Friday, October 09, 2009

Chapter 5:The Conditions of Legal Responsibility [Shurūt al-Taklīf]

The following is the draft english translation from the Usul Al-Fiqh masterpiece of the Arabic book الشخصية الاسلاميَة الجزء الثالث (The Islamic Personality Volume 3 ) by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.

Islam (being Muslim) is not a condition for legal responsibility [taklīf] with respect to the legal rulings, except for a ruling about which a text specifies that it is for Muslims, either explicitly [sarahatan], like,

«يَا أَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ»
“O you who believe, fear Allah…” [al-Imrān: 102], and

«جَاهِدِ الْكُفَّارَ»
“Strive against the disbelievers…” [at-Taubah: 73]; and

«وَلَنْ يَجْعَلَ اللَّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلًا»
“And Allah will never allow the disbelievers to have authority over the believers” [an-Nisa’: 141];

or by denotation [dalalatan], like the exemption of the kuffar from something, like the salāt, thereby indicating that Islam is a condition in that act. Therefore Islam is one of the conditions of legal responsibility in that which it comes as a condition.

However there are more general conditions of legal responsibility, in which there is no distinction between Muslim or kāfir. These conditions are physical maturity [bulūgh], sanity or a sane intellect [‘aql], and ability [qudrah]. Thus for a person to be legally responsible he must be physically mature, sane, and able to perform what he has been made responsible with. From Ali (may Allah ennoble his face) that the Messenger of Allah (saw) said, “The pen is lifted from three: the sleeping one until he wakes up, the insane until he regains his sanity, and the child until he matures”, narrated by Imam Zayd in his Musnad. And Allah, the Exalted, says,

«لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا وُسْعَهَا»
“Allah burdens not a soul beyond its ability…” [al-Baqarah: 286]

The meaning of ‘lifting of the pen’ is ‘lifting of the responsibility’ such that one is not legally responsible nor addressed by the legal rulings, and the meaning of “Allah burdens not…”, although a negation, contains the meaning of prohibition, and this is supported by his (saw) saying, “and if I command you with a matter fulfill it as much as you are able”, narrated by al-Bukhāri and Muslim. It should not be said here that Allah has obliged the zakāt, provision [nafaqah], and liabilities [damanāt] upon the child and the insane and so therefore they are legally responsible [mukallaf] because they have been made responsible for some of the legal rulings. This is not correct because these obligations are not connected to the act of the child or the insane, rather they are connected to their wealth and liability [dhimmah].
Their wealth and liability are the subject of responsibility, not the child or insane themselves.

This is clear by the fact that the lifting of the pen is specified by a clear limit, “until he becomes mature”, and “until he becomes sane”, and this benefits the derivation of an effective cause [`illah], which is the physical immaturity, and the insanity, and these have no relevance to money and debt, hence they are not an exception to the rule. Nor should it be said that Allah, the Exalted, has made him who has no ability to fulfill a matter responsible with the fulfillment of that matter, as He commanded Abu Lahab to believe in what was revealed, whilst He (swt) informed that he will not believe, so He brought together two contradictory matters, thereby assigning responsibility of the impossible, that is, He made a person responsible for that which he cannot do. This is incorrect because Allah first made Abu Lahab responsible to believe in what He (swt) had revealed, and did not at that stage reveal that Abu Lahab will not believe. Only after this did Allah (swt) inform that he will not believe.

Thus His (swt) informing that Abu Lahab will not believe did not come with His being made responsible with the belief, because the informing came after the evidence establishing the obligation of belief. This is in terms of the original conditions of legal responsibility with respect to the legal rulings. As for the lifting of the legal rulings from the one made responsible for them, these are not conditions of legal responsibility, rather they are reasons which make permissible the leaving of the ruling.

These are like the one who is coerced, the one who makes a mistake, and the one who forgets; these matters (coercion, error, forgetfulness) lift the blame [haraj] of non-fulfillment from those made responsible for the relevant legal ruling. This is not a case of these people not being responsible in the first instance, hence these matters are not of the conditions of legal responsibility.

The Messenger (saw) said, “Allah has removed from [wada’a ‘an] my Ummah mistakes, forgetfulness, and that which one is coerced upon”, narrated by Ibn Majah.

Notice the difference between his (saw) saying, “The pen is lifted…”, and his saying, “removed from my Ummah”, such that the former refers to the lifting of legal responsibility, such that one is not originally responsible, whilst the latter refers to the removal of accountability from the Ummah, and it does not necessitate the lifting of the legal responsibility.The legally-considered coercion is the coercion which forces an act to be performed in a manner that one could not leave it, and if it does not force the act in this manner it is not considered. Thus if the coercion reaches the level of necessity [idtirar] then one is not accountable for the act.

However if it does not reach level of necessity, then one still has the option of abstaining, so he is accountable.


Anonymous said...

Salama alaikum,

May Allah(swt) reward your brilliant efforts and give you an excellent station in the afterlife. Is the whole of volume 3 translated? Would it be possible to view a full copy of the translation?


Islamic Revival said...

We understand that the book is being translated chapter by chapter by brothers in Australia and are taking the translations from their site:

The whole book is not translated yet.