The concept of legal obligation is as ubiquitous as it is puzzling.
It is hardly contentious that a legal system should aim to impose and ensure the fulfilment of obligations. This is an aspect of law making and enforcement that legal subjects experience routinely.
Yet, what obligation consists of, what its imposition, breach or satisfaction exactly mean, are all matters that generate significant conceptual confusion and disagreement.1 The concept of obligation in Islamic law and jurisprudence is no exception to this. Whereas the idea that legal subjects are bound in various manners by the prescriptions of the Shari 'a is hardly problematic, how to conceive of this legal and moral bond is a much less straightforward matter. In Western jurisprudence, the idea of legal obligation has received a wide array of explanations ranging from the command of the social order,2 social pressure generated by widespread recognition,3 and the duty to perform a course of action determined by the law to be in accordance with the common good.4 In the discipline of principles of Islamic jurisprudence (usul al-fiqh), obligation or compulsoriness (wujub) is typically conceived as one of five standard degrees of normativity that also include recommendation (nadb), permission (ibaha), reprehension (karaha) and prohibition (man"). In classical usul literature, which presupposes the need for divine revelation for the determination of the normative status of actions, those five degrees are determined by jurists on the basis of various revealed indicants (adilla) through the use of a range of methods that the discipline of usul al-fiqh elaborates at length.In this essay, I will argue that the rise of obligation in Islamic legal thought is the result of the balancing of considerations pertaining to divine authority and the practicality of human this-worldly needs. The general underlying principle of the rise of legal obligation in Islamic jurisprudence is, unsurprisingly, one that stems from divine authority.
It is by God’s design and commandment that certain actions come to have particular moral and normative values. This principle leaves the door open for different understandings of how this divine determination is made: either strictly through revelation, or by endowing the natural order with normative value. Within this overarching scheme of obligation, we find that a broad permission is granted to humans to shape and create obligations vis-à-vis one another in matters pertaining to their financial and familial dealings through unilateral or mutual expressions of will. Whereas direct divine injunctions often operate as the broader limit of what may be legitimately contracted among legal subjects, we note that the vast majority of obligations with which treatises of substantive law are concerned are ones that arise from free expressions of will, including contracts, oaths, donations, among others. Conversely, outside of the strict realm of worship, direct divine commandments mainly intervene to impose broad prohibitions that represent the ‘outer’ limits of contractual freedom. Ultimately, we can understand legal obligation in Islamic jurisprudence as the outcome of an interplay between considerations of faithfulness to revelation, and the practical imperatives of human concrete interests.By advancing this framework for the understanding of legal obligation, we will be able to rethink some of the assumptions that appear in the contemporary study of Islamic jurisprudence. The reliance on divine revelation and treatment of obligation as part of a range of assessments has often resulted in what I take to be anachronistic understandings. One of those explanations consists of viewing obligation (wujub) as properly ‘legal’ as opposed to recommendation (nadb), which is supposedly merely ‘ethical’.5 As we will see, both the ethical and the normative or ‘legal’ sides of those five degrees of assessment were inextricably intertwined in the way they were conceived by classical Muslim jurists.
A second anachronistic categorization consists in seeing obligations related to worship (‘ibdddt) as distinctly private, as opposed to transactional obligations (mudmaldt) which, by contrast, are public and therefore properly belonging to a legal system.6 I will argue in this chapter that the primary conceptual distinction between worship and transaction rested in the manner in which the obligation arose and the place of those acts in a larger understanding of human action, rather than just the private or public nature of the act. This distinction highlights an important characteristic of the Islamic law of obligations, namely the authority that human consent has in the production of binding duties. Declarations of intent, including mutual ones such as contracts, or unilateral such as oaths, produce binding obligations in largely the same manner that divine pronouncements do.It becomes clear from this discussion that the ‘command of the sovereign’ model of explanation of obligations does not fit the image conveyed to us in classical treatises of Islamic jurisprudence.7 I will argue that obligation was seen primarily as a reason for action among many, and that the possibility of reward or punishment was not particularly central to this understanding. Rather, classical jurisprudents started from a given theory of action that viewed humans as actively engaged in choice-making at each instant of their conscious existence, and that shar'd obligations (i.e. obligations drawn from divine revelation) came to provide reasons for agents to act in one way rather than the other. This theory of obligation permeates all distinctions between obligation, recommendation, worship and transaction, and provides a more robust framework for understanding those distinctions as they were produced within the classical tradition.
These claims will be made in three sections. In the first section, we will discuss the concept of obligation as it is formulated as part of a network of related ideas in the classical theory of usul al-fiqh. In the second section, we will examine the different explanations given to the worship-transaction distinction. In the third and final section, we will look at some examples of each of these types and study how they were conceived and explained in treatises of substantive law (fiqh).