The following is a draft translation of a chapter from the Usul Al-Fiqh masterpiece of the Arabic book “The Islamic Personality Volume 3” by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.
خِطَابُ الوَضْع
THE CIRCUMSTANTIAL ADDRESS
The legislator’s address came with the clarification of the verdicts of the actions that happened in the existence, with regard to the request (al- iqtida’) or giving the optional choice (al-takhyeer), and set for these verdicts what is necessary of matters on which the fulfillment or the accomplishment of the verdict depends, i.e. they are set for what the shari'ahi verdict necessitates. So as the legislator’s address came with the iqtida’ and the takhyeer; it also came with what is necessary for the iqtida’ and the takhyeer, and that is by making the thing a cause (sabab) or a condition (shart), or making it a prohibitive (mani’) or validity (sihhah) or invalidity (botlaan) or corruption (fasaad) or determination (azimah) or concession (rokhsah). And as the address of iqtida’ and takhyeer consists of verdicts that treat the actions of the people; the circumstantial address treats those verdicts and their relevants. So the address of the iqtida’ and the takhyier are verdicts for the actions of the people, and the circumstantial address is verdicts that give those verdicts specific qualities. And being like that does not make them irrelevant to the actions of the people, because the relevant to the connected to something is connected to that thing too, for example, necessity becomes a cause (sabab) for permitting eating the dead un-slaughtered animal and the fear of the affliction (al-anat) is a cause for marrying the slave women, and the enuresis (al-salas) is the cause for abandoning the obligation to make wudu’ for every outgoing during the prayer, (but it becomes sufficient to make one wudu’ for every prayer even if salas happens during the prayer). Or making the (zawal) of the son or the sunset or the appearance of the dawn causes for obliging the existence of those prayers, and whatever is of this kind. All those are legislator’s addresses related to the verdicts which are: the permissibility of the dead animal, the permissibility of marrying the slave women, the abandonment of the obligation of the wudu’ for every outgoing during the prayer, the obligation of the existence of the prayer. Therefore the sabab is one of the circumstantial addresses. And since the passing of the year (al–hawl) being a condition for the cause of the obligatory of the zakaat, and the maturity (al-bulough) is a condition for the assignment with the shari'ah in general, and sending the messengers is a condition for the reward and punishment, and the ability to hand over (tasleem) is a condition for the validity of the sale, and the maturity with perception (al-roshd) is a condition for paying the money of the orphan to him, all those are addresses from the legislator related to the verdicts, therefore the condition (al-shart) is from the circumstantial address. And since the menstruation is being a prohibitive of the intercourse (jima’), the walking around the ka’bah (al-tawaf), the performance of the prayers, and the fasting, and since the insanity being a prohibitive of performing the worships and the freedom of disposition, and the similar to that are all legislator’s address related to the verdict, therefore the prohibitive (al mani’) is from the circumstantial address. And since the sick who is unable to stand up is given the permission to pray sitting down, and the traveler being permitted to break the fasting in Ramadhan, and the forced one (with compulsion that leads to death) being permitted to utter a disbelief word, all those are legislator’s address related to the verdict, which is praying sitting down, breaking the fast in Ramadan, uttering a word of kufr, therefore the concessions (al-rukhas) are from the circumstantial address. So there is no confusion that these four show that the legislator’s address came with the verdict and with a matter that is related to it. As for what came of the verdicts as a general legislation, and the servants being obliged to act accordingly, like the prayer as it is, the fasting as it is, and the jihad as it is; the circumstantial address in these verdicts is there quality as being a general legislation and obliging the servants to act in accordance to them, and this general legislation with its obligation is what is called the determination (al-‘azimah), therefore the determinations are from the circumstantial verdicts. The determinations and the concessions are considered as one section because the determinations are the origin and the concessions branch from them, so the concessions and the determinations are from the circumstantial address. As for what is related to the results of the action in the here-life; the circumstantial address appears in the consequences of these results, for example we say: the prayer is valid if all its pillars are fulfilled, and we say: the sale is valid if all its conditions are fulfilled, and we say: the partnership is valid if its shari'ahi conditions are fulfilled. So these are qualitys of the verdicts with regard to their performance, not with regard to their legislation, and the legislator had brought that and considered the sale as valid and the prayer as valid. If the sale misses the offer (al–eejaab) or the prayer misses the kneeling (al–rukou’), or the partnership misses the acceptance (al-qaboul), they are then considered as invalid. So their invalidity is a quality of the verdict with respect to its performance, not to its legislation. And the legislator had brought that and considered them as invalid, therefore the validity and the invalidity are one section because the validity is an origin and the invalidity depends on the fulfillment of the verdicts of validity, so they both are one section. This is the circumstantial address, and it is related to a matter which the verdict necessitates it, and it is of five sections: the cause (al–sabab), the condition (al–shart), the prohibitive (al–mani’), the validity (al–sihah) the invalidity (al–botlaan) the corruption (al–fasaad), and the determination (al–azimah) and the concession (al–rukhsah).
السَّبَب
THE CAUSE
Al-sabab in the jurisprudents terminology is every apparent precise quality, which the auditory evidence shows that it is an indication sign for the existence of the verdict (hukm) not the legislation of it, like making the traverse of the sun from the zenith of the sky a sign that indicates the existence of the prayer in the saying of Allah Ta’ala: {أقِمِ الصَّلاةَ لِدُلوكِ الشّمسِ...} (Perform the salaat since the traverse of the sun till the darkness of the night…), 78 surat Al-Israa’, and in the saying of the Messenger of Allah (SAW):"إذا زالَتِ الشَّمسُ فَصَلُّوا" “if the sun traverses from the zenith of the sky, then do pray”, narrated by Al-Bayhaqi. It is not a sign for the obligation (wujoub) of the salaat, and like making the appearance of the crescent of Ramadhan an indication sign for the existence of the fasting of Ramadhan in the saying of Allah Ta’ala:{...فَمَن شَهِدَ مِنكُمُ الشَّهْرَ فَلْيَصُمْهُ...} (…so whosoever from among you witnesses the month; must then fast it…), 185 SURAT Al-Baqarah, and His (SAW) saying: "صُمُوا لِرُؤيَتِهِ..." “Do fast for the sight of it (the crescent…)”, narrated by Ahmad, and thus the sabab (cause) is not a reason for obliging the verdict, but an indicator for its existence. And the reality of the sabab is that, it is set by the shari'ah for the shari'ahi verdict, for a wisdom necessitated by that verdict. So the occurrence of the nisaab (specified amount) is a sabab for the existence of the zakaat, and the shari'ahi agreements are sabab for permitting (ibahah) the utilization or transition of the ownership of the properties, so the (hukm) verdict is the obligation of the zakaat and the occurrence of the nisaab is set by the shari'ah for this hukm to indicate the obligation of its existence. And the ibaha of the disposal or the transition of the property is the hukm, and the agreements are set by the shari'ah for this hukm to indicate it existence. So the asbab (causes) are signs, set by the legislator to inform the mukallaf about the existence of the hukm. So the legislator had legislated the hukm for the mukallaf, and assigned him with it, and set signs that indicate the existence of that hukm. So these signs are the shari'ahi asbaab. So the sabab is a notification and an indicator for the existence of the hukm, it is not a definer of the reality or the quality of the hukm, but it indicates its existence only, because what obliges the hukm is the daleel (evidence ) which included it, and what indicates its existence is the sabab. And this is contrary to the illah, which is the thing for which the hukm was legislated, so the hukm was legislated by it, so it is the inducement, and the reason for its legislation, not the cause of its existence. So the illah is one of the evidences for the hukm, similar to the text in the legislation of the hukm, it is not a sign for the existence, but an informative sign for the legislation of the hukm, like the distraction from the prayer which is derived from His Ta’ala‘s saying: {يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلاةِ مِنْ يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَى ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ...} (O you who believe (Muslims) when it is called for the Salaat (Al-Jumu’ah) on Friday, come to the remembrance of Allah and leave off the business…), 9 Surat Al-Jumu’ah, and His saying: {فَإِذَا قُضِيَتِ الصَّلاةُ فَانْتَشِرُوا فِي الأَرْضِ...} (Then when the Salaat is ended, do disperse through the land…),10 Surat Al-Jumu’ah, so the distraction is the reason for which the hukm is legislated, that is the forbiddance of the trade at the (adthaan) call of the Jumu’ah prayer, therefore it is a illah (reason for the legislation not a sabab, contrary to the (dulouk) traverse of the sun, it is not a illah, because the dthuhr prayer was not legislated for it but the zawal is a sign that the existence of the dthuhr prayer becomes a wajib.
الشَّرْط
THE CONDITION
The shart is an accomplishment quality for its (mashrout) conditioned matter in what that matter requires or in what the rule (hukm) of that conditioned matter requires. The hawl (elapsing of one year) in the money zakaat accomplishes the ownership of the nisaab, so the hawl is a shart in the ownership of the nisaab to oblige the zakaat in it, so it is of what the mashrout requires, and the marriage (ihsaan) accomplishes the quality for the fornicator in stoning the married (muhsan) adulterer, so it is a condition for the adulterer to oblige his stoning, so it is of what the mashrout requires. The wudu’ (ablution) accomplishes the performance of the prayer in what the hukm requires in it, so it is a condition for performing the prayer, and it is of what the hukm requires in that mashrout, and covering the awrah is a condition for performing the prayer, and of what the hukm requires in it, so it is a shart and of what the hukm of the mashrout requires, and like such are all the conditions (shurout). The shart is different to the mashrout (conditioned matter) because it is an accomplishment quality for it, not one of its parts, therefore it is different to the pillar, because the pillar is a part of the thing not separated from it, and it is not right to say: the pillar is different to the thing or similar to it because it is one of its parts, whereas the shart must be different to the thing and an accomplishment for it at the same time. The shart is defined as which’s absence necessitates the absence, and its existence does not necessitate the existence, and this is a clarification for it with regard to its effect. The shart (condition) with the mashrout (conditioned matter) is like the quality with the described matter, so nothing can be described without the existence of the quality, but the quality may exist without the existence of the described one, and so is the shart, the salaat does not exist without the existence of the purity, but the purity may exist without the existence of the salaat. The shart does not come specifically for the assignment verdict, but it may also be for the circumstantial verdict. So there are shurout (conditions) related to the assignment address, like the purity, covering the awrah, and the purity of the dress, every one of them is a shart for praying. And there are shurout related to the circumstantial address like the hawl (elapsing of one year) with the nisaab of the money zakaat, the ihsaan (marriage) in the issue of the adultery, and the protection (al-hirz) in the stealing (taking the stolen thing from its storage or fortified and walking away with it), they are all shurout for the sabab (cause). And they are all considered as sharout upon which applies the definition of the shart, and they are all shari'ahi sharout for their arrival in the evidence, except that the first type are shurout for the hukm and the second type are shurout for what is set for the hukm of matters it necessitates.
The agreements shurout are included in the shari'ahi shurout, like the shurout of the sale, the partnership, the entailment (waqf), and the like, but they are not like the assignment verdicts and circumstantial verdicts shurout (conditions) with regard to the need of a shari'ahi evidence that shows the shart to make it considered as a shart, but it is conditional for these shurout that they don’t contradict the shari'ah. Which means that, the shurout of the assignment or circumstantial verdicts need a shari'ahi evidence to be considered as shurout, contrary to the agreements shurout, they don’t need to be included in the shari'ahi daleel, but it is permissible for the two parties of the agreement to set the shurout they want, however it is not permissible for them or any of them to set shurout which contradict the shari'ahi text. So the agreement shurout must not contradict the shari'ah and it is not conditional for them to come through a shari'ahi daleel, that is for the saying of the Messenger of Allah (SAW):"...ما بالُ رجالٍ يشترطون شروطاً ليست في كتابِ اللهِ، ما كان من شرطٍ ليسَ في كتاب اللهِ فهو باطل، وإن كان مِئَةَ شرط، قضاءُ اللهِ إحقُّ، وشرطُ اللهِ أوثَقُ" “…what is the matter with some men, they set conditions that are not in the book of Allah, what so ever of a condition that is not in the book of Allah; is invalid (baatel), even if it is a hundred shart, the decree of Allah is greater in the right, and the condition of Allah is more binding”, narrated by Al-Bukhari. And the meaning of “not in the book of Allah” is contrary to what is in the book of Allah, means it is not in His ruling nor is it in accordance with His decree; that is because the Messenger of Allah (SAW) has permitted the setting of the shurout (conditions) without restrictions, and clarified that whatever contradicts the hukm of Allah Ta’ala is baatel (invalid), so He did not forbid the setting of the shurout, and since He (SAW) negated (that the meaning is) the consideration of what is from within the book of Allah (of shurout), then the meaning of it is negating the consideration of what contradicts the book of Allah. The hadeeth in Al- Bukhari is:"عن عائشةَ رضيَ الله عنها قالت: جاءَتني بُرَيرَةُ فقالت: كاتبتُ أهلي على تِسعِ أواقٍ في كلِّ عامٍ وَقِيَّةٍ، فأعينيني، فقُلتُ: إن أحبَّ أهلُكِ أن أعُدّها لهم ويكونُ ولاؤكِ لِي فَعلتُ. فذهبتْ بُرَيرَةُ إلى أهلها، فقالتْ لهم، فأبوا ذلك عليها، فجاءَتْ من عندهِم ورسولُ اللهِ صلى الله عليهِ وسلَّمَ جالِسٌ، فقالتْ: إنِّي قد عرضْتُ ذلك عليهم فأبَوا، إلا أن يكونَ الولاءُ لهُم. فسمِع النّبِيُّ صلّى الله عليه وسلَّم، فأخبرت عائِشةُ النبيَّ فقال: خُذيها، واشترطي لهُم الولاءَ، فإنما الولاءُ لِمن أعتَقَ، ففعلتْ عائِشة. ثُمّ قام رسولُ اللهِ في الناسِ فحمِدَ اللهَ، وأثنى عليهِ، ثُمّ قال: أما بعدُ فما بالُ رجالٍ..." “A’ishah may Allah be pleased with her said: Burayrah came to me and said: I have made an agreement with my people (my master to free me) over nine ounces, one ounce a year, so help me please, I said: if your people like it I count it to them and your loyalty will be to me, then I will do. Then Burayrah went the her people with the offer, and they refused it, so she came back while the Messenger of Allah (SAW) was sitting, she said I offered them that, but they refused, they want the loyalty for themselves, so the Messenger of Allah heard that, then A’ishah told Him, and He said: take her and set the loyalty as a shart, as the loyalty belongs to whoever sets the slave free, so A’ishah did. Then the Messenger of Allah (SAW) stood up addressing the people: He thanked Allah and praised Him, then he said “what is the matter with some men...”, the hadeeth. This shows that what is prohibited is the condition that contradicts the book of Allah and the Sunnah of His Messenger, and does not show that the shart must be in the book of Allah and in the Sunnah. Accordingly the shurout in the agreement must be set so they do not violate the shari'ah, that is by not contradicting any of the shari'ah texts, or any shari'ahi verdicts which has a shari'ahi evidence. For example, the shari'ah has made the loyalty to whoever sets the slave free from his master, so it is not right to sell the slave and setting the shart of keeping his loyalty, so the shart is cancelled and the sale is valid. Another example, it is not right to say: I sold this to you for one thousand in cash (naqdan) or for two thousands as credit (nasi’ah). So this is one sale consists of two conditions, the aim of it differs in accordance with their differences; so this is an invalid shart, for which the sale becomes invalid because of His (SAW) saying:"لا يحِلُّ سَلَفٌ وبَيع، ولا شَرطانِ في بَيْعٍ" “credit and sale is not permissible, nor is it permissible to make two sharts in one sale”, narrated by Abu-Dawood. And as an example, if a man sells a good to another one and sets a condition for him that he does not sell it to anyone; the shart is cancelled and the sale is valid (sahih), because this shart contradicts the requirement (muqtada) of the agreement, which is the ownership of the sold good and having the right of its disposal, so that contradicts the shari'ahi verdict. And thus the conditions that contradict the shari'ah are not considered at all, whether they violate a shari'ahi text or a verdict which the shari'ah brought it. Has it been a shari'ahi assignment verdict or one of the circumstantial verdicts.
And what affirms that the shari'ah has permitted the Muslim to set the shurout he wants in the agreement except what violates the book of Allah or the shari'ahi verdict; is what came in the hadeeth of A’ishah about Burayrah in one narration of Al-Bukhari, that He (SAW) said to A’ishah may Allah be pleased with her: "إشتريها فأعتقيها، وليشترطوا ما شاءُوا"“bye her then free her and let them set the shart they want”, so this is clear that the saying of the Messenger (SAW): “... Let them set the condition they want”, is the (ibahah) permissibility for the human to set the conditions they want, and that is supported by the saying of the prophet (SAW): “المسلمون عندَ شُروطهم" “the Muslims are at their conditions”: narrated by Al-Haakem, means they are adherents to the conditions they set, so He referred the conditions to them. Also the prophet (SAW) acknowledged the setting of conditions that are not mentioned in the book of Allah, in the agreements, Muslim narrated on the authority of Jaber: "عن جابرٍ أنه كان يسير على جملٍ لهُ قد أعيا، فأراد أن يُسَيِّبَهُ، قالَ: فلَحِقَنِي النبيِّ الله صلى الله عليه وسلَّم فدعا لي وضربهُ، فسار سيراً لم يسِر مِثلَهُ، قالَ: بِعنيه بِوُقِيَّةٍ، قُلتُ: لا، ثُمَّ قال: بِعنيه، فبعتُهُ بِوُقِيَّةٍ، واستثنَيتُ عليه حُملانَهُ إلى أهلي" “that he was riding his weak camel, so he wanted to leave it, he said: the prophet (SAW) followed me and made supplication for me and patted on it then it walked actively in a way it never walked like it before, He said: sell it to me for one ounce, I said no, He said: sell it to me, then I sold it to him for one ounce, and I excluded its load for my family”, narrated by Muslim. Excluding its load is a shart he set in the sale. On the authority of Sufaynah Abi Abd-Arrahman said:"أعتقتني أُمُّ سلمةَ، واشترطت عليَّ أن أخدُمَ النبِيَّ صلّّى اللهُ عليهِ وسَلَّمَ" “Ummu- Salamah set me free and set a condition on me that I serve the prophet (SAW)”, narrated by Ahmad, and in a narration: "كُنتُ مملوكاً لأُمِّ سلمةَ فقالت: أُعتقُك وأشترطُ عليكَ أن تخدُمَ رسولَ اللهِ صلى اللهُ عليه وسلَّم ما عِشتَ، فقلتُ: وإن لم تشترطي عليَّ ما فارقتُ رسولَ الله صلى الله عليه وسلم ما عِشتُ؛ فأعتقتني واشترطت عليَّ" “I was a slave for Ummu- Salamah, she said: I free you under the condition that you serve the Messenger of Allah as long as you live, I said: even if you don’t set this condition on me I will not leave the Messenger of Allah as long as I live, then she set me free”, narrated Abu Dawood. And thus many incidents in which conditions are set, not taken from the shari'ah, but set by every human as he wants. And all what came in this matter is that the shart is restricted by not violating the book of Allah or any verdict of the shari'ah. But it is conditional that the set condition does not permit a haram or forbid a halal; because of the saying of the Messenger of Allah (SAW): "المسلمون عند شروطهم، إلا شرطاً حرَّمَ حلالاً أو أحلَّ حراماً". “The Muslims are at their shurout except a shart that forbids a halal or allows a haram”, narrated by Al-Tirmithi.
المَانِع
THE PROHIBITIVE
The prohibitive can be a prohibitive (mani’) of the rule (hukm) or a prohibitive of the cause (sabab). As for the prohibitive of the rule, it is an apparent specified quality whose existence necessitates the opposite of what the rule necessitates, like the deliberately offensive killing; it is a mani’ for the son who killed from the inheritance of his father.
As for the mani’ of the sabab, it is a apparent specified quality which’s existence necessitates the opposite of what the sabab necessitates like the existence of the debt, it is a mani’ of the obligatory of the zakaat for whoever has the nisaab and the hawl elapsed on it, because the debt is a mani’ from the remaining of the nisaab which is the complete sabab. So the nisaab (the sabab of he zakaat) necessitates the obligatory of the zakaat by the elapsing of the hawl (year), and the debt which is the mani’ of the sabab is the big debt that when it exists; the nisaab decreases.
The prohibitives are two types: one of them prohibits the request and the performance. The other prohibits the request but does not prohibit the performance. As for the first type which prohibits the request and the performance, it is like the absence of the mind by the sleep or insanity, it prohibits the request of the salaat, the sawm, the selling and other rules and it prohibits their performance. So it prohibits the original requests; because the existence of the mind is a condition to link the address with the actions of the mukallaf; as the mind is the (manaat) depending basis of the responsibility, and like the menses (al-haydh) and confinement (nifaas), they prohibit the salaat, the sawm and the entry to the masjid, and they prohibit their performances, so they are prohibitives of the initial request, because the purity from the haydh and the nifaas is a condition in the salaat, the sawm and the entry to the masjid, so the absence of the mind and the existence of the haydh and nifaas, every one of them is a mani’ of the request and of the performance.
As for what prohibits the request and does not prohibit the performance, this is like the femininity with regard to the Jumu’ah prayer, and the maturity with regard to the fasting. The femininity is a prohibitive of the request of the Jumu’ah prayer, and the immaturity is a prohibitive of the request of fasting, because the Jumu’ah prayer is not obligatory upon women, and the prayer and the fasting are not obligatory upon the boy, but if the women performed the Jumu’ah prayer, and the boy performed the prayer and the fasting, they are valid, because this prohibitive is a mani’ of the request not a mani’ form the performance. And like this is the traveling, it is a mani’ of the fasting request and of the request of completing the salaat, but if the traveler fasts, and completes and does not shorten the salaat it is valid, because this prohibitive is a request mani’ not a performance mani’, and thus are all the causes of the concessions, they are prohibitives of the request not of the performance.
الصِّحَّةُ، وَالبُطْلاَنُ، وَالفَسَادُ
THE VALIDITY, THE INVALIDITY,
AND THE CORRUPTION
The validity is the compatibility with the legislator’s command. When it is said it means the consideration of the result of the action in the herelife, and it also means grading the result of the action in the lifeafter, so the fulfillment of the pillars and conditions of the salaat makes the salaat valid for the prayer and in reality. So we say the prayer is valid, means it is rewardable and it acquits one’s liability, and it drops the request for the (qadha’) making up for it. And the fulfillment of all the conditions of the sale makes the sale valid, so we say: the sale is sahih, means it is a shari'ahi way for possessing something, and allowing the benefit and the disposal of the possessed thing. This is with regard to the consequences of the result of the action in the herelife. As for grading the result of the action in the lifeafter, we say: this salaat is valid, meaning we hope that it is rewardable in the lifeafter, and we say: the sale is valid, meaning that the intention to comply with the command of the legislator and directing the sale according to the command and prohibition makes it rewardable, so we hope to get the reward in the lifeafter for the action with this intention and this direction, for the compliance with the law of Allah Ta’ala and the adherence to Him. However the grade of the result of the action in the lifeafter is not noticed except in the worships. As it is seen, its appearance is usually limited to the worships like the prayer, the sawm, the hajj, and the similar. In most cases it is not noticed in transactions, or in the rules of morals like the truth, or in the penalties; therefore the discussion of validity is mostly around considering the result of the action in the herelife with respect to: whether it is rewardable and acquitable of the liability. In issues other than worships, what is meant by the validity (sihhah) is halal, and what is meant by the invalidity (botlaan) is haraam, so the validity in transactions means lawfulness, i.e. the benefiting permissibility, and the meaning of the invalidity (botlaan) is the unlawfulness, i.e. the benefiting prohibition, which necessitates punishment in the herelife and in the lifeafter. So whoever possesses money by an invalid contract, that money is considered haraam, and its perpetrator deserves punishment in the lifeafter.
As for the invalidity (botlaan), it is the opposite of the validity (sihhah), and that is the non compatibility with the legislator’s command, which means the non consideration of the result of the action in the herelife, and the punishment for it in the lifeafter, which means that the action is not rewardable and not acquitable of the liability, and does not drop the necessity of the (qadha’) making up for it. If one pillar of the salaat is skipped; the salaat becomes invalid (baatilah) and if one of the validity’s conditions of the partnership is void; the partnership is invalid, for example, if two people deposit money in a bank as (mudhaarib) partners, then they entrust a person to invest the money on their behalf by buying and selling, and they share the profit equally. This company is invalid, because it did not get established, since there was no offer and acceptance with a body (badan) partner. The offer and acceptance with a body partner is a condition for the partnership to get established, therefore it is invalid. And the disposal of the agent they entrusted is invalid, because the (mudhaarib) partner, if he is supposed to be a partner hasn’t got the right of disposal, so he has no right to assign an agent, so it is an invalid agreement. Another example, if the kind of sale is prohibited like selling the (malaaqeeh) impregnated, that are in the mothers womb. The consequence of the invalidity is the prohibition of the benefit, and one will deserve punishment for it in the life-after, therefore the invalidity has consequences in the here-life and in the life-after.
As for the corruption (fasaad), it is different to the botlaan, because the botlaan is basically non compatibility with the legislator’s commands, i.e. it is originally forbidden like selling the impregnated (fetus animals). Or that the unfulfilled condition violates the basis of the action. Contrary to the fasaad, where the basis of the action is compatible with the legislator’s command, but its non violating quality of its basis is contrary to the legislator’s command. The fasaad (corruption) can not be imagined in worships, because whoever follows their conditions and pillars; finds that they are all related to their basis. But the fasaad can possibly exist in the agreements. As for the example of selling the impregnated; it is baatil (invalid) from the basis, because it is forbidden originally, contrary to the selling of the townsmen to the Bedouin, it is a corrupted sale, because of the ignorance of the Bedouin about the price, and after he sees the market, he has the option to keep the sale or to revoke it. And for example, the sharing company, its basis is invalid because it misses the acceptance of the body partner, so it misses a condition related to the basis, contrary to the agreement of the partnership with ignorance about the money of the partners, that is a corrupted one, but if the money becomes known the partnership becomes valid or they must clarify the money so the partnership will be completed, and thus.
العَزِيمَةُ وَالرُّخْصَةُ
THE DETERMINATION
AND THE CONSESSION
The determination (al-azeemah) is (a quality of) what was legislated of rules as a general legislation, and the servants are obliged by it. And the concession (al-rokhsah) is what was legislated of rules to lighten the determination because of an excuse, without obliging the servants to act upon it, with the remaining of the determination rule. As an example, the sawm is azeemah (determination) and the fitr (fast breaking) for the sick person is rokhsah (concession). Washing the organ in the wudhoo' is azeemah, and wiping the wounded or broken organ is rokhsah. Praying standing up is azeemah, and sitting down in the prayer in case of weakness is rokhsah, and as such. So the azeemah is what was generally legislated, it is not specific for some mukallafeen without the others, and it does not enable to choose between acting according to it or according to something else, but it obliges to act according to it solely. And the rokhsah is what was legislated for an unusual excuse, so its legislation is considered as long as the excuse exists, and it is not considered if the excuse vanishes, and it is especially for the mukallafeen that are characterized by this excuse. Accordingly, the rule that is an exception from a general text is not rokhsah, but it is azeemah, also the rule that is special for some situations is not rokhsah, but it is azeemah, because these are situations not excuses. An example for that is: the iddah of the women (period a widow should not remarry in it) that her husband died is four months and ten days, and the iddah of the pregnant women that her husband died is until she gives birth to her baby. This rule is an exception from the general rule so it is not a rokhsah. And also the sale, if its conditions are fulfilled and it is not forbidden; it is sahih (valid), and if the sale happened at al-ghobn al-faahish (excessive price), even if all its conditions are fulfilled and it is not forbidden; it is corrupted. Its buyer has the option about it (to return it), but it is not a rokhsah. Selling what is not received is baatil (invalid), and selling the animal that is not received is sahih (valid) and that is not a rokhsah. Accordingly the salam sale (forwarding the price and delaying the good), the araaya (palm trees given to the needy who could not wait until they are ripen so he is allowed to sell them by dates), the musaaqaat (a man allows a worker to water the trees and serve them for a known portion of the fruit), and the likes of the agreements are azeemah not rokhsah. And thus all the permissibles are determinations not concessions. And what is meant by obliging the servants to act according to it; is according to the rule, whether it is waajib or mandoub, mubaah, haraam or makrouh. Can you see that eating the maytah (dead not slaughtered meat) is haraam, but for the compelled one it is allowed, so it is a rokhsah, so what is considered is the action according to the rule, not the action itself. And as for the saying of the prophet (SAW) about the araaya "... أَرخصَ في بَيْعِ العرايا..." “He allowed the sale of the araaya as a rokhsah” narrated by maalik. What is meant is the linguistic meaning (of arkhasa) and that is He made it easy for you. And similar to that, all the agreements which Allah Ta’ala made easy for the people are determinations, because they are not exception from a rule that is originally forbidden for an excuse, so theire exception vanishes when the excuse vanishes, but these rules are legislated as facilitation for the servants, and their legislation is general and permanent. And there is difference in the case when someone could not stand up in the prayer, or he could with hardship so he prays sitting down, even though he violates one of the salaat’s pillars; it is not obligatory upon him to stand up, and that is a concession, and in the case when a man sells the estimated fruits of the palm trees to feed his family dates for the price of the estimated fruits of the palm trees, this is not a concession, because it is not an exception for an excuse, but it is a situation in which it is permitted to sell the ripe by the solid, even though it is an exception, but it was not legislated for an excuse to be considered as a concession, but it was legislated as a facilitation for the people, so it is of the facilitations of the shari'ah and not because of the excuses, so it is not a rokhsah.
It is inevitable that the rokhsah is shown in a shari'ahi daleel to consider it as a shari'ahi concession. It is a rule Allah Ta’ala had legislated it for an excuse so the excuse is the cause for considering the rule as shari'ahi. However, the rokhsah is considered to be from the shari'ahi causes, and it is one of the circumstantial rules, and it is the legislators address related to the actions of the servants about the circumstance, and since it is a legislator’s address; it is inevitable to have a shari'ahi daleel for it. so the blindness, the limping and the illness are excuses for the sitting down (absence) from the jihaad, Allah Ta’ala said: {ليس على الأعمى حرج ولا على الأعرج حرج ولا على المريض حرج...} (No blame is there on the blind, nor is there blame on the lame, nor on the ill one (if he joins not the war)…), 17 Surat Al-Fath, and the traveling is an excuse for the fast breaking in ramadhaan, Allah Ta’ala said: {...ومن كان مريضاً أو على سفرٍ فعدةٌ من أيَّامٍ أُخر...} (but if any one of you is ill, or on a travel, the prescribed period (should be made up) by days later...),185 Surat Al-Baqarah, and the forgetfulness, the mistake and the compulsion are excuses which lift up the sin of the involved person that falls into a forbidden. The messenger (SAW) said: "إنَّ اللهَ وضعَ عن أمتي الخطأ, والنِّسيان, وما استُكرِهوا عليه" “verily Allah had put down the blame of my Ummah for the mistake, the forgetfulness, and that which they are compelled to do” narrated by Ibn Maajah, and the ignorance about what can be ignored by some people is an excuse, because Rasoul Allah (SAW) heard Mu’awiah Ibn Al-Hakam saying the tashmeet (saying may Allah bless you) to a person that sneezed while in the prayer, so after they finished the prayer, the Messenger (SAW) taught him that speaking in the prayer invalidates it, by saying to him as narrated by Muslim: “verily nothing of the people’s talk is allowed in this prayer, it is but glorifying, praising Allah, and reciting the Quran”, and He did not command him to repeat the prayer. So these are excuses that came in the Shari'ahi daleel so they are considered excuses, and thus whatever came in the adillah (evidences) as specific excuses for specific rules will be considered as excuses, and whatever does not come in the daleel has no value, and will not be considered as a shari'ahi excuse at all. These excuses are considered for them selves, not because of the illah (reason in them), that is because the shari'ahi daleel which showed that they are excuses did not set reasoning (ta’leel) for considering them as excuses, but left them without reasons, so we don’t make ilal (reasons) for them, because the shari'ah did not set reasons for them, and made every excuse of them an excuse for the rule which it came for it, not for other rules, so it is considered as a special excuse for the rule which it came for it, not a general excuse for every rule, therefore, the blindness is an excuse to leave the jihaad, not an excuse to leave the salaat. Moreover, these excuses: the illness, he limping, the traveling, the forgetfulness, the compulsion and the mistake, even though they are qualitys; they are a kind of quality which does not indicate that it can be used for setting reasons (ta’leel), and does not show an indication for reasoning, therefore, we don’t measure other excuses to it, and we don’t seek a cause to set a reason for it, i.e. a reason to consider it as a illah for applying the illah rule on it, therefore, we don’t say that traveling is a illah because of its hardship but the travel itself is the illah because Allah Ta’ala considered it as a illah not because of its hardship, i.e. it is an insufficient illah, therefore, the traveler is allowed to shorten the salaat for the distance of the shortening (qasr), even if he travels by plane, and does not shorten for less then the shortening distance even if he travels in the desert while it is very hot, because the hardship is not the excuse that allowed the shortening, but the excuse that made the roukhsa (concession) to shorten the salaat is the travel, for it is a travel regardless of the hardship, and thus are all the excuses because of which the roukhas (concessions) are issued by the shari'ahi text. This is with regard to the reality, that the roukhsa and the azeemah are from the shari'ah perspectives.
As for acting according to the rokhsah or the azeemah (determination); verily acting according to either one of them is a mubaah, so one can act according to the rokhsah or according to the azeemah, because this is shown in the texts of the concessions. Allah Ta’ala said: {...فَمَنِ اضْطُرَّ فِي مَخْمَصَةٍ غَيْرَ مُتَجَانِفٍ لِإِثْمٍ فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ}, (…But if any is forced by hunger, with no inclination to transgression, Allah is indeed Oft-Forgiving, Most Merciful) 3 Surat Al-Ma’idah, and He said: {...فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَحِيم}ٌ (…But if one is forced by necessity, without willful disobedience, nor transgressing due limits, then is he guiltless. For Allah is Oft-Forgiving, Most Merciful) 173 Surat Al-Baqarah, so He Ta’ala showed the rokhsah by lifting up the guilt of the eating and this is the ibahah (permissibility), and forgave the sin of his action and it is the ibahah. He Ta’ala said: {وليسَ عليكُم جُناحٌ أن تَقْصُروا مِنَ الصَّلاةِ...} (When ye travel through the earth, there is no blame on you if ye shorten your prayers, for fear the Unbelievers may attack you: for the Unbelievers are unto you open enemies) 101 Surat
It could be said that the Messenger of Allah (SAW) said: "إنَّ اللهَ يُحِبُّ أن تُؤتََى رُخَصُهُ, كما يُحِبُّ ان تؤتَى عزائِمُهُ" “Verily, Allah loves that His concessions are taken, as He loves that His determinations are taken”, narrated by Ibn Hibbaan, and this is a request, so it is a daleel that it is a mandoub. If the compelled one fears death; he must eat the dead meat, and it is forbidden for him to abstain from eating it. If the choked one could not find except the intoxicant; he must drink it to relief himself from the choke if he fears death, and it is forbidden that he abstain and die. If the fasting person becomes very fatigue to the extant of death; he must break his fast, and it is forbidden for him to remain fasting and die, and as such, which indicate that acting according to the rokhsah could be a fardh, a mandoub and could be a mubaah. The answer to that is: the talk (discussion) is about the rokhsah from the perspective that it is a concession; it is certainly a mubaah (permissible) because of the previous evidences. So the hukm of the concession with regard to its legislation is the mubaah. As for the saying of the Messenger (SAW): "إنَّ اللهَ يُحِبُّ أن تُؤتََى رُخَصُهُ..." “Verily, Allah loves that His concessions are taken…”, nothing in the hadeeth indicates the nadb (preference), but it indicates the ibaahah, because it clarifies that Allah Ta’ala loves that His rokhas (concessions) to be taken (practiced), and He loves that His azaa’im (determinations) to be taken, and non of the two request has a priority over the other, and this is in the text of the hadeeth: "إنَّ اللهَ يُحِبُّ أن تُؤتََى رُخَصُهُ, كما يُحِبُّ ان تؤتَى عزائِمُهُ" “Verily, Allah loves that His concessions are taken, as He loves that His determinations are taken”, therefore there is no indication in the hadeeth that acting according to the rokhsah is a mandoub. As the issue of eating the dead (not slaughtered) meat; the modhttar (compelled one) does not mean the one which is ascertained of his death, but just for fearing the death; he is considered as a compelled one, but if death becomes ascertained if he doesn’t eat, then it becomes forbidden for him to refrain from eating, and becomes a must (waajib) upon him to eat, not because it is a rokhsah, but because eating becomes a waajib. That is because acting according to the azeemah, which is refraining from eating (in that situation) is a mubaah, but it definitely leads to the haraam which is the self perishing. So it becomes haraam to carry out the azeemah in that situation according to the shari'ahi principle: "الوسيلةُ إِلى الحرامِ حَرام" “the means to the forbidden is a forbidden” and carrying out the rokhsah becomes a waajib because of the emergency cause which is the death certainty, and this is not the rule of the rokhsah (as a concession), but one of the situations on which the principle: "الوسيلةُ إِلى الحرامِ حَرام" “the means to the forbidden is a forbidden” is applicable. This application is not specially for the rokhsah, but it is general for every mubaah, and like that is the drinking of the intoxicant for the choked person, and the fast breaking for the ascertained of death person and others. Accordingly, the rule of the rokhsah as it is and with regard to its legislation is the mubaah (permissible), but if refraining from it and carrying out the azeemah lead certainly to the haraam, then carrying out the mubaah becomes haraam.
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