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Member Back to Top Post by tahawi on Theo-Jurisprudence: The Influence of Theology on Islamic Jurisprudential Thought



Introduction



A salient feature of the branches of Islamic knowledge, such as jurisprudence, dialectical theology, and legal theory, is that while each branch has its own distinct history, as these branches collectively developed, each one harmonized with others and thus became a holistic enterprise tightly interwoven. A thorough understanding of any branch of Islamic knowledge, therefore, requires an investigation into external factors that may have influenced it. In this paper, we will examine one such trend: the theological dimensions in Islamic jurisprudential thought. For this, we will analyse the value of legal rulings with specific reference to the terms fard (mandatory), wājib (obligatory), and Sunnah; the debate surrounding the Createdness of the Qur’ān and how aspects of it were incorporated into legal discussions; and other instances where theological discourses spilled into jurisprudential thought.



The Value of Legal Rulings



Islamic legal theory assesses acts according to five classifications: obligatory (wājib), recommended (mandūb), neutral (mubāh), prohibited (hārām), and disliked (makrūh). The reason for this classification, as al-Ghazālī (d. 505 AH) explains, is that the law either demands the performance of an action, the abandonment thereof, or grants choice in the matter. In the first situation, either the demand results in punishment for its negligence, in which case it is termed wājib, or there is no punishment, in which case it is termed mandūb. In the second situation, either there is punishment for violating the prohibition, in which case it is termed harām, or there is no punishment, in which case it is termed makrūh. When the law has given choice in the matter, it is termed mubāh.

This taxonomy, however, was not unanimously agreed upon by all scholars. The Hanafīs, for instance, divided mandatory acts into two types by adding the term fard, which was above the wājib. Moreover, while the majority of scholars have regarded mandūb as a broad term synonymous with other terms for voluntary acts, the Hanafīs have placed al-sunnah al-mu’akkadah (emphasized Sunnah) in a position distinct from the other categories of mandūb. Though at first glance these distinctions may seem arbitrary, or even unnecessary as some have argued, a closer look at their historical origins reveals that there is a larger context wherein these terms have developed.



Fard and Wājib



The Hanafī distinction between fard and wājib was based on epistemological rather than legal concerns related to the nature of the indicant (dalīl). The Hanafī jurist Shams al-A’immah al-Sarakhsī (d. 483 AH) defines fard as those acts “stipulated and do not admit of increase or decrease, that is, they are definite, established by an indicant about which there is no lack of clarity.” He further defines wājib as “that which is incumbent upon us by an indicant about which there is some lack of clarity.” Thus, the former is based on indicants with definite authenticity that accept only one interpretation, and the latter is based on indicants with probable authenticity that accept more than one interpretation.



The Shāfi‘ī scholars, on the other hand, do not distinguish between fard and wājib. They maintain that these two terms are synonymous; they are not different from other terms that denote the same meaning, namely, mahtūm (enjoined) or maktūb (stipulated). The Shafī‘ī jurist Abū Ishāq al-Shirāzī (d. 476 AH) defines wājib as that action where “punishment is stipulated for its abandonment.” The Mālikī scholars also make no distinction between the two terms and define wājib as that act where “the one who carries it out will be praised and the one who omits it will be rebuked.” Though not a Mālikī himself, Ibn Hazm (d. 465 AH) of the Zāhirī school writes that some Mālikīs held the view that “there is a wājib that is neither fard or voluntary.” The strongest opinion according to the Hanbalī scholars is that there is no distinction between the two terms. However, there are three opinions attributed to the eponym of the school, Ahmad ibn Hanbal (d. 241 AH). The first is that he regards the two terms synonymous. The second is that fard is more emphatic than wājib. The third is that fard is that which is made incumbent by means of the Qur’ān while wājib is that which is made incumbent by the Sunnah. Ibn Rajab al-Hanbalī (d. 795 AH) states, “Most opinions reported from Ahmad differentiate between fard and wājib.” To put things into perspective, in light of the above, there are two groups in respect to the distinction between fard and wājib: the Hanafīs, alongside some Mālikīs and Hanbalīs opine that there is a distinction between the two terms while the majority are of the opinion that there is no distinction. Let us have a look at the evidence provided by each group to support their stance.



Al-Shirāzī vehemently refutes the Hanafī distinction in the following words, “This is an error, because the technique of nominalization is the Sharī‘ah, language, and usage; and there is nothing of this distinction between what is established by an unqualified indicant or an ijtihādī indicant in them.” Walī al-Dīn al-‘Irāqī (d. 826 AH) argues that the Hanafīs themselves were not true to their own principle. For instance, they regard wiping one fourth of the head in ablution as fard even though it is proven by a hadith which is merely probable in its transmission. Thus, contrary to their principle, they establish a fard act by an indicant that is not definite. Al-Bazdawī (d. 482 AH), a prominent Hanafī legal theorist, retorts that opponents of this distinction are taking issue with it either linguistically or with the ruling. In terms of their linguistic origins, fard and wājib are different because the latter means “to fall” while the former means “to stipulate.” As for their ruling, once we accept that the indicants of each term is distinct—one is probable while the other is definite— “how can one argue that their rulings will not differ?” The contemporary legal theorist Abd al-Karīm al-Nimlah further supports the distinction from a logical angle as he states that every Muslim knows that the prayer of Zuhr, for example, is more emphasized than a vowed prayer (mandhūrah) even though they are both considered obligatory. Hence, this difference between these two obligatory acts needs to be verbalized via the usage of two distinct terms. Walī al-Dīn al-‘Irāqī’s objection stems from his failure to realize a nuance in the juristic terminology of the Hanafīs. According to the Hanafīs the command to wipe the hair in ablution is proven from the Qur’ān which is a definite indicant; hence, the act of wiping itself is fard. But the specification of the amount, i.e. one fourth, was merely explained by a probable indicant and is therefore wājib. Both the act and its specification are often collectively termed fard due to their correlation—such generalization finds precedent in Hanafī works—although in essence both are different.



Despite the heated exchanges between both groups, al-Ghazālī contends that the debate surrounding the distinction between fard and wājib is an issue of semantics. This opinion holds some merit because there are two ways to look at the issue. First, if it is looked at from the following angle: that which is commanded is categorized into two types, one that is definite and the other that is probable, and only the person who rejects that which is proven by a definite indicant will be anathematized—the debate is one of semantics. However, looking at the difference in their ruling, there is a stark contrast between the two terms. For example, according to the Hanafīs, recitation of Sūrat al-Fātihah in prayer is only wājib because it is established through a probable indicant and therefore if a person omits it in his prayer, the prayer will remain valid. General recitation, however, is established through a definite indicant, so its omission will invalidate the prayer. As can be seen from this example, there are practical implications of the distinction. From this angle, the debate is clearly not one of semantics.



If we are to understand the true nature of this distinction, a more important question that needs to be asked is where did it originate from? Al-Tarhīb al-Dawsarī argues that the roots of such a distinction are theological, based upon the question whether belief can be established by evidence that is probable? Hence, the distinction between the two terms is an outcome of the position that belief can only be proven by means of evidence that is definite, that is, the Qur’ān and widely-transmitted Sunnah. The problem with al-Dawsarī’s explanation is that it limits the distinction to issues related to transmission: the Qur’ān and widely-transmitted Sunnah are definite in their transmission, so fard can be established from them while solitary reports (khabr al-āhād) are probable in their transmission, so only wājib can be established from them. However, his explanation does not account for the fact that the Hanafīs also distinguish between the two terms based on the ambiguity of the indicant even if it is definite in its transmission.



A better explanation for the origins of the Hanafī distinction was provided by Kevin Reinhart. After studying al-Sarakhsī’s definition of fard, Reinhart writes that according to al-Sarakhsī, it is mental disposition that renders a person out of the Muslim community; neglecting fard can be a sign of mental repudiation of Allah and His commands. Hence, fard must be established from definite sources and it requires mental affirmation as a prerequisite to be part of the Muslim community. This find its roots, Reinhart argues, in early theological debates around Solifidianism (Irjā’), which was a view attributed to Abū Hanīfah, the eponym of the Hanafī school of law. Extreme Solifidianism maintained that actions had no bearing on one’s faith; mere belief is sufficient for salvation. The solution to extreme Solifidianism then was to make affirmation of the incumbency of worship clearly ordained in Revelation also part of faith. This was separate from its actual performance. There existed other forms of worship the incumbency of which was not clearly ordained in scripture, but was instead derived from controversial sources. A person was not expected to affirm the incumbency of these acts as a prerequisite to remain within the Muslim community. Thus, the Hanafīs made a distinction between the incumbency of two sets of actions: those from definite sources (in terms of transmission and indication) and those from controversial sources (in terms of transmission and indication). They classified the former as fard and the latter as wājib.



Mandūb and Sunnah



As mentioned earlier, both wājib and mandūb result from a demand from the sharī‘ah, with the difference that in wājib there is a punishment for abandonment while in mandūb there is no punishment. According to the majority of scholars, mandūb is a broad term under which falls many other terms like nafl (supererogatory), fadīlah (virtuous), and the three types of Sunnah: al-mu’akkadah (emphasized), ghayr al-mu’akkadah (not emphasized), and al-zawā’id (additional). To substantiate why all of these terms should fall under one category, al-Shirāzī explains that everything that is prescribed by the sharī’ah on a voluntary basis is Sunnah or Nafl, regardless whether it was done by the Prophet consistently or not. Therefore, “there is no need for a distinction between these terms.” On the other hand, Hanafīs distinguish between the categories of Sunnah. Although they agree that the place al-sunnah al-mu’akkadah is above the categories of mandūb, there is considerable debate among them around the definition of al-sunnah al-mu’akkadah. ‘Abd al-Hayy al-Laknawī (d. 1304 AH) enumerates over twenty-two different views among the Hanafīs regarding its definition. After pointing out flaws in each definition, he inclines towards the view of Sadr al-Sahrī‘ah (d. 745 AH) who says, “al-Sunnah al-mu’akkadah is what the Prophet practiced upon as a form of worship with continuity except in a few instances.” This is distinguished from sunan al-zawā’id which was done as a habit, like the Prophet’s practice of beginning everything from the right side. The Hanafī jurist Ibn Nujaym (d. 970 AH) writes that according to the Hanafīs the abandonment of al-sunnah al-mu’akkadah is deserving of a sin, but not as severe as the abandonment of wājib. The problem with Ibn Nujaym’s explanation is that he contradicts himself as he also equates Sunnah with wājib. The most fitting explanation then is that according to the Hanafīs al-sunnah al-mu’akkadah has various degrees, some on the level of wājib (e.g. congregational prayers) and some below wājib due to the lack of emphasis (e.g. washing a limb three times in ablution). The reason for reserving a distinct status for al-sunnah al-mu’akkadah as opposed to the other categories of mandūb is that in the former there is added emphasis. Take for example the two units of prayer before the Fajr prayer, which according to the Hanafīs is al-sunnah al-mu’akkadah. The Prophet is reported to have not performed any voluntary act with as much consistency as he did with the two units of prayer before Fajr, and in one instance he even said, “Do not abandon the two units before Fajr even you were trampled upon by horses. Consequently, the Hanafīs assert that it is untenable to equate such an action with ordinary voluntary acts. This can further serve as a response to al-Shirāzī’s premise for not distinguishing between the various categories of mandūb. Although all these actions are prescribed by the Sharī‘ah on a voluntary basis, there is a clear difference in the amount emphasis placed on some of them, as seen in the above example, and therefore they cannot all be placed into one category.



From the Hanafī distinction between fard and wājib and between al-sunnah al-mu’akkadah and the other categories of mandūb, it is clear that the taxonomy of the value of legal rulings mentioned in the beginning of this paper is not unanimously agreed upon. The origins of the Hanafī distinction between fard and wājib clearly traces back to early theological debates. As such, it serves as an example of a theological discourse that influenced jurisprudential thought. In fact, the value of legal rulings in general falls within the ambit of religious obligation (taklīf), which is closely linked to another historical theological phenomenon: the Createdness of the Qur’ān.



The Createdness of the Qur’ān



The dogma of the Createdness of the Qur’ān was the basis of much contention in the second century and had serious theological and political consequences. Al-Ja‘d ibn Dirham (d. 118 AH) was regarded as the first person to argue for the opinion that the Qur’ān is created, and was then followed by Jahm ibn Safwān (d. 127), the eponym of the Jahmiyyah, both of whom were later executed for their heretical beliefs. This opinion became widespread among several early sectarian groups, namely, the Mu‘tazilah, the Zaydiyyah, the Murji’ah, and many of the Rāfidah. There were sparks of conflict surrounding the Createdness of the Qur’ān immediately after the death of Jahm ibn Safwān, such that Abū Hanīfah (d. 150 AH) is said to have issued a statement to refute the doctrine that the Qur’ān is created.



The most devastating impact of the Createdness of the Qur’ān was on a political level as it led to the Mihnah, or the Qur’ānic Inquisition, which spanned from the year 218 AH to around 237 AH. In the year 218 AH, Caliph al-Ma’mūn (r. 198-218 AH) instituted an inquisition requiring judges, scholars, and civil servants to publicly accept the belief of the Createdness of the Qur’ān. This evoked significant public outcry and resulted in the imprisonment of many influential personalities and the death of others for not complying to the demands of the caliph. The Inquisition lost its momentum by the reign of Caliph al-Mutawakkil (r. 232-247 AH), who gradually extinguished the Inquisition between the years 234-237 AH. Apart from its theological and political impact, the Createdness of the Qur’ān had its fair share of influence on the various branches of Islamic scholarship. Scott Lucas writes that the Inquisition had little impact on hadith scholarship apart from the deaths of some hadith scholars and a rift between others. In a positive sense, it raised the status of Ahmad ibn Hanbal, and in a negative sense it resulted in two rival positions with regards to the implications of belief that the Qur’ān is uncreated. On the other hand, Abū Ghuddah convincingly argues that the Inquisition definitely had a far reaching influence on the science of al-Jarh wa al-Ta‘dīl (criticism and accreditation), a sub-section of hadith studies. As a result, countless narrators were impugned unjustly due to their stance on the Createdness of the Qur’ān.



In view of the far reaching influence of the Createdness of the Qur’ān debate, it should come as no surprise that it also found its way into legal thought. To solve the problem of the dilemma of the Createdness of the Qur’ān, the Ash‘arīs observed that there are two dimensions to the Qur’ān: (1) the words of the Qur’ān, spoken on tongue and written on pages (al-kalām al-lafżī) (2) the Qur’ān as the speech of Allah (al-kalām al-nafsī), which is a pre-eternal attribute of Allah. Thus, the Ash‘arīs argued that what is meant by the Qur’ān being created is al-kālam al-lafżī while the Qur’ān as al-kalām al-nafsī is an uncreated attribute of Allah. The Mu‘tazilah argued that Divine speech, manifested in divine utterances, was a created accident (hādith) and therefore could not be pre-eternal. The Qur’ān being the speech of Allah, thus, was also created and not pre-eternal according to the Mu‘tazilah.



This debate over the nature of Divine speech was later transferred to the jurisprudential realm. One such example is where legal theorists debate whether a non-existent (ma‘dūm) has religious obligation (taklīf). The Ash‘arī theoreticians argued that there is religious obligation while the Mu‘talizī theoreticians argued to the contrary. For the former, this was not to say that a person is expected to somehow carry out an obligation before his own existence; rather, they believed that the command to perform an action is directed from sempiternity towards a person who Allah knows will later come into existence. The reason Ash‘arī theoreticians held this position is because if a non-existent is not directed with religious obligation then religious obligation cannot be considered pre-eternal as religious obligation emanates from instructions and prohibitions which are part of Allah’s speech which is pre-eternal. The Mu‘tazilah respond that such a stance would lead to an impossible outcome: the command will be addressed to a non-existent, which makes no sense. Moreover, the premise of the Ash‘arī position is based on the belief that Divine speech is pre-eternal whereas the Mu‘tazilah maintain that it is a created accident (hādith). Al-Shawkānī (d. 1250 AH) explains that the debate over the non-existent is an outcome of the debate of Divine speech, which is directly linked to the Createdness of the Qur’ān. However, there is a deeper correlation between the two concepts than what al-Shawkānī explained. The entire discussion of religious obligation (taklīf), wherein lies the value of legal rulings discussed earlier, in fact is interwoven with the discussion of Divine speech. As al-Ghazālī observes, religious obligation (taklīf) forms part the Divine speech because the former emanates from the latter.



Another issue related with theological implications is the concept of legal abrogation in the Qur’ān. Scholars differ regarding the essence of Qur’ānic abrogation. Most legal theorists like al-Ghazālī define abrogation as “removal” (raf‘), which means that had it not been for the abrogation, the original ruling would continue to apply. Others like al-Shīrāzī and al-Juwaynī (d. 478 AH) define it as “explanation” (bayān), which means that the original ruling came to an end itself at the time of abrogation, after which a new ruling was initiated. The reason the second group refused to define abrogation as “removal” is that instructions emanate from the speech of Allah, which is pre-eternal, and a thing that is pre-eternal cannot be removed. It is clear that this issue, like the one before it, is an outcome of the debate surrounding the Createdness of the Qur’ān.



Further Examples of Such a Trend



In a debate with Bishr al-Marīsī (d. 218 AH) over the nature of the Qur’ān, ‘Abd al-‘Azīz al-Kināni (d. between 221-240 AH) imported the legal hermeneutics of his teacher al-Shāfī‘ī to the realm of theology. The early compilers of hadith, like al-Bukhārī (d. 256 AH) and Muslim (d. 261 AH), generally selected hadiths for their respective collections that corresponded to their jurisprudential leanings; hence, their hadith collections are a reflection of their jurisprudence. These are interesting examples of how legal hermeneutics found its way into theological discussions and how jurisprudential thought influenced hadith scholarship. They further reinforce the idea mentioned earlier that each branch of knowledge, despite having its own historical development, was influenced in one way or the other by other branches of knowledge. The influence of theology on Islamic law, however, is an issue of debate. Fazlur Rahman argues that theology had no impact on law, and that there is no proof that the theology of the Mu‘tazilah affected their positions on law. ‘Umar Abd-Allah stresses that the influence of Islamic theology was in legal theory and not on positive law, and the influence of legal theory on positive law was limited. However, Schacht makes an interesting observation on the close connection between the pursuit of theology and the founders of the four recognized schools of law, all of whom “were attentive to the theological issues of their times.” Schacht’s observation finds support in the example mentioned earlier of Abū Hanīfah’s involvement in the debate around the Createdness of the Qur’ān. Be it as it may, there are clear examples of theological discourses influencing jurisprudential thought. The following examples show that legal theory did in fact impact positive law.



First is the issue of infallibility/fallibility (taswīb/takhti’ah) of all mujtahids. The Mu‘tazilah among others maintained that all mujtahids are correct on issues that admit of no more than probable opinions. That this theory is of a theological nature can be gleaned from ‘Alā’ al-Dīn al-Samarqandī’s (d. 539 AH) description of fallibilism as the doctrine of the people of the Truth (Ahl al-Haqq) and the people of the Sunnah (Ahl al-Sunnah), both of which are theological designations. This debate then permeated into the realm of jurisprudence. ‘Alā’ al-Dīn al-Bukhārī (d. 730 AH) gives the example of a group of people who pray in congregation outside on a dark night. Since none of the congregants can see the direction of the Qiblah, they have to exercise judgement (ijtihad) as to the correct direction, resulting in each worshiper—including the imām who is leading the prayer—in a different direction. Now, whoever comes to know of the direction chosen by the imām, his prayer will become invalid according to the Hanafīs because in the opinion of this individual the imam is facing the wrong direction. This is in contrast to the Mu‘tazilah who opine that the prayer of that individual will remain valid because every mujtahid (lit. one who exercises judgment) is correct; hence, according to this individual, who is praying in a different direction from his imam, both directions are valid. Apart from proving the theological dimensions of positive law, this also disproves Fazlur Rahman’s claim that the theological views of the Mu‘tazliah never impacted their positions in positive law.



Second is the issue of whether good (husn) and bad (qubh) can be comprehended by reason. There are three ways something can be regarded as good or bad. The first is in the meaning of perfection and imperfection, and the second is in the meaning of conformity or inconformity to one’s temperament and desire. According to all theological schools, these two types of good and bad can be comprehended by reason. The third is good in terms of what Allah considers praiseworthy and deserving of reward and bad as what He considers blameworthy and deserving of punishment. According to the Māturīdīs, everything Allah commands through scripture is good and everything that He forbids through it is bad. But what He ordered is not good only because He ordered it, but it was good before His command. The Divine order only made the goodness of the action apparent. The Ash‘arīs state that a command of Sharī‘ah is good only because the Sharī‘ah orders it; it was not good prior to the divine command. It is, therefore, conceivable that the Sharī‘ah would have commanded people to lie or to act miserly, and in that case these actions would still be good.



This theological debate manifests itself in many issues of positive law. For instance, if a person takes an oath to fast on the day of ‘Id or the days of tashrīq, i.e. those days where fasting is prohibited, jurists have differed whether such an oath can be fulfilled. The majority of Mālikī and the Shāfi‘ī jurists state such an oath will be disregarded and the fast will be invalid since there is explicit prohibition in this regard. On the other hand, the majority Hanafī jurists state that the oath can be fulfilled and the fast will be valid. To substantiate this position, the Hanafī authority Abū Bakr al-Kāsānī (d. 587 AH) writes that fasting in essence is an act of piety and an expression of gratitude, and these traits are also found in a person who fasts during the days where it is prohibited to fast. These traits of piety and gratitude, al-Kāsānī reasons, are good rationally (mustahsanah ‘aqlan) and divine revelation does not prohibit those actions whose goodness is comprehended by reason; otherwise, divine law would in fact be demanding something that conflicts with rationally accepted notions of goodness. Therefore, to prevent the law of Allah from falling into such a contradiction, al-Kāsānī explains that the prohibition will be interpreted differently and the oath and the fasting will be valid. It is clear from al-Kāsānī’s line of reasoning that he is explaining a concept which is jurisprudential in nature on the theological premise of whether good and bad can be comprehended by reason.



Apart from classical examples of theology influencing jurisprudence, there are examples of such a trend in the modern context, such as the issue of voting in a democratic election. According to certain Islamic movements such as Hizb al-Tahrīr, voting in a democratic election is forbidden in Islam. The basis for this prohibition is their understanding of the theological premise of “ruling with a law beside what Allah revealed” (al-tahkīm bi ghayr mā anzal Allāh). Based on Qur’ānic verses such as, “And whoever does not rule by what Allah has revealed, they are the oppressors,” they argue that accepting any form of legislation apart from the Sharī‘ah is forbidden. Since in a secular political election whoever will be voted into office will rule by a law besides the Sharī‘ah, it is impermissible, they claim, to vote in such an election. It is beyond the purpose of the present essay to engage in a debate on the Islamic ruling of voting. What can be understood here at least is that the jurisprudential stance of regarding voting impermissible is an offshoot of the theological premise that ruling according to a law besides the Sharī‘ah is disbelief.



Conclusion



In light of the above discussion, we can draw the following conclusions. First, the Hanafī distinction between fard and wājib can be traced back to early theological debates. Although al-Ghazālī attempted to show that the debate over the distinction is one of semantics, there are definitely practical implications of such a distinction as seen in the case of reciting Sūrat al-Fātihah in prayer. Second, the dilemma of the Createdness of the Qur’ān had far reaching political and theological consequences and also influenced jurisprudential thought. In fact, the entire discussion of obligation (taklīf), wherein lies the value of legal rulings, is closely linked to the Createdness of the Qur’ān. Third, there are other clear examples where theological debates have spilled over into positive law. Classical examples of such a trend include the issue of fallibilism of the mujtahids and the belief of whether good and bad can be perceived through reason. A modern example is the case of voting in a democratic election and whether that can be regarded as ruling according to a law beside the Sharī‘ah. All of these examples clearly show that contrary to the claims of Fazlur Rahman and others that theology had no impact on positive law, there are numerous instances in fact where theology produced a definite impact on Islamic law.





References

Reinhart, Kevin, (2002) Like The Difference Between Heaven and Earth: Hanafī and Shafi‘ī Discussions of Fard and Wāhib in Theology and Usūl, Leiden: Brill, p.205



Hallaq, Wael, (1997) History of Islamic Legal Theories, Cambridge: Cambridge University Press, p.40. It is worth noting that this taxonomy is often cited by Western writers as an indication of Islamic Law’s religious nature; see Abd-Allah, Theological Dimension of Islamic Law, p.242.



Al-Ghazālī, Abū Hāmid, (1997) al-Mustasfā, Beirut: Dār al-Kutub al-‘Ilmiyyah, vol.1, p.53



Nyazee, Imran, (2000) Islamic Jurisprudence. Islamabad: International Institute of Islamic Thought, pp.46-47. Behnam Sadeghi argues that Hanafīs began to distinguish between the two types of undesirability (karāhah) only from the era of the Hanafī jurist al-Kamāl Ibn al-Humām (d. 861 AH); see Sadeghi, Behnam, (2013), Cambridge: Cambridge University Press, The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition, p.47



Al-Sarakhsī, Muhammad, al-Usūl, Beirut: Dār al-Ma‘rifah, vol.1, p.110; al-Bazdawī, Kanz al-Wusūl ilā Ma‘rifat al-Usūl, vol.2, p.300



Ibid., vol.1, p.110. al-Bazdawī, Kanz al-Wusūl ilā Ma‘rifat al-Usūl, p.301. See: Reinhart, Like The Difference Between Heavan and Earth: Hanafī and Shafi‘ī Discussions of Fard and Wājib in Theology and Usūl, pp.207-209



Hallaq, History of Islamic Legal Theories, p.40. The Hanafī jurist Abū Zayd al-Dabūsī maintains that wājib is that which is proven by khabr al-wāhid (solitary report). He states, “It is like fard in the necessity of performance, but is like a voluntary act in terms of belief, so the one who rejects it will not be anathematized.” See: al-Dabūsī, Taqwīm al-Adillah, vol.1, p.77; al-Zarkashī, al-Bahr al-Muhīt, vol.2, p.240. Ibn Rushd major attributes to the Hanafīs the distinction between the two terms as “fard is that which is proven from the Qur’ān, and wājib is that which is proven from the Sunnah.” This goes against what is accurately attributed to the Hanafīs. See: Halūlū, al-Diyā’ al-Lāmi‘, vol.1, p.194.



Al-Shīrāzī, al-Luma‘, p.23; al-midī, al-Ihkām, vol.1, p.99; al-Zarkashī, al-Bahr al-Muhīt, vol.2, p.240



Al-Shīrāzī, al-Luma‘, p.23. Al-Zarkashī analyzes various other definitions in this respect; see al-Zarkashī, al-Bahr al-Muhīt, vol.1, pp.233-236



Al-Qarāfī, al-Dhakhīrah, vol.3, p.217; Halūlū, al-Diyā’ al-Lāmi‘, vol.1, p.194.



Al-Manūfī, Kifāyat al-Tālib al-Rabbānī, vol.1, p.29



Ibn Hazm, al-Ihkām, vol.3, p.79



Al-Zarkashī, Sharh al-Mukhtasar, vol.2, p.6; al-Sālihī, al-Tahbīr, vol.2, p.836; al-Bahūtī, Kashf al-Qinā‘, vol.1, p.96



Ibn Taymiyyah, al-Musawwadah, vol.1, p.50. Tarhīb al-Dawsarī argues that it is incorrect to attribute such a distinction to Ahmad because in cases where he used different terms he was not referring its technical usage as that appeared after him; see: al-Dawsarī, al-Ikhtilāf, 217, 223. Assuming that it is correctly attributed to him, al-Bāqillānī states that this would necessitate that actions proven from the Sunnah like the intention for Salāh will only be wājib, which is problematic. See: al-Nimlah, al-Ikhtilāf al-Lafżī, p.98



Ibn Rajab, Jāmi‘ al-‘Ulūm wa al-Hikam, vol.2, p.820



Reinhart states that Ibn al-Humām, a leading Hanafī jurist, does not distinguish between fard and wājib; see, Like The Difference, p.207. However, this clearly goes against Ibn al-Humām’s usage of both terms distinctly in his commentary Fath al-Qadīr; see, for instance, Ibn al-Humām, Fath al-Qadīr, vol.1, p.23



Al-Shīrāzī, al-Luma‘, p.23; Reinhart, Like The Difference Between Heaven and Earth, p.213



Al-‘Irāqī, al-Ghayth al-Hāmi‘, p.41



Al-Bazdawī, Kanz al-Wusūl, vol.2, p.303



Al-Nimlah, al-Muhadhdhab, vol.1, p.152



See: al-Laknawī, ‘Umdat al-Ri‘āyah, vol.1, p.264



See: al-Qārī, Fath Bāb al-‘Ināyah, p.18; al-Taftāzānī, al-Talwīh Sharh al-Tawdīh, vol.2, p.248. Al-Qarāfī notes that some Mālikīs and Shāfi‘īs make a distinction between the two terms in rules pertaining to the Hajj rituals. The distinction in this case is between wājib and rukn/fard: if the former is omitted from the rituals of Hajj a penalty (dam) will suffice whereas the omission of the latter will invalidate the Hajj. Al-Qarāfī, al-Dhakhīrah, vol.3, p.217. As such, Hanafīs can also put forward to the Shafī‘īs why they weren’t truthful to their distinction. But as al-Qarāfī mentions this was the opinion of only some of them. For a clarification on the Shafi‘ī stance, see: al-Sālihī, al-Tahbīr, vol.2, p.841



Al-Ghazālī, al-Mustasfā, vol.1, p.23; al-Subkī, Jam‘ al-Jawāmi‘, vol.1, p.191; al-Ansārī, Fawātih al-Rahamūt, vol.1, p.58



Al-Nimlah, al-Diyā’ al-Lāmi‘, vol.1, p.192



That is the statement of the Prophet, “There is no prayer without the Opening of the Book.” See: al-Bukhārī, al-Jāmi‘ al-Sahīh, vol.1, p.192; Muslim, al-Musnad al-Sahīh, vol.1, p.



That is the verse of the Qur’ān, “So read what is easy from the Qur’ān.” Sūrat al-Muzammil verse 20



Al-Kāsānī, Badā’i‘ al-Sanāi’i’, vol.1, p.111



Al-Dawsarī, al-Ikhtilāf, p.237



Al-Thanawī, I‘lā’ al-Sunan, vol.4, p.1716. This should also modify al-Ansārī’s explanation in Fawātih al-Rahamūt, vol.1, p.58



Reinhart, Like The Difference Between Heaven and Earth, p.216



Ibid., p.220



Ibid., p.224



Al-Ghazālī, al-Mustasfā, vol.1, p.53



Al-Zuhaylī, al-Wajīz fī Usūl al-Fiqh al-Islāmī, p.340



Al-Shirāzī, al-Luma‘, p.23



Sadr al-Sharī‘ah, Sharh al-Wiqāyah, vol1, p.308; al-Laknawī, Tuhfat al-Akhyār, p.82



Ibid.



Ibn Nujaym, al-Bahr al-Rā’iq, vol.1, p.319



Ibid.



Ibn ‘Abidīn, Minhat al-Khāliq, vol.1, p.24



Ibn ‘Abidīn, Radd al-Muhtār, vol.2, p.14



Al-Bukhārī, al-Jāmi‘ al-Sahīh, no. 57



Ahmad, al-Musnad, no. 9253



Al-‘Aynī, Nukhab al-Afkār, vol.6, p.84



Al-Rāzī, al-Radd ‘alā la-Jahmiyyah, p.31



Al-Ash‘arī, Maqālāt al-Islāmiyyīn, p. 582



Ibn Abī al-‘Awwām as cited in: al-Kawtharī, Ta’nīb al-Khatīb, p.53



Al-Dhahabī, al-‘Ibar, vol.1, p.372



Lucas, Constructive Critics, p.200



Hinds argues that it was a gradual process on the part of al-Mutawakkil, and not because of a debate where a leading proponent of the dogma was bested. See: Ibid., p.201



See Lucas, Constructive Critics, pp.198-201



See Abū Ghuddah’s treatise on the topic entitled “Mas’alat Khalq al-Qur’ān wa Atharuhā fī Sufūf al-Ruwwāh wa al-Muhaddithīn wa Kutub al-Jarh wa al-Ta‘dīl.”



Al-Ghazālī, al-Iqtisād fī al-I‘tiqād, p.73



Al-Bayjūrī, Jawharat al-Tawhīd, p.130



See Fakhry, Islamic Philosophy, p.20; al-Ash‘arī, Maqālāt al-Islāmiyyīn, p. 582



Al-Shawkānī, Irshād al-Fuhūl, vol.1, pp.38-39



Ibid.



Al-Ghazālī, al-Mustasfā, vol.1, p.71



Al-Ghazālī, al-Mustasfā, vol.1, p.86



Al-Zarkashī, Tashsnīf al-Masāmi‘, vol.2, pp.858-859



El Shamsy, The Canonization of Islamic Law, pp.218-219



Al-Bannūrī, Ma‘ārif al-Sunan, vol.6, pp.379-280; ‘Awwāmah, Athar al-Hadīth al-Sharīf, p.152



Rahmān, Functional Interdependence, pp.89-90



Abd-Allah, Theological Dimension of Islamic Law, pp.238, 246



Schacht, Theology and law in Islam, p.3. Both Rahman and Schacht as quoted in Abd-Allah, Theological Dimension of Islamic Law, p.244



Al-Juwaynī, al-Talkhīs fī Usūl al-Fiqh, p.36



Al-Samarqandī, Mīzān al-Usūl, vol.2, p.1131



See al-Bukhārī, Kashf al-Asrār, vol.1, p.10



Zādah, Nażm al-Farāi’d, p.31-32



Ibid., pp.32-34



Ibn Rushd, Bidāyat al-Mujtahid, vol.1, p.309; al-Tarābulusī, Mawāhib al-Jalīl, vol.3, p.318; al-Nawawī, al-Majmū‘, vol.6, p.440



Al-Kāsānī, Badā’i‘ al-Sanā’i‘, vol.5, p.83



Sūrat al-Mā’idah, verse 45



Halīmah, Hukm al-Islām fī al-Dimuqatriyyah, p.28









