The concept of obligation in classical jurisprudence

In this section, I will advance a framework for the conceptualization of obligation in Islamic jurisprudence. It will be shown that, while divine determination of norms and values is the primary and fundamental condition for the rise of legal obligation, the imposition of obli­gation did not correspond to a strict model of sovereign command backed by punishment.

The imposition of obligation in Islamic jurisprudence is typically conceived as a dual parallel process. On the one hand, a pronouncement (hukm) has to be made in relation to the normal status of the performance of a given action or abstention.⁸ This pronouncement or assessment applies to that type of action in relation to all legal subjects in a particular set of circumstances. On the other hand, a determination has to be made in relation to the mental conditions of a given agent to decide whether he or she is capable of bearing obligations (taklif) in relation to all action-specific pronouncements (ahkdm) taken together. In other words, the subject-matter of taklif is the condition of a particular agent in relation to all actions in general, whereas the subject-matter of hukm is the status of a particular action or abstention in relation to all mentally capable legal subjects in general.

This bipartite framework features in classical usiil al-fiqh as prominently as the juristic attempts to define discipline itself, which typically come in the opening lines of usul trea­tises.⁹ For example, Abu Hamid al-Ghazali (d.

Unlike contemporary legal theory, therefore, where a certain conception of moral value may or may not be seen to coincide with what is deemed legally obligatory,¹³ the conceptual inextricability of obligation and moral goodness was not a matter of significant disagree­ment in Islamic jurisprudence. Importantly, this correspondence between value and norm permeated the conceptualization of various degrees of normativity of actions without any conceptual distinction between the properly legal and the purely moral as some modern authors have suggested.¹⁴ Al-Ghazali conceives of the standard five-part categorization of actions as corresponding to three basic types of norm-generating divine speech: demand­ing action (iqtida ' al-fi‘l), demanding abstention (iqtida ' al-tark) and granting the option to either commit or omit the action (al-takhyir bayna al-fi‘l wa-l-tark).¹⁵ This categorization, in al-Ghazali’s thought, follows the view that no assessment can be made of any action without divine revelation, and that any normative status must be conferred by divine speech.

is a position that was not shared by all jurists, many of whom argued that actions were per­missible before revelation.¹⁶ Aside from the disagreement on the normative status of actions before or without revelation, the main point for our purposes is that wujub, among other assessments, was defined in terms of enjoinment through divine revelation. This corresponds to the first characteristic of imposition of obligation with which we are concerned. Obliga­tion results from some divine determination, either by endowing acts with intrinsic values, or by indicating those norms through revelation.

The assertion that the obligatory nature of an action follows from a divine injunction may appear to correspond to a command-of-a-sovereign model of obligation. According to this model, obligation would be the result of the expression of will of a sovereign, and the fulfilment of obligation would follow from the need to avoid the threatened consequences. This conception of legal obligation was famously attacked by H. L. A. Hart in The Concept of Law, where he argued that many of the ‘internal’ features of a modern legal system, such as the authority granted to individuals to create their own obligations wilfully, contradict such view.¹⁷ Hart was of the view that it was social pressure stemming from a broad recognition of the authority of a legal system that created obligation, not the command of a sovereign. Hart’s modification of the classical positivistic account of legal obligation came under recent scrutiny, notably by F. Schauer, who argued that the avoidance of the threat of coercion is indeed an accurate account of the formation of legal obligation in a modern legal system.¹⁸

While the theocentric nature of the formation of obligation in Islamic jurisprudence may suggest that it more clearly accords with a command-of-a-sovereign conception of obliga­tion, it in fact does not. In his discussion of the ‘definition of the obligatory (hadd al-wajib)’, al-Ghazali explained that there are a number of possible ways in which one can conceive of obligation.

In relation to their attributes that follow from divine speech, actions can be divided into three categories: 1) actions in relation to which revelation grants legal subjects the option (takhyir) to commit or omit them; 2) actions regarding which commission should be more likely (tarajjaha) than omission; 3) actions regarding which omission should be more likely than commission.²³ This tripartite classification reveals a number of important things about the conceptualization of obligation in al-Ghazali’s jurisprudence. First, as we have already seen, the default status of action is to be free from obligation.

In attempting to distinguish between actions that are preponderant (rajih) but not fully obligatory (i.e. nadb) and fully fledged obligations (wajib), some jurisprudents resorted to the idea of the possibility of other-worldly punishment, although they rarely identified obliga­tion itself with the need to avoid punishment. Others conceptualized obligation as ‘the elimi­nation of the possibility of committing the opposite’.²⁶ Al-Ghazali argued that what separates the merely preponderant from the specifically obligatory is the ‘feeling of [the possibility of] punishment’ that arises from revelation.²⁷ It is not the promise or threat of punishment, but only the inner conviction that punishment may occur in case of omission that distinguishes a firmly obligatory action from one that is enjoined but not required in the proper sense.

I badat and mu'amalat: a framework for benefit and obedience

In the previous section, we saw that obligation was broadly understood as an assessment of a particular act made by divine determination and intended to make the performance of this act preponderant over other courses of action. The image of an authoritarian top-down imposition of duty does not adequately capture this conception of obligation. This image becomes even less applicable once we examine the range of considerations that are seen to underlie obligations in Islamic legal thought. We will see in this section that each case of legal assessment of an act typically involved a balancing of considerations pertaining to immediate gain in this world and potential gain in the next. The intricate balancing of considerations manifested itself in the delegation of duty-imposition to the free expression of human will in cases that involve immediate gain or worldly interest. This exercise in articulation of interests can be most clearly seen in the conceptualization of acts of worship as opposed to transactional dealings.

One of the most widespread distinctions in the substantive areas of Islamic law con­sists in dividing the body of practical norms between norms of worship (‘ibdddt) and norms of transaction (mu'dmaldt). The distinction is frequently invoked in modern scholarship to suggest a certain separation between the private and public domains in Islamic law, and, going even further, to suggest that there was a distinction between the ‘legal’ matters in the proper sense, and purely spiritual and subjective matters, which would be of little or no legal relevance.³⁰ In that sense, the 'ibdddt/mu'dmaldt distinction becomes a helpful tool for the compartmentalization of the Islamic legal tradition in a manner that suits modern legal presumptions about the public as opposed to private spheres.³¹ We will see that classifying the body of legal obligations produced in the substantive fields of Islamic law was seen by some of the classical jurists as one that rests on a large number of similarities and overlaps between those two categories, and not in any sense a sharp distinction between two clearly different types of obligation.

Generally speaking, explanations of the distinction revolved around the degree of human dependence and interaction they involve, the types of benefit and consideration that they entail, and whether the justifications of those norms are mostly focused on this-worldly or other-worldly considerations. Conceived this way, the distinction was of primary impor­tance in relation to determining the kind of juristic presumption that applies in relation to the assessment of one or the other. For inter-personal transactions, it was widely believed that whichever customary form worldly dealings may take, they are to be presumed legitimate. Conversely, actions of strictly devotional nature that do not aim to achieve any clear imme­diate benefit by worldly standards are to be presumed prohibited (hardm) or at least without assessment (al-tawqf fi al- 'ibdddt).

In his al-Qawa'id al-Kubra, also tellingly titled Qawa'id al-Ahkam fi Islah al-Anam (The Principles of Legal Norms in [the Achievement of] Benefit for Mankind), Al- 'Izz b. Abd al-Salam (d. 660/1262) offers a conceptualization of the 'ibdddt-mu'dmaldt distinction that rests primarily on the idea of benefit (maslaha). As the title of the treatise indicates, this was a part of a general framework of needs and benefits that, Ibn 'Abd al-Salam argued, underlies the whole edifice of legal obligations. For Ibn 'Abd al-Salam, the need for regulation of hu­man interactions by divine law stems from the fact that ‘God Most Exalted created humans and made some dependent on others (ahwaja ba'dahum ila ba'd) so that each group of people would look after the other.’³² He proceeded to divide humans according to age, social class, and sex, to illustrate the interdependence of all those categories on one another. In the end, the mutual care and responsibility (qiydm) for one another leads to the realization of benefits (masdlih) and avoidance of harm (daf' mafdsid) either in this life and next, or in one rather than the other.

An important observation that must be made here is that the worship-transaction distinc­tion does not rest on the type of consideration that follows from one or the other. In Ibn 'Abd al-Salam’s thought, both forms of obligation can lead to either this-worldly or other-worldly benefits.³³ Acts of worship are not purely obligatory for other-worldly reasons, and social transactions are not purely obligatory for this-worldly ones. Rather, the distinction is based on the type of interaction that the obligatory act entails. In acts of worship, mutual depen­dence and social intercourse are not primary or predominant features. We will see in the following paragraphs that the distinction is not nearly as sharp as many modern studies make it to be, and that it was primarily used for conceptual clarity and convenience.

The frequent entwinement of acts of inter-personal transaction with acts of worship was also evoked by Ibn Taymiyya (d. 728/1328) in the context of his defense of the view that transactional dealings should follow the norms and customs of their time and place and, therefore, should be considered permissible in principle in their customary form. In al-Qawa'id al-Nuraniyya, Ibn Taymiyya offered a broad and radical view of the fundamental permissibility of all contractual matters whether of a marital or commercial in nature.³⁴ For him, contracts can be concluded according to any set of formalities and conditions that may be customarily prevalent, and we should assume that the applicable customs are valid unless otherwise indicated by revelation. His reasoning in this respect is telling, and overlaps with Ibn Abd al-Salam’s idea that benefits underlie obligations. Ibn Taymiyya’s first argument in support of the broad permissibility of contractual dealings stems from a reading of Quranic statements that, according to him, reveal that only mutual consent (tardda) and satisfaction (tab al-nafs) were required by revelation as necessary for such transactions.³⁵ It would follow that whichever customary conditions may be taken by any given community to indicate mu­tual consent should be accepted by the jurists. Given that, for the most part, divine revelation does not specify the nature and conditions of such dealings, they should follow entirely the applicable local customs.

More pertinent to our purposes, Ibn Taymiyya conceived of the ' ibdddt-mu'amalat distinc­tion in a manner similar to Ibn Abd al-Salam: the first, i.e. ‘ibadat, mostly pertain to benefits in the hereafter, whereas the second, i.e. mu'amalat, is designed to realize benefits in this world.³⁶ For Ibn Taymiyya, this foregrounds the famous maxim that obligations of worship must be limited to those imposed explicitly by revelation (al- ‘ibadat allatd awjabaha Allah aw ahabbaha la tathbutu illa bi-l-sharj. For some other jurists, this meant that we should suspend judgement with regards to acts of worship (tawqdf). This is, in part, an epistemological matter: our knowledge of the hereafter is limited to revelation, and therefore we should limit our­selves to it when it comes to worship. Transactional dealings, by contrast, are meant to foster human every-day customary affairs, and therefore must be presumed permissible unless there is a clear provision to the contrary (such as the prohibition of riba, discussed below).³⁷

The types and degrees of social interactions that make up those customary dealings were detailed by Ibn Abd al-Salam. The first type of social interaction that generates obligation stems from the need of people of lower status to those of higher status (ihtiyaj al-asaghir ila al-akdbir). This includes the needs for a head of state, regional rulers, judges, legal represen­tatives, parents, and guardians.³⁸ This type of dependence generates several obligations of political and matrimonial nature, such as the ruler and judge’s obligations to impose justice and ensure that the powerful and the corrupt do not abuse the vulnerable. Similarly, without legal guardianship and representation in family and financial matters, the benefits of forming a family and the division of wealth among its members would be lost. Conversely, the general legal subjects are in need of each other for the realization of all ordinary worldly needs, such as the production and exchange of a wide variety of goods and services. The economic and material welfare of the community, including the ruling classes, would be damaged without the daily diligent work of the masses, which, therefore, must be regulated in an equitable manner by the law. In the same manner, it is necessary for the law to regulate transactions stemming from ‘the mutual dependence of equals’ (ihtiyaj al-nuzara ' li-l-nuzara). The gen­eral permissibility granted by divine law (al-shar ) to exchanges of movable and immovable goods and properties of all kinds was necessary to prevent the ‘destruction of the world’ (haldk al- 'dlam), since voluntary and fortuitous conferral of rights are extremely rare and therefore God’s law allowed and regulated most types of exchanges in order to preserve life and property.³⁹

Besides classifying the benefits stemming from the formulation of various types of ob­ligation according to the classes of people and their interdependence, Ibn Abd al-Salam explained that some of the benefits pertain to this life (al-dunya), while others pertain to the next (al-dkhira). This broad benefit-based distinction was also acknowledged by Ibn Taymi­yya, who divided obligations into those that pertain to ‘the betterment of the faith’ (isldh al-dtn) and to those that relate to immediate needs (haja).⁴⁰ The basic set of needs and benefits related strictly to this life centres on considerations that are necessary for human survival and well-being. Those are the necessities (al-daruriyyat) which constitute the basic and most important set of benefits to be sought by legal regulation. Whatever is absolutely necessary for human life on earth constitutes a darun matter, and anything that extends beyond that, depending on its nature and value, will be classified as either a need (haja), or a superfluous luxury (tatimmat wa-takmildt).ⁿ Benefits achieved in the afterlife are simply the rewards that follow from the obedience to God, through the fulfilment of revelation’s obligations and recommendations. In addition, acts of worship have the effect of glorifying God, knowing Him and being in awe of Him and trustful of His will. These are all, Ibn Abd al-Salam argues, superior to any rewards one may obtain in the afterlife. Benefits pertaining to this world (masalih al-dunya), by contrast, are those that the necessities and needs of subsistence impose, as explained above.

Once again, we see that the avoidance of punishment was not central to the definition of obligation that emerges from Ibn Abd al-Salam’s analysis of worship and transaction. The distinction between those two types of benefits does not reflect a worship—transaction dichotomy in an exact manner, but largely underlies the entire scheme of legal obligations, since this scheme rests entirely on the various needs and benefits that humans may obtain. As Ibn Abd al-Salam argued, all imposed duties stem from human interests in this world and the next.⁴² Nothing humans do can benefit or harm God, and thus all their actions, worship included, should be aimed at the achievement of benefit and avoidance of harm. As we saw, the ‘other-worldly’ benefits of worship are in large part obtained in this world: the recognition and glorification of God and quitting one’s obsession with this world. Whereas obedience is meant to entail reward, and disobedience should result in punishment, there is no definite causality to this order of things. Ibn Abd al-Salam explained that ‘God has pre-existing knowledge of the fact that some matters follow others, but none of those causes necessitate their effects’. Rather, ‘God alone ensures that effects follow their causes, punish­ments follow infractions, and rewards follow acts of obedience. None of those things leads to their effects, but everything depends on God.’ Ibn Abd al-Salam then brings this line of rea­soning to its conclusion: ‘if God punished [someone] without any unbelief or disobedience (kufr wa-‘isyan) He would be just and equitable, and if He rewarded without any obedience or belief He would be a generous benefactor.’⁴³

We saw that human benefit and improvement, whether in concrete or spiritual matters, was the general guiding principle for all imposed legal duties according to Ibn Abd al-Salam’s framework. The distinction between the two groups of obligation (‘ibadat, mu ‘amalat) is de­fined in relation to the fulfilment of particular benefits. Some obligations are acts of ‘pure worship’ (‘ibadat mahda). Those are the actions that are exclusively designed to bring forth benefits limited to the next life. Others are acts of worship that are designed to bring benefits both in this world and the next. Among this second type, some are predominantly focused on the afterlife such as prayer (salat), others are predominantly related to this world such as alms- taxes (zakat).⁴⁴ It should be noted that Ibn Abd al-Salam gives no example of the first type, which supposedly only brings other-worldly benefits. Transactions are similarly divided into those that pertain predominantly to this-worldly considerations, such as sales (bay ‘at) and leases (ijarat), and those predominantly focused on considerations of the afterlife. Some trans­actions combine this-worldly and other-worldly benefits and others by their nature grant the agent the option to choose between one or the other type of benefit.⁴⁵

As we can see, for Ibn Abd al-Salam, the division between this-worldly and other-worldly considerations is not at all decisive in conceiving of the distinction between ‘ibadat and mu'amalat, since obligations in both categories generally tend to include some form of com­bination of the two benefits. A notable distinction is that 'ibdddt can theoretically pertain exclusively to the afterlife. It would seem, therefore, that the distinction pertains primarily to the way the obligation arises, and only secondarily to the nature of the action performed. Acts of worship are imposed as obligations directly through the text of revelation, whereas transac­tions require a certain form of consent or expression of individual or reciprocal will in order for obligations to arise. Similarly, acts that primarily constitute worship tend to have an indi­vidual nature and can be validly performed in a solitary or collective fashion, whereas transac­tions appear to require some form of social interaction for their formulation and performance.

A distinctive feature of mu'amalat is that they consist of an exchange, which must com­prise at least two legal acts (‘iwadayn). If one of the prongs of this exchange is waived, then the legal act remains hypothetical, but it would be inaccurate to describe the transaction as purely unilateral. Defined as an exchange, mu 'dmaldt can thus be divided as we saw above into those that partially or fully seek to attain rewards in the afterlife, and those that are entirely focused on this worldly benefit. Reward in the next world can be sought in the context of an exchange primarily by foregoing one’s side of the exchange wilfully with the intent of pleas­ing God. Much like rituals and worship, therefore, intent is key in transactional exchanges in determining what constitutes an act of devotion (td ‘a) and what is essentially a utilitarian transaction. In all cases, ‘mu 'amalat are means for the realization of benefits in this world and next, and to avoid harm in both’.⁴⁶

Just as all legal subjects fall into particular categories that define their state and manner of dependence on one another, acts of devotion incorporated within transactional schemes are not all equal from a moral standpoint. It is laudable to forfeit one’s side of any transaction for the sake of rapprochement to God (qurba), but in doing so it would be better to prioritize the poor over the rich, the devout over the sinners, family members in need over foreigners, and people of knowledge over people of wealth.⁴⁷ Once we take into account the wide variety of human classes and types of needs and forms of interdependence that emerge from them, we begin to see each individual transaction as a diverse interplay of various sorts of consid­erations depending on the parties’ intent and their approach to the transaction. It is precisely this interplay that underlies the process of formation of obligation in classical Islamic legal thought, a conception in which the 'ibdddt-mu 'dmaldt distinction serves primarily as a helpful conceptual tool rather than a sharp epistemological division.