Messenger (peace and blessings be upon him) said: “I did not give it to you to wear; I gave it to you so that you would sell it.” He later sold it for two thousand dirhams.

Shawkani’s view: Imam Shawkani says: When the hadiths of prohibition and permissibility are considered together, it appears that the hadiths of prohibition establish that wearing silk is makruh. In Nayl al-Awtar he says: “There is no evidence showing whether the Messenger’s wearing silk himself and distributing it to the Companions occurred before or after the hadiths prohibiting it. This indicates that the prohibition in those hadiths means makruh. This is the result of reconciling both types of hadith. This view is further strengthened by the statement that twenty Companions wore silk. It is highly unlikely that those Companions would do something prohibited in the Shariah. It is likewise highly unlikely that the other Companions, knowing it to be haram, would remain silent about the conduct of those twenty. For they used to criticize one another even over matters less serious than this.”

Silk is permissible for women: Whether wearing silk is haram or makruh, this applies only to men. Wearing and spreading it is completely halal for women. Likewise, it is halal for men when there is a similar necessity. The following hadiths are relevant to this matter:

1. Ali (may Allah be pleased with him) said: A silk garment was sent as a gift to the Messenger of Allah (peace and blessings be upon him). He then sent it to me. I wore it, and I saw signs of displeasure on his face. He said: “I did not send it to you for you to wear. Rather, I sent it to you so that you could cut it into pieces, make head coverings from it, and distribute them among the women.” (Bukhari and Muslim).

2. It is narrated through Anas (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) permitted Abd al-Rahman ibn Awf and al-Zubayr to wear silk garments because of their skin disease. It is stated in Hujjat Allah al-Balighah: The Messenger (peace and blessings be upon him) permitted them to wear it not for luxury, but to treat their illness.

3. It is narrated from Umar (may Allah be pleased with him): The Messenger (peace and blessings be upon him) prohibited wearing silk except in a space the width of two fingers, three fingers, or four fingers. (Bukhari and Muslim).

Wearing blended silk: What has been stated above concerns pure silk. Regarding blended silk, the Shafi‘i view is that it is haram when the silk content is predominant, but not haram when it is half or less. Imam Nawawi says: Blended silk is not haram; however, it is haram when the silk is heavier by weight.

Silk is permissible for children: According to most jurists, wearing silk is also haram for male children, because they are included in the prohibition. Imam al-Shafi‘i, however, considers it permissible for children. The prohibition applies to their guardians, not to the children, because they are not legally accountable for observing the Shariah. Imam Nawawi says: It is permissible to dress them in ornaments and silk on the day of Eid. At other times of the year, some consider it permissible, some haram, and some haram once they learn to distinguish right from wrong. The sounder view, however, is that it is permissible at other times of the year as well.

Wearing gold and silver rings: According to most scholars, wearing a gold ring is haram only for men, not for women. (Rings made of any metal other than gold are permissible for both men and women, even if the metal is more valuable than gold.) The following hadiths provide evidence on this matter:

1. Al-Bara ibn Azib (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) commanded us to do seven things and forbade us from seven things. He commanded us to accompany the deceased to the grave, visit the sick, accept invitations, help the oppressed, fulfill oaths, and return greetings; according to another narration, to spread greetings widely and to pray for the one who sneezes, saying “Yarhamukallah” (may Allah have mercy on you).يَرْكَ اللَّHe forbade us from using silver vessels, gold rings, silk garments, garments with silk fringe, cotton garments mixed with silk, thick silk, and red silk coverings on horseback.

2. It is narrated from Abdullah ibn Umar (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) had a ring made of gold, with “Muhammad, the Messenger of Allah” engraved on its stone. Others then had similar rings made. Seeing this, he threw away his ring and said: “I will never wear it again.” He then had a silver ring made, and the people began using silver rings. Ibn Umar said: After that, the Messenger of Allah (peace and blessings be upon him), Abu Bakr, Umar, and Uthman (may Allah be pleased with them) wore that ring. Eventually, it fell from Uthman’s hand into the well of Aris, near the Quba Mosque.

3. The Messenger (peace and blessings be upon him) saw a gold ring on a man’s hand, removed it, threw it away, and said: “Some of you hasten to bring a piece of fire and then place it in your own hand.” After the Messenger (peace and blessings be upon him) left, the man was told: “Pick up your ring and benefit from it.” He replied: “No, by Allah, I will never take back what the Messenger (peace and blessings be upon him) threw away.” (Muslim).

4. Abu Musa (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Gold and silk have been made halal for the women of my Ummah and haram for its men.” (Ahmad, al-Nasai, and al-Tirmidhi. Hadith scholars say that the hadith has a defect in its chain of transmission).

5. Imam Muslim narrated that Ali (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) forbade me from wearing a gold ring, wearing silk-blended clothing, reciting the Quran in bowing and prostration, and wearing red clothing. Most of the Companions, Successors, and jurists consider wearing red clothing permissible. Imam Ahmad, however, considers it makruh tanzihi.

These are the proofs for the view of most scholars concerning the prohibition of wearing gold rings. Imam Nawawi says: The same ruling applies even if some parts are made of gold and some parts of silver. Some scholars consider wearing a gold ring makruh tanzihi for men. A number of Companions wore gold rings, including Sa‘d ibn Abi Waqqas, Talhah ibn Ubaydullah, Suhayb, Hudhayfah, Jabir ibn Samurah, and al-Bara ibn Azib. Perhaps they understood the Messenger’s prohibition as makruh tanzihi.

Chapter Sixty-Nine: Gold and Silver Vessels

Eating and drinking from gold and silver vessels is haram for both men and women. Women may use gold and silver jewelry only for adornment and beautification. Allah has not made eating and drinking from gold and silver vessels halal for them. The following hadiths are evidence of this:

1. Bukhari and Muslim narrated from Hudhayfah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Do not wear either thin silk or thick silk. Do not drink or eat from gold and silver vessels, for these are for the disbelievers in this world and for you in the Hereafter.”

2. Bukhari and Muslim narrated through Umm Salamah (may Allah be pleased with her) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever drinks from a silver vessel merely pours the fire of Hell into his belly.” Another narration by Muslim states: “Whoever eats or drinks from a gold or silver vessel…” Some jurists consider this makruh rather than haram, saying that the hadiths concerning it were revealed only to discourage luxury. However, the severe warning in the hadith narrated by Umm Salamah refutes their view. Some jurists also consider it haram or makruh to use gold and silver vessels for perfumes and kohl, just as for eating and drinking. Discerning jurists, however, did not agree with this. A hadith of Ahmad and Abu Dawud states: “Enjoy yourselves with silver.” This supports the view of those discerning jurists.

It is stated in Fath al-Allam: “The actual matter is that nothing besides eating and drinking is haram. The claim of consensus on this matter is incorrect. It is actually the result of altering the Messenger’s wording. He spoke of prohibiting eating and drinking, but people changed it and used the word ‘use.’ Thus, they discarded the Messenger’s wording and put their own invented wording in its place.” Most jurists also consider it prohibited to make various vessels solely from gold and silver, even without using them. But a group of jurists considers this permissible.

Vessels made from metals other than gold and silver: It is permissible to make vessels from other precious materials, even if they are more expensive than gold and silver. The basic rule for everything is that it remains halal until evidence establishes that it is haram. There is no evidence that any metal or material other than gold and silver is haram.

Making teeth and noses from gold: When necessary, it is permissible to make teeth and noses from gold. Al-Tirmidhi narrated through Arfajah ibn Asad: “My nose was injured in the battle of al-Kulab. I made a nose from silver, but it caused my nose to swell. Then the Messenger of Allah (peace and blessings be upon him) ordered me to make a nose from gold.”

Imam al-Tirmidhi said: It is known that several scholars had their teeth bound with gold. Al-Nasai narrated: In the presence of a number of Ansar and Muhajirun, Muawiyah (may Allah be pleased with him) said: “You know that the Messenger of Allah (peace and blessings be upon him) prohibited wearing silk, do you not?” They replied: “Yes.” He said: “And you know that he prohibited using gold except in small pieces, do you not?” They replied: “Yes.”

Women resembling men: Islam wants women to retain their distinct nature and character, and for this distinct nature and character to be reflected in their dress and appearance. Islam wants the same for men. Therefore, it has prohibited both from resembling one another and declared it haram, whether the resemblance is in clothing, speech, mannerisms, or anything else. It is narrated from Ibn Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) cursed men who imitate women and women who imitate men. (Bukhari).

Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) cursed men who wear women’s clothing and women who wear men’s clothing. (Abu Dawud, al-Nasai, and Ibn Majah).

Clothing intended to spread fame: Clothing that makes a person famous among other people is haram.

1. Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever wears clothing of fame in this world, Allah will make him wear clothing of humiliation on the Day of Resurrection.”

2. Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever drags his garment along the ground out of pride, Allah will not look at him.” (Bukhari and Muslim).

3. Amr ibn Shuayb narrated that the Messenger of Allah (peace and blessings be upon him) said:

“Eat, drink, wear clothing, and give charity, but do not be extravagant or arrogant.” (Abu Dawud, Ahmad, and Bukhari).

Joining one woman’s hair to another woman’s hair or attaching a hairpiece

1. Abu Hurayrah (may Allah be pleased with him) narrated: A woman came to the Messenger of Allah (peace and blessings be upon him) and said: “O Messenger of Allah, I have a newly married daughter whose hair has fallen out because of measles. May I join her hair to other hair?” The Messenger of Allah (peace and blessings be upon him) said: “The woman who attaches a hairpiece to someone’s head, the woman who has a hairpiece attached to her own head, the woman who tattoos another person, and those who have themselves tattooed are cursed.”

2. It is narrated through Abdullah ibn Masud (may Allah be pleased with him) that he said: The Messenger of Allah (peace and blessings be upon him) cursed women who tattoo, women who have themselves tattooed, women who pluck the hair from the upper part of the forehead, women who file their teeth to make them thin for the sake of beauty or create or enlarge gaps between them with a metal instrument, and those who alter Allah’s creation in various ways.

A woman named Umm Yaqub of Banu Asad, who was devoted to reciting the Quran, heard this statement of Abdullah ibn Masud (may Allah be pleased with him), came to him, and spoke to him about it. Abdullah said: “Why should I not curse one whom the Messenger of Allah cursed? This is also found in the Quran.” The woman said: “I have read the Quran, but I did not find this anywhere in it.” He said: “Had you read it attentively, you would certainly have found it.”

Allah has said:

ومَا أَنكُمُ الرَّسُولُ فَخُلُوهُ ، وَمَا لَهُكُمْ عَنْهُ فَالْتَهَواه

“Whatever the Messenger gives you, take it, and whatever he forbids you, abstain from it.” (Surah al-Hashr, 7).

This hadith has been narrated in the remaining five authentic hadith collections besides al-Tirmidhi.

3. It is narrated from Abdullah ibn Masud (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) prohibited removing facial hair except for medical reasons, filing the teeth to make them thin and sharp, attaching hairpieces, and tattooing.

It is stated in Nayl al-Awtar: The curse proves that attaching hairpieces is haram, because a curse is not pronounced for an act that is not haram. Imam Nawawi says: This is the generally accepted view. There are, however, details concerning the matter. A group of scholars says: If a hairpiece is made from human hair, it is haram by consensus, whether the hair belongs to a man or a woman, a husband, a mahram, or anyone else; this makes no difference. Since human hair and every part of the human body are of equal status, using them is haram. Indeed, human hair, nails, and all other bodily parts must be buried in the ground. If the hairpiece is made from an animal other than a human, it must be determined whether the hair is impure—that is, removed from an animal while alive—or whether it comes from a dead animal or an animal whose meat is haram. If so, it too is haram according to the hadith, because the person would deliberately carry impurity with her during prayer and at other times. In both cases, the ruling is the same whether the person is a married or unmarried woman or man. On the other hand, if a woman wearing pure hair from an animal other than a human has neither a husband nor a master, that too is haram. If she has a husband or master, there are three views: first, it is impermissible based on the apparent meaning of the hadith; second, it is permissible; and third, the soundest view, it is permissible if she wears the hairpiece with the permission of her husband or master, and haram otherwise.” If a hairpiece is made from something other than human hair, such as silk or wool, it is permissible according to Said ibn Jubayr, Ahmad, and al-Layth.

Qadi Iyad says: Colored silk threads and the like, which do not resemble hair, are not prohibited, because they do not fall under the category of hairpieces. Rather, they are ordinary forms of beautification.

Just as attaching hairpieces is prohibited, so is plucking hair from a woman’s face. However, if someone grows a moustache or beard, removing it is not merely permissible; it is recommended. This is the view of Imam Nawawi. Filing the teeth to make them thin, or artificially creating or enlarging gaps between them, is haram for both the person who does it and the one who has it done.

It is stated in Nayl al-Awtar that this act is haram only when done for the purpose of increasing beauty and adornment; if done to treat an illness, it is not haram. The hadith mentions altering Allah’s creation. Altering any bodily organ or part from the form in which Allah created it constitutes alteration, and this is impermissible. Abu Jafar al-Tabari says:

This hadith proves that making any alteration to the way Allah created a woman—whether by reducing or increasing anything, and whether done to enhance beauty for her husband or anyone else, or for any other purpose—is unlawful. For example, if she has an extra tooth or another extra bodily part, it is not permissible to cut or remove it, because that would amount to altering Allah’s creation. Likewise, if someone’s tooth is excessively long and its edge is cut to make it even, that too is not permissible. Qadi Iyad says: If the extra part is painful or harmful, there is no objection to having it removed.

Chapter Seventy: Images

Making images and statues: Numerous authentic hadiths unequivocally prohibit making images of living beings and statues, whether of humans, animals, or birds. It is permissible to make images of things without life, such as trees and flowers.

1. It is narrated through Ibn Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever makes an image in this world will be told on the Day of Resurrection to breathe life into it, but he will not be able to breathe life into it.” (Bukhari).

2. The Messenger (peace and blessings be upon him) said: “Those who make images will be among the most severely punished on the Day of Resurrection.”

3. Imam Muslim narrated: A man came to Ibn Abbas (may Allah be pleased with him) and said: “I make these images and am attached to them.” Ibn Abbas said to him: “Come closer to me.” He came closer, repeated what he had said, and came still closer. Ibn Abbas then placed his hand on his head and said: “I am telling you what I heard. I heard the Messenger of Allah (peace and blessings be upon him) say: ‘Every image-maker will enter Hell. For each image he made, a living being will be created for him, and each of those beings will punish him.’” Then he said: “If you must make images, then make images of trees and things that have no life.”

4. Ali (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) was attending a funeral prayer. Then he said: “Who among you will go to Madinah and destroy all the idols there, level all the graves, and obliterate all the images?” A man said: “O Messenger of Allah, I am ready.” Then he said: “O Messenger of Allah, I have destroyed every image.” Thereupon the Messenger of Allah (peace and blessings be upon him) said: “Whoever recreates even one of these things has rejected what was revealed to Muhammad (peace and blessings be upon him).” (Ahmad)

Permissibility of dolls for children’s play: Images or dolls used for children’s play, wedding celebrations, and the like are an exception. Making and selling such dolls or images is permissible. The following hadiths provide evidence for this:

a. Aishah (may Allah be pleased with her) said: I used to play with several young girls. Sometimes the Messenger of Allah (peace and blessings be upon him) would enter the house while they were there. As soon as he entered, they would leave; and as soon as he left, they would come back in. (Bukhari, Abu Dawud)

b. Aishah (may Allah be pleased with her) also said: The Messenger of Allah (peace and blessings be upon him) returned from Khaybar or Tabuk and entered Aishah’s room. There was a curtain on Aishah’s shelf. Suddenly, a gust of wind lifted the curtain and revealed the dolls of Aishah’s young playmates. The Messenger of Allah (peace and blessings be upon him) said: “O Aishah, what are these?” She said: “My girls”—meaning her dolls. Among them he saw a horse with wings made of leather. The Messenger of Allah (peace and blessings be upon him) said: “What is this that I see among them?” Aishah (may Allah be pleased with her) said: “A horse.” He said: “And what is that on it?” She said: “Two wings.” The Messenger of Allah (peace and blessings be upon him) said: “Does a horse have wings?” Aishah (may Allah be pleased with her) said: “Have you not heard that Solomon (peace be upon him) had horses with wings?” Aishah (may Allah be pleased with her) said: Upon hearing this, the Messenger of Allah (peace and blessings be upon him) laughed so heartily that his molar teeth became visible. (Abu Dawud, al-Nasa’i)

Prohibition of keeping images or idols in the home: Just as making idols or sculptures is forbidden, keeping them in homes is also prohibited. An idol or image should be broken in such a way that its original form no longer remains.

1. Imam Bukhari narrated that the Messenger (peace and blessings be upon him) did not keep any image of a cross in his home.

2. Bukhari and Muslim narrated that the Messenger (peace and blessings be upon him) said: “The angels do not enter a house in which there is an image or an idol.”

Images without shadows: What has been discussed so far concerns images and statues that have bodies and shadows. But images without shadows—such as designs drawn on walls and paper, and images on cloth, curtains, and photographs—are all permissible. At first these too were prohibited, but permission was later granted. That they were initially prohibited is known from the following hadith narrated by Aishah (may Allah be pleased with her):

The Messenger of Allah (peace and blessings be upon him) entered my room one day. I had covered a shelf with a thin curtain bearing some images. When he saw them, he expressed displeasure, and the color of his face changed. He said: “O Aishah, those who try to imitate Allah’s creation will receive the severest punishment on the Day of Resurrection.” Aishah (may Allah be pleased with her) said: On hearing this, I cut up the curtain and made several cushions from it. The following hadith proves its permissibility:

a. Abu Talhah narrated that the Messenger of Allah (peace and blessings be upon him) said: “Angels do not enter a house in which there are images.” Later, when Zayd ibn Khalid fell ill, we went to visit him. We saw an image-bearing curtain hanging over his door. We said to Ubaydullah, the foster son of Maymunah, the wife of the Messenger of Allah (peace and blessings be upon him): “Was Zayd not telling us about images the other day?” Ubaydullah said: “Did you not hear that Zayd said: ‘Except for designs on cloth’?” (Narrated in the five authentic hadith collections.)

b. Aishah (may Allah be pleased with her) said: “We had a curtain bearing an image of a bird. Whenever anyone entered the house, it came directly before him. Therefore, the Messenger of Allah (peace and blessings be upon him) said: ‘Turn it around, for whenever I enter the house and see it, it reminds me of worldly life.’” (Muslim)

This hadith proves that it is not forbidden. Had it been forbidden, he would have ordered it destroyed and would not have been content merely to turn it around. Moreover, he stated that the reason for turning the curtain around was that it reminded him of worldly life. Tahawi, among the Hanafi imams, supports this view, saying: “The Shariah initially prohibited all forms of images, even if they were merely designs, because Muslims had only recently been delivered from idol worship. Once this prohibition had been observed, images were permitted in limited form, when needed, as designs on cloth. A small image is safe even for the ignorant. However, the prohibition remained in force for large images.”

Ibn Hazm said: Young girls may play with dolls and images; no one else may do so. Apart from designs on cloth, all other images and representations are forbidden. Ibn Hazm then cited the hadith of Abu Talhah.

Chapter Seventy-One: Competitions

Competition is permissible and a commendable form of exercise. Depending on one’s intention and purpose, it may be merely permissible or recommended. Competition may consist of several people racing one another; it may also involve arrows, weapons, horses, donkeys, and mules. Evidence for footraces is found in the following hadith narrated by Aishah (may Allah be pleased with her): Aishah said: I raced the Messenger of Allah (peace and blessings be upon him) and won. Later, when I had put on weight, he raced me and won. I said: “This makes up for the earlier victory.” (Bukhari) Competition may be held with arrows, spears, and any weapon that can be thrown. Allah says in verse 60 of Surah al-Anfal:

الخ واعدوا لهم ما استطعتم من قوة ومن رباط الخيل

“Prepare against them whatever strength and cavalry you are able to muster.”

1. It is narrated from Uqbah ibn Amir (may Allah be pleased with him) that, while delivering a sermon from the pulpit, the Messenger of Allah (peace and blessings be upon him) recited the verse, “Prepare against them whatever strength you are able to muster,” and then said: “Know that strength is shooting; strength is shooting.” (Sahih Muslim)

2. The Messenger (peace and blessings be upon him) said: “Learn shooting. It is among your finest forms of recreation.”

3. The Messenger of Allah (peace and blessings be upon him) also said: “Every game is forbidden except three: a husband’s enjoyment with his wife, shooting arrows with a bow, and training a horse to race.”

It is forbidden to shoot at any living creature as a target when shooting arrows or spears. Abdullah ibn Umar (may Allah be pleased with him) once saw a group of people shooting arrows at a chicken. He said: “The Messenger of Allah (peace and blessings be upon him) cursed anyone who takes a living creature as a target for shooting.” (Bukhari, Muslim) The permissibility of competitions among animals is established by hadith:

a. Abu Hurayrah (may Allah be pleased with him) said that the Messenger of Allah (peace and blessings be upon him) said: “No competition is permissible except in camels, horses, or shooting.” (Ahmad)

b. Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) raced specially trained horses, fed grass for forty days, from Hafya to Thaniyyat al-Wada, and untrained horses from Thaniyyat al-Wada to the mosque of Banu Zurayq. Ibn Umar was among the racers. (Bukhari, Muslim) Imam Bukhari said that Sufyan stated: The distance from Hafya to Thaniyyat al-Wada is five or six miles, while the distance from Thaniyyat al-Wada to the mosque of Banu Zurayq is one mile. (Hafya is a place outside Madinah.)

Permissibility of wagering against one another: Competition without wagering is unanimously permissible. Competition involving a wager is permissible in the following circumstances:

1. If a ruler or another person wishes to offer a prize, accepting it is permissible. For example, it may be announced: “Whoever among you wins will receive this amount of money as a prize.”

2. One of the competitors may show an item to his opponent and say: “If you win, it is yours; but if I win, neither of us will receive anything.”

3. One of the competitors may provide the prize, provided that a third person participates with them, allowing the winner to receive it without imposing any penalty on the loser.

Anas (may Allah be pleased with him) was asked: “Did you place wagers during the time of the Messenger (peace and blessings be upon him)? Did the Messenger himself place wagers?” Anas said: “Yes. He wagered on a horse named Subhah. It defeated everyone, and the Messenger of Allah (peace and blessings be upon him) was very pleased.” (Ahmad)

Situations in which wagering is forbidden: It is forbidden to make a wager in which the winner receives a prize and the loser pays a penalty, because this is gambling and therefore forbidden. The Messenger of Allah (peace and blessings be upon him) said: “Horses are of three kinds: the horse of Allah, the horse of man, and the horse of Satan. The horse of Allah is the horse used in jihad in the path of Allah; there is reward in its urine, dung, and grass. The horse of Satan is the one on which gambling or wagering takes place. The horse of man is the one connected with human needs: a person hopes for its offspring and it protects him from poverty.” Cheating in competitions is not permissible: The Messenger of Allah (peace and blessings be upon him) said: “Jalb and jan methods are not acceptable in wagering.” (Abu Dawud, Tirmidhi, al-Nasa’i, Ibn Majah)

Jalb means appointing a rider who makes a horse run faster. Jan means striking or crowding another horse so that it falls behind.

It is forbidden to harm animals: It is forbidden to cause animals pain or burden them beyond their capacity. If someone forces an animal to carry more than it can bear, the ruler may compel him to stop. If an animal has a young one and produces milk, it is not permissible to milk so much that the young one is harmed. For in Islam, whether the affected party is a human being or an animal, it is not permissible either to cause harm or to suffer harm.

Branding animals and castrating them: Branding is permissible on any part of an animal’s body other than its face. The Messenger of Allah (peace and blessings be upon him) saw a donkey branded on its face and said: “Do you not know that I have cursed anyone who brands an animal on its face or strikes it?” (Abu Dawud)

Jabir (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) prohibited striking the face and branding it. (Muslim, Tirmidhi)

Since this hadith does not specify humans or animals, the jurists have established that striking or branding the face of either a human being or an animal is impermissible. The face is the center of beauty, and Allah has honored it. To make an animal easier to identify, branding somewhere other than its face is not merely permissible but recommended. Muslim narrated that the Messenger of Allah (peace and blessings be upon him) branded the animals given as zakat.

According to Abu Hanifah, this is disliked, because it causes pain and mutilates the animal, which the Messenger (peace and blessings be upon him) prohibited. The response to Abu Hanifah’s position is that this is an exceptional matter, and the exception is established from the Messenger himself. In other words, causing an animal pain and mutilating it is prohibited unless there is a need to identify it. According to a group of jurists, castrating animals is also permissible so that they become fatter and their owner benefits. Urwah ibn al-Zubayr castrated one of his mules. Umar ibn Abd al-Aziz permitted castrating horses, and Imam Malik permitted castrating goats and sheep.

Castrating human beings: Castrating human beings is not permissible, because it constitutes mutilation of the body. It also removes reproductive capacity, and the person subjected to it may even die.

Inciting animals to fight: The Messenger of Allah (peace and blessings be upon him) prohibited setting animals against one another. Ibn Abbas (may Allah be pleased with him) said: The Messenger (peace and blessings be upon him) prohibited inciting animals to fight. (Abu Dawud, Tirmidhi)

a. Anas ibn Malik entered the house of al-Hakam ibn Ayyub and saw several people restraining a chicken in order to shoot arrows at it. He said: “The Messenger (peace and blessings be upon him) prohibited restraining a living creature and then killing it.” (Muslim)

b. Jabir (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) prohibited restraining a living creature and then killing it. (Muslim) The reason for this prohibition is that it causes the animal pain, kills it, and destroys its value.

Playing cards or dice: According to most scholars, playing cards or dice is forbidden. They cite the following hadiths as evidence:

1. Buraydah narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever plays cards or dice is as if he has dipped his hand in the blood and flesh of a pig.” (Muslim, Ahmad, Abu Dawud)

2. It is narrated from Abu Musa (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever plays cards or dice has disobeyed Allah and His Messenger.” (Ahmad, Abu Dawud, Ibn Majah, Malik)

Said ibn Jubayr would not offer greetings when passing by people playing dice. Imam al-Shawkani said: If dice or cards are not played as gambling, then according to Ibn al-Musayyab and Ibn Mughaffal they are permissible. It seems that they understood the hadith as prohibiting gambling.

Playing chess: Chess has been prohibited in hadith. However, none of these hadiths is authentic. Hafiz Ibn Hajar al-Asqalani said: There is no authentic or hasan hadith establishing that chess is forbidden. Therefore, the jurists differ over its permissibility. Some say it is forbidden, while others say it is permissible. Imam Abu Hanifah, Imam Malik, and Imam Ahmad considered it forbidden. Imam al-Shafi‘i and some of the Followers considered it not forbidden but disliked. Some Companions and Followers played it.

In al-Mughni, Ibn Qudamah said: “Chess is prohibited like dice. Dice, however, are more strictly prohibited than chess because there are hadiths concerning them. Chess resembles dice, so the ruling on dice applies to it by analogy.”

According to Abu Hurayrah, Said ibn al-Musayyab, and Said ibn Jubayr, it is merely permissible. Their evidence is that all things are fundamentally lawful until proof of prohibition is found. Since there is no hadith or verse concerning chess, it remains lawful. Those who consider it lawful do so subject to three conditions:

1. It must not prevent the player from performing any Islamic duty.
2. It must not involve gambling.
3. No act contrary to the Shariah may occur during the game.

Chapter Seventy-Two: Waqf

Definition: Linguistically, waqf means to stop or restrain. In Shariah terminology, waqf means retaining the substance of an asset and donating its yield—in other words, preserving the property and spending its fruits or produce in the path of Allah.

Types of waqf: Waqf may be established for grandchildren, great-grandchildren, relatives, and the poor generally. This is called family or hereditary waqf. It may also be established for all kinds of charitable purposes. This is called charitable or philanthropic waqf.

Legitimacy of waqf: Allah Most High instituted waqf as a recommended act and made it a means of drawing closer to Him. The Arabs of the Age of Ignorance were unfamiliar with it. The Messenger of Allah (peace and blessings be upon him) was the first to establish it, call people to it, and popularize it so that the poor and needy could benefit.

Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “When a person dies, all his deeds cease except for three: ongoing charity, beneficial knowledge, and a righteous child who continues to pray for him.” This ongoing charity is also called waqf. The meaning of the hadith is that whatever righteous deeds a deceased person performed cease with his death. These three, however, continue to generate reward: his righteous child, the beneficial knowledge he left and taught, and ongoing charity. They are the result of his efforts, yet their benefits do not cease after his death.

Ibn Majah narrated that the Messenger of Allah (peace and blessings be upon him) said: “The righteous deeds of a believer that continue to reach him after his death are: 1. beneficial knowledge he taught; 2. a righteous child he left behind; 3. a Qur’an he left behind; 4. a mosque he built; 5. a travelers’ lodge he built; 6. a water reservoir he dug; and 7. charity he gave from his property during his lifetime, whose reward continues to reach him after his death.”

Three more things have been mentioned in addition to these seven. In the words of Allamah al-Suyuti, they are: 8. planting a fruit-bearing tree; 9. guarding a frontier; and 10. building a house for the remembrance of Allah—that is, for Islamic activities.

The Messenger of Allah (peace and blessings be upon him) and his Companions established waqf of mosques, land, ponds, gardens, and horses. Following them, people have endowed much property over the years and continue to do so today. Some examples of waqf during the time of the Messenger of Allah (peace and blessings be upon him) are as follows:

1. It is narrated from Anas (may Allah be pleased with him) that when the Messenger of Allah (peace and blessings be upon him) arrived in Madinah and ordered the construction of a mosque, he said: “O Banu Najjar, will you sell me this garden for a price?” They said: “We seek its price only from Allah.” They then gave it to him freely, and the Messenger of Allah (peace and blessings be upon him) built a mosque on it. (Three authentic hadith collections)

2. It is narrated from Uthman (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever digs the Rumah well will have Paradise.” Uthman said: “So I dug the well.” (Bukhari, Tirmidhi, al-Nasa’i) In al-Baghawi’s narration: “The Rumah well belonged to a man from Banu Ghifar, who sold each waterskin of its water for a mudd of wheat. The Messenger of Allah (peace and blessings be upon him) said to him: ‘Will you sell it to me in exchange for a spring in Paradise?’ He replied: ‘O Messenger of Allah, it is all that my family and I possess.’ When Uthman (may Allah be pleased with him) learned of this, he bought it for thirty-five thousand dirhams. He then went to the Messenger of Allah (peace and blessings be upon him) and said: ‘Will you grant me what you granted that man—that is, a spring in Paradise?’ The Messenger (peace and blessings be upon him) said: ‘Yes.’ Uthman (may Allah be pleased with him) said: ‘Then I donate it to the Muslims.’”

3. Sad ibn Ubadah (may Allah be pleased with him) said: “O Messenger of Allah, Sad’s mother has died. Which charity is best?” He replied: “Water.” He then dug a pond and said: “This is for Sad’s mother.”

4. Anas (may Allah be pleased with him) narrated: Abu Talhah was the wealthiest of the Ansar in Madinah. “Bayruha”—a date-palm garden beside the Prophet’s Mosque—was his most beloved property. It stood directly in front of the mosque. The Messenger of Allah (peace and blessings be upon him) used to visit it and drink from a pleasant well there. When this verse was revealed:

کی تتلو الْبِرْ حَتَّى تَنْفِقُوا مِمَّا تُحِبُّونَ“You will never attain righteousness until you spend from what you love.” (Surah Al Imran, verse 92) Talhah went to the Messenger of Allah (peace and blessings be upon him) and said: “Allah has said in His Book: ‘You will never attain righteousness until you spend from what you love.’ My most beloved property is Bayruha. I give it in charity for Allah’s sake and hope to store its reward with Allah. O Messenger of Allah, use it however you wish.” The Messenger (peace and blessings be upon him) said: “Excellent. It is a profitable property; it is a profitable property. I have heard what you said about it. I think you should distribute it among your relatives and cousins.” Abu Talhah then distributed it among his relatives and cousins. (Bukhari, Muslim, Tirmidhi)

Imam al-Shawkani said: If a living person donates more than one-third of his property at a time other than during a terminal illness, it is permissible. The Messenger of Allah (peace and blessings be upon him) did not ask how much property Abu Talhah had donated. During his illness, he told Sad ibn Abi Waqqas: “One-third is much.”

5. Ibn Umar (may Allah be pleased with him) said: Umar (may Allah be pleased with him) acquired some land at Khaybar. He went to the Messenger of Allah (peace and blessings be upon him) to seek his instruction and advice. He said: “O Messenger of Allah, I have acquired some land at Khaybar. I have never obtained property better than this. What do you instruct me to do with it?” The Messenger of Allah (peace and blessings be upon him) said: “If you wish, retain the property itself and give its produce in charity.” Umar then gave its produce in charity. The endowed property may not be sold, given away, or transferred by inheritance. Its produce may be given to the poor, relatives, for freeing slaves, jihad in the path of Allah, travelers, and guests. Its administrator may eat from it reasonably and may feed others, but may not take it as his own property.

Imam Tirmidhi said: The Companions and other scholars favored administering waqf property according to this hadith. It is not known that anyone disagreed on this matter. This was the first waqf in Islam.

6. Imam Ahmad and Bukhari narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever dedicates a horse in the path of Allah, with faith and seeking Allah’s pleasure, on the Day of Resurrection all its food, dung, and urine will be weighed in his scale as righteous deeds.”

7. In a hadith narrated by Khalid ibn al-Walid, the Messenger of Allah (peace and blessings be upon him) said: “Khalid has dedicated all his weapons in the path of Allah.”

How waqf is completed: Waqf becomes effective in two ways:

1. Through an action that indicates waqf, such as building a mosque and calling the adhan there for prayer. No decision by a ruler is required for this. Or, 2. Through words. Words are of two types: explicit words and words implying waqf. Examples of explicit words are: “I have made it waqf,” “I have given it for Allah’s sake,” and “I have given it forever,” and the like.

An example of words implying waqf is: “I have given it in charity.” However, the intention must be to establish waqf. If someone makes a waqf conditional upon his death, saying, “My house shall be waqf after my death,” such a waqf is permissible according to Imam Ahmad, because it is a type of bequest that becomes effective only after death.

When waqf becomes binding: When a person performs an act or makes a statement that indicates the establishment of a waqf, and he is an adult, sane, free, and acting without coercion, the waqf becomes binding. Acceptance by the person or institution in whose name the waqf is made is not a condition. Once the waqf becomes binding, it is not permissible for the waqif to sell or donate the waqf property, or to use it in a manner that prevents it from remaining waqf property. When the waqif dies, the waqf property will not be distributed as inheritance, for this is what the nature of waqf entails. It is also stated in the hadith previously narrated by Ibn Umar (RA) that waqf property may not be sold, donated, or transferred as inheritance.

According to Imam Abu Hanifa, it is permissible to sell waqf property. Imam Abu Yusuf said: If the hadith narrated by Ibn Umar (RA) had reached Abu Hanifa, he would have ruled accordingly. The predominant view in the Shafi’i school is that ownership of waqf property is transferred to Allah. Therefore, it no longer remains the property of the waqif, nor does it remain the property of the person in whose name the waqf is made. Imam Malik and Ahmad said: Ownership is transferred to the person in whose name the waqf is made.

Which properties may and may not be made waqf: According to most scholars, it is permissible to make land and all movable property waqf, such as furniture, copies of the Qur’an, books, weapons, and domesticated animals. However, according to Imam Abu Hanifa, Imam Abu Yusuf, and one report from Imam Malik, making animals waqf is not permissible. Likewise, it is permissible to make waqf any object whose sale is permissible and whose benefits can be enjoyed while preserving its substance. This has been discussed earlier. It is not permissible to make waqf an item whose substance is destroyed or consumed when its benefits are used, such as coins, candles, food, and drink. Likewise, items that spoil quickly may not be made waqf, such as perfumes. Similarly, things whose sale is impermissible may not be made waqf, such as pledged property, dogs, pigs, predatory animals, and predatory birds and beasts that are not suitable for hunting.

In whose name it is permissible to make waqf: It is not permissible to make waqf except in the name of one’s children, relatives, or a known person, or for a righteous purpose, such as a mosque, bridge, Islamic books, or the Qur’an. It is not permissible to make waqf in the name of an unknown man or woman. Likewise, it is not permissible to make waqf for any sinful purpose, such as making waqf in the name of a church.

If a waqf is made in the name of one’s children, grandchildren and great-grandchildren are also included: Whoever makes a waqf in the name of his children thereby includes his grandchildren and great-grandchildren. Likewise, his daughter’s children are included. It is narrated from Abu Musa al-Ash’ari (RA) that the Messenger of Allah (PBUH) said: ‘The nephews of a tribe belong to that tribe.’ (Bukhari, Muslim, Abu Dawud, al-Nasa’i, al-Tirmidhi)

Making waqf for dhimmis: It is also permissible to make waqf for dhimmis, such as Christian dhimmis. Charity may likewise be given to them. Safiyyah bint Huyayy, the wife of the Messenger of Allah (PBUH), made property waqf for her Jewish brother.

Joint waqf: It is also permissible for the property of several people to be made waqf jointly. Imam al-Shafi’i, Imam Malik, and Imam Abu Yusuf said that Umar (RA) made one hundred shares of his property in Khaybar waqf. That property was not divided. Some scholars consider joint or collective waqf impermissible, because it is a condition of waqf that the property be specifically identifiable. This is the view of Imam Muhammad.

Making waqf in one’s own name: Some scholars believe that it is permissible to make waqf in one’s own name. This is because a man said, ‘I have a dinar,’ and the Messenger of Allah (PBUH) told him, ‘Give it in charity for yourself.’ Moreover, since the purpose of waqf is to draw near to Allah and attain His pleasure, spending on oneself can also earn Allah’s pleasure. This is the view of Imam Abu Hanifa, Ibn Abi Layla, Imam Abu Yusuf, and Imam Ahmad. Ibn Sha’ban of the Maliki school, Ibn Surayj of the Shafi’i school, Ibn Shabruma, and Ibn al-Sabbagh also held a similar view. Some of them even consider it permissible for a person legally barred from transactions because of folly to make waqf in his own name and in the names of his children. He was barred from transactions only to protect his property, and such a waqf assists that purpose. Others consider this impermissible, because making waqf in one’s own name amounts to making oneself the owner, whereas the waqif cannot remain the owner of waqf property. The Messenger of Allah (PBUH) said: ‘Give away the produce of the waqf property.’ This hadith makes clear that its owner will be someone else, not the waqif. This is the view of the Shafi’i school and most Maliki jurists.

Waqf without a specified purpose: When a person makes his property waqf without stating its purpose—for example, he merely says, ‘I have made this house waqf,’ without specifying for what purpose, in whose name, or for which work it is made—there is disagreement over whether the waqf is valid. According to Imam Malik, it is valid, while according to the Shafi’i school it is invalid.

Making waqf during a terminal illness: If a person makes a waqf in favor of someone who is not an heir while suffering from the illness preceding death, the waqf will take effect from one-third of his property, as in the case of a bequest. It does not depend on the heirs’ consent. However, if it exceeds one-third, it will not be valid without their permission.

Making waqf for an heir during illness: According to Imam al-Shafi’i and, according to one report, Imam Ahmad, making a waqf for an heir during the illness preceding death is impermissible. According to others, and according to another report from Imam Ahmad, it is permissible to make a waqf for heirs from within one-third. When Imam Ahmad was asked, ‘Do you not believe that a bequest may not be made to an heir?’ he replied, ‘Yes.’ But waqf is different from a bequest, because waqf property cannot be sold, donated, or distributed among the heirs, nor does it become their property, so that they may benefit from its produce.

Making waqf for the rich: Waqf is an act of worship that helps one draw near to Allah. If, in making it, a person imposes a condition that is neither a meritorious act nor a means of drawing near to Allah—for example, stipulating that nothing be given to anyone except the rich—then the jurists have disagreed concerning such a waqf. Some consider it permissible, since it is not sinful. Others say it is impermissible, because it is an invalid condition. Moreover, this condition restricts expenditure from the waqf property in a way that benefits the waqif neither in this world nor in the Hereafter. Imam Ibn Taymiyyah supported the latter view and said: ‘This is wastefulness and squandering, which are prohibited. Furthermore, since Allah dislikes wealth circulating exclusively among the rich, it is invalid. Allah says in verse 7 of Surah al-Hashr:’

تى لا يكون دولة بين الْأَغْنِيَاء مِنكرن

‘so that it does not merely circulate among the wealthy among you.’ Therefore, whoever stipulates in his waqf or bequest that the property made waqf or bequeathed should circulate only among the rich has imposed a condition contrary to the Qur’an. A condition contrary to the Qur’an is certainly invalid, even if there were one hundred such conditions, because the Book of Allah takes precedence and Allah’s condition is more reliable.

Imam Ibn Taymiyyah further said: ‘If the waqif or testator imposes a condition that is neither obligatory nor recommended in Islamic law, then such a condition is invalid and contrary to the Qur’an. Making something that is neither obligatory nor recommended binding upon oneself without purpose is wasteful and therefore prohibited.’

It is permissible for the waqf administrator to take remuneration from the waqf property: The person responsible for managing and supervising waqf property may take remuneration from it. The hadith narrated earlier from Ibn Umar states: ‘The custodian of waqf property may take from it reasonable compensation.’ Here, ‘reasonable’ means what is accepted according to customary practice. Imam al-Qurtubi said: ‘It is customary for the administrator to take his remuneration from the produce of the waqf property. Therefore, even if the waqif stipulates that the administrator will take nothing, it is an unjust condition.’

The surplus produce or income of waqf property should be spent on similar purposes: Imam Ibn Taymiyyah said: ‘Whatever remains from the produce of waqf property and is considered unnecessary should be spent on other similar purposes. For example, after the produce of property made waqf for a mosque has been spent on its needs, the surplus should be spent on another mosque, because the waqif’s purpose is a comparable purpose. If it is determined that the first mosque has fallen into ruin and no one can now benefit from it, its produce or proceeds should be spent on building or repairing another mosque. Likewise, when something remains after its needs have been met, it should be spent on another similar mosque. It should not be left idle.’

Replacing a waqf or vowed property with something better: Imam Ibn Taymiyyah further said: Replacing something made waqf or dedicated by vow with something better is of two types:

1. Replacement necessitated by unavoidable need. For example, when it becomes unusable, it is sold and a substitute is purchased with its price. One example is a horse prepared for war. If the horse is no longer fit for use in battle, it will be sold and a replacement purchased. Likewise, when the surroundings of a mosque become so bad that the mosque is no longer usable, it may be moved elsewhere, or sold and a replacement mosque built with its price. When it is no longer possible to achieve the waqif’s purpose through use of the waqf property, it will be sold and a substitute purchased with its price. When a waqf building is ruined, it will be sold and a replacement purchased with the proceeds. All of this is permissible.

2. Replacement for a preferable or greater benefit, such as replacing a sacrificial animal with a better one. Likewise, building another mosque more beneficial to the people of the area in place of a mosque and selling the first one. Imam Ahmad considers this and similar actions permissible. Citing evidence for this, Imam Ahmad said that Umar ibn al-Khattab (RA) moved the old mosque of Kufah to another location. The first mosque then became a market for date sellers. When Umar (RA) learned that the treasury in Kufah had been breached, he wrote to Sa’d (RA): ‘Move the mosque that is near the date sellers and bring the treasury inside the mosque, for there is always someone praying in the mosque.’ This falls under changing the location of a mosque. The foundation of a mosque may likewise be replaced with another foundation, because Umar (RA) and Uthman (RA) rebuilt the Prophet’s Mosque on a foundation different from its former one and expanded it.

The same occurred with al-Masjid al-Haram. It is narrated in Bukhari and Muslim that the Messenger of Allah (PBUH) said to Aishah (RA): ‘If your people had not recently emerged from the Age of Ignorance, I would have demolished the Ka’bah, brought it down to ground level, and made two doors for it—one through which people would enter and the other through which they would exit.’ Thus, had there been no contrary consideration of greater importance, the Messenger of Allah (PBUH) would have changed the foundation of the Ka’bah. Therefore, it is permissible to change the structure of waqf property when there is a greater benefit. Imam Ahmad and others also consider it permissible to replace land or premises. This is because the Companions, especially Umar (RA), did so, and the matter became widely known without anyone objecting. If land made waqf for crops is exchanged for better alternative land, this too is permissible. Likewise, if a house, shop, garden, or village is made waqf but yields very little, it may be replaced with a more profitable house, shop, or the like for the benefit of the waqf. Among the imams, Abu Thawr and Abu Ubayd, the judge of Egypt, ruled this permissible. Abu Thawr and Abu Ubayd reached this view by analogy with Imam Ahmad’s statement permitting the replacement of mosque land for the sake of greater benefit. However, some of Imam Ahmad’s disciples oppose replacing mosques, sacrificial animals, and waqf land. Imam al-Shafi’i and Imam Malik also oppose it. Yet hadith, reports, and reasoning prove its permissibility. Allah knows best.

Waqf that harms the interests of the heirs is prohibited: It is prohibited for a person to make a waqf that harms the heirs, because the Messenger of Allah (PBUH) said: ‘In Islam, there is neither permission to harm nor permission to be harmed.’ Therefore, if such a waqf is made, it is invalid. In Rawdat al-Nadiyyah it is stated:

In short, any waqf whose purpose is to sever the relationships that Allah has commanded be maintained and to oppose the obligatory duties prescribed by Allah is invalid and wholly unacceptable. For example, if someone makes a waqf only for his male children, excluding his daughters, it is invalid. The purpose of such a waqf is not to draw near to Allah; rather, it is to violate Allah’s command and deprive His servants of the rights He has assigned them. In reality, this is a tyrannical waqf that assists the fulfillment of Satan’s purpose. Reader, you should remember that such practices have greatly increased in this age. Likewise, whoever confines his property solely to his descendants and makes waqf only for them in order to prevent it from passing beyond them intends to oppose Allah’s law. Allah’s law is that ownership is transferred through inheritance and that an heir is free to transfer or transact with inherited property as he wishes. Whether the heirs are rich or poor is not the waqif’s choice; it is Allah’s choice. It is very rare that a person who makes waqf for his children and descendants intends thereby to draw near to Allah. Therefore, every waqif must carefully consider this matter. It should also be remembered that making part of one’s property waqf for descendants who are righteous and just, or who are engaged in acquiring and pursuing Islamic knowledge, is fair and may genuinely serve as a means of drawing near to Allah. But very few people make waqf for this purpose. Therefore, the best course is to implement the law of wealth distribution that Allah has established for His servants and chosen for them.

Chapter Seventy-Three: Hiba and Gifts

Definition: In the Holy Qur’an, it is stated in verse 38 of Surah Al Imran:

قَالَ رَبِّ هَبْ لِي مِن لَّدُنْكَ ذُرِّيَّةً طَيِّبَةٌ : إِنَّكَ سَمِيعُ الدُّعَاءِ

‘He said, My Lord, grant me from You a righteous offspring. Indeed, You are the Hearer of supplication.’ The lexical meaning of hiba is to give or show favor to someone, whether with wealth or something else. In Islamic legal terminology, it is the name of a contract whose purpose is for a person, during his lifetime and without compensation, to make another person the owner of some property or item belonging to him. If someone gives another person an item merely for use, without making him its owner, that is not hiba but a loan for use. When someone gives another person something that is not considered property, such as wine or a dead animal, it is neither hiba nor a gift. When ownership is to take effect not during the person’s lifetime but after his death, it is called a bequest. When the act takes place in exchange for compensation, it is called a sale, and the rules of sale apply to it. According to Imam Abu Hanifa, a hiba made on the condition of receiving compensation is initially hiba but ultimately becomes a sale. In that case, the recipient does not become its owner before receiving the compensation, and he cannot transact with the item until he has taken possession of it.

The donor may transact with it.

The compensation must be specified and known; otherwise, the hiba will be considered invalid.

An unconditional hiba involves no compensation, whether it is made to someone of the donor’s equal rank, to someone lower than him, or to someone higher than him.

This is the essence of hiba in its specific sense. In its broader sense, the term ‘hiba’ refers to three things:

1. Waiving or forgiving a debt owed by someone. 2. Sadaqah, meaning a charitable gift for which reward is sought in the Hereafter. 3. Hadiyah, or a gift: that is, the recipient of the gift is required to give something in return for it. This is called hiba bil-iwadh.

The Islamic ruling on hiba: Allah has legislated hiba, because it creates affection and tenderness among people and strengthens bonds of love. It is narrated from Abu Hurayrah (RA) that the Messenger of Allah (PBUH) said: ‘Exchange gifts with one another and you will come to love one another.’ (Bukhari, al-Adab al-Mufrad, al-Bayhaqi) The Messenger of Allah (PBUH) accepted gifts and gave gifts in return. He encouraged and urged people to accept gifts. Imam Ahmad narrated from Khalid ibn Adi (RA) that the Messenger of Allah (PBUH) said: ‘Whoever receives a gift from his brother without having asked for or demanded anything should accept it and not return it, for it is a blessing from Allah that He has sent to him without his asking.’ Anas (RA) narrated that the Messenger of Allah (PBUH) said: ‘If I were sent the lower part of an animal’s leg as a gift, I would accept it, and if I were invited to eat it, I would accept that invitation.’ (Ahmad, al-Tirmidhi)

It is narrated from Aishah (RA) that she said: I asked, ‘O Messenger of Allah, I have two neighbors. To which of them should I send a gift?’ The Messenger of Allah (PBUH) replied: ‘To the one whose door is nearer to you.’ Abu Hurayrah (RA) narrated that the Messenger of Allah (PBUH) said: ‘Exchange gifts with one another, for this removes rancor and hatred from the heart. No female neighbor should belittle a gift from another female neighbor, even if it is only a hoof of a sheep.’ The Messenger of Allah (PBUH) also accepted gifts from unbelievers. He accepted gifts from the Roman emperor, the Persian emperor, and al-Muqawqis. Likewise, he sent gifts and charitable items to unbelievers.

However, Imam Ahmad, Abu Dawud, and al-Tirmidhi narrated that Iyad sent a gift to the Messenger of Allah (PBUH). The Messenger of Allah (PBUH) asked him: ‘Have you accepted Islam?’ He replied: ‘No.’ He said: ‘I have been prohibited from accepting the gifts of polytheists.’ Regarding this hadith, al-Khattabi said: ‘It was perhaps abrogated, because the Messenger of Allah (PBUH) accepted gifts from several polytheists.’

Imam al-Shawkani said: Imam Bukhari narrated a hadith in his Sahih that proves the permissibility of accepting gifts from polytheists. Hafiz Ibn Hajar al-Asqalani said in Fath al-Bari: ‘The gift-giver mentioned in the cited hadith was a polytheist. Therefore, there is no basis for saying that the incident of returning the gift concerned a person from the People of the Book.’

The essential element of hiba: Hiba is valid when offer and acceptance are completed through any wording that indicates the transfer of ownership of an item given without compensation. For example, the donor may say, ‘I give it to you,’ ‘I gift it to you,’ or ‘I donate it to you,’ and the other person may say, ‘I accept it.’ Imam Malik and Imam al-Shafi’i consider acceptance important in hiba. However, according to some Hanafi jurists, the donor’s offer alone is sufficient. In reality, the latter view is the soundest. Hanbali jurists say that hiba becomes valid through mutual transaction. The Messenger of Allah (PBUH) used to send and accept gifts, and the Companions did likewise. It has not been reported that they imposed any condition of offer and acceptance.

Conditions of hiba: Hiba requires a donor, a recipient, and the item being given.

Each of these three has certain conditions.

Conditions of the donor: The following conditions must be found in the donor:

1. He must own the item being given. 2. He must not be a person who has been legally prohibited from transacting for some reason. 3. He must be an adult, because a minor is not competent to transact. 4. He must make the hiba willingly, voluntarily, and without coercion, because the hiba contract must be concluded voluntarily.

Conditions of the recipient: The following conditions are required of the person to whom the hiba is made: He must actually be present when the gift is given. If he is absent or still in his mother’s womb, the hiba is invalid. If the recipient is present when the gift is given but is a minor or insane, his guardian, custodian, or appointed executor will accept it on his behalf, even if that person is unrelated to him.

Conditions of the item given as hiba or a gift: The item given as a donation or hiba must meet the following condition:

1. It must actually exist and be present.

2. It must be something of value, meaning something that may be bought and sold. According to Hanbali jurists, it is permissible to give as hiba a domesticated dog and impure items from which it is lawful for people to benefit.

3. The item must belong to the donor, meaning that its transaction and transfer must be lawful. Therefore, river water, fish in the sea, birds in the sky, mosques, and places of worship cannot be given as hiba, because these things are not owned by anyone and cannot lawfully be transacted or transferred.

4. The item must not be permanently attached to the donor’s other property, such as crops, trees, or a foundation. The item must be separated, transferred to the recipient, and made his property.

5. The item must not be jointly owned. The hiba is not valid unless its possession is separately distinguished, as in the case of a bow. According to Imam Malik, Imam al-Shafi’i, and Imam Ahmad, this is not a condition. They say that it is permissible to give as a gift jointly owned property while it remains undivided. In the Maliki school, an item whose sale is not permissible may nevertheless be given as hiba, such as a runaway camel, unripe fruit and crops, and usurped property.

Hiba during the illness from which a person dies: If someone gives something while suffering from the illness from which he dies, its ruling is that of a bequest; that is, it will not be delivered until the heirs give permission. If someone gives something in hiba to one of his heirs, then dies, while the other heirs claim that he gave it during the illness preceding his death, and the recipient claims that he gave it while healthy, the recipient must prove the truth of his claim. If he fails to do so, it will be presumed that the hiba was made during the terminal illness, and the ruling of a bequest will apply accordingly. If the heirs do not give permission, the hiba will be considered ineffective and void. However, if the donor recovers after making the hiba during his terminal illness, the hiba will be valid.

Taking possession of the gifted property: Some jurists hold that the recipient becomes entitled to the gifted property merely through the hiba contract; taking possession is not a condition. The basic principle concerning all contracts is that they are valid without taking possession being a condition, as in a sale. This is the view of Imam Malik, Imam Ahmad, Abu Thawr, and the Zahiri school. On this basis, if the donor or recipient dies before taking possession of the property, the hiba does not become void, because he became its owner merely by virtue of the contract. Imam Abu Hanifah, Imam al-Shafi‘i, and al-Thawri say: taking possession of the gifted property is a condition for the validity of hiba. Until the recipient takes possession, it is not binding upon the donor. Therefore, if either the donor or recipient dies before possession, the hiba becomes void.

Giving away one’s entire property: According to most scholars, it is valid for a person to give all his property to another. Imam Muhammad and some Hanafi jurists, however, say that giving away one’s entire property is not valid, no matter how great a righteous deed it is intended to be. They regard anyone who does this as foolish and hold that it is obligatory to impose a restriction on all his transactions.

The author of the book Rawdat al-Nadiyyah says concerning this:

It is valid for a person who can remain patient in poverty, hardship, and financial difficulty to give away most or all of his property. But it is not valid for someone who, upon falling into poverty, begs from others to give away most or all of his property.’ This view may be considered a way of reconciling the hadiths that establish the validity of giving away more than one-third of one’s property with those that establish its invalidity.
Returning a gift: It is recommended to reciprocate a gift, whether it is given by a person of a very high rank to one of a very low rank or vice versa. Imam Ahmad, al-Bukhari, Abu Dawud, and al-Tirmidhi narrate from ‘A’ishah that the Messenger of Allah would accept gifts and reciprocate them.’ According to a narration by Ibn Abi Shaybah, he would give something better than the gift he received, so that he too could share equally in the courtesy and generosity shown by someone and so that no one would have an opportunity to reproach him for it.

Imam al-Khattabi says: Some jurists divide people into three categories with regard to giving gifts:

1. A servant or another person of a lower rank receives a gift from his master or another person of comparable higher rank. This is a sign of affection, and reciprocation is not necessary.

2. A person of lower rank gives a hiba or gift to a person of higher rank. This is generally done with the aim of receiving sympathy and favor. In this case, reciprocation is necessary.

3. Giving a hiba or gift to a person of equal rank. In this case, the primary aim is usually to gain affection and closeness. Some say that reciprocation may be made. But where reciprocation is stipulated as a condition of the hiba, it is necessary.

Favoring one child with a hiba: It is invalid to give one child a hiba or gift in preference to the other children. This plants the seeds of division, resentment, and hostility within the family and severs the mutual relationship that Allah has commanded people to strengthen. This is the view of Imam Ahmad, Ishaq, al-Thawri, Tawus, and some Maliki jurists. They say: ‘Discriminating among children and favoring one over another is invalid and injustice, and whoever does this must revoke it himself.’ Imam al-Bukhari firmly expressed this view and cited as evidence the hadith narrated by Ibn ‘Abbas: ‘Deal equally among your children when giving gifts. If I were to favor anyone, I would favor the daughters.’ (al-Tabarani, al-Bayhaqi)

Imam Ahmad’s view is that, without a specific reason, it is forbidden to favor one child over another. But if there is a reason or need for preferring one, it is not objectionable. It is stated in al-Mughni that if a father favors one child for a reason warranting preference—such as the child’s dependence on others, physical deformity or disability, blindness, having more children, being engaged in acquiring knowledge, or possessing a similar virtue—or if a child is immoral or an innovator, or uses or spends the hiba or gift given by his father on sinful activities, some reports indicate that Imam Ahmad approved depriving that child of a hiba.

It is narrated from al-Sha‘bi that al-Nu‘man ibn Bashir said: ‘My father gave me a gift.’ One narrator of this hadith, Isma‘il ibn Salim, said: The father of al-Nu‘man ibn Bashir gave him a servant. Then my mother, ‘Amrah bint Rawahah, said to his father: Go to the Messenger of Allah and ask him to be a witness. He went to the Messenger of Allah and informed him of the matter. He said: I have given my son al-Nu‘man a gift, and ‘Amrah advised me to ask you to be a witness to it. The Messenger of Allah said: Do you have any other children besides al-Nu‘man? He said: Yes. The Messenger of Allah said: Have you given each of them a gift like what you gave al-Nu‘man? He said: No. Thereupon some of the narrators said to al-Nu‘man’s father: This is unjust. Others said: This is an unjust distinction. So take someone other than me as a witness in this matter. Al-Mughirah said: Would you not like all your children to be equally affectionate toward you and equally caring toward you? He said: Yes. Al-Mughirah then said: In that case, take someone other than me as a witness to this act. Mujahid said to him: Your children have the right to receive justice from you, just as you have the right to receive good treatment and care from them.’

‘Allamah Ibn al-Qayyim says: ‘This hadith contains a detailed explanation of the justice that Allah commanded in His Book, upon which the heavens and earth are established, and upon which Islamic law rests. More than all the arguments found in the world, this hadith accords with the Qur’an and is decisive proof.’ The Hanafi, Shafi‘i, Maliki, and majority view is that equality among children is recommended, and that favoring one over another is not prohibited, though it is disliked. If someone does favor one, it is effective. They have offered ten answers to the hadith of al-Nu‘man ibn Bashir.

But all ten answers are erroneous. These answers were quoted by Hafiz Ibn Hajar in Fath al-Bari. al-Shawkani also quoted them in Nayl al-Awtar:

One: Ibn ‘Abd al-Barr narrates that the gift given by al-Nu‘man ibn Bashir’s father was his entire property. Yet the various chains through which the hadith is narrated clearly show that it was not his entire property, but only part of it. In Imam Muslim’s narration it is also stated: ‘My father gave me part of his property.’ Another hadith says that he gave him a servant.

Two: The gift mentioned was not actually given; it was merely proposed. Bashir came to seek the Messenger’s advice about it. When the Messenger advised him not to do it, he refrained from it. This is al-Tabari’s narration.

The answer is that the Messenger’s order to withdraw the gift indicates that it had been given. The request by ‘Amrah that the Messenger be made a witness likewise suggests this. Three: Al-Nu‘man was an adult and had not yet taken possession of the gift. Therefore, his father was able to withdraw it. This is Imam al-Tahawi’s narration. Hafiz Ibn Hajar says: This contradicts most narrations, particularly the Messenger’s statement, ‘Take it back,’ which proves that the gift had already been placed in his possession. Moreover, most narrations indicate that al-Nu‘man was a minor at the time, and therefore it was kept with his father. Thus the Messenger ordered him to take back the gift, because although it was held by the father, that was equivalent to the child’s possession.

Four: The Messenger’s statement, ‘Take back the gift,’ proves that giving the gift was valid. If it had not been valid, taking it back would not have been valid. He ordered it taken back because a father has the right to take back what he gives to his child, although refraining from doing so is preferable. However, since treating children equally is recommended, he preferred that the father do so. Hafiz Ibn Hajar says: This argument is erroneous. The meaning of the Messenger’s statement, ‘Take it back,’ is: Do not make the hiba effective. It does not prove that the hiba had previously been valid.

Five: The statement, ‘Take someone other than me as a witness to this matter,’ grants permission to have a witness to the act. He did not wish to be the witness himself because he was the supreme ruler. It is not appropriate for the supreme ruler to act as a witness; he is the judge. This is al-Tahawi’s narration.

The answer is that since he had already become a witness, the fact that it is inappropriate for a ruler to act as a witness does not make it necessary for him to refrain from being one. The remainder of the hadith proves that permitting someone else to be a witness was in fact equivalent to expressing his displeasure. Ibn Hajar says: This is the view of most jurists.

Six: The Messenger’s statement, ‘Have you not treated all your children equally?’ proves that the command to treat them equally in the hadith means recommendation, and that the prohibition means mild disapproval. Ibn Hajar says: This answer would be correct if another narration did not explicitly state: ‘Treat your children equally.’

Seven: The hadith narrated by al-Nu‘man says, ‘Maintain closeness among your children,’ not, ‘Maintain equality.’ The response is that you do not consider either equality or closeness obligatory.

Eight: Comparing fairness and equal treatment of children with the children’s care and respect toward their father proves that the command to treat them equally is recommendatory. This answer is wrong because calling unequal treatment injustice and prohibiting preference prove that equal treatment is obligatory.

Nine: Another hadith indicates that Abu Bakr gave ‘A’ishah a gift, and al-Tahawi’s narration indicates that ‘Umar gave ‘Asim a gift but did not give one to his other children. If favoring one child were impermissible, these two caliphs would not have done so. The answer is that in both cases the other children had property. Moreover, if what Abu Bakr or ‘Umar did directly contradicted the Messenger’s statement, whatever either of them did would not be acceptable.

Ten: There is consensus that it is permissible to give one’s property to someone other than one’s children. If it is permissible to give it to another person while depriving all one’s children, then it must be permissible to deprive some of one’s children. Ibn Hajar says: This statement is wrong, because analogy is not acceptable when there is an explicit statement in the Qur’an or hadith. Therefore, equal treatment of children is obligatory and discrimination is forbidden.

The form of equal treatment toward children: Those who consider equal treatment obligatory have expressed different views regarding its form. Muhammad, Ahmad, Ishaq, and some Shafi‘i and Maliki jurists say that justice consists in giving a male child twice the share of a female child, as in inheritance. Their reasoning is that after the father’s death, the children would receive shares in this manner. Others hold that there is no difference between sons and daughters. Since the hadith explicitly mentions equality, equality must be upheld.

Taking back a hiba: According to most scholars, taking back a hiba is forbidden, whether it is between siblings or between husband and wife. A father, however, may take back what he gave as a hiba to his child.

Imam Malik says: A father may take back what he gave to his child as long as it has not changed. Once it has changed, he may not take it back. Imam Abu Hanifah says: Property given to someone who is not a blood relative cannot be taken back. Imam Abu Hanifah’s view is not strong because it conflicts with the hadith.

Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrate from Ibn ‘Abbas and Ibn ‘Umar that the Messenger of Allah said: ‘It is not lawful for anyone to give something to another and then take it back. Only a father may take back what he gives to his child. Whoever gives something to someone and then takes it back is like a dog that eats until satisfied, vomits, and then eats its vomit.’ (Al-Tirmidhi declared this hadith sound.) This hadith provides even stronger proof that it is not lawful to take back something given to anyone other than one’s child.

A hiba given in expectation of reciprocation may be taken back if no reciprocation is received. Salim narrates that the Messenger of Allah said: ‘Whoever gives something to another as a hiba has the greater right to take it back until he receives its reciprocation.’ Ibn al-Qayyim gives preference to this view in I‘lam al-Muwaqqi‘in, saying: ‘It is forbidden for a donor to take back the gifted item only when he gave it without expecting any kind of reciprocation. A donor who gave it expecting reciprocation, but received none, may take back what he gave. The Sunnah of the Messenger of Allah should be followed completely, not partially.’

Hibas and gifts that may not be taken back:

1. It is narrated from Ibn ‘Umar that the Messenger of Allah said: ‘Three gifts may not be taken back: a pillow, perfume, and milk.’ (Al-Tirmidhi)

2. It is narrated from Abu Hurayrah that the Messenger of Allah said: ‘When someone is given a flower, he should not return it, because it is easy to carry and fragrant.’ —Muslim

3. Anas said: The Messenger of Allah never refused perfume.

Praising the giver of a gift and supplicating for him: 1. It is narrated from Abu Hurayrah that the Messenger said: ‘Whoever does not express gratitude to people does not express gratitude to Allah.’ (Ahmad, al-Tirmidhi)

2. It is narrated from Jabir that the Messenger of Allah said: ‘When someone is given a gift and is able to reciprocate, he should do so. If he is unable, he should praise and thank the giver. Whoever praises expresses gratitude, and whoever conceals praise is ungrateful. Whoever adorns himself with something that was not given to him is wearing a garment of deception.’
(Abu Dawud, al-Tirmidhi)

3. It is narrated from Usamah ibn Zayd that the Messenger of Allah said: ‘If someone receives a kindness and says to the one who showed it, “May Allah reward you with the best reward,” he has praised him abundantly.’
(Al-Tirmidhi)

4. Anas said: The Messenger of Allah came to Madinah, and the Muhajirun came to him and said: O Messenger of Allah, we have never seen people more generous with their wealth or more sympathetic than those among whom we have come. They work hard for us and include us in their prosperity, so we fear that they will take all the reward of the Hereafter. He said: No, as long as you praise them and supplicate for them, you too will share in the reward.’ (Al-Tirmidhi)

Chapter Seventy-Four: ‘Umra

Definition: ‘Umra is a type of hiba that a person gives another for lifelong use, with the understanding that it returns to the donor after the recipient’s death. Various expressions are used for it, such as: ‘I give you this property for life,’ or, ‘I give you this house to use and possess for your lifetime.’ The Messenger rejected the idea that it returns to the donor’s ownership. After the recipient dies, the gifted property becomes the property of his heirs. If he has no heirs, it goes to the public treasury. Under no circumstances does it return to the donor or the giver of the hiba.

1. It is narrated from ‘Urwah that the Messenger of Allah said: ‘‘Umra belongs to the one to whom it is given.’ (Al-Bukhari, Muslim, Abu Dawud, and al-Nasa’i)

3. It is narrated from Abu Hurayrah that the Messenger said: ‘‘Umra is valid.’ (Al-Bukhari, Muslim, Abu Dawud, al-Nasa’i)

4. It is narrated from Abu Salamah that the Messenger of Allah said: ‘‘Umra belongs to whoever it is given to, and after him it belongs to his heirs. It never returns to the donor. He has given something upon which inheritance has taken effect.’ (Muslim, Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Majah)

5. Abu Dawud narrates through Tariq al-Makki that Jabir ibn ‘Abdullah said: A man gave an Ansari woman a date orchard. Then the woman died, and the man said: I gave the orchard to my mother for her lifetime. She had several brothers. The Messenger of Allah said: ‘The orchard is for the woman’s use during her lifetime and after her death as well.’ He said: I had given it to her as charity. The Messenger of Allah said: ‘That makes it even more remote from you.’ (If it was given as charity, there could be no question of recovering it.) This is the view of the Hanafis, al-Shafi‘i, and Imam Ahmad. Imam Malik says: ‘Umra gives a person only the usufruct and possession of something; it does not give ownership of the thing itself. If someone gives another a ‘umra, it is only for that person’s lifetime use and possession; it does not pass by inheritance. However, if the donor states that it is for the recipient and his descendants, it will pass by inheritance. But Imam Malik’s view conflicts with the cited hadith.

Chapter Seventy-Five: Ruqba

Definition: Ruqba is when one person makes the following proposal to another: ‘I give you my house as ruqba; I give it to you for lifelong use and possession. If you die before me, it will return to me, and if I die before you, it will belong to you and your descendants.’ The house belongs to whichever of the two dies later. Mujahid says: If someone says to another, ‘This thing is yours for as long as you live,’ it is ‘umra. If he says, ‘It belongs to whichever of us dies later,’ it is ruqba.

Validity: Ruqba is valid in the Shari‘ah.

It is narrated from Jabir that the Messenger of Allah said: ‘‘Umra is valid for the one to whom it is given, and ruqba is also valid for the one to whom it is given.’ (Abu Dawud, al-Nasa’i, Ibn Majah)

Ruling: According to Imam al-Shafi‘i and Imam Ahmad, ruqba is like ‘umra.

According to Imam Abu Hanifah, ‘umra passes by inheritance, whereas ruqba is given conditionally.

Chapter Seventy-Six: Maintenance or Provision

We have already discussed the husband’s responsibility to provide maintenance for his wife. What remains is the son’s responsibility to maintain his parents, the father’s responsibility to maintain his son, and the responsibility to provide for relatives and animals.

The obligation to maintain parents and obtaining it from the son’s property: When a son is financially well-off and his parents are needy, the son is responsible for maintaining his parents. ‘Ammarah ibn ‘Umayr’s aunt asked ‘A’ishah: I care for an orphan. May I take the necessary maintenance from the orphan’s property? ‘A’ishah replied: The Messenger of Allah said: ‘The best maintenance a person consumes is what he earns himself, and the best maintenance of his child is what he earns himself.’ (Abu Dawud, al-Nasa’i, Ibn Majah, al-Tirmidhi) Conversely, it is permissible for parents to take maintenance from their son’s property, whether or not he gives permission. It is also permissible for parents to spend from the son’s property, provided they do not waste it, spend extravagantly, or spend foolishly. The first proof is the hadith cited above, and the second is the hadith narrated by Jabir: A man said: O Messenger of Allah, I have property and children, but my father wishes to consume all my property. The Messenger of Allah said: ‘You and your property belong to your father.’ —Ibn Majah. It should be noted that the statement ‘Your property belongs to your father’ does not mean that the father owns the son’s property, because the son owns the property he earns, is responsible for paying its zakat, and his children inherit from him.

The view of Imam Abu Hanifah, Imam al-Shafi‘i, and Imam Malik is that a father may not take more from his son’s property than he needs. According to Imam Ahmad, however, he may take as much as he wishes, whether he needs it or not.

A financially capable father is responsible for maintaining a needy child: Just as a financially capable child is responsible for maintaining a needy father, a financially capable father is responsible for maintaining a needy child. This is because the Messenger of Allah told Hind, the wife of Abu Sufyan: ‘Take from his property what is sufficient for you and your child.’ Imam Ahmad says: If a child reaches adulthood while needy or unemployed and has no property or income, the father is not relieved of responsibility for maintaining him.

Maintenance of needy relatives: Jurists differ extensively over whether financially capable relatives are responsible for maintaining needy relatives. One group says that it is not obligatory, but that one should do as much as necessary to preserve blood ties and show good conduct. Imam al-Shawkani says: A relative has no obligation toward another relative beyond what is necessary to preserve blood ties. The reason maintenance of relatives other than blood relatives is not obligatory is that there is no proof for it in the Qur’an or hadith. Rather, some hadiths only command maintaining ties with blood relatives, though these are general in nature. A blood relative who is dependent on others for maintenance has the greater right to have family ties strengthened. Allah says in verse 7 of Surat al-Talaq:

لِيُنْفِقُ نَوْسَعَةٍ مِّن سَعَتِهِ ومَن قَدِرَ عَلَيْهِ رِزْقَهُ فَلْيُنْفِقْ مِمَّا انه الله ، لا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا أَنَّهَا سَيَجْعَلُ اللَّهُ بَعْدَ عَسْرِ يُسْرًا.

‘The wealthy man shall spend according to his means, and whoever has limited provision shall spend from what Allah has given him. Allah does not burden anyone beyond the capacity He has given him. Allah will bring ease after hardship.’ And in verse 236 of Surat al-Baqarah He says:

على الموسع قدرة وعلى المقتر قدرة

The wealthy shall arrange the prescribed expenditure according to his means, and the poor according to his capacity.

The view of the Shafi‘i school is that it is obligatory for an affluent relative to support his relatives, whether Muslim or non-Muslim, whether they are ancestors ascending from the father and grandfather and beyond, or descendants descending from the son and grandson and below. Supporting any relatives outside these two categories is not obligatory.

The view of the Maliki school is that supporting relatives is obligatory only for the father, mother, son, and daughter. Supporting the grandfather, grandson, or any other relative is not obligatory. Difference in religion is not an obstacle to the obligation of support. The view of the Hanbali school is that a wealthy relative who would inherit the poor relative’s estate after his death is obliged to support him. This continues uninterrupted alongside inheritance, because expenditure is sustained by income. Moreover, rights are reciprocal, not one-sided. Support is obligatory for parents and all above them, and for sons and all below them. According to them, blood relatives who do not receive a share of inheritance and are not paternal relatives, and who do not belong among the ascendants or descendants, neither receive nor are obliged to provide support. Their kinship is weaker, and there is no clear command concerning them in the Qur’an and Sunnah. Ibn Hazm broadens the matter and says:

Whoever has the means to provide support must support his dependent and needy parents, grandparents, and higher ancestors, as well as his sons, daughters, grandsons, granddaughters, and lower descendants. Likewise, he must support his brothers, sisters, and wives. It is obligatory to support all these people equally; none is to be given preference over another. If anything remains after supporting them, he will be obliged to support blood relatives who are unmarriageable kin and those whose inheritance he would receive after their death, provided the mentioned relatives are young and without income. These include paternal uncles, paternal aunts and their ascendants, maternal uncles, maternal aunts and their ascendants, and the children of brothers and their descendants. Those among them who are capable of earning, however little, will no longer be entitled to support. Parents, grandparents, and wives nevertheless remain entitled to support in all circumstances. If he is unable to protect these relatives from dependence on insufficient earnings, he will be compelled to do so. If necessary, his surplus immovable and movable property will be sold.

Support of animals: The owner is obliged to provide whatever food and drink are essential for an animal’s survival. If he does not, the ruler shall compel him either to provide them or to sell or slaughter the animals. Otherwise, the ruler shall do whatever is more beneficial.

1. It is narrated from Ibn Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: A woman was punished because she confined a cat, and eventually it died. While it was confined, she neither fed nor gave it water, nor released it so that it could eat the insects and other things lying on the ground. Because of this, the woman entered Hell.

2. It is narrated from Abu Hurayrah that the Messenger of Allah (peace and blessings be upon him) said: A man was walking along the road and became extremely thirsty. He saw a well beside the road, descended into it, and drank. When he climbed out, he saw a dog panting from thirst and licking the damp earth. The man said to himself, “This dog is suffering from thirst just as I had suffered.” He then descended into the well again, filled his sock with water, held it in his mouth, brought it up, and gave the dog water. Allah appreciated this deed and forgave his sins.’ The people asked, “O Messenger of Allah, will we receive a reward even for serving animals?” The Messenger of Allah (peace and blessings be upon him) said: “There is a reward for serving every living creature.”

Chapter Seventy-Seven: Hajr

Definition and types: In the terminology of the Shariah or fiqh, hajr means imposing a restriction on someone’s use of and transactions involving his property. Hajr is of two types:

1. Hajr to protect another person’s rights, such as hajr imposed on an insolvent person whose entire property is encumbered by debt. Such a person is prevented from disposing of his property so that the rights of his creditors remain protected, meaning repayment of their debts is secured. The Messenger of Allah (peace and blessings be upon him) imposed hajr on Mu‘adh and sold his property to repay his debts. (Narrated by Sa‘id ibn Mansur.)

2. Hajr to protect the individual’s own interests, such as hajr imposed on a minor, an intellectually disabled person, or a madman. This protects their property.

Hajr imposed on an insolvent person: An insolvent person is one who lacks property sufficient for his basic needs. Even if he owns some property, since all of it needs to be spent on repaying his debts, it effectively belongs to his creditors. Thus, in practical terms, he is destitute. In the terminology of the jurists, he is someone whose debts have become so great that he cannot repay them. Therefore, the ruler has declared him insolvent.

Delaying repayment despite being able to repay: A person who is able to repay his debt and whose repayment date has arrived, yet does not repay it, is considered oppressive. The Messenger of Allah (peace and blessings be upon him) said: “The delay of a wealthy person in repaying a debt is injustice.” In light of this hadith, most scholars say that delaying repayment by a wealthy person is a major sin. It is obligatory for the ruler to order him to repay the debt. If he still does not repay and the creditor demands it, he will be imprisoned. The Messenger (peace and blessings be upon him) said: “The delay of a wealthy person disgraces him and makes punishment permissible against him.” Ibn al-Mundhir said: According to most scholars and judges, a debtor will be detained on account of his debt. Umar ibn Abd al-Aziz used to distribute a debtor’s property among his creditors; he did not imprison him.

Al-Layth held the same view and said: If he still does not repay the debt and does not sell his property, the ruler shall sell it, pay the creditor what is owed, and protect the debtor from financial loss.

Restricting an insolvent person’s transactions and selling his property: If a person possesses wealth but does not repay his debts, the ruler shall impose a restriction on his transactions if all or some of his creditors request it, so that they are protected from loss. Furthermore, if he does not sell his property even after being permitted to do so, the ruler may sell it, and the sale will be valid, because the ruler acts in his place. Evidence for this is the following hadith narrated by Sa‘id ibn Mansur, Abu Dawud, and Abd al-Razzaq from Abd al-Rahman ibn Ka‘b:

Mu‘adh ibn Jabal was a generous young man. He saved nothing for himself, and as he continued incurring debts, eventually all his property became burdened by debt. He came to the Messenger of Allah (peace and blessings be upon him) and asked him to persuade his creditors to grant him respite, for if they granted anyone respite, they would do so for the sake of the Messenger of Allah. But the Messenger of Allah (peace and blessings be upon him) sold Mu‘adh’s property, leaving him completely destitute.

The book Nayl al-Awtar states: “The imposition of a restriction on Mu‘adh’s transactions proves that it is permissible to impose such a restriction on any debtor. Moreover, it is permissible for the ruler to sell a debtor’s property to repay his debt, whether or not the debt consumes all of his property.” Thus, when a restriction is imposed on an insolvent debtor, any disposition he makes of his principal property will be void and ineffective, because this is required by hajr. This is the view of Imam Malik and the preponderant of the two views attributed to Imam al-Shafi‘i.

Only the debts of those creditors who have appeared demanding repayment and whose debts have become due will be paid proportionately. A creditor who is present but does not demand repayment, an absent creditor who has appointed no representative, and a debt—whether the creditor is present or absent and whether he demands repayment or not—that has not yet become due are not included, and such a debt will not be paid. This is the view of Imam Ahmad and the sounder of the two views attributed to Imam al-Shafi‘i.

In contrast, the view of Imam Malik is that if a debt is immediately due, it will be repaid as soon as the restriction is imposed. If an insolvent person dies, the debts of all creditors will be repaid, whether they are present or absent, whether they demand repayment or not, and whether the debts are deferred or immediately due.

When debts are repaid, Allah’s right will be paid first, followed by the rights of His servants. The Messenger of Allah (peace and blessings be upon him) said: “Allah’s debt is the most deserving of being repaid first.”

Imam Abu Hanifah said: It is neither permissible to impose a restriction on a debtor nor valid to sell his property. The ruler shall detain him until he repays the debt. However, the first view is preferable because it accords with the hadith.

When goods sold on credit are found intact with an insolvent person: When someone finds the goods he sold on credit intact with a person who has become insolvent, there are several possible situations, mentioned below.

1. If a person finds the goods he supplied intact and undamaged with the insolvent person, he has a greater right to reclaim them than all the other creditors. The Messenger of Allah (peace and blessings be upon him) said: “Whoever finds with an insolvent person the exact item he lent him, unchanged—neither increased nor decreased—has more right to it than any other creditor.” (Al-Bukhari and Muslim.)

2. If the goods found have changed through increase or decrease, their owner will not have priority over the other creditors; rather, he will be considered a creditor equal to them.

3. If he sold the goods and received only part of the price, he too will be considered equal to the other creditors, and according to most scholars he will not be entitled to reclaim the sold goods. However, the preponderant of the two views attributed to Imam al-Shafi‘i is that the seller will have priority.

4. If the buyer has died and the seller has not received the price, then the seller finds the goods he sold, he has the greater right to reclaim them in light of the aforementioned hadith. The reasoning is also that there is no difference between death and insolvency. This is the view of Imam al-Shafi‘i.

Abu Hurayrah said: “I will certainly judge among you according to the judgment of the Messenger of Allah (peace and blessings be upon him): If someone has become insolvent or has died, and another person finds his goods with him unchanged, then he has the greater right to them.”

There is no hajr imposed on the needy: Hajr will be imposed on an insolvent person only when his being needy is not evident. If it becomes evident that he is needy, he will not be detained, hajr (a restriction on transactions) will not be imposed on him, and the creditors will not continue pursuing and pressuring him. Rather, they will wait and grant him time until he regains solvency. Allah says: “If the debtor is in hardship, then grant him respite until ease.” Imam Muslim narrates: A man bought some fruit and suffered a calamity, causing his debts to become so great that the Messenger of Allah (peace and blessings be upon him) asked the people to give him charity. They gave charity, but even then insufficient money was collected to repay the debt. The Messenger of Allah (peace and blessings be upon him) then told his creditors: “Take what you have received; you will receive nothing more than this.”

The reward for granting respite to a needy person is many times greater. It is narrated from Buraydah that the Messenger of Allah (peace and blessings be upon him) said: “Whoever grants respite to a needy person will receive twice the reward of charity for each day.”
The necessary allowance for a debtor: When the ruler sells an insolvent person’s property to repay his creditors, it is obligatory to leave him the minimum required for his livelihood. For example, his house must not be sold, because without a house he has no shelter. Likewise, enough of his property must be left for him to keep a servant suitable for a person of his standing. If the debtor is a merchant, the minimum capital needed for his business must be left to him. If he is a craftsman, the tools and equipment required for his trade must be left to him. It is also necessary to ensure the minimum food and clothing suitable for a person of his standing for him and those dependent on him.

Imam al-Shawkani said: It is lawful for creditors to take everything found with a debtor except the essential dwelling for his and his dependents’ livelihood, clothing for wearing and protection from cold, and the minimum necessary food and drink. Explaining this statement, he cited the hadith of Mu‘adh (may Allah be pleased with him) and said: There is no evidence that the creditors took Mu‘adh’s clothes, expelled him from his home, or made him and his dependents abandon the minimum means of livelihood. This is why I say that these things may not be taken from a debtor under any circumstances. This is the view of Imam Abu Hanifah and Imam Ahmad. According to Imam al-Shafi‘i, his house may be sold in such circumstances.

Hajr imposed on a foolish person: Hajr will be imposed on a foolish person even if he is an adult, because of his foolishness and senseless conduct. Allah the Exalted says:

وَلَا تُؤْتُوا السَّفَهَاء أَمْوا لَكُمُ الَّتِي جَعَلَ اللَّهُ لَكُمْ فِيهَا .

‘Do not entrust your property, which Allah has made a means of sustenance for you, to the foolish.’ (Surat al-Nisa, verse 5.)

This verse proves the legitimacy of imposing hajr on a foolish person.

Allamah Ibn al-Mundhir said: “According to most scholars, a person who squanders his property will have hajr imposed on him, whether or not he is an adult.”

Imam Abu Hanifah said: If a person possessed normal judgment upon reaching adulthood, hajr will not be imposed on him even if he later becomes foolish. However, if he is seen wasting his property, hajr will be imposed. In that case, his property will not be handed over to him until he reaches twenty-five years of age. Once he reaches twenty-five, his property will be handed over to him, whether or not he squanders it. Imam Malik said: If a person does not acquire normal intelligence even after reaching adulthood, hajr will remain imposed on him even after he becomes old.

The book Nayl al-Awtar quotes al-Bahr as saying: “The foolishness that warrants hajr is spending money on sins or on something that has no worldly or Hereafter benefit, such as buying an item worth one dirham for one hundred dirhams. Buying good food, good clothing, good perfume, and the like is not foolishness. Allah says in verse 32 of Surat al-A‘raf:

قُلْ مَنْ حَرَّمَ زِينَةَ اللَّهِ الَّتِي أَخْرَجَ لِعِبَادِهِ والطيب من الرزق ط قُلْ فِي لِلَّذِينَ آمَنُوا فِي الْحَيَوة الدُّنْيَا خَالِصَةٌ يَوْمَ الْقِيمَةِ

Say: “Who has forbidden the adornment of Allah that He has produced for His servants, and the wholesome provisions?” Say: “They are for those who believe during the worldly life, and exclusively for them on the Day of Resurrection.” Thus We explain the signs in detail for people who know.

Likewise, spending in the activities of a wealthy person is not a sign of foolishness.

The acts of a foolish person: Everything a foolish person does before hajr is imposed is valid and effective. After hajr is imposed, no disposition of his own property will be valid. His purchases, sales, endowments, or acknowledgments will not be valid or effective.

A foolish person’s admission against himself: Ibn al-Mundhir said: All the scholars whose opinions I remember agree that if a foolish person confesses against himself to adultery, theft, drinking alcohol, slander, or murder, the confession is valid and the prescribed punishment will be carried out against him. If he confesses that he owes someone something, however, it may not be demanded from him until hajr is lifted from him.

Publicizing the imposition of hajr on a foolish or insolvent person: If hajr has been imposed on a foolish or insolvent person, it is recommended that this be widely publicized, so that people know of it, are not deceived regarding them, and anyone wishing to transact with them does so knowingly.

Hajr imposed on a minor: Just as hajr is imposed on a foolish person because of his foolishness, it is also imposed on a minor, who is prevented from disposing of his property so that it is protected from being squandered. He may be permitted to dispose of his property only when two conditions are fulfilled.

First: reaching adulthood; second: acquiring sound judgment.

Allah says in verse 6 of Surat al-Nisa:

وَابْتَلُوا اليَتمى حَتَّى إِذَا بَلَغُوا النِّكَاحَ : فَإِن الستر مِنْهُمْ رَهْدًا فَادْفَعُوا إِلَيْهِمْ أَمْوَالَهُمْ .

‘Test the orphans until they reach marriageable age. Then, if you find sound judgment in them, hand over their property to them.’ This verse was revealed concerning Thabit ibn Rifa‘ah and his uncle. When Rifa‘ah died leaving his minor son Thabit, Thabit’s uncle came to the Messenger (peace and blessings be upon him) and said: “My nephew is an orphan and is being raised in my care. How much of his property is lawful for me, and when should I hand his property over to him?” Then Allah revealed this verse.

Signs of reaching adulthood: Adulthood is established when any of the following signs appears:

1. Ejaculation, whether during sleep or while awake. Allah says in verse 59 of Surat al-Nur:

وَإِذَا بَلَغَ الْأَطْفَالُ مِنكم العلم فَلْيَسْتَأْذِنُوا كَمَا اسْتَأْذَنَ الَّذِينَ مِن قَبْلِهِمْ –

When your children reach adulthood, they too should seek permission, just as those older than them seek permission.

Abu Dawud narrates from Ali (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: Three people are exempt from accountability: a child until he ejaculates, a sleeping person until he awakens, and a mad person until his reason returns.

Ali (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “After ejaculation, no one remains an orphan,” meaning a minor. (Abu Dawud.)

2. Reaching the age of fifteen. Ibn Umar (may Allah be pleased with him) said: “When I was fourteen, I presented myself to the Messenger (peace and blessings be upon him) to go to the Battle of Uhud, but he did not permit me. On the day of the Trench, when I presented myself to him, I was fifteen. The Messenger then permitted me.”

After hearing this hadith, Umar ibn Abd al-Aziz wrote to his officials instructing them not to appoint anyone under fifteen years of age to any position.’ Imam Malik and Imam Abu Hanifah said: A person who has not ejaculated will not be considered an adult until completing seventeen years. According to the most famous narration, Imam Abu Hanifah held the age to be nineteen. Regarding a girl, he said that she reaches adulthood at seventeen. Dawud said: No one is considered an adult by age until ejaculation occurs, even if he is forty years old.

3. The growth of pubic hair. That is, the growth of dense, dark hair. Mere hair growth is not sufficient, because it grows on all children. During the battle against Banu Qurayzah, this hair was used to determine whether a person belonged to the fighting force.

Imam Abu Hanifah said: A judgment may not be based on the growth of hair. Nor is it a sign of reaching adulthood.

4. Menstruation and pregnancy: Each of the foregoing signs establishes adulthood for both males and females. For females, the two additional signs are menstruation and pregnancy. Imam al-Bukhari and others narrate from Aishah (may Allah be pleased with her) that the Messenger of Allah (peace and blessings be upon him) said: “Allah does not accept the prayer of a menstruating woman without a head covering.” Sound judgment means the ability to protect wealth from destruction and develop it, so that the person is not seriously deceived and does not spend wealth on unlawful things. When a person reaches adulthood but does not possess sound judgment, he remains under another person’s financial guardianship until sound judgment becomes evident in him. Therefore, no specific age is determined, as appears from the wording of the Qur’an. This, however, contradicts the view of Imam Abu Hanifah. If foolishness reappears in someone after sound judgment had become evident, hajr (a restriction on transactions) will again be imposed on him. Jassas says that the harm of foolishness affects everyone. When he squanders his wealth through extravagance, he becomes a danger and burden to society and the public treasury. Thus, because of foolishness, his guardianship over his wealth ends. Guardianship over him by others ends only when he reaches adulthood while intelligent and becomes legally responsible. Ibn Abbas (may Allah be pleased with him) was asked: “When does an orphan cease to be an orphan?” He replied: “By Allah, even after growing a beard, many people remain weak in earning and weak in giving to others. When someone learns to earn well for himself, his orphanhood ends.” Sa‘id ibn Mansur narrates from Mujahid: In explaining the verse, “If you find sound judgment in them,” Mujahid said: A person does not gain authority over his wealth merely by reaching adulthood and possessing intelligence, until sound judgment becomes evident in him.

The ruler’s order is essential for restoring property to a person under interdiction: According to some jurists, it is a condition that an order be obtained from the ruler to restore the person’s property to him and that his sound judgment be established before the ruler. According to other jurists, it is sufficient that his sound judgment be established in the view of the guardian of the person under such interdiction.

Who will be the guardian or trustee of a minor, an imbecile, or an insane person? The guardian of a minor, an imbecile, or an insane person is his father. If the father is absent, it is a relative or a guardian appointed by the ruler, since he is his representative. If there is no appointed representative, his guardian is the ruler. If no guardian has been appointed by the ruler or relatives, the grandfather, mother, and other paternal relatives cannot be his guardians. In our time, it is preferable to follow the first opinion.

Conditions for being the guardian or trustee of a person under interdiction: A trustee is the person entrusted with supervising a person under interdiction, whether this responsibility is assigned by relatives or by the ruler. Whether the trustee is a woman or a man, it is essential that the person be known for religious commitment, honesty, and sound judgment. ʿUmar (may Allah be pleased with him) appointed Ḥaṣṣān (may Allah be pleased with him) as a trustee. The trustee’s duty is to manage the property of the orphan or the person under interdiction in a manner that increases it. According to Imam Mālik, the trustee or father may, while avoiding favoritism, purchase something from the orphan’s property or sell his own property in exchange for the orphan’s property.

Guardianship should be avoided when one is weak: It is narrated from Abū Dharr (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “O Abū Dharr, I consider you weak, and I like for you what I like for myself. Never become the commander of two people, and do not become the guardian of an orphan’s property.”

A guardian may consume from an orphan’s property: In verse 6 of Sūrat al-Nisāʾ, Allah says: “Let the one who is self-sufficient abstain, and let the one who is poor consume according to what is reasonable.” This verse proves that a wealthy or financially secure guardian has no right to any of the orphan’s property. He will receive the reward for guardianship from Allah. However, if the ruler assigns him an allowance, it is lawful for him to take it. If he is poor, he may take from the orphan’s property according to what is reasonable—that is, he may take the customary payment for the work he performs.

ʿĀʾishah (may Allah be pleased with her) said concerning this verse: This verse was revealed regarding the caretaker of an orphan who looks after and maintains his property. If he is poor, he may consume from it according to what is reasonable. It is narrated from ʿAmr ibn Shuʿayb that a man came to the Messenger (peace and blessings be upon him) and said: “I am poor and have nothing. I have an orphan under my care.” The Messenger (peace and blessings be upon him) said: “You may eat from your orphan’s property, but do not waste or squander it. When he reaches maturity, do not continue to exercise guardianship over him, and do not save his property for yourself.” In other words, it is forbidden to take more than the customary payment given for the same work.

Maintenance of a minor: Allah says in verse 5 of Sūrat al-Nisāʾ:

وَلَا تُؤْتُوا السُّفَهَاء أَمْرًا لَكْرَ الَّتِي جَعَلَ اللهُ لَكُمْ فِيهَا وَ ارْزُقُوهُ فِيهَا وَاخْسُوهُمْ وَقُولُوا لَهُمْ قَوْلاً معروفان

“Do not entrust the property that Allah has made a means of support for you to the foolish. Provide them with food and clothing from it and speak to them kindly.” Imam al-Qurṭubī says: “The trustee should provide for the orphan according to his condition and property. If he is a minor and has considerable property, he should employ a wet nurse and adopt an ample approach in covering his expenses. If he is mature, he should provide him with good clothing, enjoyable food, and a servant. If his property is limited, he should spend proportionately. If it is even more limited, he should provide ordinary food and necessary ordinary clothing. If the orphan is so poor that he has nothing, it is the ruler’s duty to allocate an allowance for him from the public treasury. If the ruler fails to do so, this responsibility falls upon the Muslims—first upon their prominent members, then upon the general public. His daughter is the person most responsible for him. It is her duty to nurse and care for him, and she has no right to claim payment from anyone for this.”

May a trustee give anything away without permission? A trustee, wife, or treasurer may not give anything from another person’s property to anyone without that person’s permission. However, a small amount that does not harm the property may be given.

ʿĀʾishah (may Allah be pleased with her) said that the Messenger of Allah (peace and blessings be upon him) said: “When a wife gives something from her husband’s property without harming it, both she and her husband will be rewarded, and the treasurer will likewise be rewarded. The reward of one of them will not diminish the reward of another.”

Chapter Seventy-Eight: Bequests

Definition: Linguistically, waṣiyyah means establishing a connection—that is, connecting what precedes death with what follows it.

In Sharīʿah terminology, it is a person’s granting another person an item, a debt, or a service on the condition that the recipient obtains ownership of what was granted only after the donor’s death, not before it. Some have also defined it as granting someone ownership of something after death as a voluntary donation. This definition makes the difference between hibah (gift) and waṣiyyah clear. Ownership created by hibah takes effect immediately, whereas ownership created by waṣiyyah does not take effect until after death. Moreover, hibah can be made only with an object or item, while waṣiyyah may be made with an item, a debt, or a service.

Ruling on bequests: Bequests are established as lawful in the Sharīʿah by the Qur’an, Sunnah, and consensus. The Qur’an says:

كتِبَ عَلَيْكُم إِذا حَضَرَ أَحدكم الموت إن ترك غيران ، الوَصِيَّةُ لِلْوَالِدَين والأقربين بالمعروف : ممَّا عَلَى الْمُتَّقِينَ

“When death approaches any of you and he leaves wealth, it is prescribed for you to make a bequest for parents and relatives according to what is reasonable—that is, without harming the heirs. This is an obligation upon the God-fearing.” (Sūrat al-Baqarah, verse 180)

دين مِن بَعْدِ وَمِيةٍ يُوْمِي بِمَا أَوْدَ“After carrying out the bequest he made and paying the debt…” (Sūrat al-Nisāʾ, verse 11)

يَأَيُّهَا الَّذِينَ آمَنُوا عَهَادَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتَ مِينَ الْوَمِيَّةِ التي ذَوَا عَدْلٍ منكم ………

“O believers, when death approaches any of you, let two just men among you bear witness at the time of making the bequest.” (Sūrat al-Māʾidah, verse 106)
The ruling on bequests is also established by the following hadiths:

1. Al-Bukhārī and Muslim narrate from Ibn ʿUmar that the Messenger of Allah (peace and blessings be upon him) said: “It is not appropriate for a Muslim who possesses anything that can be bequeathed to spend even two nights without having his bequest written and kept with him.” Ibn ʿUmar said: After I heard the Messenger (peace and blessings be upon him) say this, I never spent a single night without having my bequest written and kept with me.

The meaning of the hadith is that keeping one’s bequest constantly prepared is prudent, because death may come suddenly.

Imam al-Shāfiʿī (may Allah have mercy on him) said: It is precaution and wisdom for a Muslim to always have his bequest written when he possesses something to bequeath, because he does not know when death will come and prevent him from carrying out his wishes.

2. Imam Aḥmad, al-Tirmidhī, Abū Dāwūd, and Ibn Mājah narrate from Abū Hurayrah that the Messenger of Allah (peace and blessings be upon him) said: “If a man or woman obeys Allah for sixty years, then death comes to them while they have harmed an heir through a bequest, Hell becomes obligatory for both of them.” Then Abū Hurayrah recited this verse portion:

مِن بَعْدِ وَصِيَّةٍ يَوْمَى بِمَا أَو دَيْنِ لا غَيْرَ مُضَارِ ، وَصِيَّةً مِنَ اللَّهِ مَا وَاللَّهُ عَلِيمٌ حَلِيمٌ

“After carrying out the bequest he made and paying the debt, without causing harm to anyone. This is a command from Allah, and Allah is All-Knowing, Forbearing.” (Sūrat al-Nisāʾ 4:12)

3. Ibn Mājah narrates from Jābir that the Messenger of Allah (peace and blessings be upon him) said: “Whoever dies having made a bequest dies upon the path of Allah and His law, dies the death of piety and martyrdom, and dies in a state of forgiveness.” The Muslim ummah has reached consensus that bequests are lawful in the Sharīʿah.

The Companions’ bequests: The Messenger of Allah (peace and blessings be upon him) left no bequest at the time of his death, because he left no property that could be bequeathed. Imam al-Bukhārī narrates from Ibn Abī Awfā (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) left no bequest. Scholars explain that this was because he left no property after him. He donated the land he possessed in the path of Allah. He stated regarding the weapons and the mule that neither of them passes by inheritance. This is the account transmitted by Imam al-Nawawī.

The Companions used to bequeath portions of their property seeking nearness to Allah. They would also leave written instructions for their heirs.

ʿAbd al-Razzāq narrates through an authentic chain that Anas (may Allah be pleased with him) said: The Companions would write at the beginning of their bequests:

In the name of Allah, the Most Compassionate, the Most Merciful,

So-and-so, son of so-and-so, makes this bequest so that he may testify that there is no deity except Allah, that Muhammad is the Messenger of Allah, that the Hour will certainly occur without doubt, and that Allah will resurrect those in the graves. He instructs the family he leaves behind to fear Allah, maintain good relations among themselves, and obey Allah and His Messenger if they are believers. He makes the same bequest that Ibrāhīm and Yaʿqūb made to their children: Allah has chosen this religion for you, so do not die except in submission to this religion.

The rationale for bequests: The Messenger of Allah (peace and blessings be upon him) said: “Allah has given you one-third of your wealth as charity, so that your deeds may increase. Therefore, spend this wealth wherever you wish or prefer.”

The hadith is weak. Its meaning is that a bequest is a means of drawing near to Allah at the end of a person’s life, so that his good deeds may increase or his shortcomings may be compensated. It also serves people and expresses compassion toward them.

The ruling on bequests: Scholars differ regarding the Sharīʿah ruling on bequests. A summary of their views follows:

First view: According to Imam al-Zuhrī, Abū Mijlāz, Ibn Ḥazm, Ibn ʿUmar, Ṭalḥah, al-Zubayr, ʿAbdullāh, Ibn Abī Awfā, Ṭalḥah ibn Muṭarrif, Ṭāwūs, and al-Shaʿbī, making a bequest is obligatory for anyone who dies leaving any property, whether little or much. They cite the aforementioned verse 180 of Sūrat al-Baqarah as evidence.

Second view: According to this view, it is obligatory to make bequests for parents and relatives who do not inherit. This is the view of Masrūq, Ilyās, Qatādah, Ibn Jarīr, and al-Zuhrī.

Third view: This is the view of the four leading imams and the Zaydī school. It holds that making a bequest is not obligatory for everyone, even if one leaves property. Nor is it obligatory to make bequests for parents or non-inheriting relatives. Its ruling changes according to circumstances: in some cases it is obligatory, in some recommended, in some forbidden, in some disliked, and in some permissible.

Obligatory: Making a bequest is obligatory when a person has a duty under the Sharīʿah and there is fear that it will be lost if he does not make a bequest. For example, zakat was obligatory upon him but he did not pay it; Hajj was due but he did not perform it; he held a trust that he did not return; he owed a debt that he did not pay and no one else knew of it; or someone’s property was deposited with him without witnesses.

Recommended: Making a bequest is recommended for seeking nearness to and the pleasure of Allah, benefiting poor relatives, and helping righteous people.

Forbidden: Making a bequest is forbidden when it harms the heirs. ʿAbd al-Razzāq narrates from Abū Hurayrah that the Messenger of Allah (peace and blessings be upon him) said: “If a person performs righteous deeds for seventy years, then wrongs someone through a bequest, making his final deed in life an evil deed, he will enter Hell. If a person continues to perform evil deeds for seventy years, then makes a just bequest, making his final deed a good deed, he will enter Paradise.” Abū Hurayrah said: If you wish, you may recite this verse:

كَ حُدُودُ اللَّهِ فَلَا تَعْتَدُومًا“These are the limits set by Allah, so do not transgress them.” (Sūrat al-Baqarah 2:229)

Saʿīd ibn Manṣūr narrates through an authentic chain that Ibn ʿAbbās (may Allah be pleased with him) said: “Causing harm through a bequest is a major sin.” Al-Nasāʾī also narrates this hadith. A bequest intended to harm someone is invalid, even if it is less than one-third of the property.”

Similarly, making a bequest to build a church or an amusement house is forbidden.

Disliked: A bequest is disliked when the testator has limited means and heirs who depend on him. Likewise, making a bequest to a sinful person is disliked when it is strongly presumed that he will use it to gain strength for sinful deeds. But when it is thought that the recipient will be encouraged and motivated by it to do good, it is recommended.

Permissible: A bequest is permissible when it is made for a wealthy person.

Essential element: The essential element of a bequest is ijāb, meaning the initiative or proposal of the testator. Ijāb is completed by using any wording that grants ownership of something after death without compensation—for example, “I bequeath this thing to so-and-so after my death,” or “I give it to so-and-so after me,” or “I make so-and-so its owner.”

A bequest may be completed through speech, writing, or an understandable gesture when the testator is unable to speak. When the bequest is unspecified—that is, not designated for a particular person, such as a bequest for a mosque, inn, school, or hospital—acceptance is not required. Rather, the bequest is completed by a valid ijāb, because in this case it becomes charity. But when it is designated for a particular person, acceptance is required after the testator’s death, either by the recipient himself or, if he is an imbecile, by his guardian. If he accepts, the bequest is completed; if he rejects it, it is void, and ownership remains with the testator’s heirs.

When a bequest concerns something for which a transaction contract is valid, the testator may lawfully alter it or revoke it in whole or in part. Revocation may be expressed directly, such as saying, “I revoke the bequest.” It may also be effected through an action, such as selling what he had bequeathed.

When does a bequest become due? The recipient becomes entitled to the bequest only after the testator’s death and after his debts have been paid. If the entire estate is exhausted in paying the debts, the recipient is entitled to nothing, because Allah says: “After the bequest has been carried out or the debt has been paid” (the inheritance is to be distributed).

Conditional bequests: If the condition is valid, the conditional bequest is valid. A valid condition is one that benefits the testator, the recipient, or someone else; is not prohibited; and does not contradict the objectives of the Sharīʿah. When the condition is sound and valid, it must be observed as long as its benefit and welfare remain. If the condition is invalid or its benefit no longer remains, observing it is not required.

Conditions of a bequest: A bequest requires a testator, a recipient, and something to be bequeathed. Certain conditions apply to each of the three. They are set out below:

Conditions for the testator: The testator must possess full legal capacity to give. A person possesses full capacity to give or make a bequest if he is of sound mind, mature, free, acting voluntarily, and not subject to interdiction in transactions because of foolishness. If he is a minor, insane, enslaved, acting under compulsion, or under interdiction in transactions, his bequest is invalid, because he lacks full capacity to give or make a bequest.

There are only two exceptions:

1. When a discerning minor makes a bequest concerning his own shrouding and burial, it is considered valid so long as it remains within the limits of benefit.

2. If a person placed under interdiction because of foolishness makes a bequest for righteous and public-benefit purposes, such as teaching the Qur’an, building a mosque, or establishing a hospital, the bequest is considered sound and valid.

If the heirs of such a testator authorize it, the bequest will be carried out from his entire estate. Likewise, if he has no heirs at all, it will be carried out from his entire estate. But if he has heirs and they do not approve the bequest, it will be carried out from one-third of his property. This is the view of the Ḥanafī school. Imam Mālik disagreed, declaring valid the bequest of a person of limited understanding and of a minor who makes a bequest for the sake of drawing near to Allah. He said: “According to our consensus, if a person of weak intellect, an imbecile, or a mentally ill person who is sometimes sound of mind understands the meaning of the bequest he made, his bequest is valid. Likewise, when a minor child understands the meaning of his bequest and makes no delirious or indecent statement, his bequest is valid and effective.” Under Egyptian law, an imbecile’s bequest is also valid if the competent judicial authority grants permission.

Conditions for the recipient: The following conditions must be present in the person for whom the bequest is made:

1. The recipient must not be an heir of the testator. In the year of the conquest of Makkah, the Messenger of Allah (peace and blessings be upon him) announced: “There is no bequest for an heir.” (Aḥmad, Abū Dāwūd, al-Tirmidhī)

This hadith is accepted by all scholars, and consensus has been reached upon it.

Regarding the command in verse 180 of Sūrat al-Baqarah to make bequests for parents and relatives, most scholars hold that the ruling of the verse has been abrogated. Imam al-Shāfiʿī said: Allah Most High revealed both the verses on bequests and the verses on inheritance. The verse on bequests may remain operative alongside the inheritance verses, or the inheritance verses may abrogate the bequest ruling. The scholars therefore investigated whether evidence existed to give preference to either possibility. They found that in the year of the conquest of Makkah, the Messenger (peace and blessings be upon him) said: “There is no bequest for an heir.”

The scholars agree that a person for whom a bequest is made may become an heir on the day of the testator’s death. Thus, if the testator has no son and makes a bequest for his brother, who would be his heir, then a son is born before his death, the bequest for that brother remains valid. Conversely, if the testator has a son and makes a bequest for his brother, then the son dies before the testator, the bequest made for the brother, who is now an heir, remains valid.

2. According to the Ḥanafī school, if the recipient is a specified person or institution, a condition for the validity of the bequest is that the recipient exist at the time it is made. That is, the recipient must either be physically present at that time or be considered legally present. For example, a bequest may be made for the unborn child of a woman, provided the child exists in her womb when the bequest is made. But if the recipient is not specified as a particular person, it must exist physically or legally at the time of the testator’s death.

If the testator says, “I bequeath my house to so-and-so’s children,” without specifying which children, and then dies without revoking the bequest, all the children existing at the time of his death will receive the house, whether they are physically or legally present—for example, an unborn child—regardless of whether they existed when the bequest was made. An unborn child is considered to have existed at the time of the bequest or the testator’s death only if the child is born within six months of the bequest or of the testator’s death, respectively. Most scholars say that if a testator makes a bequest to a trustee to give one-third of his property wherever he considers appropriate, the bequest is valid. The trustee must spend it on righteous and beneficial causes, take not even a penny of it for himself, and give nothing to any heir.

Abū Thawr disagreed with this view. Al-Shawkānī cites his opinion in the book Nayl al-Awṭār.

3. The person for whom the bequest was made must not directly and unlawfully kill the testator. If he does so, the bequest becomes invalid. For whoever hastens to obtain a due entitlement before its naturally appropriate time is deprived of it as punishment. This is the view of Abu Yusuf. Abu Hanifah and Imam Muhammad say that the bequest does not become invalid; rather, it remains dependent on the heirs’ approval.

Conditions of the bequeathed property: The thing bequeathed must be such that, after the testator’s death, its ownership can be transferred to someone, regardless of how. Therefore, it is valid to bequeath anything that has monetary value or from which a service or benefit may be obtained. One may bequeath the fruit growing on another person’s tree or the calf in another person’s cow’s womb, because ownership of both may be acquired through inheritance. Thus, whoever is named as the beneficiary of a bequest may acquire ownership of anything certainly existing at the time of the testator’s death. But a bequest of something nonexistent is void and invalid. A bequest to give a loan or permit someone to live in a house is valid. A thing that is not considered property, such as a corpse, cannot be bequeathed. Likewise, a bequest of wine to Muslims is invalid, because it is not property for either party.

The amount of property for which a bequest is recommended: Ibn ʿAbd al-Barr says: Among the early scholars who considered bequests obligatory, there was disagreement concerning the amount of property for which a bequest becomes obligatory, and among those who considered them recommended, concerning the amount for which they are recommended. Some narrate from ʿAli (may Allah be pleased with him) that he said: No bequest may be made from property amounting to six or seven hundred dirhams. Others narrate that ʿAli (may Allah be pleased with him) said: A bequest may be made from property amounting to one thousand dirhams. Ibn ʿAbbas said: No bequest is appropriate from eight hundred dirhams. ʿAʾishah (may Allah be pleased with her) said: If a person has four children and three thousand dirhams, there is no scope for a bequest from his property. Ibrahim al-Nakhaʿi said: No bequest is appropriate from one thousand to one thousand five hundred dirhams. According to Qatadah, a bequest is appropriate from one thousand dirhams or more. ʿAli (may Allah be pleased with him) said: Whoever leaves little property, it is better for him to leave that property for his heirs. ʿAʾishah (may Allah be pleased with her) said: No bequest is appropriate from eight hundred dirhams.

A bequest of one-third: A bequest of one-third of the property is valid. More than this is not valid, and less is better. This is the consensus. Al-Bukhari, Muslim, Abu Dawud, al-Tirmidhi, al-Nasaʾi, and Ibn Majah narrate through Saʿd ibn Abi Waqqas: He said: While I was ill in Makkah, the Messenger of Allah (peace and blessings be upon him) came to visit me. I did not wish to die in the place from which I had emigrated. The Messenger of Allah (peace and blessings be upon him) said: May Allah have mercy on Ibn ʿAfra. I said: Messenger of Allah, shall I bequeath all my property? He said: No. I said: Then half? He said: No. I said: Then one-third? He said: Yes, one-third. And one-third is much. Leaving your heirs independent of others is better than leaving them dependent on others. It is not desirable that they remain poor and stretch out their hands to people. Whatever you spend on your family is charity—even the morsel of food you put into your wife’s mouth is charity. Soon a day will come when Allah will grant you prosperity, and through you some people will benefit while others will suffer. At that time Saʿd had no children except one daughter. (According to al-Waqidi, Saʿd later had four sons.)

One-third is calculated from the entire estate: According to most scholars, one-third is calculated from all the property left by the testator. Imam Malik says: One-third is calculated from the property known to the testator. The bequest is made excluding property of which he was unaware, or property newly acquired without his knowledge.

According to Malik, al-Nakhaʿi, and ʿUmar ibn ʿAbd al-ʿAziz, one-third of the estate is calculated as of the time the bequest was made. But according to the sounder of the two views attributed to Imam Abu Hanifah, Ahmad, and Imam al-Shafiʿi, one-third is calculated from the estate existing at the time of his death. This is also the view of ʿAli (may Allah be pleased with him) and some of the Followers.

Making a bequest of more than one-third: If the testator has heirs, it is not valid for him to bequeath more than one-third of the property. If he does so, it will not take effect until the heirs approve it. Its effectiveness has two conditions:

1. The bequest must be approved after death. For before the testator’s death, no authority over his estate is established for an heir, so the heir’s approval has no legal weight. If approval is given during his lifetime, he may revoke the bequest whenever he wishes. If approval is given after death, the bequest takes effect. Al-Zuhri and Rabiʿah say: The testator can never revoke it.

2. The heir granting approval must possess full legal capacity at the time of granting it. He must not be subject to interdiction because of foolishness. If there are no heirs, however, most scholars still hold that bequeathing more than one-third is not permissible.

The Hanafi school, Ishaq, Shurayh, and one narration from Imam Ahmad hold that bequeathing more than one-third is permissible. This is also the view of ʿAli (may Allah be pleased with him) and Ibn Masʿud. For in this case the testator is not leaving anyone whose absence would cause hardship. Moreover, since the verse mentions bequests without qualification, it is not valid to restrict bequests to one-third. The hadith imposed this limit on one who has heirs. Therefore, no limit may be imposed on one who has no heirs.

When does a bequest become invalid? A bequest becomes invalid if any of the previously mentioned conditions is not fulfilled, and in the following circumstances:

1. If the testator is insane and does not regain soundness of mind before death.
2. If the beneficiary of the bequest dies before the testator.
3. If the bequest concerns a specific item and it is destroyed before coming into the beneficiary’s possession.

Chapter Eighty-Nine: Fara’id

Definition: In Shariah terminology, fara’id means the prescribed shares of property allotted to heirs. The science dealing with this subject is called ʿilm al-mirath or ʿilm al-fara’id.

The position of fara’id in Shariah: In the pre-Islamic Age of Ignorance, the Arabs gave inheritance only to men, not women, and only to adults, not minors. People also made one another heirs through oaths. Allah abolished all these practices and revealed:

يَوْمِيكُمُ اللَّهُ فِي أَوْلَدِكُمْ قِ لِذَّكَرِ مِثْلُ حَنَا الْأَنْثَيَيْنِ : فَإِنْ كُنْ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثَلَثَا مَا ترك : وإِن كَانَت وَاحِدَةٌ فَلَهَا النِّصْفُ ، وَلابَوَيْهِ لِكُلِّ وَاحِلٍ مِنْهَا السُّدُسُ مِمَّا تَرَكَ إِنْ كَانَ لَهُ وَلَدْ جَ فَإِنْ لَمْ يَكُنْ لَهُ وَلَدْ وَ وَرِثَهُ أَبَوهُ

فَلِأُمِّهِ التكيف فَإِنْ كَانَ لَهُ إِخْوَةٌ فَلَامِهِ السُّدُسُ مِنْ بَعْدِ وَصِيَّةٍ يُوسِي بِمَا أَوْ دَيْنِ ، آبَاؤُكُمْ وَابْنَاؤُكُمْ لَا تَدْرُونَ أَيْمَر أَقْرَبُ لَكُمْ نَفْعًا ، فَرِيضَةً مِّنَ اللَّهِ مَا إِنَّ اللَّهَ كَانَ عليها حكيمان

‘Allah instructs you concerning your children: the share of one male is equal to that of two females. If there are only daughters, more than two, their share is two-thirds of what he leaves; and if there is only one daughter, her share is half. For his parents, each has one-sixth of what he leaves if he has a child. If he has no child and his parents are his heirs, then his mother has one-third. If he has siblings, then his mother has one-sixth, after the fulfillment of any bequest he made or debt. You do not know which of your fathers or children is nearer to you in benefit. This is an obligation from Allah. Surely Allah is All-Knowing, All-Wise.’ (Surah al-Nisa, verse 11).

The reason for the revelation of the verse: It is narrated from Jabir that the following hadith explains the reason for the revelation of this verse. Jabir said: The wife of Saʿd ibn al-Rabiʿ came to the Messenger of Allah (peace and blessings be upon him) with Saʿd’s two daughters and said: Messenger of Allah, these are the two daughters of Saʿd ibn al-Rabiʿ. Their father was martyred at Uhud while fighting alongside you. Their uncle took their property and left them nothing. Yet these two girls cannot be married without property. The Messenger of Allah (peace and blessings be upon him) said: Allah will decide concerning this matter. Then the verses concerning inheritance were revealed. Thereafter, the Messenger of Allah summoned their uncle and said to him: Give each of Saʿd’s two daughters one-third, give their mother one-eighth, and whatever remains is yours.’ (The five sound hadith collections other than al-Nasaʾi).

The virtue of knowledge of fara’id:

1. It is narrated from Ibn Masʿud (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: Learn the Qur’an and teach it. Learn fara’id and teach it. For I am a mortal man, and knowledge will one day disappear. Soon a day may come when two people will differ concerning fara’id and legal questions, yet no one will be found to inform them. (Ahmad).

2. It is narrated from ʿAbdullah ibn ʿAmr (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: Knowledge is of three kinds; everything besides these is surplus: a decisive verse, an established Sunnah, and a just inheritance ruling.’ (Abu Dawud, Ibn Majah).

3. Abu Hurayrah (may Allah be pleased with him) narrates that the Messenger of Allah (peace and blessings be upon him) said: Learn fara’id and teach it, for it is half of knowledge. It will one day be forgotten, and it will be the first thing taken away from my community. (Ibn Majah, al-Daraqutni).
The estate: Definition of the estate according to the Hanafi school: All the property left by the deceased. Imam Ibn Hazm, supporting this definition, says: ‘Allah prescribed inheritance in the wealth that a person leaves after his death, not in what is not wealth. He prescribed inheritance only in rights that are included in or classified as property, such as the right to benefit, the right to exercise power and authority, and the right to occupy land designated for construction and cultivation. According to the Maliki, Shafiʿi, and Hanbali schools, these rights are included among all the rights comprising the deceased’s estate, whether they are financial or nonfinancial.’

Rights relating to the estate: There are four types of rights relating to the estate.

These are not all equal; rather, one has priority over another, and expenditure must first be made for the one with priority. For example:

1. The first right: The first expenditure from the estate is for the deceased’s shrouding and burial, as previously explained in the discussion of funeral prayer and shrouding and burial.

2. The second right: Paying his debts. In this matter, Imam al-Shafiʿi and Ibn Hazm consider debts owed to Allah, such as zakat and expiations, preferable to debts owed to people. The Hanafis, however, hold that the rights of Allah lapse upon death. Consequently, the heirs are not charged with paying them. They may nevertheless pay them voluntarily, or pay them if the deceased made a bequest to that effect before his death. If he made such a bequest, it is treated like a bequest to an unknown or unrelated person. The heir or beneficiary pays it from one-fourth of the property remaining after shrouding and burial expenses and the debts owed to people have been paid. This rule applies when he has an heir. If he has no heir, it is paid from the entire estate. The Hanbali jurists favor paying it from the entire estate in all circumstances. They also unanimously hold that a debt involving a specific item owed to a person must be paid before general debts.

3. The third right: Executing the bequest from one-third of the property remaining after the debts have been paid.

4. The fourth right: Distributing the remaining estate among the heirs.

Essential elements of inheritance: Inheritance requires the presence of three elements:

A. The heir: That is, a person connected to the deceased through one of the causes of inheritance.

B. The deceased, or a missing person who has been deemed dead.

C. The inheritance or estate: The property or right transferred from the ownership of the deceased to the ownership of the heir.

Causes of inheritance: Inheritance is acquired for three reasons:

1. Actual relationship or direct kinship:

Allah says in Surah al-Anfal:

وأولُوا الْأَرْحَامِ بَعْضُهُم أَولَى بِبَعْضٍ فِي كِتَبِ اللهِ

‘Blood relatives are nearer to one another in the decree of Allah.’ (Al-Anfal: 75)

2. Indirect kinship: For example, the Messenger of Allah (peace and blessings be upon him) said: The kinship resulting from emancipating a slave is like actual kinship. (Ibn Hibban and al-Hakim). [When a person with no blood-relative heir enters into a pact of alliance or friendship with another person whereby each makes the other his heir after death, and assigns him responsibility for paying the required diyah or blood money if he unintentionally kills or injures someone, and the other voluntarily accepts this responsibility, the relationship thereby created is regarded by Imam Abu Hanifah as a cause of inheritance. It is not so regarded by the others. The latter view is reflected in the prevailing law.]

3. A valid marital bond: Allah says: ‘You are entitled to half of what your wives leave if they have no child.’ Conditions of inheritance: There are three conditions for inheritance:

1. The death of the person concerned, or his disappearance in such a manner that a judge declares him dead. Such a judgment establishes him as deceased. Conversely, if someone assaults a pregnant woman and she gives birth to a stillborn child as a result, the child is considered alive, even though it is dead at that time.

2. The heir of the deceased must be actually alive, such as a child in the womb, because it is considered actually alive. It is not impossible that life has not yet entered its body. If it is unknown whether the deceased’s heir is alive, as in the case of someone drowned, burned in a fire, or trapped beneath a collapsed building, then even if such persons would legally inherit from one another, they are not considered mutual heirs. Rather, their property is distributed among their living heirs.

3. None of the following impediments to the effectiveness of inheritance may be present.

Impediments to inheritance: A person who possesses all the qualifications for inheritance will nevertheless be deprived of it if those qualifications are nullified by some impediment. There are four such impediments:

1. Slavery, whether complete or partial.

2. Intentionally committing an unlawful killing. If an heir wrongfully kills the person from whom he would inherit, he is unanimously deprived of that inheritance. Al-Nasaʾi narrates that the Messenger (peace and blessings be upon him) said: ‘The killer has no entitlement.’

There is disagreement among the scholars concerning intentional and wrongful killing. Imam al-Shafiʿi says: Every killing prevents inheritance, whether committed by an insane person or a minor, and whether committed through a lawful process such as enforcing a right or qisas, or by a similar lawful means. The Maliki jurists say: Only intentional unlawful killing prevents inheritance, whether committed directly or indirectly. This view is followed in Article 5 of the Egyptian law. It states: One of the causes of exclusion from inheritance is intentionally killing the person from whom one would inherit, whether the killer is the principal offender or an accomplice, or a false witness whose testimony led to the death sentence being imposed and carried out, when the killing is unlawful and committed without an excuse, and the killer is an adult, of sound mind, and twenty-five years old. Lawful deprivation of the right of self-defense is considered an excuse.

3. Difference of religion: A Muslim does not inherit from a disbeliever, nor does a disbeliever inherit from a Muslim. The four sound hadith collections narrate from Usamah ibn Zayd (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: A Muslim does not inherit from a disbeliever, and a disbeliever does not inherit from a Muslim.’ On the other hand, it is narrated from Muʿadh, Muʿawiyah, Ibn al-Musayyab, Masruq, and al-Nasaʾi that a Muslim inherits from a disbeliever, but a disbeliever does not inherit from a Muslim, just as a Muslim may marry a disbelieving woman, but a disbeliever may not marry a Muslim woman. Non-Muslims, however, inherit from one another, because in the view of Islam they all belong to one religion.

4. Difference of country: That is, difference of nationality and citizenship. Difference of nationality and citizenship is not an impediment to Muslims inheriting from one another, no matter how great the distance between the two countries. Regarding difference of country, nationality, and citizenship among non-Muslims, the scholars disagree. Most scholars hold that it is not an impediment to their inheriting from one another, just as it is not among Muslims. Al-Mughni states: Followers of one religion inherit from one another even if their nationalities differ, because the general and unqualified wording of the Qur’an and Sunnah requires their mutual inheritance, and

their unrestricted wording requires that they inherit from one another. No statement is found in the Qur’an or Sunnah, nor is any consensus known, to the effect that they may not inherit from one another. Analogy has no place in this matter either. This is the view followed in the prevailing law, except in one case. Imam Abu Hanifah says that this applies when the law of another country refuses to grant inheritance to its foreign citizens. Article 6 of the law states:

Apart from the refusal of the law followed by a foreign government to grant inheritance to foreigners, difference of nationality does not create an impediment to inheritance among Muslims or among non-Muslims.

Who are entitled to the estate? According to the Hanafi school, those entitled to the estate are:

1. Ashab al-furud. 2. Blood-relative asabah, or true asabah. 3. Non-blood-relative asabah, or figurative asabah. 4. The remainder after the shares of the ashab al-furud. 5. Dhawu al-arham, or maternal relatives. 6. Mawla al-muwalat, that is, the former master. 7. Acknowledgment of another as a relative. 8. A bequest exceeding one-third. 9. Bayt al-Mal.

The order of those entitled to the estate under Egyptian law is as follows:

1. Ashab al-furud. 2. Blood-relative asabah, or true asabah. 3. The remainder after the shares of the ashab al-furud. 4. Dhawu al-arham. 5. The remainder after the share of one spouse. 6. Non-blood-relative asabah, or figurative asabah. 7. Acknowledgment of another as a relative. 8. The entire property for the person in whose favor it is bequeathed. 9. Bayt al-Mal.

1. Ashab al-furud: Ashab al-furud are those heirs for whom six prescribed shares have been established: one-half, one-fourth, one-eighth, two-thirds, one-third, and one-sixth. Those entitled to these shares are the ashab al-furud, twelve in all: four men and eight women. The four men are the father, the direct grandfather, however high in the line, the uterine brother, and the husband. The eight women are the wife, daughter, full sister, paternal half-sister, maternal half-sister, son’s daughter, mother, and direct grandmother, however high in the line. A detailed explanation of each follows:

The father’s various situations: Allah says: ‘If he has a child, then each of his parents has one-sixth of what he leaves. If he has no child and only his parents are his heirs, then his mother has one-third.’ (It should be noted that the word ‘child’ in this verse includes both a son and a daughter. The fact that the mother’s share is mentioned, while the father’s share is not mentioned, when the deceased has no child indicates that the remainder belongs to the father.)

The father has three situations: In one situation he receives only a prescribed share; in another he receives a residual share along with other heirs; and in a third he receives both a prescribed share and a residual share along with other heirs.

First situation: If there is one or more male children, the father’s share is one-sixth.

Second situation: If the deceased has no male or female child who is an heir, and the father is the sole heir, he receives the entire estate. If the deceased has a child, the father receives the residual share together with the remaining ashab al-furud.

Third situation: If the deceased has a daughter along with the father, the father receives the prescribed one-sixth, as well as the residual share together with the ashab al-furud. The situation of the direct grandfather: There are two kinds of grandfather: direct grandfather and indirect grandfather.

The direct grandfather is one whose relationship to the deceased can be established directly without an intervening woman, such as the father’s father. The indirect grandfather is one whose relationship to the deceased cannot be established except through a woman, such as the mother’s father, the maternal grandfather. The inheritance of the direct grandfather—that is, the father’s father—is established by consensus. It is narrated from ʿImran ibn Husayn (may Allah be pleased with him) that a man came to the Messenger (peace and blessings be upon him) and said: My son’s son has died. How much will I receive from his estate? He said: You will receive one-sixth. When the man set out, he called him and said: You will receive one-sixth. Then, when he set out, he called him again and said: You will receive another one-sixth. When he was about to leave, he called him and said: The remaining one-sixth is your provision. (Ahmad, Abu Dawud, al-Tirmidhi).

When the deceased’s father is alive, the share of the direct grandfather is extinguished. If the father is not alive, the grandfather takes the father’s place except in four cases. Those four cases are:

1. If the father is alive, the father’s mother (paternal grandmother) does not inherit, because she is connected through the father. She inherits with the grandfather only when the grandfather is alive.

2. When the deceased leaves both parents and one of the spouses, the mother receives one-third of the estate remaining after the prescribed share of the spouse. But when the grandfather takes the place of the father, the mother receives one-third of the entire estate. Umar, may Allah be pleased with him, gave this ruling.

3. When the father is present, full brothers and sisters and paternal half-brothers and sisters do not inherit. But when the grandfather is present, full brothers and sisters and paternal half-brothers and sisters are not excluded because of him. This is the opinion of Imam al-Shafi‘i, Imam Abu Yusuf, Imam Muhammad, and Imam Malik. Imam Abu Hanifah says: Just as they are excluded by the father, they are also excluded by the grandfather. There is no difference between the two. The first opinion is followed in Egyptian inheritance law.

The various situations of maternal half-brothers and sisters: Allah says:

فَإِنْ كَانُوا أَكْثَرَ وَإِنْ كَانَ رَجُلٌ يُورَه كَللَهُ أَوِ امْرَاةٌ و لَهُ احْ أَوْ أَعْت فَلِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ : مِنْ ذَلِكَ فَهُمْ شُرَكَاهُ فِي التَّلْفِ

If a man or woman who leaves neither parents nor children has one maternal half-brother or half-sister as heir, each of them receives one-sixth. If they are more than that, they all share equally in one-third.” (Surah al-Nisa’, verse 12).

The word “kalalah” mentioned in the verse means one who has neither father nor child. “Brother” and “sister” mean maternal half-brother and maternal half-sister. The verse indicates that they have three situations:

1. One-sixth for one person, whether male or female.
2. One-third for two or more persons, with males and females receiving equal shares.
3. These brothers and sisters receive no inheritance when there is an inheriting child, namely a child or son’s child, or when the father or grandfather is present. But they inherit when the mother or grandmother is present.

The various situations of the husband: Allah says:

ولكم نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِن لم يكن لهن ولد ج فَإِن كَانَ لَمَن وَلَد فَلَكُم الربع مما تركن

“For you is half of what your wives leave if they have no child. But if they have a child, then for you is one-fourth of what they leave.” (Surah al-Nisa’, 12).

This verse states that the husband has two situations:

First situation: If there is no inheriting child, he receives half the estate. It makes no difference whether this child is the offspring of that husband or of another husband. “Child” includes a son, daughter, or son’s daughter.

Second situation: If there is an inheriting child, the husband receives one-fourth of the estate.

The situation of the wife: Allah says:

ولمن الربع مِمَّا تَرَكْتُمْ إِن لَّمْ يَكُن لَّكُمْ وَلَدْ ، فَإِن كَانَ لَكُمْ وَلَن فَلَهن الثمن ما تركتر“For them is one-fourth of what you leave if you have no child; but if you have a child, then for them is one-eighth of what you leave.” (Surah al-Nisa’, 12).
This verse shows that the wife has two situations:

First situation: If the husband has no inheriting child, she receives one-fourth, whether that child is her own or another person’s.

Second situation: If the husband has an inheriting child, the wife receives one-eighth. If there is more than one wife, they share one-fourth in the first situation and one-eighth in the second among themselves.

The divorced wife: If the husband of a revocably divorced wife dies before her ‘iddah ends, she inherits from him. According to the Hanbali jurists, if a wife was divorced before intercourse and seclusion, and her husband divorced her during the illness preceding his death and died of that illness, she inherits until she marries another husband. However, she must observe the ‘iddah resulting from death.

Modern law considers a wife divorced by an irrevocable divorce during the illness preceding death to remain a wife if she objected to that divorce and her husband died of the same illness while she was observing her ‘iddah.
The situation of a biological daughter: Allah Most High says: “Allah instructs you concerning your children: the share of a male is equal to that of two females. But if there are only daughters, more than two, then for them are two-thirds of what he leaves. And if there is only one daughter, then for her is half.

This verse shows that a biological daughter has three situations.

First situation: If there is only one daughter, she receives half of the estate.

Second situation: If there are two or more daughters and no son or sons with them, those two or more daughters receive two-thirds. Ibn Qudamah says: Apart from one rare report from Ibn Abbas, the entire scholarly community agrees that two daughters receive two-thirds. Ibn Rushd says: Ibn Abbas’s well-known opinion is like the opinion of everyone else.

Third situation: When one or more sons are present with a daughter, she shares with everyone on the basis that one son is equal to the share of two daughters. The same applies when there is more than one daughter or son.
The situation of a full sister: Allah says in the last verse of Surah al-Nisa’:

يَسْتَفْتُونَكَ وَ قُلِ اللَّهُ يُفْتِيكُمْ فِي الْكَلَلَةِ وَ إِنِ امْرُوا مَلَكَ لَيْسَ لَهُ وَلَنْ وَلَهُ أَمْ فَلَهَا نِصْفُ مَا ترك ج وَهُوَ يَرِثُهَا إِن لَّمْ يَكُن لَهَا وَلَنْ طَ فَإِنْ كَالَتَا اثْنَتَيْنِ فَلَهُمَا التَّلْني مِمَّا تَرَكَ طَ وَإِنْ كَانُوا إِمْوَةً رجالاً وَنِسَاءً فَلِلذَّكَرِ مِثْلُ حَمَّا

الْأَنْثَيَيْنِ.

They ask you for a ruling. Say: Allah gives you a ruling concerning one who has neither parents nor children: if a man dies childless and has one sister, she receives half of what he leaves; and if she is childless, her brother inherits from her. If there are two sisters, they receive two-thirds of what he leaves. If there are both brothers and sisters, the share of one male is equal to that of two females.

The Messenger of Allah, peace and blessings be upon him, said: “Make the sisters residuary heirs along with the daughters.”

The five situations of a full sister:

1. If she is the only sister and there is no child, son’s child, father, grandfather, or full brother with her, she receives half the estate.

2. If there are two or more full sisters, they receive two-thirds when there is no male heir.

3. If there is one full brother with two or more full sisters, that brother inherits with the sisters according to the principle that one male is equal to two females.

4. Sisters inherit along with daughters and sons’ daughters, taking the remainder after the shares of the daughters or sons’ daughters.

5. If full sisters are present together with a son, a son’s son, or the father, they receive nothing. This is the unanimous opinion of the jurists. Even if the grandfather is present, full sisters receive nothing according to Imam Abu Hanifah. Imam Abu Yusuf and Imam Muhammad disagree on this, as mentioned earlier.

The situation of paternal half-sisters: Paternal half-sisters have six situations:

1. If there is no paternal half-brother, sister, or full sister, the only paternal half-sister receives half the estate.

2. Two or more paternal half-sisters receive two-thirds.

3. With one full sister, she receives one-sixth, completing two-thirds.

4. When there is a paternal half-brother with one or more paternal half-sisters, they inherit according to the principle that one male is equal to two females.

5. When there is a daughter or son’s daughter with one or more paternal half-sisters, the paternal half-sisters receive whatever remains after the share of the daughter or son’s daughter.

6. Paternal half-sisters receive nothing when the following persons are present:

1. An inheriting son or the father.

2. A full brother.

3. A full sister when she is present with a daughter or son’s daughter, because in this situation she becomes equivalent to a full brother. Therefore, when she is present with others, she is given priority over a paternal half-brother and paternal half-sister.

4. Two full sisters. However, when a paternal half-brother of their degree is present, the remainder is distributed according to the principle that one male is equal to two females. Thus, if the deceased leaves two full sisters, more than two paternal half-sisters, and one paternal half-brother, the two full sisters receive two-thirds. The remainder is distributed among the paternal half-sisters and paternal half-brother according to the principle that one male is equal to two females.

The situations of sons’ daughters (granddaughters): Sons’ daughters have five situations:

1. The only daughter of a son receives half the estate when there is no other biological child with her.

2. Two or more daughters of a son receive two-thirds of the estate when there is no other biological child with them.

3. One or more daughters of a son receive one-sixth when there is one biological daughter with them, thereby completing two-thirds. However, when there is a son of their degree, she inherits with them according to the principle that one son is equal to two daughters.

4. If a son is present, the daughters of a son do not inherit.

5. If there are two or more biological daughters, the daughters of a son do not inherit. However, when there is with them a son’s son of the same or a lower degree, the inheritance is distributed according to the principle that one son is equal to two daughters.

The situation of the mother: Allah says in verse 11 of Surah al-Nisa’: “If he has a child, then each of his parents receives one-sixth of what he leaves. If he has no child and his parents inherit from him, then his mother receives one-third. If he has siblings, then his mother receives one-sixth.”

The mother’s three situations: 1. If there is a child, a son’s child, or two full, paternal half-, or maternal half-brothers or sisters with her, she receives one-sixth.

2. If none of those persons is present, she receives one-third of the entire estate.

3. If none of those persons is present, she receives one-third of the remainder after the share of one of the spouses in the following two situations:

She receives one-third:

1. When a deceased wife leaves a husband and both parents.

2. When a deceased husband leaves a wife and both parents.

The situations of grandmothers:

1. It is narrated from Qubaysah ibn Dhu’ayb, may Allah be pleased with him: A grandmother came to Abu Bakr, may Allah be pleased with him, and asked him for her inheritance. Abu Bakr said: “Nothing has been prescribed for you in the Book of Allah, and I know of nothing for you in the Sunnah of the Messenger of Allah, peace and blessings be upon him. Go now, and I will consult the people.” He then consulted them. Al-Mughirah ibn Shu‘bah said: “A grandmother went to the Messenger of Allah, peace and blessings be upon him, and he gave her one-sixth.” Abu Bakr asked al-Mughirah: “Do you have anyone else with you?” Muhammad ibn Maslamah al-Ansari then stood and said the same as al-Mughirah. Abu Bakr therefore gave the visiting grandmother one-sixth. Later, another grandmother came to Umar, may Allah be pleased with him, and asked him for her inheritance. Umar said: “There is nothing for you in the Book of Allah, but that one-sixth remains. If you both come together, I will divide this one-sixth between you; and whichever of you comes alone will receive it alone.” —The five authentic hadith collections other than al-Nasa’i; al-Tirmidhi declared it authentic.

In fact, grandmothers have three situations:

1. If there is one, she alone receives one-sixth. If there is more than one, they all receive it collectively, provided that they are of the same degree—that is, all are paternal grandmothers or all are maternal grandmothers.

2. If a nearer grandmother is present, a more distant grandmother receives no share. For example, if the maternal grandmother is present, her mother or the paternal grandfather’s mother receives no share.

3. If the mother is present, the paternal or maternal grandmother receives no share. Similarly, if the father is present, the paternal grandmother receives no share. If the father is present, the maternal grandmother receives a share. If the grandfather is present, the grandfather’s mother receives no share, because she is included under the grandfather.

‘Asabah

Definition: ‘Asabah is the plural of ‘asib, meaning paternal relatives. Those who receive whatever remains after the recipients of prescribed shares (ashab al-furud) have taken their shares are called ‘asabah. If nothing remains, they receive nothing. However, if the son is an ‘asib, he is not excluded under any circumstances.

Likewise, the ‘asabah inherit the entire estate if none of the ashab al-furud are present, because al-Bukhari and Muslim narrate from Ibn Abbas that the Messenger of Allah, peace and blessings be upon him, said:

“Give the prescribed shares to those entitled to them. Then whatever remains should go to the nearest male relative of the deceased.” (According to Ibn Abbas, if the deceased leaves one daughter, one brother, and one sister, the daughter receives half and the brother receives half, while the sister receives nothing.)

It is narrated from Abu Hurayrah that the Messenger of Allah, peace and blessings be upon him, said: “I am closer to every believer than his own self, in this world and the Hereafter. If you wish, recite this verse: ‘The Prophet is closer to the believers than their own selves.’ Therefore, if a believer dies leaving property, his existing ‘asabah will inherit it. Whoever leaves behind a debt or impoverished heirs should come to me; I am his guardian.”

How many types of ‘asabah are there, and what are they? ‘Asabah are of two types: 1. genuine ‘asabah; 2. non-genuine ‘asabah.

Genuine ‘asabah: Genuine ‘asabah are of three types: 1. male ‘asabah; 2. female ‘asabah; 3. dependent ‘asabah.

Male ‘asabah: This includes male ‘asabah whose relationship to the deceased is not mediated by a female. This type of ‘asabah has four categories:

1. Sons, namely the deceased’s descendants.

2. Male ancestors, namely the deceased’s ascendants.

3. Brothers, namely the father’s descendants.

4. Uncles, namely the grandfather’s descendants.

Female ‘asabah: Female ‘asabah are female heirs who, when alone, receive half the estate, and when accompanied by one or more sisters, receive two-thirds. If a brother is present with her or them, they all become collective ‘asabah. They are four categories:

1. One or more daughters.

2. One or more sisters.

3. One or more full sisters.

4. One or more paternal half-sisters.

Each of these four categories becomes ‘asabah together with a brother. Thus, they inherit according to the principle that one male is equal to two females. (A woman who receives no share when there is no inheriting brother does not become ‘asabah when a brother is present. Therefore, if a person dies leaving an uncle and an aunt, the uncle receives the entire estate. The aunt receives nothing and does not become ‘asabah with her brother, because she would have received nothing if he had not been present. The same applies to a brother’s son with a sister’s daughter.)

Dependent ‘asabah: A dependent ‘asabah is a woman who depends on another woman in order to become ‘asabah. There are only two types of dependent ‘asabah:

1. With a full sister, a daughter of a full sister, or a son’s daughter.

2. One or more paternal half-sisters with a daughter or son’s daughter. They receive the estate remaining after the prescribed shares have been distributed.

The method of assigning inheritance to male ‘asabah: How female ‘asabah and dependent ‘asabah receive inheritance has already been discussed. We now discuss how male ‘asabah receive inheritance. Male ‘asabah are of four types, and they inherit in the following order:

1. The son and the son’s son, however far down the line.

2. If no one from the line of the son or son’s son is found, the estate passes to the male ancestors, including the father, grandfather, and those above them.

3. If none of the male ancestors is alive, the brothers receive the estate or its remainder. The brothers include full brothers, paternal half-brothers, sons of full brothers, sons of paternal half-brothers, and those below them.

4. If none of those relatives is alive, the estate or its remainder passes to the uncles, whether they are the deceased’s own uncles or the uncles of his father or grandfather. In all circumstances, the deceased’s own uncles have priority over his father’s uncles, and the father’s uncles have priority over the grandfather’s uncles. If several persons of the same degree are found, the one closer to the deceased has priority in inheritance. If their relationship to the deceased is equally close, the one with the stronger kinship has priority. If their kinship is equally strong, they all inherit equally, and the inheritance is divided among them according to their number.

Non-genuine ‘asabah: Non-genuine ‘asabah refers to the former master, whether male or female. If there is no former master, the inheritance is distributed among the deceased’s male ‘asabah.

Partial and complete exclusion from inheritance: When one person’s presence causes another person to be partially or completely excluded from inheritance, this is called hajb, and the excluded person is called mahjub. When someone is deprived of the whole inheritance because of a legal impediment to inheriting, this is called hirman, and the deprived person is called mahmum. How many types of hajb are there? Hajb is of two types: 1. hajb reducing the inheritance; 2. hajb excluding from inheritance.

Hajb reducing inheritance means that a person’s inheritance is reduced because of the presence of another person. This occurs because of five persons:

1. A child, whose presence reduces the husband’s share from one-half to one-fourth.

2. A child, whose presence reduces the wife’s share from one-fourth to one-eighth.

3. An inheriting child, whose presence reduces the mother’s share from one-third to one-sixth.
4. A son’s daughter.

5. A paternal half-sister.

Hajb excluding from inheritance: When a person is deprived of the whole inheritance because of the presence of another person, this is hajb excluding from inheritance. For example, a brother is excluded from inheritance because of the presence of a son. The inheritance of six heirs is exempt from this type of complete exclusion, although their inheritance may be partially reduced. These six are:

1–2. The father and mother.

3–4. The son and daughter.

5–6. The husband and wife.

Apart from these six heirs, every other heir may be completely excluded from inheritance. This complete exclusion is based on two principles:

1. A person whose relationship to the deceased is established through another person does not inherit when that intermediary is present, such as a son’s son. He inherits only in the absence of the son, even though both are connected to the deceased through him.

2. A closer relative is given preference over a more remote one. Thus, a son excludes a nephew. If all are equally close, the one with the stronger relationship is preferred. For example, a full brother excludes a consanguine brother.

Difference between the mahroom and the mahjub: The distinction between the mahroom and the mahjub arises in the following two cases:

1. A mahroom has no right to inheritance at all, such as a killer. A mahjub, by contrast, is entitled to inherit, but is excluded because someone with greater priority in inheritance is present.

2. A person who is mahroom, or excluded, from inheritance cannot affect anything else. Thus, he does not truly exclude another from it; rather, he renders that person as nonexistent. For example, if a person dies leaving a disbelieving son and a Muslim brother, the entire inheritance belongs to the brother. The son receives nothing.

In contrast, a mahjub can affect other matters. Consequently, he may partially or completely exclude someone from inheritance. Two or more brothers do not inherit in the presence of both the father and the mother, because the father is present. However, they can reduce the mother’s share from one-third to one-sixth.

Awl

Definition: Literally, awl means becoming higher, increasing, or showing partiality. The Qur’an says: “There is a greater likelihood that you will not show partiality.” (Surah al-Nisa’: 3).ذلك أدنى ألا تعولُوا“There is a greater likelihood that you will not show partiality.” (Surah al-Nisa’: 3).

In the terminology of fiqh, awl means increasing the shares of the أصحاب الفروض and thereby reducing the amount of their inheritance shares. It is reported that the first case of applying awl to inheritance in Islam occurred during the caliphate of Umar (RA). He ruled by awl in the case of a husband and two sisters. He said to the Companions who were with him: “If I give the husband his share first, or give the two sisters their share first, nothing will remain for the other party. So advise me—what should I do?” Abbas ibn Abd al-Muttalib advised him to apply awl. Some say that Ali (RA) gave this advice, while others say it was Zayd ibn Thabit (RA).

Examples of awl:

1. A woman died leaving a husband, two full sisters, and two uterine sisters. This is called the Shurayhi case, because the renowned judge Shurayh gave the husband three-tenths of the estate instead of the half to which he was entitled. Thus, the man went from clan to clan saying, “Shurayh gave me neither half nor one-third.” When Shurayh heard this, he came to him, punished him, and said: “You are spreading slander and concealing awl.”

2. A man died leaving a wife, two daughters, a father, and a mother. While delivering a sermon in the mosque of Kufa, Ali (RA) said: “All praise belongs to Allah, who decisively judges with truth, rewards every person for his efforts, and to whom all shall return.” At that time, when he was informed of the inheritance problem of the deceased, he replied: “The woman’s one-eighth has become one-ninth.” Then he completed the rest of his sermon.

The bases of the cases in which awl occurs are 6, 12, and 24. Thus, six may become seven, eight, nine, or ten; twelve may become thirteen, fifteen, or seventeen; but twenty-four can become only twenty-seven. The cases in which awl does not occur are those whose bases are 2, 3, 4, or 8. Awl is followed in Article 15 of the Inheritance Law. It states: “When the shares of the أصحاب الفروض exceed the total abandoned estate, it shall be distributed among them in proportion to their inheritance shares.”

Method of resolving cases of awl: You must understand the original case and determine the share due to each entitled person. Then add their shares and take the total as the new base; thereafter, divide the total abandoned estate by that base. In this way, it becomes clear how much less each person receives than his due share. Thus, there will be no injustice or deprivation. Take the case of a husband and two full sisters: if the original estate is taken as six, the husband’s share is one-half, namely three, while the two sisters’ share is two-thirds, namely four. The total therefore becomes seven, so the abandoned estate must be divided into seven parts. (The original base was six, but it was increased to seven through awl.)

Radd

Definition: In Arabic, the literal meaning of radd is to return something. It can also mean to repel. In the terminology of fiqh, radd means returning the surplus shares, left because there is no other entitled heir, to the أصحاب الفروض in proportion to their prescribed shares.

Essential elements of radd: Radd is not effective unless its three principal elements are present. They are:

1. The presence of an heir entitled to a prescribed share—that is, the presence of an heir from among the أصحاب الفروض.

2. Some surplus remaining from the abandoned estate.

3. The absence of an inheritor or entitled heir.

Scholars’ views concerning radd: Neither the Qur’an nor the Hadith contains a ruling concerning radd. Therefore, the jurists have differed on this matter. Some say that no portion of the surplus may be returned to any of the أصحاب الفروض. Rather, whatever remains after the أصحاب الفروض have taken their respective shares, when no heir is found, shall be deposited in the Bayt al-Mal. This is the view of Zayd ibn Thabit, Urwah, al-Zuhri, Imam Malik, and Imam al-Shafi‘i. Others say that the surplus should be returned to all the أصحاب الفروض in proportion to their shares, including the husband and wife. This is the view of Uthman (RA).

Some hold that the surplus should be given to all the أصحاب الفروض except the husband, wife, father, and grandfather. Thus, eight categories receive the surplus:

1. Daughter
2. Son’s daughter
3. Full sister
4. Consanguine sister
5. Mother
6. Paternal grandmother
7. Uterine brother
8. Uterine sister. In fact, this is the generally accepted view.

This is the view of Umar (RA), Ali (RA), most of the Companions, and most of the Successors. Moreover, when the Bayt al-Mal is in disorder, it is also the view of Imam Abu Hanifah, Imam Ahmad, the relied-upon position of the madhhab, and some disciples of Imam Malik. They say that the husband and wife should not receive the surplus because surplus is received solely by virtue of blood relationship, whereas no blood relationship exists here because of the marital relationship. The father and grandfather also do not receive the surplus, because it is received only when there is no heir, while the father and grandfather are heirs. Therefore, they receive the remainder by inheritance, not as surplus. Modern law follows this view everywhere except in one case, in which the view of Uthman (RA) is followed. It allows the husband or wife to receive the surplus. The case is this: when one spouse dies and leaves no heir other than the surviving spouse, the surviving spouse receives the entire abandoned estate, both by inheritance and by radd. However, under the law, the husband or wife may receive the surplus only after maternal relatives. Article 30 states: “If the prescribed shares of inheritance do not exhaust the entire abandoned estate and no direct residuary is found, the remaining abandoned estate shall be given to the أصحاب الفروض other than the husband and wife in proportion to their shares. Thereafter, whatever remains shall be given to the husband or wife only when no direct residuary, agnatic heir, or maternal relative is found.”

Method of resolving cases of radd: When one of the husband and wife is present with the أصحاب الفروض, and that spouse cannot be given the surplus abandoned estate, he or she will receive the prescribed share due from the original estate.

The remaining surplus will then belong to the أصحاب الفروض. If they belong to the same category, it will be distributed among them according to their number, whether there is one member of that category, such as one daughter, or several, such as three daughters. If there are members of several categories, such as a mother and a daughter, the surplus abandoned estate will be distributed among them in proportion to their prescribed shares, and the surplus will likewise be returned in that proportion. If neither the husband nor the wife is present with the أصحاب الفروض, whatever remains after their prescribed shares have been given will be distributed according to their number if they belong to the same category, whether only one or several members are present. If there are members of several categories, the remainder will be given to them in proportion to their shares. Thus, each heir’s share will increase proportionately, and he or she will inherit both as a prescribed share and through radd.

Dhawu al-arham: Dhawu al-arham refers to a relative who is neither entitled to a prescribed share—that is, one of the أصحاب الفروض—nor a residuary. The jurists hold various views concerning their entitlement to inheritance.

According to Imam Malik and Imam al-Shafi‘i, they are not entitled to or eligible for inheritance. Rather, the abandoned estate shall be deposited in the Bayt al-Mal. This was also the view of Abu Bakr (RA), Umar (RA), Uthman (RA), Zayd, al-Zuhri, al-Awza‘i, and Dawud. According to Imam Abu Hanifah and Imam Ahmad, they are entitled to inherit. This was also the view of Ali (RA), Ibn Abbas (RA), and Ibn Mas‘ud when there are no أصحاب الفروض or residuaries. Sa‘id ibn al-Musayyab said that a maternal uncle inherits together with a daughter. Modern law reflects this view. Articles 31 to 38 describe the method of giving them inheritance as follows:
Article 31: When no one is found among the direct residuaries and direct أصحاب الفروض, the abandoned estate or its remainder shall belong to the dhawu al-arham.

Dhawu al-arham are of four classes, and within them some have priority over others in inheritance according to the following order:

First class: The children of daughters and the children of sons’ daughters, however remote they may be.

Second class: Maternal grandfathers, however remote, and maternal grandmothers, however remote.

Third class: The sons of uterine brothers and their descendants, however remote; the daughters of full or half-sisters, however remote; the daughters of full or consanguine sisters, however remote; the daughters of full or uterine brothers’ sons, however remote; and their descendants, however remote.

Fourth class: The fourth class includes six groups, one of which has greater priority in inheritance than another. Their order of priority is as follows:

1. The deceased’s maternal half-uncles, full aunts, maternal aunts, and maternal uncles, or maternal half- or paternal half-aunts, uncles, and aunts.

2. The descendants of those mentioned above, however remote; the deceased’s full or consanguine female cousins and the daughters of their sons, however remote; and the descendants of those mentioned above, however remote.

3. The deceased’s paternal grandfather’s maternal half-uncles; his full aunts, maternal uncles, and maternal aunts; his maternal half- or paternal half-aunts, uncles, and aunts; the deceased’s full uncles, aunts, maternal uncles, and maternal aunts; or the deceased’s mother’s maternal half- or paternal half-uncles, aunts, maternal uncles, and maternal aunts.

4. The descendants of those mentioned above, however remote; the deceased’s paternal grandfather’s full or consanguine female cousins and their descendants, however remote; and the descendants of those mentioned above, however remote.

5. The paternal half-uncles of the deceased’s paternal grandfather; the full or consanguine uncles of the deceased’s maternal grandfather; and the full, maternal half-, or paternal half-aunts, maternal uncles, and maternal aunts of both the father and mother. Also included are the uncles of the deceased’s maternal grandmother, the uncles of the deceased’s paternal grandmother, and the full, maternal half-, or paternal half-aunts, maternal aunts, and maternal uncles of both parents.

6. The descendants of those mentioned above, however remote; the deceased’s paternal grandfather’s full or consanguine female cousins and their descendants, however remote; and the descendants of those mentioned above, however remote.

Article 32: Among the first class of dhawu al-arham, those closest to the deceased have the greatest right to inherit. If they are all equally close, the child of an heir from among the أصحاب الفروض has priority over the child of a dhawu al-arham. If they are equally close and none of them is the child of an heir from among the أصحاب الفروض, or if they are all related through the same member of the أصحاب الفروض, then they will all share in the inheritance.

Article 33: Among the second class of dhawu al-arham, those closest to the deceased have the greatest right to inherit. If all are equally close, the person related through an heir from among the أصحاب الفروض will have priority. If they are still equal—whether all are related through an heir from among the أصحاب الفروض or none is—then it must be determined whether they are equal in closeness of relationship. If they are equal, they will share the inheritance equally. If they are not equal, the paternal relatives will receive two-thirds and the maternal relatives one-third.

Article 34: Among the third class of dhawu al-arham, those closest to the deceased have the greater right. If all are equally close, any child of a residuary among them will be preferred to a child of a dhawu al-arham. The person closer to the deceased will be preferred. A person related through both the father and mother will be preferred to one related through only one parent; and one related through only the father will be preferred to one related through only the mother. If all are equally close in relationship, they will share the inheritance equally.

Article 35: In the first group of the fourth class of groups mentioned in Article 31, when the paternal group alone is present—that is, the deceased’s maternal half-uncles and aunts—or the maternal group alone is present—that is, the deceased’s maternal uncles and aunts—the one closest in relationship will be preferred. Among them, one related through both the father and mother will be preferred to one related through only the father, and one related through only the father will be preferred to one related through only the mother. If all are equal in relationship, they will share the inheritance equally. If both groups are present together, two-thirds will be assigned to the paternal relatives and one-third to the maternal relatives. The share of each group will be distributed as previously described, and the rules of the preceding two paragraphs will apply to the third and fifth groups.

Article 36: In the case of the third group, the closer is preferred to the more remote. When all are equal and the sphere of relationship is the same, whether they are children of residuaries or children of dhawu al-arham, the closer relative will be preferred. If they are of different degrees, a child of a residuary will be preferred to a child of a dhawu al-arham. When the spheres of relationship differ, two-thirds will be given to the paternal relatives and one-third to the maternal relatives. The share received by each side will be distributed in the previously mentioned manner, and the rules of the preceding two paragraphs will apply to the fourth and sixth groups.

Article 37: Except where the spheres of relationship differ, multiple lines of relationship of any heir among the dhawu al-arham shall not be taken into consideration.

Article 38: The inheritance of the dhawu al-arham shall be distributed according to the principle that “the share of two women equals the share of one man.”

The unborn child: This section discusses only the inheritance of an unborn child and the duration of pregnancy.

From the perspective of inheritance: If the unborn child is still in its mother’s womb, one ruling applies; if it is born, another ruling applies.

When the unborn child is born: If the child is born fully alive, it will inherit from others, and others will inherit from it. Abu Hurayrah (RA) narrated that the Messenger of Allah (SAW) said: “When a newborn makes a sound, the rules of inheritance apply to it.” Here, making a sound means a sign that the child is alive. Signs of life include any sound, breathing, sneezing, and the like. This is the view of Imam al-Thawri, al-Awza‘i, al-Shafi‘i, and the Hanafi jurists. If the child is stillborn, and this was not caused by an injury inflicted upon its mother, then by consensus it neither inherits nor is inherited from. If the child is stillborn because of a criminal injury inflicted upon its mother, then according to the Hanafi madhhab it will inherit, and others will inherit from it.

The Shafi‘i, Maliki, and Hanbali jurists say that it is not entitled to inheritance; it receives only one-tenth of the diyah. Apart from this one-tenth of the diyah, no one else will inherit from it. Whoever could be regarded as its heir will inherit from it.

Al-Layth ibn Sa‘d and Rabi‘ah ibn Abd al-Rahman said: If the unborn child is stillborn because of an injury inflicted upon its mother, it will neither inherit from anyone nor be inherited from by anyone. Only its mother will receive one-tenth of the diyah. Only the mother receives it, because the unborn child is part of her body. Since the injury affected it alone, the compensation will belong to her alone. Modern law also contains this provision.

The child in the mother’s womb:

1. When the child in the mother’s womb is not an heir, or is excluded from inheritance because of another person, nothing shall be set aside for it from the abandoned estate. When a person dies leaving a wife, a father, and a pregnant mother carrying a child conceived by someone other than her husband, this unborn child will receive no inheritance, because it can only be a uterine brother or sister. A uterine brother or sister does not inherit when the actual father-heir is present.

2. If the unborn child is an heir and there are no other heirs at all, or if there is with it an heir who is excluded from inheritance, distribution of the abandoned estate shall be suspended until the child is born. Similarly, if heirs who are not excluded are present with it and all of them agree to suspend distribution, expressly, tacitly, or by not demanding distribution, distribution shall also be suspended.

3. The full share of an heir whose share will not change when the unborn child is born shall be given to that heir, while distribution of the inheritance of the others shall be suspended. For example, if a person dies leaving a grandmother and a pregnant wife, the grandmother shall be given one-sixth, because the grandmother’s share remains unchanged whether the child is a boy or a girl.

4. An heir whose inheritance is cancelled in one of the two possible conditions of the unborn child but not in the other shall receive no share, because his entitlement is uncertain. For example, if someone dies leaving a brother and a pregnant wife, the brother will receive nothing for the time being, because the unborn child may be a boy. This is the view of most scholars.

5. If the share of an heir among the أصحاب الفروض changes according to the sex of the unborn child, that heir shall be given the smaller of the two shares, while the larger share shall be withheld until the child is born. If the child is born alive and the larger share is due to it, it will take the larger share. If the larger share is not due to it, but the smaller share is due, it will take the smaller share and return the remainder to the heirs. If the child is stillborn, it will receive nothing, and the entire abandoned estate shall be distributed among the heirs without taking the newborn into consideration.

The minimum and maximum duration of pregnancy: The minimum period for an unborn child to be fully developed and born alive is six months. Allah has said: وَحَيْلَ وَفَضْلَ تلقون عمراًIt takes thirty months to carry him and wean him.” (Surah al-Ahqaf, verse 15) And ونِضْلَهُ فِي عامين“His weaning is in two years.” (Surah Luqman, verse 14) Since weaning takes two years, no more than six months remain. This is the view of most scholars.

The Hanafi jurist Kamal ibn al-Humam said: Pregnancy ordinarily lasts more than six months. It is rarely heard, even after many generations, that a child was born at exactly six months. According to some Hanbali jurists, the minimum duration of pregnancy is nine months.

Modern law, opposing the view of most scholars, has set the minimum duration of pregnancy at nine lunar months, that is, 270 days, based on the view of some Hanbali jurists and Shariah-compliant physicians. This is because it accords with the view of the majority. Just as they differed concerning the minimum duration of pregnancy, the jurists also differed concerning its maximum duration. According to the Hanafi jurists, it is two years; according to the Maliki jurist Muhammad ibn al-Hakam, nine months; and according to some, one lunar year, that is, 354 days. Modern law, based on the view of Shariah-compliant medical science, has set it at one solar year, or 365 days, and has made this the basis for determining the child’s lineage, inheritance, waqf, and bequest.

The Hanafi madhhab’s fatwa is based on the view of Imam Abu Yusuf. Modern law has adopted this view. It states that the longer period mentioned in the two Qur’anic verses is the maximum duration of pregnancy. Modern law has also followed the view of the three Imams that the child’s being born alive is a condition for inheritance law to apply to it, and that being born within one year of the deceased’s death or the spouses’ divorce is a condition for its inheriting. The view of Muhammad ibn al-Hakam has also been adopted in modern law. Articles 42, 43, and 44 state:

Article 42: From the deceased’s abandoned estate, the greater of the shares due to the unborn child as a male or as a female shall be set aside.

Article 43: When a husband dies leaving a wife or a wife observing her iddah, his unborn child will inherit from him only if it is born alive within 365 days of the day of death or divorce. Except in the following two situations, this child will inherit from no one other than its father.

1. If his mother is observing the waiting period (iddah) due to death or divorce. If the deceased whose estate is being inherited dies during that same waiting period, and the child is born alive within a maximum of 365 days from the day of death or divorce.

2. If the marital relationship was still in force at the time of the deceased’s death, and the child is born alive within a maximum of 270 days from the day of his death.

Section 44: Whoever is given less than his due share pending the birth of the child shall recover the remainder from the heir who received more than his share. If he has received more than his due, he shall return it to the heir whose share he took in excess.

Missing person: A missing person is someone who disappears, whose whereabouts and circumstances are unknown, and it is not known whether he is alive or dead; when the judge considers him dead, he is termed a missing person. The judge’s ruling: The ruling concerning such a person may be based on evidence, such as the testimony of upright witnesses, or, after a long period has elapsed, on indications that are not admissible as proof. In the first case, he will be considered certainly dead from the time evidence of his death is found. In the second case, when the judge rules him dead because a long period has passed, he will be considered legally dead, since he may still be alive.

When is a missing person considered dead: The jurists differ regarding how long must pass before a missing person is considered dead. Imam Malik said: after four years. This is because Umar, may Allah be pleased with him, said: A woman whose husband has disappeared and whose whereabouts are unknown must wait four years; after four years she must observe an iddah of four months and ten days, after which she may marry another husband. —Bukhari, al-Shafi‘i.

The well-known view of Imam Abu Hanifah, Imam al-Shafi‘i, and Imam Malik is that no fixed period should be prescribed for this; rather, the matter should be left to the judgment of the judges of each era. In al-Mughni it is stated concerning a missing person whose death has not become more probable: “His estate shall not be distributed, nor shall his wife marry elsewhere, until his death is known with certainty. Likewise, his estate shall not be distributed and his wife shall not marry elsewhere until such a long period has passed that he would not ordinarily be expected to remain alive. The judge shall determine what period this should be. This is the view of Imam al-Shafi‘i, Imam Muhammad ibn al-Hasan, Imam Malik, Imam Abu Hanifah, and Imam Abu Yusuf, because being alive is the original presumption.” Imam Ahmad said: If he remains missing in circumstances that make death more probable, then, after four years, his death shall be decided through careful consideration and investigation. This applies, for example, to someone who goes missing on a battlefield or after numerous military expeditions, or someone who leaves his home for the evening prayer or another task and never returns, with no news of him. If, however, he is on a journey where safety is more likely—such as for pilgrimage, trade, or study—the matter shall also be left to the judge. The judge shall determine his death after whatever period he considers appropriate, investigating by every possible means whether he is alive or dead.

Where death is more probable, Ahmad’s view has been adopted in modern law, which prescribes a period of four years in accordance with his view. Where death is not more probable, the matter is left to the judge’s discretion.

Section 21 of Law No. 25 of 1929 states: In such a case, a missing person whose death is more probable shall be deemed dead four years after the date of his disappearance. In other cases, the judge shall determine after how long he is to be considered dead. The judge shall make this determination only after conducting an exhaustive search by every possible means to ascertain whether the missing person is alive or dead.

Inheritance of a missing person: If a missing person disappeared leaving property behind, his abandoned property shall remain his possession and shall not be distributed among the heirs until his death is known with certainty or the judge declares him dead. When his death becomes certain or the judge declares him dead, those who are heirs at the time of his death or declaration of death shall be entitled to inherit. Whoever died before that time, or became an heir after it, shall not inherit.

Conversely, when he is to inherit from someone else, his share of the deceased’s abandoned property shall be suspended. When he is declared dead, his suspended share shall become available to the other heirs. Modern law says the same. Section 45 states:

The missing person’s share of the deceased’s inheritance shall remain suspended until his status becomes clear. If it is learned that he is alive, he shall receive his share. If it is learned that he is dead, that share shall be given to those who were heirs of the deceased at the time of the deceased’s death. If he is proven alive after having been declared dead, he shall recover from the other heirs whatever portion of his share remains in their possession. (These are the rules relating to inheritance. If he has a wife, the law concerning her is stated in Section 22 of Law No. 25 of 1929:

After the missing person has been declared dead in the manner described in the preceding section, his wife shall observe the iddah prescribed for a woman after her husband’s death, and his abandoned property shall be distributed among the heirs who were present when the judge announced the ruling. Section 7 of Law No. 25 of 1920 states: When the missing person returns, or it becomes known that he is alive, if his wife’s second husband has not consummated the marriage with her, he shall consummate it. If the second husband had intercourse with her without knowing that the first husband was alive, the wife shall remain with the second husband, provided that the marriage did not take place during the iddah following the first husband’s death.)

Hermaphrodite

Definition: Khuntha, or a hermaphrodite, is a person whose being male or female is uncertain, either because he has neither male nor female sexual organ, or because he has both.

How such a person inherits: If his being male is clear, he receives the inheritance of a male; if his being female is clear, he receives the inheritance of a female.

One of the two statuses may be determined by the signs of masculinity and femininity. Before puberty, it may be determined by urination. If he urinates through the male organ, he is male; if through the female organ, he is female. If he urinates through both, he will be identified according to whichever one releases urine first. After puberty, if he grows a beard, approaches women with the intention of intercourse, or experiences nocturnal emission as men do, he is male. If he develops breasts like women, milk flows from them, he menstruates, or becomes pregnant, he is female. In all such cases he is called an ordinary hermaphrodite.

But if it cannot be determined whether the person is male or female, no sign clearly identifies him, or the signs contradict one another, he is called a complex hermaphrodite.

The jurists disagreed concerning his inheritance. Imam Abu Hanifah said that he should be treated once as male and then again as female. He should then be dealt with according to the less favorable of the two situations. If he is an heir under one assumption but not under the other, nothing shall be given to him. If he is an heir under both assumptions but his shares differ, he shall receive the smaller share. Imam Malik, Imam Abu Yusuf, and the Imami Shi‘is said that he should be given the share midway between the shares of a male and a female. Imam al-Shafi‘i said that every heir and the hermaphrodite should receive whichever of the two shares is smaller, since that is what remains certain for both possibilities. Imam Ahmad said that if it is expected that the person’s actual status will soon become clear, each heir and the hermaphrodite shall be given the smaller share and the remainder shall be suspended. If this is not expected, he shall receive the share midway between those of a male and a female. This last view is the stronger one. Modern law, however, has adopted the view of Imam Abu Hanifah. Section 46 states: “A complex hermaphrodite whose sex cannot be determined shall be given the smaller share. The remainder of the abandoned estate shall be given to the remaining heirs.”

Inheritance of an apostate: An apostate does not inherit from anyone, nor does anyone inherit from his property. His inheritance shall be deposited in the Muslims’ Bayt al-Mal. This is the more well-known view of Imam al-Shafi‘i, Imam Malik, and Imam Ahmad. The Hanafis said: His Muslim relatives shall inherit whatever he earned before apostasy; whatever he earned afterward belongs to the Bayt al-Mal. This matter has been discussed in detail in the chapter on hudud.

Illegitimate and disowned children: A child born outside a valid marriage is an illegitimate child. A child disowned by a lawful husband is one whose paternity the lawful husband does not acknowledge. Because there is no legally recognized paternal identity, it is unanimously held that neither child has an inheritance relationship with the parents; an inheritance relationship exists only with the mother. Ibn Umar, may Allah be pleased with him, narrated that during the time of the Messenger of Allah, peace and blessings be upon him, a man accused his wife of adultery, performed li‘an, and denied paternity of her child. The Messenger of Allah, peace and blessings be upon him, separated the husband and wife and affiliated the child with the wife. —Bukhari and Abu Dawud. Abu Dawud’s wording is: “The Messenger of Allah, peace and blessings be upon him, gave the inheritance of the child of li‘an to his mother and then to his mother’s heirs.” Section 47 of the law states: An illegitimate child and a child of li‘an shall inherit from his mother and his mother’s relatives, and his mother and her relatives shall inherit from him.

Takharuj

Definition: Takharuj is the exclusion of an heir from inheritance in the jointly inherited property, in exchange for a portion of the abandoned estate or without exchange. Takharuj may also occur between two heirs on the condition that one takes the other’s share in exchange for a specified sum of money.

Ruling: Takharuj is valid when it concerns jointly inherited property. During his final illness, Abd al-Rahman ibn Awf divorced his wife Tamadur, then died while she was observing her iddah. Uthman, may Allah be pleased with him, consequently made her an heir to his property along with three other women. The other heirs then settled with her for eighty-three thousand coins in exchange for the value of one-fourth of her inheritance.

Section 48 states: “The exclusion of one heir from inheritance by another heir in exchange for something specified is called takharuj. When one heir performs takharuj with another by mutual agreement, he obtains the latter’s share and takes his place in the abandoned estate. When one heir performs takharuj with all the other heirs, if the property given in exchange is part of the abandoned estate, his share shall be distributed among all of them in proportion to their respective entitlements. If it is given from their own property and the takharuj agreement does not specify how the excluded heir’s share is to be distributed, it shall be distributed equally among them.”

6, 7, 8. Acquiring the abandoned estate without inheritance: Section 4 of the Inheritance Law states:

When a deceased person has no heir at all, the abandoned estate shall be distributed in the following order:

First, the person whom the deceased acknowledged as his descendant.

Second, the person for whom he made a bequest exceeding the portion of the estate within which a bequest is effective.

`***** When no one belonging to either class is found, the abandoned estate or its remainder shall be deposited in the state treasury. This means that when a deceased person dies leaving no heir, ****** three persons become entitled to a share of the estate: ***** when another person is acknowledged as his descendant. *****/ for whom a bequest exceeding one-third of the estate is made.

4. The Bayt al-Mal, or state treasury.

These three matters will now be discussed in some detail:

The person claimed as a descendant: The law in force in Egypt is as follows: When a deceased person claims another person as his descendant, and that person’s lineage is unknown, no relationship of lineage to anyone else has been established, and the acknowledgment has not been withdrawn after he was acknowledged as his descendant, the person so acknowledged shall be entitled to the abandoned estate. In such circumstances, it is a condition that the acknowledged person be alive at the time of the acknowledger’s death—or at the time the acknowledger is declared dead—and that there be no impediment to his inheriting. The analysis of this law states: “The person acknowledged as a descendant is not an heir, because inheritance depends on proof of actual descent, whereas acknowledgment alone does not establish descent. Nevertheless, the jurists applied the rules of inheritance to him in certain circumstances; for example, they gave him priority in receiving the excess over one-third of the estate bequeathed to him. They treated him as standing in the place of the deceased, just as he retains the right to return goods he purchased upon finding them defective. In reality, although he is not an heir, it was considered beneficial, giving priority to practical considerations, to regard him as entitled to the abandoned estate.”

The person for whom a bequest exceeding one-third is made: When a person dies without leaving any heir and has not acknowledged anyone else as a descendant, it is permissible to bequeath the entire abandoned estate, or part of it, even to a non-relative. The restriction of bequests to one-third was established for the benefit of the heirs. When there are no heirs, there is no longer an obligation to maintain that restriction.

Bayt al-Mal: When a person dies without leaving any heir, has not acknowledged anyone as his descendant, and has not bequeathed more than one-third to anyone, his property shall be deposited in the Muslims’ Bayt al-Mal so that it may be spent on public welfare.

Mandatory bequest: In 1365 AH and 1946 CE, Mandatory Bequest Law No. 71 was enacted,

whose principal provisions are as follows:

1. If a child of the deceased died during the deceased’s lifetime, or is deemed to have died simultaneously with him, and the deceased did not bequeath to that child’s children an amount of property equal to what that child would have received had he been alive at the time of his death, then a bequest equal to that share shall be mandatory for that child’s children, within the limit of one-third of the total estate. The condition is that they not be heirs and that the deceased not previously have given them, by another method, property equal to the amount that must be bequeathed to them. If he previously gave them less than that amount, a bequest shall be mandatory for the difference needed to complete the amount due to them.

This bequest must be made for the first-generation descendants through daughters, and also for the first-generation descendants of the deceased’s children who are not connected to the deceased through a woman, however remote they may be. The condition is that each ascendant exclude his own descendant from inheritance, not another’s descendant. Moreover, each ascendant’s share shall be distributed among his descendants, even if this causes the inheritance shares to decrease progressively. This is as though the ascendants connected to the deceased had died after him, with their deaths occurring successively in the same manner as the deaths of successive generational levels.

2. When the deceased makes a bequest for a person entitled to a mandatory bequest in excess of that person’s due share, the excess shall be a voluntary bequest. If he makes less than that amount, a mandatory bequest shall be made for whatever is needed to complete the person’s due share. If he makes bequests for some of those entitled to mandatory bequests but not for others, a mandatory bequest shall be made for those for whom he did not bequeath their due shares. The share of the person for whom no bequest was made, and the remainder of the share of the person for whom less than the mandatory amount was bequeathed, shall be taken from the remainder of the one-third. If that is insufficient, it shall also be taken from the portion bequeathed voluntarily.

3. A mandatory bequest takes precedence over all other types of bequests. When the deceased makes no bequest for those entitled to mandatory bequests but makes bequests for others, each person entitled to a mandatory bequest shall receive his due share from the remainder of one-third of the abandoned estate, if it is sufficient. Otherwise, he shall receive it from that portion and from the portion bequeathed to others.

How to solve cases involving mandatory bequests:

1. A child who died during the lifetime of one of his parents shall be treated as alive and as an heir, and the share he would have received if alive shall be calculated.

2. This share of the deceased child shall be taken from the abandoned estate and given to the child’s descendants for whom the mandatory bequest is required, if their share is equal to or less than one-third. If it exceeds one-third, it shall be limited to one-third and then distributed among the children according to the principle that one male is equal to two females.

3. The remainder of the abandoned estate shall be distributed among the actual heirs in proportion to the shares prescribed by the Sharia.