The range of obligations in classical fiqh

We saw in the previous two sections that the concept of legal obligation in some works of classical Islamic legal theory was the meeting point of a number of fundamental consider­ations.

In this section, we will take a closer look at some examples of actions that Muslim jurists saw as obligatory and pay particular attention to the manner in which each group comes about, as well as its justification. The sum of actions deemed obligatory, recommended, reprehensible, or prohibited in Islamic law treatises can be divided into categories roughly corresponding to the considerations of benefit outlined in the above section. Some obli­gations, primarily related to ritual, attach to all legal subjects who fulfil the conditions of capacity, such as prayer (salat), pilgrimage (hajj) and the payment of alms-taxes (zakat). The broad imposition of those actions on all capable legal subjects entails some requirements and thus makes some other actions obligatory by association, such as the requirement of purity before prayer (wudu ’).

General obligations imposed directly upon all Muslims just by virtue of their being Mus­lims are not numerous. The primary one among those obligations incumbent upon all Mus­lims of legal capacity (which, in that case, is defined by puberty, bulUgh) is prayer (salat). The central importance of the obligation of prayer, and one of the reasons it is the primary and paradigmatic obligation that falls upon all Muslims with no exception, stems from the fact that, in its founding sources, prayer appears to play a crucial role in defining Muslim identity.

No other obligation can be claimed to befall all legal subjects as broadly and categorically as prayer does. The other major obligations that are primarily of the ‘ritual’ nature, specifi­cally alms-taxes and pilgrimage, unlike prayer, are much more constrained by material con­ditions that are not directly linked to personal and social identity. For example, in alms-taxes, we see the addition of a number of conditions that must be fulfilled for the obligation to arise: ‘[Muslim jurists] have agreed that [zakat] is incumbent upon any free pubescent Muslim of sound mind with full ownership of the minimum wealth requirement.’ The required min­imum of wealth (nisdb) must remain with the owner for a duration of one hijrd year (hawl) for the zakat to be due on that wealth, and is due on certain types of money and property according to specific percentages.⁵² It is clear, then, that zakat is not nearly as categorical and unconditional in its imposition on Muslims as prayer is. Furthermore, zakat is a concept through which we can examine the worship—transaction distinction since its status as either of the two types was contested. Ibn Rushd (d. 595/1198) observes that the disagreement on whether zakat is due upon the wealth of minors (stghdr) can be explained by the uncertainty on whether it was an act of worship (‘ibdda) or a right (haqq) owed to the poor by the rich at large.⁵³ The point Ibn Rushd is making is that rights and obligations of transactional nature can attach to wealth with no regards to the personal circumstances of the owner, whereas ob­ligations of worship, by definition, attach to an individual subject and can only be valid if the person in question fulfils the required expectations of consciousness and mental capacity.⁵⁴ It is possible to explain this distinction by reference to Ibn Abd al-Salam’s theory of benefit: for a worshipper to obtain the next-worldly benefit of zakat, it has to be done consciously by a worshipping adult.

On the other hand, the material benefit enjoyed by the beneficiary of zakat can be achieved regardless of the payer’s age or state of mind.

Another issue in which the blurry boundaries of the worship—transaction distinction be­come manifested concerns the manner in which debt may affect the obligation to pay alms- taxes. Again, we see that conceiving of an action as an act of worship or a social transaction affects the manner in which it arises rather than the nature of the act itself. If zakat is an act of worship, the obligation would attach to any person in possession of the minimum required wealth, the same way prayer attaches to any conscious Muslim. If, by contrast, zakat is a social obligation, it would be waived or suspended if the amount of debt reduces a person’s overall wealth below the nisdb, since in that case repayment of the debt would take precedence over performing other social obligations.⁵⁵ Significantly, Ibn Rushd refuses to make a clear deter­mination on the nature of the act of paying alms-taxes, but rather falls back on the rationale of obligation: it is a manner of redistribution of wealth. This move, reminiscent of Ibn Abd al-Salam’s reliance on a typology of benefits for the classification of obligation, highlights the inseparability of the notions of worship and social responsibility in the case of zakat.

Fasting during the month of Ramadan (siydm) is another obligation that is incumbent upon capable Muslims in a categorical manner. Unlike prayer, the obligation to fast can be waived or replaced by another obligation as a result of a broad range of physical conditions. Due to its individual nature, the ‘worship’ nature of fasting and its relation to possible re­wards in the next world are quite clear, unlike zakat which is more ostensibly of a hybrid nature. Fasting during the month of Ramadan has been made obligatory by a clear Quranic injunction: ‘fasting has been imposed upon you like it has been imposed upon those before you’.⁵⁶ The obligation arises merely by the arrival of the month of Ramadan.⁵⁷ During that month, Muslims are required to abstain from food, drink and intercourse from sunrise to sunset.

The issue of the permission to omit fasting (iftdr) poses an important question that pertains to the theory of obligation in Islamic jurisprudence: are people permitted not to fast during Ramadan an exception to the rule, or are they simply outside of the domain of the rule alto­gether? The understanding of how exceptions work, as is the case in contemporary jurispru­dence, is crucial to understanding how obligation is imposed.⁵⁹ This distinction arises in the context of the question of whether it is better to ‘take the licence’ by omitting to fast if one is allowed to do so, or if fasting in spite of the licence would be better. We have previously seen that a typology of moral values is inextricably linked to the conception of obligation. The question here is whether it would be better to perform an obligation that one is licensed to omit. Ibn Rushd’s reasoning is that, since textual sources are conflicted, we must look at whether a licence is an exception from the norm or a delineation of the scope of obligation.

As we saw, obligation here is understood as a judgment (hukm). If we understand license as an exception, it would mean that the otherwise applicable hukm is suspended by virtue of an additional hukm that creates the exception. If we see it as a delineation of the scope of obligation, it would mean that the initial hukm does not include those who are travelling or ill in the first place. The correspondence of value or preference (tafdtl) with the imposition of obligation would mean that, as a general rule, following a hukm is preferred to following none. Thus, if the scope of obligation by definition does not include those who are ill or travelling, it would be a laudable or preferable initiative if they fasted nonetheless. If, how­ever, the licence (rukhsa) is an explicit and specific hukm that comes to alter the initial hukm, it would be preferable for them to follow the specific hukm, that is, the licence.⁶⁰

The other positive obligation (as opposed to prohibitions) imposed directly by divine injunction upon a segment of individual Muslims is pilgrimage (hajj).

Obligations that arise through expression of individual will or the exchange of consent come in various forms. A central contractual arrangement that has occupied scholars of Islamic law and received lengthy treatments in their treatises is marriage (nikah). Other con­tracts commonly regulated by fiqh works include sale (bay'), loan (qirad), partnership (sharika), pawn (rahn), donation (hiba), and lease (ijara). I will deal here briefly with the contract of sale as an example of the dynamics of obligations imposed through divine imperatives and those that arise by expression of will or other willful legal acts. Sales (buyu ') are often treated as the primary and most widespread example of transactional exchange. In his Bidayat al-Mujtahid, Ibn Rushd explains that any transaction (mu amala) taking the form of an exchange between two parties is either an exchange of real properties or movable properties, or an exchange of a real property for a movable property. Each one of those three types of exchange can be further divided into those in which obligations are immediately due from both parties, or immediate on one and postponed for the other, or postponed for both parties. This makes all reciprocal exchanges divisible into nine categories. Since delayed fulfilment for both parties is prohibited (manhiyyun 'anhu), that leaves us with six types of exchange, all of which can be referred to as buyu '. We can already see that, while these sales can only take place through the exchange of corresponding wills (‘aqd), there are limits to what the parties may agree upon.

We have already seen in the previous section that theorists such as Ibn Taymiyya vehe­mently defended the principle of contractual freedom on the basis that commercial custom takes precedence in all matters pertaining to earthly interests within the limits prescribed by revelation. Those limits typically manifest themselves as general prohibitions. The broad imperative prohibitions that interfere with the otherwise unhinged contractual freedom fall into two broad categories. Some prohibitions pertain to the illegitimate nature of the object of contract, others pertain to the deficient nature of the exchange.⁶³ We can see here that Islamic law recognizes a duality of inter-personal relations and claims upon objects, a duality that can be found in civil law theories of obligation. Overriding prohibitions pertaining to the object of exchange have to do with objects deemed ‘impure’ (najis), such as wine (khamr) and ‘living parts’ of pigs (as opposed to hair, for instance). Limitations arising from the imbal­anced or unfair nature of the exchange take several forms. The most obvious type of contrac­tual imbalance stems from the concept of riba, which is known in financial arrangements as a prohibition on interest. In sale contracts, the prohibition on riba is understood as a form of unfair burden on one of the parties taking the form of either an unequal exchange of things of the same type (tafadul) or a delayed and unequal exchange of things of the same type (na­sa j.⁶⁴ These two types are often considered to be two types of riba, with the first referred to as riba al-fadl or al-tafadul, and the second riba al-nasa ' or al-nast'a. As with many of the cases of obligation-making in Islamic law, we can see here a juxtaposition ofpractical and ethical con­siderations that manifests itself in an articulation of contractual obligations that arise by the meeting of mutual consent with general prohibitions that pertain to matters of general piety.