The Concept of Al-Maslaha Wa Al-Nass With Special Reference To Kitab Al-Buyu' in The Book of Bulugh Al-Maram

THE CONCEPT OF AL MA$LAHA WA AL NASS WITH SPECIAL REFERENCE TO KIMB ALBUYII' IN TIDE BOOK OF BULIIGHAL MA&4M
Ishak Suliaman
Submittedto the University of Wales in fulfilment of the for the requirements Degree of Doctor of Philosophy
University of Wales, Lampeter 2005
i
ABSTRACT
This study examines the concept of al-Maslalia wa al-Nass (Public Interest and Islamic legal text) with special reference to Kitdb al-Buyi (chapter on business transactions) in the book of Bulgh al Mardm. The analysis moves from the connection formed between al-Ma. lalta and al-Nass by Muslim jurists to the investigation of the practical principles of al-Maslaha as those principles apply to alBuy as encompassed in the ahddith of the Prophet s.a.w in Kitdb al-Buyuf. It is for , this reason that the book of Bulgh al-Marm has been chosen by the present researcher; Kitb al-Buyuf represents the most explicit source of aliddith on which to draw for the practical principles discussed.
To this end, six chaptershave been drawn up in three parts; that is, parts A, B and C.. Part A is entitled `The concept of al-Maslal:a wa al-Nass in Islamic Jurisprudence',and consistsof three chapters.The first deals with the definition and historical developmentof the concept of al-Maslaha wa al-Nass.The secondchapter extendsthis with the theoretical development of the concept of al-Ma. lalla wa alNass. This conceptual section closes with the third chapter, which focuses on the significance of Tdlil al Alikam for the concept of al-Mallalia wa al-Naas. Part B examinesthe authenticity of the Iladith, introducesthe book of Bulgh al-Marm and of two chapters,chapter four and chapter five. The fourth chapter discusses consists the main referencesourcesfor the book of the Uadith, while the fifth both introduces the book of Bulgh al Mardm and analysesin detail eachsuccessive section. The last part of this thesis is part C, which specifically examinesthe altdith. Part C forms the heart of the thesis, building a specific methodology within the juristic framework of the concept of al-Ma.Flalia wa al-Nall for the analysis of alBuy according to the practical principles drawn up from the 22 sub topics listed in Kitb al-Buyuf (chapter on businesstransactions)in the book of Bulgh al-Marm. The thesis concludes that if these principles of public interest are applied to all businesstransactions in accordancewith what is laid down in the a1idith of the Prophet s.a.w, then the public interest of humanity amongst Muslims will be preserved.It is for this reason, that the alidith of the Prophet s.a.w are given to humanity as a universal living source on which to draw for their. eternal well-being. Thus, it is hoped that using the juristic concept of al-Maclalia wa al-Nall as a new tool with which to analysethe altdith of the Prophet s.a.w opensthe door to further study in this field.
ii
Declaration/Statements
DECLARATION This work has not previously been acceptedin substancefor any degreeand is not being concurrentlysubmittedin candidaturefor any degree.
Signed .................................... ............... '... Date.......... .
Statement1
This thesisis the result of my own investigation,except where otherwisestated. by Other sourcesare acknowledged footnotes giving explicit references. A bibliography is appended.
5; " Signed4:: S :... g.:.. os.......... Date......
2 Statement
for I herebygive consent my thesis,if accepted be availablefor photocopying and to for inter-library loan, and for the summary to be made available to outside
organisations.
Signed ......... T'.. Date.......
d "..'...
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iii
ACKNOWLEDGEMENT
For the most and prime acknowledgement, expressall the praisesand thanksbe to I Allah the Almighty for His mercy and blessing in bestowing upon me of being a to seekand learn His valuableknowledgeof the Hadith of the Prophets.a.w student Islamic jurisprudence. Again, by His permission, this humble work has been and completedto be examinedand utilised for the sakeof Islamic knowledge.
My earnestappreciation belongs to my supervisor, Dr. Mawil Izzi Dien for his invaluable encouragement and commitment, untiring and smart supervision.I am indebtedto his effort in advising and assistingmy thesis presentablein the present form. His latest book of Islamic law is inspired me to completethis work during the third year of my Ph.D studies.I owe my special gratitudeto my English teachersfor
in their valuablesuggestions comments assisting correcting jargonsof my and and

English usage in this thesis, particularly to Carole Russell Williams, Pat Sinclair, Serena Gibbs, Greg Backer, Br. Anuar and Br. Amjad. I also owe my sincere to Dr. Helen Vella Bonavita, EFL Director of Studies,UWL, for the appreciation Carole Russell Williams for a period provision of academicwriting workshopswith of almost one year.
I am indebted to the Government of Malaysia, the Public ServicesDepartment of Malaysia, the Ministry of Education, Malaysia and the University of Malaya for awarding me the study leave for three years and assistingme with financial support during my studiesin the United Kingdom. Very special thanks and appreciationare due to numbers of scholars and colleagues,who gave their moral and academic
IV support prior to and during my studies especially, Professor Dr. Mahmood Zuhdi Abdul Majid, Professor Dr. Ab Aziz Mohd Zin, Professor Dr. Abdullah Alwi, Associate Professor Dr. Zulkifli Yusoff, Associate Professor Dr. Abdul Rashid
Ahmad, Associate Professor Dr. Fauzi Deraman, Associate Professor Dr. Abd Karim
Ali, AssociateProfessorDr. Ali Mohammad,Br. Asmady, Br. Anuar, al-UstazAbdul Ghani Shamsuddin and membersof PUM.
Very sincerethanks are expressed Dr. FrancesKnight, Head Departmentof to TRS who endorsed my application of departmental research scholarship. The scholarshiphas been spent to cover my expenditure researchat SOAS, London and part of my trip of research to Egypt in the first year of my studies. The same commitment of appreciation goes to all the librarians who assist me in providing many related materials of my thesis, particularly those librarians from the University
of Wales, Lampeter,University of Wales, Aberystwyth,the British Library, the

School of African and Oriental Studies (SOAS), the University of Birmingham, the University of Edinburgh, the University of Malaya, the International Islamic University, Malaysia and the National University of Malaysia.
I am indebtedmost of all to my beloved and dedicatedwife, Noorizah Ghazali
and my lovely kids; Ammar, Muadz, Luqman, Sarahand Imran, for their utmost patient,understanding continualsupportduringalmostthreeyearsof my studies. and
We have gained wonderful moment during our life of three years in a small and compact university town of Lampeter. The highest degreeof appreciation belongsto
my belovedandcaredmother,Ramlahbinti Ludin, my parents-in-law all family and

membersfor their continuous prayers and wishes for my success. For my late father,
Haji Sulaimanbin Ahmad, this thesisis dedicatedto him who alwaysbeing an icon of my life. To all my colleaguesin the University of Wales, Lampeter and membersof EINS at Llanybydder, I offer my sincere gratitude and deepestappreciationfor their highest spirit of Muslim brotherhood.
Again, to all of them; JazakumuLlahKhayr al Jaz'.
Finally, as the perfection and faultlessnessonly belong to Allah as the most becauselack of perfect, therefore I admit that this thesis is subject to weaknesses knowledge, outlook and experience.Thus, any comment and suggestionthat aims to improve this thesis is highly appreciated. However, to Allah s.w.t. I submit this humble work for my submissionto Him.
Ishak Suliaman Afallen, Bryn Road Lampeter,Wales, United Kingdom. October 2004
vi
TABLE OF CONTENTS Abstract Declaration/Statements Acknowledgement

Table of Contents Notes on Transliteration
i ii iii
vi xi
List of Abbreviations
xiii
INTRODUCTION Background Purpose,scopeand limitation of the thesis Research methodology Literature review Outline of chapters 1 3 4 5 8
PART A: THE CONCEPT OF Al MAFLAHA IN ISLAMIC JURISPRUDENCE Introduction to Part A
WA Al- NAS
11
CHAPTER 1: THE DEFINITION AND HISTORICAL DEVELOPMENT OF THE CONCEPT OF AL-MAFLAHA WA AL-NA. Y$ 1.0 Introduction 1.1 The definition of the conceptof al Maslalia wa al-Nall 1.1.1 Literal Definition 1.1.2 Technical Definition 1.2 The historical developmentof the conceptof al Ma. lalta wa al-Nag 1.2.1During the life of the Prophet s.a.w 1.2.2During the period of the Khulafil' al-Rshidin 1.2.3During the caliph Umar b. Abd. Aziz 1.2.4During the Abbasid dynasty 12 12 13 15 20 21 22 24 26
VII
1.2.4.1 The IHanafi School of law 1.2.4.2 The Mliki School of law 1.2.4.3 The Shf(i School of law 1.2.4.4 The Hanbali School of law 1.3 Summary
27 30 34 37 40
CHAPTER 2: THE THEORETICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA$, F

2.0 Introduction 41
2.1 The theory of priority of Maslaha over the legitimacy of Nasj 2.1.1 The hypothetical form 2.1.2 The connectionof MaslalaaMursala with the legitimacy of Naffs 2.1.3 alTfi's theory
2.2 The theory of levels of Varriyya, Hajiyya, and Talisiniyya in
42 44 46 51
the conceptof al Maclalla wa al-Naas connectionwith 2.2.1 The Priority Levels of Darriyya; The Views of Muslim Jurists 2.3 The theory of Magd. id al-Syari a in connectionwith Nass 2.4 Summary
67 73 77 84
CHAPTER 3: THE SIGNIFICANCE OF TA`LIL AL-AHKf1M FOR THE CONCEPT OF AL-MAgLAHA WA AL-NA, F 3.0 Introduction 86 87 88 90
3.1Definition of Talil alAhkdm 3.2Theviewsof Muslimjurists On Talil alAlikm al-Syarìa

3.3 The conceptof Tabbudiyyain conjunction with TaciT! Alikm al 3.4 The significance of Talil al-alzkdmin relation to the theory of al-Maslalia wa al-Nas$
96
97 100
3.4.1The process TaC1T1 of al-alikmfrom theNaql of the Qur'n or theIladith

3.5 Summary
Vill
PART B: THE AUTHENTICITY
OF THE HADITH AND INTRODUCTION 102
TO THE BOOK OF BULOGHAL-MARAM Introduction to Part B

CHAPTER 4: THE MAIN REFERENCE
SOURCES FOR THE BOOKS
OF HADITH 4.0 Introduction 4.1 Sahib al-Bukhdri 4.2 Saliili al-Muslim 4.3 MusnadAhmad b. Ijanbal 4.4 SunanAb Dwd 4.5 Jm( Abi cIsaal-Tirmidhi 4.6 Sunanal-Nas'i 4.7 SunanIbn Mjah 4.8 Other ReferenceSources 4.8.1 Muwalld' al-Imam Malik 4.8.2 hilt al-Imam Ibn Khuzaima 4.8.3 Saliih Ibn Ilibbdn 4.8.4 Sunanal-Draqutni 4.8.5 Sunanal-Kubra al-Bayhgi 4.9 Summary 109 110 113 116 119 121 123 125 128 128 129 129 130 130 131
CHAPTER 5: TIIE INTRODUCTION TO THE BOOK OF BULUGHAL-MARiM 5.0 Introduction 5.1 The author's biography 5.2 Meaning and significance 5.3 Juristic features 5.3.1Iladith Sallie 5.3.2 Hadith Masan 5.3.3 Hadith Daif 5.4 Compilation methodology 5.4.1Numbers of Hadith 5.4.2 Arrangementof chaptersand sub-topics 132 132 134 135 136 140 144 147 148 150
ix
5.4.3 The specific terms 5.4.3.1al-Sabra 5.4.3.2al-Sitta

5.4.3.3 al-Khamsa
159 160 161

162
5.4.3.4al Arba"a 5.4.3.5'al-Thaltha 5.4.3.6al-Muttafaq calayh

5.5 Summary
163 163 164

165
PART C: ANALYSIS OF TIDE AHDITH Introduction to Part C Methodology of analysis

CHAPTER 6: KITAB AL-BUYC ; APPLICATION OF AL-MALAHA OF AL BUYCc OF TIIE CONCEPT
167 168
WA AL-NA$$ TO TIDE AHDITH
6.0 Introduction 6.1 Definition and Significance of al-Buyu`c 6.2 Chapteron BusinessTransactions 6.2.1 Conditions of businesstransactionsand thosewhich are forbidden 6.2.2 al-Khiydr or Options of transaction 6.2.3 al-Rib or Usury 6.2.4 Permissionregardingthe sale of al-Àry and the sale of trees(al-Ull) and fruits (al-Thimr) 6.2.5 Paymentin advance(al-Salm), loans (al-Qarcl)
170 170 173 175 197 200
207
(al-Rahn) andpledges
6.2.6 al-Taflis wa al-Hajr or Bankruptcy and seizure
210
214
6.2.7al-Sully Reconciliation or
6.2.8 al-Hawla wa al-IDamnor The transfer of a debt and surety 6.2.9 al-Shirka wa al-Wakla or Partnershipand agency 6.2.10 al-Igrr or Confession 6.2.11 al `riya or Loan 6.2.12 al-Ghasabor Usurpation 6.2.13 al-Shuf a or Option to buy neighbouring property
218
221 224 227 228 231 233
6.2.14al-Qird or Equity sharingbetweeninvestor and entrepreneur 6.2.15al-Musgt (cultivating and sharingthe profit of the land) and
al-Ijra (wages) 6.2.16 Iliyd' al-Mawt or Developing barren lands 6.2.17 al-Waqf or Endowment
235
238 242 246
6.2.18 al-Hiba (Gifts), al cUmra (life-tenancy), and al-Ruqba (giving property
for the recipient's life time)

6.2.19 al-Lugata or Lost and found items 6.2.20 al-Far'id or Shares of inheritance 6.2.21 al-Wasdyd or Wills and testaments 6.2.22 al-Wadi a or Trust's property 6.3 Summary
248
252 255 260 263 265
CONCLUSION OF THESIS Conclusion Suggestion
267 267 271
GLOSSARY OF ARABIC TERMS
272
BIBLIOGRAPHY
280
xi
NOTES ON TRANSLITERATION
This work adopt the rules of transliteration usedby Encyclopediaof Islam, with slight variations
Consonants
(hamza)
(b') (ta') b t
u
b
(dad)
(t') (z')
a
1 z
(th')
c c Z GYM) (h') (kh') (dl) (dhl)
(r')
th
J h kh d dh
r
(ayn) (ghayn)
c gh f q k I
m
u.
(fa') (af) (kf)
c1 0
(15m)
(mim)
(zay)
(nun)
ui" uA
c4
(sin) (shin)
(*d)
s sh
Vowels
(ww) '.
q
(h')
(y')
w h
y
(fathale)
a i
longfatlialz
(kasra)
long kasra
'
((lammah)
long clammah
Tanwin
is represented an, in, un respectively. by
Transliteration involve only Arabicwords.Otherswill be written in italics. will Exceptions " The namesof well-known places, Mecca, Medina, Iraq. e.g.
xii
" "
No macron over the last i in names. Authors and titles of non-Arabic books.
X111
LIST OF ABBREVIATIONS
Àwn al Macbd al-Abdi, Abi Mansur, Tahdhib cAwn al-Ma bd al-Abdi, Abi Man5r Muhammad b.Ahmad al-Azhari, Tahdhib al-Lughah
AbU Dawd, Sunan

Abd.A1-Razzq, al Musannaf
Ab Dawd, Sunan
Abd. A1-Razz5q, Ab b. Humam a1-Sanani, al-Musannaf
Abd al-Ghafar,Criticism
Abd al-Khliq, Hujjiyyat Abd. al-Majid, al-Madkhal
Abd al-Ghafar, ShuaibHasan,Criticism of Iladith Among Muslims with Referenceto SunanIbn Mjah
Abd al-Khliq, Abd al-Ghni, Hujjiyyat al-Sunnah Abd. al-Majid Mahmd al-Matlb, al-Madkhal fl bi al-Fiqh al-Isldmi wa Ususihi wa al-Tarif Khasiihi wa Masdirihi
Ab Zahra, Uszl Ab Zahra,Ab Iianifa
Abu Zahra, Muhammad, Usiil al-Fiqh Ab Zahra Muhammad,Ab Hanifa: Haytuhu,wa Àsruh,ra 'uh, wa Fiqhuh AbU Zahra Muhammad,Mlik: Uayatuhu,wa Asruh, Ar'uh, wa Fiqhuh AbU Zahra Muhammad, al-Shf(i: Haydtuhu,wa cAsruh,Ar'uh, wa Fiqhuh Ab Zahra Muhammad,lbn Ilanbal: Haytuhu, wa Asruh,ra 'uh, wa Fiqhuh Ab Zahra Muhammad, Trikh al-Madhhib j al-Siysahwa al Àgd'id wa al-Tdrikh al-Islmiyyah al-Madhhib al-Fiqhiyyah Ab Zahw MuhammadMuhammad, al-Hadith wa al-Muliaddithfsn
Ab Zahra,Mdlik
AbU Zahra, al-Shdf(i Abn Zahra,Ibn Ilanbal
Ab Zahra, Tdrikh
Abti Zahw, al-Iladith
a mad,Musnad,
'Ali, Al-Shf(i
Ahmadb. IHanbal, Musnad

"Ali Abd. Karim, Al-Shf(i's Contribution to Hadith an Annotated Translation of His Work Jim alCIlm Sayf al-Din Ali b. Muhammad,Al-Illkm al-Amidi, fT Usl al Altkm
al-Amidi, Al-Ilikm
xiv
al-Amidi, Ghyah
cAmiri, At-Tuft a1
Sayf al-Din All b. Muhammad,Ghyah al-Amidi, al-Marmjiìlm al-Kalm

cAbdallah M. al-Husayn, At-Tuft's al-Amiri, Refutation of Traditional Muslim Juristic Sources Law And His View On The Priority of Regard of For Human Welfare As The Highest Legal Source Or Principle
Anderson,Islamic Law al-Ashgr,al-Shari a al-Ashgr,Nazart al-Ashgr, Trikh Atryah,Nahw Ta, fìl CUmda al-Ayni, al-&i Baalbaki,al-Mawrid al-Baghawi,Sharlc
AndersonJ.N.D., Islamic Law in the Modern World Umar Sulaiman,al-Shari a al Ilhiyya la al-Ashgr, al-Qawnin al-Wacfiyya Umar Sulaiman,NazartJ Usl al-Fiqh al-Ashgr, cUmar Sulaiman, Trikh al-Fiqh al-Islmi al-Ashgr, Atiyah Jaml al-Din, Nalcw Taf V Magsid al-Shari a Abu Muliammad Malimild b. Ahmad, al-Aynru, Umdaal-Qri bi Sharli Sahili al-Bukhri Baalbaki,Rohi, al-Mawrid AbU Mul)ammadal-Husaynibn Masd al-Baghawi, al-Farr', Sharli al-Sunna Sulaymanibn Khalaf, al Muntaq Sharp al-Bji, al-Muwall' Bakar, Mohd. Daud, Conflict of Law and the Methodology of Tarjih; A Study in Islamic Legal Theory Bakar, Mohd. Daud, TheDiscernmentof Maslaha in Islamic Legal Theory Ballantyne W.M., Note on the New Commercial Code of Bahrain al-Bagilni, Abu Bakr Muhammadb. al-Tayyib, jial-Rad àla al-Mullaida wa al-Mi! allila al-Tamhid wa al-RfIda wa al-Khawdrj wa al-MuCtazila. Ab al-Husayn Muhammadb. 'Ali b. al-Basri, al-Tayyib, al Mu'tamad fl U. l al-Fiqh al-Baydwi, Abdullah b. Muhammad al-Shirzi, Minhj al-U iil ila Ìlm al-UUl
al-Bji, al-Muntaqa Bakar, Conflict of Law
Bakar, TheDiscernment
Ballantyne,Note
al-Bagilni, al-Tamhid
a1-Ba*ri,al-Mutamad al-Baydwi,Minhj
xv
al-Bayhaqi, Sunan
Abra Bakar Ahmad b. al-Husayn, Sunan al-Bayhaqi, al-Kubr Abu Bakar Ahmad b. al-Husayn, Managib al-Bayhaqi, al-Shjri
al-Bayhaqi, Mandgib
al-Bazdwi, Usl Brockelmann,History

al-Bukhri, Jmi` Burton, The Sources
Ali b. Muhammad, Usl al-Bazdawi al-Bazdawi, Brockelmann,Carl, History of the Islamic Peoples
al-Bukhri, Ismail b. Yahya, Jdmi' al-Sahib Burton, John, The Sources of Islamic Law, Islamic Theories of Abrogation
Dawbil al-Bti,
al-Bnti, - Muhammad Said Ramadan, Dawdbit alMaslalia ft al-Shari ah al-Islmryyah

Buang, Ahmad Hidayat, The Prohibition of Gharar in The Islamic Law of Contracts: A Conceptual Analysis with Special Reference to the Practice of Islamic Commercial Contracts in Malaysia.
Buang, The Prohibition
Calder,Studies Cobuild, Learner Coulson,A History Coulson, Conflicts
CalderNorman, Studiesin Early Muslim Jurisprudence Collins Cobuild, Learner's Dictionary Coulson,N. J., A History of Islamic Laws Coulson, N. J., Conflicts and Tensions in Islamic Jurisprudence
Hujjatullah al-Dahlawi,
al-Dardlr, al-Sharp al-Dsgi, Hshiyah
Shah Waliyullah b. Abd al-Rahim, al-Dahlawi, Huf atullahal-Bligha

Ab al-Barakat, Abmad b. Mut ammad, alal-Dardiir Sharli al-Kabir àla Mukhtayar Khalil Ibn Arafah, Hshiyah al-Qsugi àla alal-Dsgi, Sharli al-Kabir
Tadhkira al-Dhahabi,
Doi, Shari ah al-Durayni, Nazariya
Tadhkira al-Hufz al-Dhahabi,

Doi, 'Abdul al-RahmanI, Shari ah: TheIslamic Law Muhammad Fathi, Na?ariya al-Taàssufii al-Durayni, Istfml al-Haq fTal-Figh al-Islmi al-Durayni, Muhammad FattiL al-Manhy al-UUliyyah
al-Durayni, al-Manhij
xvi
al-Durayni, Khas'is
Muhammad Fatlhi, Khasd'is al-Tashri alal-Durayni, Islmi fi al-Siyasahwa al-Hukm

Dutton, Yasin, The Origins of Islamic Law First Encyclopaedia of Islam
Dutton, The Origins Ell,
EI? English Translation

Fyzee, Outlines
SecondEncyclopaediaof Islam English Translation ofBulgh al-Marm

Fyzee, Asaf A. A., Outlines of Muhammad Law
al-Ghazli,al-Mustas al-Ghazali,,Shif'
al-Ghazli,Abi Hmid Muhammadb. Muhammad ibn Muhammad,al MustasJa ft Ìlm Usl al-Ghazli,AbTIHmidMuhammadb. Muhammad ibn Muhammad,Shy'al-Ghalil JiMaslik al-Talil a1-IIkim,al-Mustadrak àla al-$alliayn Hallaq, Wael B., A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh IIasan, Ahmad, TheEarly Developmentof Islamic Jurisprudence
Hassan Hussein Hamid, Na?ariya al-Mallalia Fiqh al-Islmi fT al-
al-Hkim, al-Mustadrak Hallaq, A History
Hasan,TheEarly
Hassan, Nazariya
Hassan,Studies
Hassan, Mohamed Fadzli, Studies on the Principles and Theory of Maqasid al-Sharicah in the Sunni Schools With Their Application to Malaysia Law Hilali, Muhammad Taqi al-Din, Muhammad Muhsin Khan, The Translation of The Noble Qur'an In The English Language Hitti, Philip K., History of The Arabs; From The Earliest Timesto ThePresent Hornby, A S, Oxford Advanced Learner's Dictionary of Current English Husain, Istinbl al Alzkm Min al-Nus. y
Hilali, The Translation
Hitti, History
Hornby, Oxford
Husairi, Istinbdl
Ibn al-Athir, al-Nihiiya

Ibn Abd al-Barr, al-Tamhid
Ibn al-Athir, al-Nihya Gharibal-Hadith ft

Ibn Abd al-Barr, Ab 'Umar Yusuf al-Qurtubi,
xvii
al- Tamhrd lima fi al-Muwatt' min al-Ma'dn Masnid
wa al-
Ibn Abd al-Barr, al-Intig'
Ibn Abd al-Barr, Ab Umar Yusuf al-Qurtubi, al-Intig' f Facl'il al-Thaltha al A'imma al-Fugah' Malik, al-Sh4fit i wa Ab Ilanifa
Ibn Abd al-Barr, Jam(
Jmi' al-Bayn al-ilm wa facllihi wa ma yanbaghi fi Riwayatihi wa Hamlihi Ibn Abd Salm, Qaw id Ibn Abd Saldm, Izz al-Drn, Qaw id al Alikm f Maslil: al Anm
Ibn Abd al-Barr, Ab 'Umar Yusuf al-Qurtubi,
Ibn cAshr,Magcid,
Ibn Asht r, Mag. al-Shari a al-Islamiyya yid
Ibn IIajar, Bulgh al-Mardm Ibn Hajar al-Asgalni,Ahmad b. "Ali, Bulgh al- Marm min adilla al Alikm Ibn Iiajar, Tahdhib Ibn ajar alAsgalni, Ahmad b. "Ali, Tahdhib al-Tahdhib Ibn Hajar al-Asgalni, Ahmad b. "Ali, Tagrib alTahdlb Ibn Hajar a1-Asyalni, Ahmad b. "Ali, al-I, ba fi Tamyizal-,Saliba Ibn Ijajar al-Asgalni,Ahmad b. 'Ali, Rai` al À, cr àn Qudt Micr Ibn Hajar al-Asya1ani, Ahmad b. cAli, Fats al-Bri bi Sharh $aliili al-Bukhri Ibn Hajar alCAsgalni,Ahmad b. "Ali, Anb' al-Ghumar bi Anb' al cUmr Ibn Hajar al-Asgalni,Al mad b. "Ali, al-Majma al Mua'ssas
Ibn Hajar, Tagrib
Ibn IHajar,al-ILba Ibn Hajar, Raf al-Ar Ibn Ijajar, Fatly al-Bid Ibn Hajar, Anb'
Ibn Hajar, al-Majma`
Ibn Hajar,Nuzha
Ibn Hajib, Hshia
Ibn Hajara1= Asgalni, Ahmadb. 'Ali, Nuzhaal-Nazar ft TawdiltNukhbaal-Fikr

Ibn Hajib, Jamal al-DIn Ab 'Amr, Hshia al-Sharif al-Jurjnicala Mukhtacar al-Muntaha al-Ucli Ibn IHazm,Ab Muhammad 'Ali b. Al mad, al-Ihkmft Usiclal Alikm
Ibn Ham, al-Ihkm
xviii
Ibn al-Jawzi,Mandkib Ibn Kathir, al-Bidya

Ibn Khaldn, al-Muqaddima
Ibn al-Jawzi Abd a1-R4man b. 'Ali, Mankib al-Imm Allmad b. hlanbal Ibn Kathir, Ismail b. Kathir, al-Bidya wa al-Nihizya
Ibn Khaldnn al-Mugaddima
Ibn Khallikn, Wafyat
Ibn Khallikn Al mad b. Muhammad,Wafa-yat wa Anb' Abn' al-Zamn al-'Ayn

Ibn Mjah, Muhammad b. Yazid, Sunan Ibn Mjah
Ibn Majah, Sunan
Ibn Manzr, Lisdn
Ibn Manzr, Mulhammadb. Mukarram ibn 'Ali, Lisdn Àrdb al Ibn al-Najjr al-IHanbali,Muhammadb. Al mad b. Abd al-Aziz b. Ali al-Futhi al-IIanbali, Sharp alKawkib al-MunTr al Musamm bi Mukhtacar al-Talirir, Sharli al-Mukhtasar ft aw al-Mukhtabr al-Mubtakar Usl al-Fiqh Ibn Qayyim al-Jawziyyah, Shams al-Din Ab Abd Alah b. Abi Bakr, Adlm al Muwaqqfin "an Rabb al' lamin Ibn Qayyim al-Jawziyyah, Shams al-Din Ab CAbd Alah b. Abi Bakr, Sys' al-Àlil ft Mas'il al-Qacl' wa al-Qadr wa al-Hikma wa al-Talil Ibn Qayyim al-Jawziyyah, Shams al-Din Ab Abd Alah b. Abi Bakr,Zd al-Ma{ad Ibn Rushd al-Iiafid, AbU al-Walid, Muliammad b. Ahmad b. Muhammad b. Ahmad, Biddya al-Mujtahid wa Nihya al-Mugtacid Ibn Rajb, AbU al-Farj, Abd al-Rahmanb. Shihbal-Din b. Rajb, al-Qaw id fi al-Fiqh al Islmi Ibn al-$alh al-Shahrzun,Abu Amr cUthmanb. Abd Muqaddimah Ibn al-$alli ft "Nam alal-Rahman, Ijadith Ibn al-Salh al-Shahrzuri,Ab Amr Uthman b. Abd al-Rahman,,Siydnah $'alli Muslim Ibn Taymiyya, Tagi al-Din Abu alAbbs, Majm alFatw
Ibn al-Najjar, Sharp
Ibn Qayyim,A`lm
Ibn Qayyun,Syi '
Ibn QayyIm,Zd
Ibn Rushd,Bidya
Ibn Rajb, al-Qaw id Ibn al-$alh,Muqaddimah
Ibn al-Salli,iynah Ibn Taymiyya,Majm
xix
Ibn Taymiyya, Minhj
Ibn Taym yya, Tagi al-DIn Ab al-Abbas, Minhj alSunna al-Nabawiyya
CImd,Shadhara Ibn a1
Ibrahim, al-Dallt,
Ibn a12Imd Abu al-Fallah Abd al-Iiayyi al-Hanbali, Shadharaal-Dhahbf Akhbr man Dhahab
Ibrahim b. Ahmad b. Sulaiman al-Kindi, al-Dallt wa Turq al-Istinbt Ihsan Bagby Àbdul Wajid, Utility in Classical Islamic Law: The Concept of Maslalta in Usl al-Fiqh Islahi, Islamic Law, Concept and Codification
Ihsan, Utility
Islahi, Islamic Law
al-Iywni, Ta'lil
Taha Jabir Fiyad, Ta`lil al Alikm al-Shariyya wa Ikhtilf al -Ulam' fih wa Hagiqa Mawqif wa 'Athr Zalika j Hujjiya al-Qiys
Izzi Dien, Mawil, Islam and Environment, theory and practice
Izzi Dien, Islam
Izzi Dien, The Theory
Izzi Dien, Mawil, The Theoryand Practice of Market Law in Medieval Islam Izzi Dien, Mawil, Maclalia In Islamic Law: A Source A Concept?A Framework For Interpretation or Izzi Dien, Mawil, Islamic Law, From Historical Foundation to ContemporaryPractice 'Ali b. Muhammadb. Sharif, Kitb Tacrift al-Jurjni, Jaziri, Abd al-Rahman,Kitb al-Figh Gala al-Madhhib al Arbaàh Abd al-Malik b. "Abd AbU al-W5111 al-Juwayni, Allah b. Yusuf, al-Burhnfl U. al-Fiqh cil Abu al-Matl1i cAbd al-Mlik b. Abd al-Juwayni, Allah b. Yusuf, al-Irshd, ila Qawli` al Adilla ji Viril al-ftigd Abdullah Yahya, Min Fiqh al-Muwzana al-Kamli, bayna al-Maslili al-Shariyya al-Kamli, Abdullah Yahya, al-Sharryyaal-Islamiyya wa Fiqh al-Muwdzana al-Kamali, Abdullah Yahya,Ta'. TlFiqh al Muwzana
Izzi Dien, Maclalia
Izzi Dien, Islamic Law,
al-Jurjni, Jaziri, Kitb,
al-Juwayni,al-Burhn,
al-Juwayni,al-Irshd,
al-Kamli, Min Fiqh
al-Kamli, al-Shariyya al-Kamli, Ta'cil
xx
Kamali, Shari ah Kamali, Have We
Kamali Mohamad Hashim, Shari ah as Understoodby the ClassicalJurists Kamali MohamadHashim,Have WeNeglectedThe Shari ah-Law Doctrine of Maslaha
Kamali Mohamad Hashim, Principles of Islamic Jurisprudence Kamali Mohamad Hashim, Magsid al- Shari ah: The Objectives of Islamic Law
Kamali, Principles
Kamali, Maqsid
Kandahlawi,Hujja al-Khalifa, Madrasa al-Khatib, Usl al-Khatib, Trikh al-Khuli, Mcftlc
Kandahlawi, Hujja Allah al-Bligha MuhammadRashad,Madrasa al-Hadith,T Misr al-Khalifa, Muhammad Ajjj, Usl al-Ijadi-th `Namuhu al-Khatib, Mugtalhuhu wa al-Baghddl, Abu Bakar Ahmad b. 'Ali, Trikh al-Khatib Baghdd Muhammad Abd Aziz, Miftli al-Khuli, Trikh Funn al-Hadith al-Sunna wa
Macdonald,Development MacdonaldDuncan Black, Developmentof Muslim Theology,Jurisprudenceand Constitutional Theory Mahmasni,Falsafat Mal)masni,Sublii, Falsafat al-Tashrfft al-Islm
Mahmasni,al-Nazariyydt Mahmasni,Subhi, al-NaZariyyt al Àmma li al-Mjibt T wa al-Uqd, al-Shari a al Islmiyya Majid, Islamic Majid Khadduri, Islamic JurisprudenceShaffi's Risla Malik bin Anas, al-Mudawwana al-Kubra Malik, al-Muwall' Masud, Muhammad Khalid, Shatibi's Philosophy of Islamic Law Muslim b. al-Hajjj al-Nisbn, $alzilt Muslim Muslehuddin Mohammad,Islamic Jurisprudenceand the Role of Necessityand Need Sunanal-Nasd'i al-Nasal, Abmad b. Shuayb,
Malik, al-Mudawwana Malik, al-Muwatt' Masud, Shatibi ,
Muslim, Saliili Muslehuddin,Islamic
al-Nas'i, Sunan
d x,
al-Nawwi, Tahdhib
Ab ZakanyyaMulhy al-Din b. Yahya al-Nawwi, b. Sharf, Tahdhibal Asmil' wa al-Lugha Ab ZakanyyaMuhy al-Din b. Yahya al-Nawwi, Mush b. Sharf, al Minhj f Sharli Saleih
al-Nawwi, Ab Zakariyya Muhy al-Din b. Yahya b. Sharf, FaItTliMuslim bi Sharli al-Nawwi
al-Nawwi, al-Minhj
al-Nawwi, Sharp
Numan, Turuq
NumanJughaim, Turuq al-Kashp àn Magsid ca al-Shari

Nyazee, Imran Ahsan Khan, Theories of Islamic Law: The Methodology of Ijtihad
Nyazee, Theories
al-Qardwi,AI-Sunnah al-Qardawi,Al-Saliwah al-Qard4awi,TheLawful al-Qarfi, Tangili
al-Qarciwi YUsuf, Al-Sunnah Ma. darn Lil Macrifah wa al-Haclrah a1-QardwiYtisuf, Al-$altiwahal-Islmiyyah bayna al Juhd wa al-Talarrf al-Qard4awi Ysuf TheLawful and the Prohibited in Islam al-Qarfi, Shihabal-Din Ab at-"Abbasal-Sunhaji Tangilt al-Fulfil ft lkhti, r al-Majgfil f ellm al-Bahnasi, Sharli Tangih al-Ful al-'Ucl Rahimin Affandi Abdul Rahim, Islamic legal Reform In TheAdministration of Islamic Law In Malaysia: A Critical Analysis Fakhr al-Din Muhammadb. `'Umarb. al-Rzi , fI al-Iiusayn, al-Malesil Ilm Ucfil al-Fiqh S.E Rayner, The Theory of Contracts in Islamic Law al-Raysni, A1imadand Ahmad JamlBrt, Al-Ijtihd al-Nass,al-Wgi', al-Mallalia al-Raysni,Ahmad, Na?ariyyat al-Magcid Cinda al Imm al-Shlibi 5allaAllah alaih wa Sallrn Ab al-Khayr Muhammadb. Abd al-Sakhwi, al-Rabman,alJawhir wa al-DurrJi Tarjamah Shaykh al-Islam Ibn Hajar al-Sakhwi, Abu al-Khayr Muhammad b. Abd
Rahim, Islamic
al-Rzi, al-Maltil Rayner, The Theory al-Raysni,Al-Ijtihd
al-Raysni,Nazariyyat
s.a.w al-Sakhwi,al Jawdhir
a1-Sakh5wi, al-law'
xxii
a1-Rahmanal-Daw' al-Lmi'
Subul al-Sanni, Schart,An Introduction

Schact, The Origins
Subul al-Salm Muhammadb. Ism11, al-Sancani, Schact,Joseph, Introduction to Islamic Law An

Schact, Joseph, Jurisprudence The Origins of Muhammadan
a1-Shfii, al-Risla al-Shfii, Ikhtilf Shlibi, Ta`1Tl al-Sht3bi, al-ftisdm al-Shatibi, al Muwfagt Shawkni,Irshad
al-Sh5fii , Muhammadb. Idas, al-Risla al-Shfii , Muhammadb. Idas, lkhtilf al-Hadith Shlibi, MuhammadMustafa, Tadlil al Alzkm al-Shtibi, Ibrahim b. MUsaal-Lakhmi, al-ftijim al-Shtibi, Ibrahim b. MUsaal-Lakhmi al-Muwfagdtjl Usl al-Shari ah Shawkiini Muhammadb. "Ali, Irshd al-Fulal i1 Taligiq al-Haq min Ìlm al-Usl Shawkni, Mu1iammadb. 'Ali, Nayl al Aw(r Sibi Mu*tafa, al-Sunnahwa MakanatuhfT al-Tashri al-Islmi
Siddiqui, Muhammad Zubayr, Hadith Literature: Origins, Development and Special Features
Shawkni,Nayl Sibi,al-Sunnah
Siddiqui, Hadith
a1-Suyti,Tadrib
Ja11 b.,Abd al-Rahmanb. Abi Bakr a1-Suyti, al-DIn TadrTb f Sharli Tagrib al-Nawwi al-Rwi Jall al-Din b. Abd al-Raliman b. Abi Bakr al-Suyti, Shark al-Suyli Li-Sunan al-Nas'i Ja151 b. cAbd al-Rahman b. Abi Bakr, al-Suy-aj, al-Din Tabagtal-Huf a? Tabri, Abu JafarMuhammadb. Janr, Tdrikh alrusul wa al- muluk Saadal-Din Masdb. "Umar, Sharli al-Taftazni, àla al-Tawclili li Main al-Tangih fl U l al-Talwili al-Fiqh
al-Suyti, Sharp al-Suyti i, Tabagat Tabri, Trikh
al-Taftazni,Sharp
Sunan al-Tinmidhi, cUbaydi,al-Shlibi a1
b. Sunan Ab IsaMuhammad Sawrah, al-Tirmidhi, Hammdi, al-Ubaydi al-Shlibi wa Magcidal-
xxiii
Shari a
Ta`lil a1-Ungari,
Wizrah, Al Maws ah
Dirsa wa Tdlil al Alikm al-Syar Fyya al-Ùngari, Tatbiq

Wizrah al-Awgf wa al-Shu'nn al-IslmIyyah, Al Maws ah al-Fighiyyah Yaqt, Shahb al-Dn b. Abdullah al-Hamawi alRmi, Muljam al-Buldn Zamakhshan AbU al-Qasim Mahmd b. "Umar, al-Balghah Ass
Yaqt, Mu'jam
Zamakhshan, Asds
al-Zarakshi,al-Balg al-Zaylai, Nasb Zayd, Al Maclalia Zaydn,AI-Wajiz al-Zirikli, Al Adlm
Badr al-Drn Muhammadb. Abdullah, al-Zarakshi, al-Baler al-Multi( i Jamal al-Din, Nacb al-Rya li Alzdith al-Zayla
al-Hidya
Zayd, Mustafa, Al-Mallalta fi al-Tashri al-Islmi ZaydnAbd al-Karim, Al-Wajiz fl UU1 al-Fiqh al-Zirikli, Khayr al-Din, Al A`ldm, QdmsTarjim Li Ashar al-Ryl a1-ZOayli, Wahbah,Na?ariyat al-Darira al-Shariyya al- Zuhayli, Wahbah, U. al-Fiqh al-Islmi 4l al-Zubayli, Wahbah,Al-Fiqh al-Islmi wa Adillatuh
al-Zuhayli, Nazariyat a1-Zuhayli,Ucl Al-Fiqh a1-Zuhayli,
I
INTRODUCTION
Background
In Islamic jurisprudence, the formation of the juristic concept of maclalaaor interest in connection with Islamic legal texts or nujs has been termed public E), maslalia mu`tabara. For al-Ghazli (d.555H11111C. the category of maslalia mu"tabara is juristically consideredthe validity and recognisedmallalia, since there is textual evidence in its favour, particularly in the Qur'an and the Sunna or the Iladith of the Prophets.a.wI. Apart from mutabara,the categoryof maclalta mursala has beenjuristically recognisedby many jurists although it has no textual divine evidencein its favour. At this stage, it can be learned that any juristic rule that formed in the category of
mursalabut hasno parallelruling andprinciplewith the objectiveof Islamic mallalla law, would therefore categorised discredited be mulghaor unrecognised, nullified and
maclalta2. This principle highlights the significance of maga$id al-shari a or the
Islamiclaw in the formationof newrulings. ultimateobjectiveof Importantly, the above discussion underlines the category of maslaha
the highest level in its category of which juristically in line with the muctabaraas
Islamic law or magd. al-shari a. This is because existence id the ultimateobjectiveof

of textual divine evidence or proofs from the primary sourcesof Islamic law in the category of maclalta al-mu`tabara. In line with this category, some Muslim jurists form the term al-maslaha wa al-nass as the juristic concept of public interest in
1 a1-Ghaz5li, Mustasfa, 2, 118. al v. p. 2Ibid
2
which interrelated with textual, Hadith. civine the Qur'an and the evidence particularly
The notion of juristic conceptof al-nass wa al-maclalia or al-maclalia wa alnags (interchangeableterms) has been introduced concisely by Abmad al-Raysni and Abmad Jamal Banat in one of sub topics of the book entitles al-Ijtihd: al-Nass, al-Waq(, al-Maslaha3.In the introduction to the concept of al-maslalia wa al-naffs, Ahmad al-Raysu-uii claims that the current phenomenonof discussionamongMuslim jurists on the subject of al-àql (reason) in accordancewith al-nagl (transmitted), is somewhat similar to that of in connection with najc4. Furthermore, in maclaha
practice, he affirms that apart from the Qur'an, the Hadith of the Prophet s.a.w is a living sourcethat aims to preservethe public interest of the life of humanitys. It appears that Ahmad al-Raysni's arguments on the significance of the
For conceptof al-maclalca al-nass is pivotal to be furtherexamined analysed. and wa

this reason,some related questionsmay arise here; on what basis the concept of al-
in is examined the light of Islamicjurisprudence? the Uadt-th If malajtawa al-nag juristic the Prophets.a.w is chosen a reference legal textsin connection of as with of
thus, is there any limitation as well as special referenceto this concept of maslalia, thesis becauseof the huge numbers and referencesfor the Vadi-th? Above all, what are the main purposesof this thesis to highlight the concept of al-maclalta wa al-nalc
to asthebasicsubject be examined?
To answerto these particular questions,the next topic will discussregarding the purpose,scopeand limitation of the presentstudy.
3 See al-RaysniandBrt, al-Ijtih4 p.28,49-59. 4Ihid 5Ibid
3
Purpose, scope and limitation of thesis
The main-purposeof this thesis is to examinethe formation of the concept of

al-maslalta wa al-nass in the light of Islamic jurisprudence. To achieve this main
purpose,this thesiswill examinethe definition, historical andtheoretical development of the conceptof al-malalta wa al-nass.This examination aims to highlight the basic foundation upon which the formation of this concept is established in Islamic jurisprudence. Further examination will focus on the significance of taclil al-alikm for the concept of al-maclalta wa al-na..F. The purpose of this examination is to analyse the process of taflil al-ankam from the legal text of the Qur'an and the Iladith. This processaims to identify the principles of public interest'as well as the objective of Islamic law that encompassin the legal text of the Qur'n and the Hadith. At this stage,it can be learned that the concept of al-malalzawa al-nass is
juristically applicablein the analysis the divine legal texts of the Qur'an and the of
Hadith. In other words, the concept of al-maslalia wa al-nalc can be applied to the subject of Qur'anic exegesis(tafsir al-Qur'an) and the analysisof the IHadith (sharp al-Hadith).
As a matter of scopeand limitation of study,this thesis will focus on the Hadith of the Prophets.a.w asa reference legal textsin the analysis the concept of of for of al-maslalta al-nafl. Sincetherearehugenumbers references. theHadith wa and
the Prophet s.a.w, a special referenceto the book of Bulgh al-Marrn is made for of the purposeof analysis.Bearing in mind that the book of Bulgh al-Marm consists of a total number of 1572 ahadith. In addition, there are 16 chaptersand 93 subtopics that enclosein that book. Based on these factual numbers,this thesis will focus only on one of the chapters of Bulgh al-Marm namely Kitb al-Buyuc or chapter on
4
businesstransactions.The limitation of chapteron Kitb al-Buyu' in this thesis aims to juristically analyseits 22 sub topics as well as 176 altdith within the concept of alIt is hopedthat the chapteron Kitb al-Buy will be analysedin maslahawa al-nass. revealing the principles of public interest and their main objectivesof Islamic law of transactions. Research Methodology The study is mainly based on library research within the field of Islamic Jurisprudencein connection with the prophetic source of the Iladith s.a.w. Three basic issues will be discussed: Firstly, the concept of al-mallalla wa al-na. y. F. Secondly, the references sources for the Iladith s.a.w and the book of Bulgh alMarm. Thirdly, Kitab al-BuyY;the application of the concept of al-maclalia wa alto the aliddith of al-Buy. nac
Thebodyof the thesisis focused developing elaborating main field the on and
of the study and as a library research;it will entail theoretical, historical, analytical and descriptive approaches.The Sunni Schools of law will be confined to their
concernwith the broadprinciplesof al-maclaltawa al-nag. The studywill refer to

valuable Sunnijuristic sourceswritten by manyjurists such as al-Imm al-Ghazli, alImm al-Shatibi, al-Imam Ibn Qayyim al-Jawzi, al-Imm Izzuddin Abd al-CAzizb.
Abdal-Salm othersregarding juristic conceptof maclalta its connection the and and
with Islamic legal texts, nail. For the book of Bulgh al-Marm, the methodology of compilation will be focussed on the second part of this thesis. This includes the variation numbers of al dith Sakilc, Vasan and Daìf from each chapter of Bulgh al-Mardm. Diagrams
5
and tables will be drawn up to highlight the variation numbers of those types of alidith. In the part of analysis, the methodology of mulaaddithnor scholars of the Hadith will be applied to analysethe rulings that enclosein 176 aliddith of Kitb alBuy of Bulgh al Mardm. However, the analysisof rulings is boundedto rewrite the disagreementof jurists regarding the rulings of the Uadi-th.As an alternative, the agreed rulings by jurists will be highlighted in the analysis of those aliddith. This approach will be applied as methodology in the application of the concept of almaclalia wa al-nass to the analysisof those altdith. Furthermore,the methodologyof simple and,concise elaboration and analysis will also be applied to the process of talil al-ahkm that aims to examinethe principles of public interest in the alcdith of Kitb al-Buy of Bulgh al Marm. Literature Review
From juristic historical facts, the concept of maclalta has been a popular Muslim jurists since the beginning of the 7t' century A. H.6. Many, subject among
particularlyfrom the prominentSunnijurists, hadbeguntheir research the subject on In of mallalia within the frameworkof Islamicjurisprudence. the 8th centuryA.H.,
Ab Ishq al-Shtibi (d. 790/1388) produced two books entitled al-Muwfagt ft
U. l al-'Abkam and al-ftildm, which discussthe classificationand the levels of

maslalcain the light of Islamic jurisprudence. Al-Shtibi's opinion on ma. as the Flalta ultimate objective of Islamic law affirms that of al-Ghazli (d. 555/1111), as revealed in al-Mustasfamin cilm al-'UUfil and Kitb Ship-' .
6Zayd, Maslaiza, 21. alp.
6
The discussionon maslalaa, in connectionwith the legal texts, has particularly been general as well as specific in the works of Hanafi jurists such as Abd alAziz Kashf al Asrdr, a commentary on 'UUid al-Bazdawy. In al-Bukhri, who wrote
Hanbali legal theory, Majmuc al-Fatwa by Ibn Taymiyyah and al-Mughni by Ibn
Qudmah also discuss the concept of mallaha as a legal principle in Islamic jurisprudenceand its connectionwith the Islamic primary sources. Most discussions in the preceding classical sources indicate that the Muslim life must be basedon the light of God's revelation application of maslalcaon despitea lack of specific referenceto the concept of al-maslalia wa al-nass, it is and clear that al-Qur'dn and Sunnaprioritise the application of public interest Sincethe scientific period of jtihd, (particularly from the year 132 until 350 A. H. 7) with its implication for the modem Muslim world, the theory of al-ma. Flilt al-
by thanthat of al-majlaltawa al-nafj hasbeenapproached effectively mursalarather jurists. Much research beenconducted publishedon the subjectof ma. has ylaha, and
in elaborating the type of al-maslilt al-mursala. Some of these most particularly
importantcontemporary are as follows: al- Mallalta ft Tashri al-Islmiy wa works

(1964) Mustafa Ab Zayd, Dwbil al-Mallalta fi al-Shari ah al-Najm al-Din al-Tfi (1966) Said Ramdn al-BUti and Na?riyat al-Malalia ft ftgh alal-Isldmiyyah
in to Islmi (1981)IIusaynHamidHassan. Most of the discussion thesebooksrelates the argumentsput forward by Najm al-Din al-Tfi who authorisesrecourseto
the presenceof a textual ruling or ym, (consensus). mallalta with or without
7 Rahim,Islarnic, 32 p.
7
There has been considerable research conducted on the topic of maslalia. Attempts have been made to explore a new focus on the subject such as; `Malik's Conceptof Maslalia (The Consideration of The CommonGood): A Critical Study of
This Method As A Means of Achieving The Goals and Purposes of Islamic Law With Special Reference To Its Application At The Shari 'ah Courts In Nothern Nigeria', (1991) written by Yushau Sodiq, `Maslahah dan Pemakaiannya Di Dalam UndangUndang Jenayah Islam', (Malay language), (1999) written by Ridzwan Ahmad and
`StudiesOn ThePrinciples And Theory of Magsid al-Shari'ah In The Sunni Schools With Special ReferenceTo Their Application To Malaysian Law', (2002) written by Mohamed Fadzli bin Haji Hassan. These contemporary studies focus on the application of public interest within the modem climate of shari a courts, Islamic criminal law and common law, suchas Malaysian Law.
Severalcritiquesof classicalstudieshavedealtwith the subjectof mallalia,

Ùtility in Classical Islamic Law: The Conceptof Ma.Flalzain 'Ucl al-Figh', such as (1986) by Ihsan Bagby Àbdul Wajid. The research entitled `The Theory of AlMajlih Al-Mursalah In Islamic Law', (1990) by Juma Mikidadi Omani Mtupa was
found to be, verbatim or in toto in someparts,without acknowledgment from the book entitled,ÌslamicLegal Philosophy:A Studyof Abu Ishqal-Sh(ibi'sLife and
Thought', (1977) by MuhammadKaml Masìld.
A most up to date piece of research,Àl-Ijtihd: al-Nall, al-Wgf, alMaclaha', (2002) by Al mad al-Raysni, and Ahmad Jaml Brt, is classified as a broad principle in underlining the relationship between ijtfhd, nalc, wgi and maslalia. Furthermore,the latest book of Islamic law; Ìslamic Law; From Historical Foundations To Contemporary Practise, (2004) by Mawil Izzi Dien highlights the
9
significanceof maslalia as à key tuner that harmonisesall sourcesof Islamic law and occupiesa central position in the formation of legal opinion and the interpretation of the legal texts'8. However, there is a vacuum in terms of detailed approach and analysisto the conceptof al-maslalta wa al-nafl and the presentwriter feels that such benefit from particular referenceto Qur'dnic evidenceor the Uadith in study would the analysis under the heading of al-maclalta wa al-nass. It is proposed that the current research entitled `The concept of al-Mallalta wa al-Nag with special reference to Kitb al-Buyu' in the book of Buliigh al-Marm', may go some way towards filling this vacuum. As far as can be ascertained,this kind of study has not been carried out previously, particularly in the field of usl al ;f iqh (Islamic jurisprudence).
Outline of chapters
This thesisproposes threepartsof focused within six relatedchapters. subject It is openedwith an introductionand closedwith a conclusionand somefurther
suggestions.
The introductionelucidates background the study,its purpose, the scope of limitation,themethodapplied,its literaturereviewandthe outlineof the chapters. and The partA consists threechapters. first chapter The the of examines definition historicaldevelopment the conceptof al-malalaa al-natl. This chapteris and of wa
considereda portal of thesis becauseits highlights the basic information regardingthe juristic conceptof al-ma. lalia wa a1-nalf.
8 Izzi Dien, Islamic Law, 69. p.
9
The secondchapter of part A is classified a skeletonof this thesis becauseits highlights the theoretical developmentof the concept of al-maclalcawa al-nass. This discusses hypothetical form of the theory of maslalia over the legitimacy the chapter of nag and al-Tfi's theory. It also examinesthe views of Muslim jurists regarding the priority levels of ciarriyya and the theory of magsid al-shari a in connection with nass. The third chapterdealswith the significance of taClilal-alikdm for the concept of al-maslaha wa al-nag. It includes the process of talil al-ahkm from the legal texts of the Qur'an and the Iladith. The part B encompasses chapters.The fourth chapterhighlights the main two reference sourcesfor the books of Iladith. In this regard, there are sevenbooks of five of other reference sources for which they will be main reference sources and examinedin this chapter. The fifth chapter of part B focuseson the introduction to the book Bulgh alMarm. This chapter consists some sub topics such as the author biography,juristic featuresand compilation methodology.
The last part of thesis is part C that includesone analysischapterof the Ijadith. The sixth chapterentitlesKitb al-Buy ; the application the concept alof of 22 intendsto analyse sub ma. Flalta al-nail to the allfiith of al-Buy. This chapter wa
topics of chapteron businesstransactionswithin the number of the Hadith of 176. It is proved during the analysis that there are principles of public interest in the most of every single Hadith and its rulings regarding the juristic themes of business transactions.
10
The conclusionhighlights an overall evaluation and analysis of the findings laid down in the previous chapters.The thesis then concludeswith some suggestions regarding further researchin the area of Islamic jurisprudence and the subject of the Hadith.
11
PART A
THE CONCEPT OF Al-MASLAHA WAAl- NASS IN ISLAMIC JURISPRUDENCE
Introduction
to Part A
This part A aims to present the interesting development of al-Maslalla wa alNass through the history and theory of Islamic jurisprudence, and one of the major
discussionswill centre on the theory of priority of maslalia over the legitimacy of nass.
In order to analyse the preceding points in a juristic light, it is necessaryto in examinethe definition of the conceptal-Maclalta wa al-Nall, as expressed chapter one. In. conjunction with the defining approach, this chapter will also examine the
historicaldevelopment al-Mallaha wa al-Nall, with a view to elucidating value the of

to this conceptby Islamic jurisprudence. The theoretical developmentof the accorded lalia wa al-Nall will be debatedin chaptertwo. The core of part A concept of al-Ma.
is concerned the significance TaC1FlAitkm to the concept al-Maclaliawa of of with al in three.This will be followedby a summary al-Nags, which will be discussed chapter
of the theory of al-Maclalia wa al-Nay, c.
12
CHAPTER ONE
THE DEFINITION AND HISTORICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA9
1.0 Introduction
In the first section of this chapter,the definition of the term al Maclalia wa alNass becomes a key note, important to this study in terms of introduction to the juristic discussion regarding its concept Incorporated is also a terminological discussion of the individual terms al-Maslalta and al-Nall in the light of Islamic
jurisprudence. The second section of this chapter examinesthe developmentof the of al-Maslalza wa al Nall over four eras in history, in order to evaluate the concept developmentof this conceptwithin the Sunni perspectiveof Islamic jurisprudence.
1.1 The definition of the concept of al-Maslalia wa alNafs
In order to present the definition of the term a1-Maclalta wa a1-Nash,the
definitions.The literal definition discussion be dividedinto literal' andtechnical2 will

the term al-Maclalta wa al-Nall, is comprisedof two Arabic words i. e. al Ma. Flalia of one Arabic letter, i. e. wa. The technical definition of al-Maclalia wa and al-Nall, and be referred to within the scopeof the elaboration and analysismade by al-Naas will
1 Lexically, `literal' is an to the original. b) adjective word which means, a) corresponding exactly the basic or usual meaning of a word or phrase. To comply with the term literal concerned with definition, maslalza will be given in the original meaning, which Muslim jurists' works have used lughatan is used, in Islamic jurisprudence. In many Arabic Muslim jurists' works, al-Tarif effectively which means `literal definition'.
SeeHornby,Oxford p.393. 2 The term `technicaldefinition' is in this chapterto indicate a large number of definitions made used by Muslim jurists regarding the technical terms of malajia. Many Arabic Muslim jurists' works use the term al-Tarif I. tilhan or al-Tarif Shar'an, which canbe translatedas `technicaldefinition'. SeeBaalbaki, al Mawric, p. 118
13
Muslim jurists who were involved both directly and indirectly with the subject of Maslalta in conjunction with the legal text, Nass.
1.1.1 Literal Definition
In the framework of Islamic jurisprudence, many Muslim jurists have defined the word maslalaaon the basis of a literal rather than an etymological definition3. To Ab al-Husayn al-Basri (d.478/1085), maclahameans `goodness'and maclili means `good things'. He addsthat, in Islamic jurisprudence, the term al-malih al- shari a to the actions, which the individual is compelled to perform in Islamic law such refers cibda, (worship)4 Based on Zamakhshari's definition, maclalta is referred to as as ft maslili al-muslimin, which means:"he consideredthe things that were for na, -ara the good of the Muslim"5. Ibn Manzr and al-Fayruzbdidefine the word malalia as
liusnal-lil, which means: "the goodcondition".
It is thus evidentfrom the aforementioned that a sense goodis inherentin of the term masla1za that it alwaysrefers to humanlife, particularlyMuslim life. and Therefore,later Muslim jurists tend to define malajta literally as `benefit' or human ìnterest'?or ùtility's in conjunctionwith Shari a that is concerned with
3 Etymology is the study of the origin and history of words and their meaning. In etymological definition, the root of maslaha is becomes7i11: meansal-naf This is usedto indicate which and . that something,or a person,becomesgood, right and virtuous. In many Arabic dictionariessuch asAlQmsal Muli4 andMukhtr al4i, ili, the similar word maclalea al-. illi which is contrastwith the is à means',à goal' word alfarad meanscorruption and invalidity. In a rational sense, maslaha means and à causewhich is good'. For instance,a pen in the light of malalia is useful for writing. In this casea pen is a causefor the writing, which is referredto asmallalia. Seeal-Fayruzbdi, al-Qmus,v.i, p.277, al-Razi,Mukhtr,.p.448 andHornby, Oxford, p.393 4 Seeal-Ba$ri, Mu`tamad v..ii, p.888 al 5 Zamakhshari, Ass,v.ii, p.23 6 SeeIbn Maciu, Lisn, ii, 348 Op. v. p. and al-Fayruzbadi, cit., v.i, p.277. 7 SeeKamali,Principles, 267. p. 8 SeeIhsan, Utility, 10. p.
14
welfare and justice as well as equity9.This definition concludesthe examination of the literal meaningof maylalia.
In the term al Maslalia wa al-Nash, wa is an Arabic letter that is called !turf catf, a letter which indicates a specific connection between two words1.One of the is yujid al jam 11,that is, to main functions of the letter wa in the Arabic language join two words together and form a relationship between them12.In this work, it is that the function of wa is to describema. presumed clalcaasbeing parallel with nasl or evenasbeing convergentwith it.
The word Naffs or Nupc generally means texts, script and provision13 In Islamic legal theory, Nas, refers to a legal text. The Qur'n has been termed a legal document 14as has the Ijadith which is the second source of Islamic law after the ,
Qur'an. As a result,both the Qur'dn andthe Uadithare classifiedasNaasand form

the primary sourcesof Islamic legal theory. Muslim jurists unanimously acceptNall
by asvalid andaccredited the legalsources Islamiclaw. It hasalsobeentermedthe of .. Quranic legislation,15ofwhich the ProphetM4ammad s.a.w was the founder;it beinginitially appliedduringthe time of MeccaandMedina.In addition,Nall is also
known as dalil, 'evidence' or 'proof' nd nagl16,'transmitted', terms that are common in juristic discussionon the subject of Islamic law. In summary,the literal definition of the word Nall refers to the primary sources, either the Qur'n or the Hadith
9 Bakar, The Discernment, 103. p.
lo SeeBaalbaki, Mawrig p.767. al 11 Ibid. 12al-Dakar,Mu`jam, 542. p. 13Qalahji andQanybi,Mu`jam, p.480. 14 Hallaq,A History, p.7. is Coulson,A History, 9. p. 16al-Azhri, Tahdhib, ix, 151. v. p.
15
wherein are contained a dalil, a nagl, a legal text and a legal document for Islamic
law.
1.1.2 Technical Definition
As a study of maclalca is one of the main objectives of this work, it is important to examinethe definition of the term maslaha in conjunction with nass.As a starting point, al-Ghazli claims that the term maslalta itself has no single standard definition'7. This is partly due to the term itself; the meaning being sometimesvery Due to this ambiguity, clear, sometimesless so and sometimescompletely absent1s. the term has received a great deal of attention from many jurists. The views of a representative these have been chosenas sourcematerial for this work. Al-Ghazli of maintains that in general, mallalta is an expressionfor seeking manfa"a (something
indicating the removal of maciarra (something useful), whilst simultaneously harmful). Juristically, he definesmaglalzaas the preservation the magsd,an of five issues, e. the preservation i. the shari a which is concerned of objectiveof with life, intellect,lineageandproperty"19.In conjunctionwith nass,al-Ghazli religion, definesmutabaraas a type of mallalta that has textual evidencein favour of its
is therefore valid and utilisable as a legal principle for consideration, and which Moreover, Fakhr al-Din al-Rzi (d.606/1209) emphasises that ma. lalia is very giys20.
àffinity with a strongfeeling of closeto munsiband munjaba,which suggests
17 a1-Ghazli, Mustasfa, v.ii., p.72. al 18 Bakar, Op.cit.,p. 102. 19al-Ghazli,Op. cit.,, v.i, p.286-287. 20Ibid, 284 p.
16
interest'21.Al-Rzi also claims that God's commandmentrevealed through the text has Therefore, he claims that God's commandment no `flla, coincideswith magla)a. ( ratio legis) and it is wrong for jurists to searchfor andjustify the ìlia behind it22. To al-Shlibi, maylalia means magsd23, likewise, al-Ghazli's point of view asserts that maylalia was the foundation of the theory magsid al-shari a24.Moreover, in that every specific injunction of the collaboration with nass, al-Shatibi maintains Qur'dn and the Sunna has a `specific' purposeor rationale or ìlia that contributes to At the achievementof `general' purpose,magsid al-shari a2S. this stagemallalia is ìlia regarding the revealing of God's commandmentto humans in the parallel with senseof malalia.
Ibn "Ashur undertakesa particularly close study of the terms al-Maglaha alQaiiyya and al-Macla)aaal-Janniyya26 which is valuable as a technical definition of
in accordance He asserts al-Majlalia al-Qaf iyya meansany that maslaha with nass.
particular common good in the light of a definitive legal text, therefore no interpretation or ta'wil can be madeof it. For instance,the existenceof al-Mallalla al-
Qaf iyya on the subject of the pilgrimage which is obligatory for those who are
capable of performing it27, is made clear by the definitive nag of the Sara '1i Imr7n:9728. The senseof malalta exists'in this particular form of definitive nag and
21al-RAzi, al-Mahfl, vol.ii, p.218 22 Ibid 23al-Shtibi, Mvwfagnt, v.ii, p.25. a1. 24Hassan, Studies, 138. p.
Zs al-Shlibi, Op.cit., p.322.
26SeeIbn Ashr,Magsid, 168. p. 27al-Kamdli,Min Figh,p. 12. 28The full translation of Sra Ali cImrn 97: "In it (for example),the Magm : are manifest signs; (place) of Abraham;whosoever enters it, he attains security. And flatj (pilgrimage to Mecca) to the (for one's house (Kafba) is a duty that mankind owes to Allah, those who can afford the expenses [i. conveyance, and residence);and whoever disbelieves e. deniesHajj (pilgrimageto Mecca), provision then he is a disbelievers Allah], then Allah standsnot in needof any of'Alamin (mankind,jinn and of all that exists)".
17
is exemplified by Sara '1i Ìmrn:97, which concernsthe condition of performing that is obligatory for those Muslims who are capable of it. Here, the pilgrimage tnaslalaais absolutely definite, and there is no room for reinterpretation or ta'wil, particularly regardingthe condition of performing pilgrimage.
Notwithstanding al-Maslal:a al-Qa(iyya as a definitive nan, the term alMaslalta al-ZannTyya has been defined technically by Ibn Ashr as any particular common good achieved by non-definitive nasq and through the process of legal For reasoningon the basis of assumption,?anniyya29. example,the Ijadith, 'no judge be judging when he is angry 30is taken from authoritative sources such as should Saldh Bukhri and Faltig:Muslim and the existence of al-Maclalza al-Zanniyya is inherent in its content, which is concernedwith improper acts of judgement such as undertakenwhen angry. A secondexample of the processof legal reasoningon one the basis of assumption, is the use of dogs to guard the homes of townsfolk who 31. The point of in dangerouslocations such as Qayrawan,a town in Tunisia resided in this case is the Islamic ruling regarding the keeping,of al-Maslalla al-7anniyya dogsby al-liadar (the townspeople);an action that most Maliki jurists disapproveof. As al-SheikhAb Muhammadb. Abi Zayd had a dog in his house,he claimed that if Imam Malik himself knew how dangerous situation was, he would certainly have the lion guardinghis house32rather thanjust a dog. a
Seeal-Hilali, The Translation,p.86 29SeeIbn 'Ashur, Magsia p.168. 30Thetext the Hadth: of
r' ! U i1.3 xu a2l ilaj : X111 41 J. ;j aL. LO :: p j 'tt,44 j v_: W-A UL. This Hadith narrated by Bukhri, Sahih, no: 6625 and Muslim, $aliih, no: 3241.
31SeealNad wi, al-Qawaid, p.359. 32Seeal-Kamli,Min Figh,p. 14.
18
Later jurists have offered a comprehensivedefinition of the term al-Maslalza Ahmad al-Raysni defines it as the interaction betweenthe concept of wa al-Nan. al Maslalaa wa al-Nass (in Arabic; al-Tadmul al-Maslahi maà al-Nuss)33.He
that every single nusiis and its ruling is intended to fulfill the macdlili emphasises concerninghumanity in seeking something useful (manfaà) or removing something harmful (mafsid) from their lives. In order to clarify the interaction between the of ma.lalia and najc, Ahmad al-Raysni presents the following three concept methods: (a) the criteria of nassin determining the existenceof maslalca. Al-Raysni insists that belief in nasj meansbelief in its supremacyand this leads to the fundamental principles such as justice, mercy and maylih, for as Allah states; "And We have sentyou (0 Mu&iammad) but as a mercy for the " lamin (mankind, not jinn and all that exists)", 21:10734. This verse indicates directly that the ultimate aim in sending the Prophet Muhammad was an act of mercy to the `lamin, which is connectedwith the subject of maclilc.Moreover, he supportsIbn Taymiyya's view
that mostof the principlesandactivitiesin Shari a that takeplacein the light of nalc directedtowardsachieving conceptof masdl In conclusion this point, he the ilz. of are
claims that most null have basic criteria that are employed to determine the value and the types of maslai!a35. (b) the interpretation of maslalta from nusf. According to al-Raysni, the interpretation of maslalia from nu. c involves the y. analysis and study of seeking the magdlid, that is, the objective of Islamic law, by means of nusc. This methodology entails an examination of every single Islamic ruling in nusc,and its interpretation in conjunction with the conceptsof magfid and
33al-Raysni, 4 p.49. al-Ijtih 34See al-I ilali, The Translation, p.441. 35al-Raysni, Op.cit., p.50-52.
19
maslaha.He addsthat by using this method, the hypothesisthat èvery single Islamic is in accordance the maclajta' can be provenjuristically36 ruling with (c) the implementation of maslahathrough nuls. This method is a consequence of the preceding one, whereby following the interpretation of maslalta from nuss, the implementation of maslalta must be undertaken.It is significant to note that the basic paradigm for the implementation of is valuable in forming an analysis of the method employed by the Prophet maclaha and his companions.To simplify, the Sunna-cum-Iladith is the best example of the implementation of maclalta through nucs. Al-Raysni claims that there is much to prove how the Prophet implemented the concept of maclalia during his evidence lifetime. Therefore, the study of Sunna or Hadith, with special attention paid to the elucidation of the concept of ma.laha, is valuable in terms of the analysisof the basic in the implementation of maclaltathrough nul,c37. principle
The preceding methods proposed by Abmad al-Raysni indicate a basic
foundationfor the technicaldefinition of the term al-Maclalta wa al-Nall. These methods alsobelievedto further developthe elaboration the form of mallalta are of
is consideredto be a fundamental principle for mallalia in dealing mu`tabara, which with na..c.
In conclusion, the definition of the term al Maclalia wa al-Nall from the various aforementioned perspectives, is clarified by the following indicator which shows a framework explaining its concept This model depicts the initial parallel
natureof maslallaand nalc, which becomes convergence the point wherea legal at a
36Ibid., 53-54. p. 37Ibid., 55-58. p.
20
principle is formed. At this stage,firstly, the subjectof maslalta has been discussedin the subject of magdcid,villa, ijtihd and àgal. Secondly, many ways as parallel with the subject of nasshas also been discussedin many ways as parallel with the subject of the Qur'an, the Sunna, qaf iy and zanni. Meanwhile, both of these subjects i. e. maslalta and nass are also in many ways have been examined as parallel with each others.Eventually, these two subjectsbecomesa convergenceat the point, which is as maslahamutabaraor the accreditedvalidity of the legal principle in Islamic called legal theory. In order to elaborate the connection between the legal principle of maslalta muitabara and the concept of al-Maclalta wa al-Nall, thus, this section will proceedto examine how the concept of al-Ma. lalia wa al-Nall has been developed through the history of Islamic legal theory.
AI Maslaha (al-Magdlid), ('illa), (Ijtihd), CAqao PARALLEL Al-Na,g 4 (Qur'n), (Sunna), (Qaf iy), (Zanni) (mglaha mu`tabara) THE LEGAL PRINCIPLE IN ISLAMIC LEGAL THEORY
CONVERGENCE
1.2 The Historical Development of The Concept of al-Maclalia wa al-Nag
Scholars,particularly those from the Sunni school, have referred to the

the historical development of this concept. Many Muslim jurists have existenceof stated that the early development of the concept of al-Maclalta wa al-Nall commencedduring the life of the Prophet and then continued into the time of the
khulaf' al-Rshidn (Rightly GuidedCaliphs)from 11H1632C. to 40H/660C. E38. E
39SeeE1, (art. Khulafa' ), vol.iv:IRAN KiMp. 937-957
21
Accordingly, the concept of ma. lajta emerged during the period of the Umayyad E Empire, particularly under the caliph of 'Umar b. Abd. Aziz (991V717C. to 101H/720C. and then continued into the beginning of the secondand up until the E)39 eighthcentury of Hyra4o.
1.2.1 During the life of the Prophet s.a.w
To many later Muslim jurists, the existenceof maslalia during the life of the Prophetconstitutespart of the form of ijtfhd, although he himself was the expounder of the Qur'dn and the living source of Islamic law41.When the Prophet neededto (particularly during the time lapse between solve a problem or answer a question Indeed during his the form of ytihd always occurred42. revelations), maslaha as lifetime, there were many events and casesthat set precedentsrelating to the subject of maslaliaand thesecould be obtained from various authenticIladith.
The processof appointmentto leadershipduring that era offers a clear

In the caseof two men who intended to the subject of ma. examplepertaining clalta43. to becomerulers of some lands, the Prophet rejected their request,saying; `By Allah, we do not appoint to this position one who asksfor it nor anyonewho is covetousfor
in Paradoxically, the caseof Ziyad b. al-Iirith who requested the same'44. authority
45 to becomea leader,the Prophet agreedto appoint him as leader of the tribe of Sd .
39
al-BUti,
Dawbit p. 314-315.
40 Ibid. Studies, 41Hassan,
p.138. 41a1-Sha Op.cit.,p.14. ibi, 42al-Amidi, al-Ihkm, iii, 140 v. p. and al-ìywni, Ust, 15. p. 43al-Raystini,Op.cit.,p.55-57. 44Muslim, Sahih, Kitb in al-Ìmdra, no.:1083.
22
Ibn Qayyim does not perceive any paradoxical nature between these two cases,since they reveal the permissibility of requestingleadershipfrom the Prophet on the basisof the capability of the applicant.He addsthat the former application was for rejected as it was basedon irrelevant criteria such as over-enthusiasm leadership, Iarith to be a good whereasthe latter was accepteddue to the ability of Ziyd b. a1-}; leader for his tribe. Ibn Qayyim assertsthat the Prophet s.a.w applied the concept of maslalzain thesetwo cases.In the first, the rejection was partly due to masla,za as it removed the potential harm of over-enthusiasticleadership from the appointment, in the latter case,the acceptancewas partly due to ma. a as it relied on whereas Fla! leadership,such as those possessed Ziyd b. al-Harith 46. by seekinggood qualities of
The precedingillustrations clearly indicate that the Prophet s.a.w was the best in implementing the conceptof maslalcain the light of Islamic principle and exemplar thus, 'demonstratewhy his actions in life are also regarded as primary sources of
Islamic law. This instanceforms a precedent Islamic jurisprudence, in particularly with referenceto the development the theory of ma.lalta in conjunctionwith of
hadith-cum-sunna, both are classified as nalc. as
1.2.2 During the period of the Khulayla' al-Rshidn
Subsequentto the death of the Prophet, the Khulafa' al-Rshidn (Rightly Guided Caliphs) took over the leadership of the Muslim nation for 29 years, during
y "' 'A: iii tai 4p ie uU v v'
1'w -daiJAU l'. ti as Ibn Qayyim, Za4v. iii, 668. p.
cC Qj7A
c t' 4., zu 4 cri . V`jl'C+ ii U U1 j
cri
'uc v i;j kS ur .. i?! 'f :Ilt L". i
v7c
Liy. ( ! 29 Jrr
46Ibid
23 which time the application of maslalta was increasingly effective. The main factor responsiblefor this was probably the rapid and vast expansionof Muslim territory and the multicultural nature of the Muslim world47.In order to solve many challengesand problemsduring that period, ma. as the form of ijtihd took place in conjunction Flalia with the legal principles of Islamic law. Indeed there were many casesand events in the period of KhulaJa' al-Rshidn, which exemplify the application of maslalaa.
Examples of these are as follows;
The codification of the Qur'an that began in the period of Ab Bakr (1111/632C. to 13H/634C. was due to the `death reciters' of the E E) Qur'an, particularly in the war of Yamma.After Ab Bakar's death, the the Qur'an was continuedby Umar as the secondcaliph48. codification of ii. The decision to wage war against Musaylamah al-Kadhdhab and his followers who refusedto pay zakahin the period of Abu Bakr9. In the period of Umar (131V634C. to 231V644C. it was declaredthat E E), a divorce would be valid if a man three times proclaimed his wife to be divorced. Umar's justification for validating this type of pronouncement was basedon the rising social problem of men misusingthe privilegeso The decision to reversean application of liudd, prescribedpenaltiesin the caseof servantswho stole a camel in the period of Umar, as the theft was due to a year of starvation51 The introduction of a standardcopy of the Qur'an was later namedmulltaf Ùthmni in the period of Uthmn (23H/644C. to 35H/656C. E E). Introduction of the mucltaf Ùthmni was due to the differences between the people of Shamand Iraq in the recitation of the Qur'an52. In the period of "Ali (35H/656C. to 40H/660C. the introduction of the E E), for drunkenness punishment was equatedwith that of the punishmentfor gadhaf, false accusationof adultery. This was based on the premise that drunkenness might lead a personto make suchan accusation,and therefore it should merit the samepunishment"
iii.
iv.
v.
vi.
47Iassan, The Early, 15. p. 48Bukhri, SahTh, 6, 183. v. p. 49Zubayli, Figh,, ii, 764. al v. p. soIzzi Dien, Maslaha, 346. p. sl Bayhaqi, Sunan, v. viii, p.278. sZIbid, 5, 510. v. p.
53al-Shdlibi, al-ftism, p.334.
24
The abovecasesform part of the judicial processtowards the implementation of Islamic law within the concept of maclalia, which became classified as Utihd during the period of Khulafa-' al-Rdshidzn. the caseof i, ii, iii, and v in particular, In the preservationof religion was clearly the objective, whereasin the case of iv, the preservationof life for the starving who stole the camel becamethe judicial reasonfor In reversing the punishment of leuddS4. the case of vi, the preservation of intellect becamethe judicial reasonfor the punishmentof drunkenness being equivalent to the punishmentof qadhaf. As Imm al-Shatibi asserts,the preservationof religion, life, intellect, lineage and property were being offered as a basis for majlalla-cumIn magsidss. addition, later Muslim jurists concur that at the time of KhulaJa-'alRshidn, the companionstook an inherently rational and comprehensiveapproach towards the implementation of Qur'anic law and the Sunna, whereby the
circumstancesand surrounding factors were always considered as vital elements in the application of Islamic law56.
1.2.3During the time of caliph Ùmar b. Àbd. CAziz
The development the conceptof maclaltain particular,and in connection of with nail, beganduringthe period of tabfan, (followers);underthe caliph 'Umar b.
Abd. Azsz(99H1717C. to 101H/720C. 57in the dynasty of Umayyad. During this E E) era, many jurists considered that the majority of applied government policy was in
54 lbid, p.332. 55 Ibid, p.332. 56 Kamali, Figh, Iywni, U4l,p.21-30; al-Asygr, alp.66; al-Durayni, al Manhy, p.33; a1= Shari a,p. 14-15. s' cUmarb. Abd. Aziz b. Marwan b. al-Hakam, Abu Hafs al-Ashadjdj, fifth caliph of the Marwanid branch of the Umayyad dynasty reigned 99H171C. to 101H1720C. See El, (art. 'Umar b. Abd. E E. Aziz), vol.X: T-U,p.821
25
accordance with the concept of mallalia. According to Said Ramadanal-Bti, caliph Umar b. Abd. AzIz was among tabfn who had applied the concept of maclaha or istillah through his policy. For example: i) Giving back the right of people who were treated as victims of injustice by the caliphs before him58. Al-Bild states that caliph 'Umar b. CAbd. Azsz expended most of his efforts on
returning rights to innocent people. Such a policy was not applied during the period of
the Prophets.a.w and the policy itself has no referenceto Islamic sourcessuch as the Qur'an, the Sunna and QiysS9.Caliph 'Umar b. Abd. Aziz's course of action reflects the concept of ma.lalta or istislah, which upholds the preservationof life and property in particular and it is undertakenfor those who were treated as victims of injustice by the previous caliph60.Al-Tabari quotes the following sermon given by 'Umar b. Abd. Aziz to the people in Khunasirah.It revealshis policy to be in caliph accordance with the application of maclajta61: "Whenever we learn that one of you needssomething,I try to satisfy his need to the extent that I am able. Whenever I can provide satisfactionto one of you I out of my possessions, seekto treat him as my equal and my relative, so that my life and his life are of equal value".
ii)
The codificationof Hadith, its transcriptionand the creationof its

rules of narration62.
'Umar b. Abd. From the perspective mulaaddithin(scholars Hadith)63, of of caliph

Aziz was a pioneer; being the first to issue definite ordersto Ab Bakar b. Haim, the caliph's governor at Medina and to other centres,to the effect that codification and
58al-Bali, 4Aiwbi;, 314-315. p. 39lbid, 315. p. 60 Ibid 61al-Tabsi, Trikh, vol. xxiv, p.99. 62al-Sibdi, p. al-Sunna, 104. 63Suhaib, Introduction, 5. An p.
26
Hadith should be prepared officially64 cUmar b. Abd. Aziz written collections of informed them thus: "See whatever saying of the Holy Prophet s.a.w can be found, and write it down, for I fear the loss of knowledge and the disappearance the learned of men; and do not accept anything but the Uadith of the Holy Prophet s.a.w.; and should make knowledge public and should sit in companies,so that who doesnot know should come to know, for knowledgedoesnot disappearuntil it is concealedfrom the public"65. His policy contained fundamental reference to the preservation of religion, specifically with regard to the authentic IHadith of the Prophet s.a.w., as well as the Qur'an, as a primary source of Islamic law66.To some extent, this policy resulted from the appearance and movement of Muslim sects such as Qadria and Khawdry believed to representinvalid and non-authenticHadith as being traceableto who were In the Prophet67. order to avoid suchmisrepresentation and to securethe authentic and Iiadith, the implementation of this policy was necessary and in authoritative
At this stage,there is clear Islamic legal principle i.e. ma. accordance with ylalta .
the application of maclaha as a tool of Utihd within the policy of '-Umar evidenceof b. Abd. Aziz. This may be referred to as the starting point of the developmentof the conceptof malalta in connectionwith nafl.
1.2.4During the Abbasid dynasty
After the fall of Umayyaddynastyin 1321V750C. the Abbasiddynasty E, took

E over Muslim territory for more than five hundred years, from 132H/750C. to 656H/1258C. E68. Philip K. Hitti refers to this era as `the golden prime' of the
64 Muhammad, Collection,p.33. 65Bukhari, $ahih, 1 (k.3,b.34) v. "a1-Bxi, 4 awbit,p.316. 67 Ibid 68Eli (arL cAbbasfd vol.!: A-B, 21-23 ), p.
27
Abbasid, which enduredfrom 750C.E to 833C. 69 This metaphorically golden time E the growth of Islamic knowledge such as fiqh and uc1fiqh; juristic witnessed its status developmentsthat encompassed discussionof the concept of ma, clalaaand within the legal text.
To someextent, the simultaneousemergenceof the four Sunni schoolsof law offered an environmentthat was conducive to freedom of opinion and thought. Most of the Abbasid caliphs encouragedthis and the prevailing climate has contributed indirectly to the developmentof the conceptof maclal:a and its connectionwith nag.
Though the term al-Ma. lalza wa al-Na. c was not in existenceat that juncture, it is theorised that juristic discussions regarding the application of giys, Um, istihsn and mallal: a mursala, and their connection with the primary sourcesi. e. the Qur'dn and the Sunna, indeed contributed to the development of the concept of alMa. claha wa al-Nash. Therefore, the following discussion attempts to prove how the
juristic discussion methodologies thosefour Sunnischoolsof law haveinfluenced of

of the conceptof al-Maclalla wa al-Nass.
1.2.4.1 The Hanau School of law
The Ilanafi School of law or Tariga al-Hanafiyyin was named after Ab Ilanifa70,the eponym of the ancient schools of Kufa and Basra71. The Kufa school of law hasbeendepicted as rationalist or AN al-Ray' due to its flexibility of approachto
69Hitti, History, 2 97. p.
70Imam Abu Iianifa's full Numan b. Thabit He was born at Kufa, Baghdadin nameis Aba Ijanifa a1 . E the year 80H/699C. and died in 150H/767C. E. Ab Zahra,Ab Hanfa, p. 15. 71E2, (art. Hanafiyya), H-IRAM, p. 162. vol.111:
28
the interpretationof the text and to the application of Islamic law. Thesephenomena the existing environment; Kufa being a centre in which Arabs are consequences of non-Arab Muslims were in intimate contact. Hence, Muslim scholars at Kufa and the needto accommodate this environmentand to apply the Islamic were consciousof in accordance the primary sourcessuch as the Qur'dn and the Sunna72. principles with
In the IHanafi school of law, Qiyds and Istiltsn(juristic preference) were formulated as secondarysourcesof Islamic law and these have similar attributes to According to Hashim Karnali, Ilanaft jurists tend to define the conceptof maclaha73. Isti#sn similarly with giys that consists of a departure from giys jali (obvious to giys khafi (hidden analogy), which is closely connected with ray analogy) (reason) and analogical reasoning74. Hussein Hamid Hassan adds that 1stilisn will in only prefer the benefit of people75 accordancewith Qur'anic principles, such as alZumar,'39:18 and 55: Ànd give good tidings to those of my servantswho listen to the word and follow the best of it [ahsanahu]. Those are the ones God has guided and endowedwith understanding'.
'And follow the best [alisana]of what hasbeensentdown to you from your lord'.
In conjunction with the Qur'n and the Sunna, Hanafi jurists insist that Isti{ssnin
is conformed the primary sourceof Islamic law and far removedfrom by particular, biasandthe like76. is interesting notethat Ijanafis have It the elements prejudice, to of
formulated the category of al-Istillsn bil-Nag in order to link the connection
between Istihsnand nassand to revealhow Imam Ab IIanifa himself appliedthe

72Ab Zahra, 165 and Coulson,A History, 50. p. p. 73Kamali,Istihsan, p.37. 74Kamali,Principles, p.254. 75Hussein, Nazariya, 587. p. 76 Ibid
29
interpretationof Istiltsn from the nass.An exampleof this can be understoodfrom a Iladith relating to the subject of obligatory fasting77. According to Ab Hanifah, if an individual takes food or drink while fasting becausehe/shehas genuinely forgotten, then the fast is still valid78.Here, Abu Hanifah's judgement is in accordance with the Hadith of the Prophet, wherein he stated, `continue your fasting (in caseof eating or drinking due to forgetfulness) becauseAllah the Almighty gave you to eat and to drink'79
From the Ilanafi perspective, the juristic method applied in this case is referred to Istilisn, which gives a preferenceto the benefit of Muslims, on the basis To that it is connectedwith the primary sourceof Vadith80. someextent, this example signifies that Istilisn and Qiys have been applied as secondarysourcesin Islamic law, particularly by Hanafi jurists, in order to give benefit and preferenceto Muslims.
This notionis intertwined of with the concept maclalza81.
The precedingdiscussionrevealsthat the Hanafi school of law has formulated
the basicdevelopment the conceptof al-Mallalta wa al-Nag, althoughindirectly, of

through the application of Istilisn and Qiys to Islamic legal theory that aims to benefit Muslims. In conclusion, as the first established school of Islamic law, the
IIanafishavecontributed fundamental ideasto the development the conceptof the of that was to be furtheredby the Maliki schoolof al-Maslaliawa al-Nafl; a process
law.
77Kandahlawi, Huj/a,v. 1,p.161. 78 Ibid 79 Ibid 80 Hussein, Nazarrya, 589. p. 81 Karnali,Istihsn, p.37.
30
1.2.4.2 The Mliki school of law
The Mliki school of law, known as Ashb al-Hadith, the `traditionalist' school and also the Medinese school of law, was centred in Medina. This remained the focal point of intellectual activity and the capital of the Islamic empire during Khulaf-' al-Rshidn until caliph "Ali b. AbT Tlib moved to the city of Kufa in Iraq82.Since Imam Mlik83 spent all his life in Medina, some 84 years, he was later known asthe Imam of Medina, Ddr al-Hyra84.
The Mliki school of law hasbeen depicted as taking a traditionalist approach, particularly with referenceto the book of al-Muwa((', the first work compiled and by Imam Malik himself. The book pertains to the subject of Islamic law in written with the Hadith (tradition of the Prophet) and the prevailing traditions and accordance It the companions85. is interesting to note the conclusion drawn by practices of Macdonald regarding the Mliki stance, which reveals that both traditional and
Accordingto Macdonald, ImamMalik's Muwalld' rationalapproaches assumed. were

had applied a rational sense decide the authentic Hadith and its conformity with the to
principleof the Qur'an andparallelwith the needs the people86. of
2 Hajar, Tahdhib,, p.6. Ibn v.x, 3 Imam Malik's full name is Malik ibn Anas ibn Malik ibn Amir ibn al-Harith ibn Uthmanal-Asbahi al-Himyari, Abu Abd Allah.The date of his birth is not known; the dates given, varying between 90 E, and 97H1708-16C. are hypotheses; which are presumablycorrect. However, it is commonlyaccepted E that he was born in 94H/712C. and died at the age of about 85 in the year 179H/796C. in Medina E andwasburied in al-Bagi. SeeIbn Hajar Op.cit., E2, (art. Malik b. Anas ), vo1. MARK-MID, p.262-263., Ibn Abd. al-Barr, VI: , al-Tamhid, i,p.84., Zakariyya,Awjaz,v.i,p. 19. v. 84a1-Zirikh,al-I'Idm, v.vi, p. 128. ssIbn Abd. al-Barr, al-Intig', p.20. 86 Macdonald,Development, 99. p.
31
The main features of the Mdl ik! school of law are the recognition of the
practices of the people of Medina (Àural AN al-Madina) and al-Maslaha al-Mursala as the secondary sources of Islamic law, apart from the Qur'n, the Sunna, Qiyas, Qawl al-Sauabi (the views of the companions), al cUrf wa al-'Ada (custom), Sadd alDhard'( (prevention of presumably a bad thing), Istillib (continuance) and Istilzsan
(juristic preference)87.
According to Ajjj al-Khatib, Àmal AN al-Madina or the practise of the people of Medina becameone of the main features of Imm Mliki's legal theory88. After the Qur'dn and the IHadith as primary sources, Malik gave priority to the preferencesof the consensus the people of Medina in determining the quality of of Al-$bni claims narration and transmission of the Hadith by any given person89. that Imam Mlik's view in this regard was due to the practical heritage of the Sunna that was undertakenby the people of Medina90.To some extent, the Mliki school of law recognisedand endorsed'Amal Ah! al-Madina as one of the sourcesof Islamic
law, in accordance the principlesin the Qur'n andthe Sunna91. with
Maclaha Mursala is known to be favoured by the Ml iki school, as an independent in Islamic legal principle92. ThoughImam Malik himself did not tool defineandelaborate concept Ma. lalia Mursala,it is believedthat his disciples the of andin particularIbn Qsim,had studiedthe Muwa((' andclaimedthat the notion of
87 Ab Zahra,Ab Hanifa, p.257. 88 a1-Kha#ib, Mukhla.Far, 126. ai p. 89 Ibid 90al-$buni, Muhaclara, 195. p. 91Dutton, TheOrigins, 9-10. p. 92Ab Zahra,Mlik, 368. p.
32
Maclalia Mursala was originally referred to by Imm Mlik93.Al-Shtibi claims that Maslaha Mursala is an independentIslamic legal theory in the Mliki school of law, hasneverbeen employedin contradiction with the principles in the Qur'n nor which He the Hadith94. addsthat in elaboratingMaslalta Mursala as an independentIslamic legal theory, it is always in accordancewith the ultimate objective of Islamic law. Imam Malik applied it to a number of casesin al-Muwa(t' as well as in the record of his opinions entitled al-Mudawwanaal-Kubra95.
Imam Malik applied Maclalta Mursala to many casesin Islamic legal theory, but only within the domain of transactional laws (mucmala). He abandoned its application in the area of worship (ìbdda) becausethis spheremust accord with the the Lawgiver96.According to Abn Zahra, Imam Malik has considered prescriptionsof the rational role of human intellect in transactional acts, thus, the application of Mallalia Mursala fits more obviously in mu`mala rather than ìbda, wherein the role of human intellect is very limited97.
The following case portrays the significance of Maclalta Mursala as an independenttool in Islamic legal principle. Malik's Mudawwana outlines a situation
insteadof the whereby motherwasgivenguardianship her daughter's a over marriage father,because appeared carevery little for his daughter98. Accordingto Ibn he to Rushd,Imam Malik shiftedthe responsibilityof guardianship from the fatheron the
the girl's interest. She was living with her mother due to groundsof consideration of
931bn Abd. al-Barr, al-Intig ,
94 al-Shatibi, alJJti im, v. ii, p. 132. 951bid
96 Ibicl 97Abil Zahra,Mlik, 104. p. 98Zakanyya,Awjz,v.ix.p.278.
33
her parentsbeing divorced". Imam Malik perceivedthat the mother should have the privilege of guardianship in her daughters' marriage on the basis of Mallalta
Mursala, since there is no specific textual ruling to imply the necessity of male guardianshipin order to validate a marriage10.
The preceding case reveals that the Mal iki school of law has developed the concept of maslaha through the form of Maslalia Mursala. Although the concept of Ma.FlahaMursala has no connection with the existence of Islamic legal principle in the Qur'an and the Sunna, the former has always been legislated by Muslim jurists without contravening the text At this stage, the development of the concept of in connection with nass, such as the Qur'an and the Sunna, deals with the maclaha condition that the former must contain no contradictory principles with the latter in terms of validity. In, addition, it is worth noting that al-Shtibi was a leading Mliki instigated a systematictheory of the concept of mavlalta through his scholar who valuable works. A detailed discussion of this will be offered in the separatetopic
Development the Concept al-Ma.lalta wa al-Nall'. entitled`TheTheoretical of of
In conclusion, Mliki schoolof law has introducedthe form of Mallalia the

Mursala in which has no connection with any legal principles that source in the
Qur'n andthe Hadith.Regarding by this, somefactorshavebeendebated the Shfli school,established the third schoolof Islamic law. The subsequent as sectionwill
examine the development of the concept of al-Maglalia wa al-Nall from the Shfli perspective.
99Ibn Rushd,Bidya, ii, 9 v. p. tooJaziri,Kilb, iv, 27. v. p.
34
1.2.4.3The Shoi school of law
Also referred to as a traditionalist school (Ahl al-Hadith), the Sh i school of law has been depicted as containing scholastic theologians (al-Mutakallimn), those who adheredto God's text and the principles related to Divine commandmentslol Imm Shflf102was eponym of the Shfli school of law, and as Khadduri claims, the he was the first to lay down systematic legal reasoning in Islamic jurisprudence Imam Shft'i was a greatjurist who played a through his valuable work the Risla103. in Islamic jurisprudenceby resolving the conflict of approachbetween significant role the Mlikis in Hijaz and the Hanafis in Irag104 Therefore, it is presumedthat Imam Shfi i's Risla was born in response the conflict betweenboth schoolsof law and to it was actually written at the,requestof Abd. Rahmanb. Mahdi (d. 198/813),a leading traditionalist in Basra, in order to explain the legal significance of Islamic law in with the Qur'an and the Sunna'5. accordance
Accordingto Ibn IIajar alAsgalani, Imam Shffi composed treatiseon two bothbeingreferredto asal-Risla106.is believed the first Islamicjurisprudence; It that is book of al-Rislais known as the old Risla, composed Iraq; whilst the second in 107. known as the new Risla, composed Egypt Majid Khadduri claims that very in little is knownaboutthe formercompared the latter,dueto the text of the former with
11 (art.al-Shari ), EZ, vol.IX: SAN-SZE,p. 133. 102 Imam Sh[]fi's full nameis Ab Àbd Allah Muhammadb. Idas a)-'Abbasb. Ùthmnb. Shfi'i b. al-Sa'ib b. Ùbaydb. Abd Yazid b. Hashim b. al-Muttalib b. Àbd Manaf b. Kusay al-Kurashi.He was born at Àsgalan,Palestine,in 1501767, year of the deathof Ab Hanifa. He died on the last day of the Rajabin the year 204IV820CE in Cairo, Egypt. SeeAbd Zahra,al- Shfici,p. 15. 13 Khadduri,Islamic,p.4.
104 Ibid., p. 8.
107 Ibid
105 al-RAzi,Tagdmat, p.250 See 106 Hajar, Tawr 77 Ibn p.
35
having failed to reachus, thus, it is difficult to define and elaborateprecisely its scope The first section of the new Risla, is mostly concernedwith the and arguments'8. superiority of the Qur'an and the Sunna as primary sources of Islamic law. As a leading Muslim jurist of his age, Imm Shffi denoted the systematicapproach of dealing with the Qur'n and the Sunna in accordancewith Islamic jurisprudence in which he discussedthe abrogation of Divine Legislation and the duties laid down in the text. Following the detailedtextual discussion,the secondpart of Risla elaborates (Ijma'), analogy (Qiyas), personalreasoning(Ijtihdd), on the legitimacy of consensus juristic preference(Istil: sn) and disagreement (Ikhtilf).
Regarding the development of the concept of maclalia in connection with nail, the divine texts, indeed Imm Shf(i's Risla in particular, has contributed indirectly as well as directly through the form of Qiys. With regard to Imam Shf(i's Risla, the form of Istilisn is rejected if it is not confirmed by the authentic from the Qur'an and the Sunna unless if Qiys, (analogy) were abandoned narrative
on the basisno narrativehavefound, thus, it would be permissiblefor the Muslim jurists to exercise Istilcsnin the absence a narrative'09. is worthing to quote It of Khadduri'stranslationof Imm Sh i's Risla regardinghis point of view in this subject;
`For if analogy were abandoned,it would be permissible for any intelligent man, other than the scholars,to exerciseIstilisn in the absenceof a narrative. But to give an opinion based neither on a narrative nor on analogy, as I have already stated in the discussion on the Qur'an and the Sunna, is not "10 [the rules of] analogy. permissibleaccording to
los duri, Islamic,p.22 1091bid, 304-305. p. 110 Ibid, p.305.
36
According to al-Bti, though Imam Shfli rejected the form of Istilisan as Maslalta Mursala, as both are of the secondarysourcesof Islamic law, there is well as to supportthat Imam Shfli acceptedthe idea and spirit of maslalta in general proof through the form of Qiyds (analogy) in which it is acknowledged apart from the Qur'an and the Sunnal1l.At this stage,the acceptance Qiyds by Imam Shf(i and of his abandonedto Istilzsn and Maclalza Mursala to be legalised as the principle of
Islamic law was due to his consciousness pertaining to inexistence principles from the
Qur'n and the Sunna. Therefore, Imam Shffi directly made his standsthat only Qiyas as a legal form to deal with the concept of maflalta that in accordance with the
divine commandments.
Though Imam Shf(i `s point of views are not confined as a final analysis the subject of the development of the concept of ma,lalta in connection regarding it is believed that particularly Imam al-Juwayni and Imam Ghazli from the with nag, Shffi school of law, were amongleading Muslim jurists in exposingand elaborating
in the concept maclalta accordance the principle in the Qur'an andthe Sunna. with of
As both of them gavethe valuable views regardingthe subject of malla, a, their views
be discussedjuristically in the separatetopic entitled `The Theoretical will

Developmentof the Conceptof al-Maclalia wa al-Nalf
In conclusion, Imam Shf(i as eponymof the Shf(i schoolof law accepted

the form of Qiys as a legal principle apart from the Qur'n and the Sunna, in which some ways have connected with the concept of maclalta. His concerned with the existence principles in the Qur'an and the Sunna that must be followed without
111 al-Buti, Dawbi(, p.378-380.
37
hesitating by Muslim jurists were part of indicating that the concept of maclaha juristically must be parallel with the God's commandmentsand the Sunna of the prophet.In addition, the following section will be discussedon the Hanbali school of law pertainingto the developmentof the conceptal Maclalca wa al-Nash.
1.2.4.4The Hanbau School of law
As the fourth Sunni school of law, the Uanbali School of law has been its eponym,Imam Ahmad b. IHanball12 a leading Muslim jurist, establishedsince was located in Baghdad'13 He was disciple of Imam Shi fii, theologian and traditionist thus, Imam Ahmad b. IIanbal's approach was quite similar to that of Imam Shf(i that attribute of Mutakallimn. Al-Musnad is regardedas an authentic book of Hadith that compiled by Imm Ahmad in which he juxtaposed a number of narratorsincludes AbU Bakar, Umar, Uthmn,'Ali and the principle Companions,and endswith the of narrator of the Ansr, the Meccans,the Medinians, the people of Kufa and Bacra, and
14 Syrians' the
As a leadingMuslim jurist at his age,Imm Ahmadb. Uanbalwasconcerned

the supremacyof the Qur'n and the Sunna as the primary sourceof Islamic law with as well as Qiyas ,a legal principle in Islamic legal theory. According to al-1351i, with respect to the concept of maslalia, Imam Ahmad b. Hanbal's view was nearest to Imam Mlik that regarded maclalta as a tool to interpreting the law but as not as a
112Imm Abmad b. Hanbal's name is A1imadb. Moammad b. Ijanbal was born on 20th of Rabi alAwal in the year 164IV780CE in Marw, Baghdad. At the age of 75, he died in Rabi al-Awal 241H/855CEand he was buried in Magabir al-Shuhad' (the Martyrs cemetery),near the }1arbgate in Baghdad. SeeIbn Kathir, al Bidaya, v.x, p.340., Ibn al-Jawzi,Manakib,p.418., Ab Zahra,An Hanbal,p. 15 113 E2, (artAhmad b. 1janbal ), See vol. 1: A-B, p.272. I14 Ibid
38
sourceof lawns To most of Ijanbali's jurists, malalia as a valid principle in Islamic legal theory was partly due to its connectionwith the juridical analogy(al-Qiyas)116.
To some extent, a validity of maslalia is referred to its compatible with the ultimate objective of Islamic law and its no contradiction with the texts of the Qur'n the Sunna"7. Though Imam Abmad b. IIanbal had no suchjuristic definition of and maclaha, his disciple, Ibn Qayyim in particular, claims that instead of the term the term al-wasf al-mundsib (compatible description) has been used by maslaha, Hanbali jurists as well as Hanafi's jurists that reveal its similar meaning in some way Ibn the conceptof malajta118. Qayyim insists that the concept of maclaha must with be rational in the senseof its conformity with the objective of Islamic law and its benefits of the people119 convenewith the needsand
In addition, the IIanbali Imam Ibn Taymlyya seemssceptical in regarding , as a source of law, but he occasionally refers to the concept of mallalta as mallalta
juristic views that havepredominant benefit whilst haveno oppositesense with the law from the texts i.e. the Qur'n andthe Sunnain particular.It is believed existing that Ibn Taymiyya'ssceptical mallalta wasa consequence his fear that Muslim of of jurists attributeof ma.lalta would becomemore legislatorsratherthan interpreter of
Islamic law12o
115 I)awbil,p,368. al-BXT, 116 Taymiyya, Ibn Majmri v.xi,p.342.

117Ibid
118 Qayyim,11m, i, 31 Ibn v. p. 119 Ibiclv. 3,p.6 120 Taymiyya,Op.cit.,, iii, 371. mit v. p.
39,
The application of the concept of maslalia to the principle of Islamic legal theory madeby Ijanbali scholarscan be found in their works, such al-Qaw id fl alFiqh al-Isldmi, written by Ibn Rajab al-Ilanbali121.In this regard, the case of requesting permission from a partner before selling any jointly owned property becomesan example of the application of mallalia in the area of transactional law (mu'mala)122. According to Ibn Rajab al-Ijanbali, under contract of joint property, a partner must be aware of making any harmful by selling out the property. Therefore, permission must be taken from a partner due to respecthis right and interest before any transactionis made to the property. It is clear that this condition is formed due to the conceptof maclalia that concernswith the preservationof property that belongsto in a form of sharing property123. is believed that Ibn Rajab alIt a person although Hanbali formatted this type of principle particularly in the area of transactional law (muimala), which conforms to the legal principles contained in the Qur'n and the Sunna.
The preceding paragraphsreveal that the Ijanbali school of law has

contributed juristically to the early development of the concept of majlalia in
connection with the legal texts, particularly the Qur'n and the Sunna.Moreover,
Hanbali jurists such as Najm al-Din al-Tfi have involved academically in the , discussionon the legitimacy of maslalta having some supremacy over nac. ( legal y texts). Therefore, further relevant will take place in the following chapter, which is concerned with the theoretical developmentof the concept of al-Mallalia wa al-Nall.
121 Rajab,al-Qawa'i4 p. 111 Ibn

'22 Jbld
123 Ibid
40
1.3 Summary
Within this chapter, the definition of the term al Maclalaa wa al-Nass with
to both literal and technical argumentshave brought a significant introduction regard to the concept of al-Maclalia wa al-Nass. This concept has formed an Islamic legal principle on the basis of public interest or common good of people that always parallel with the Divine legal texts particularly the Qur'an and the Sunna.Within the framework of Islamic jurisprudence,the concept of al-Maclalia wa al-Nag meansthe interaction and dealing of mallaha, as Islamic legal principle with the Divine through the legal texts in the Qur'an and the Sunna,which is termed commandments asNaas.
The concept of al-Majlalia wa al-Nash is well acceptedas a valid and legal Islamic principle that emergedduring the period of the Prophet and continued during the era of his companions,particularly that of the khulafa-' al-Rdshidin or Rightly
GuidedCaliphs.In the periodof tb(icn or followers,particularlyduring the rule of the caliph Umar Abd 'Az;z, there was significant indication of the further
developmentof the concept maclalta in accordancewith nalc. This growth continued
filtered into the four Sunni schoolsof law, who contributedboth directly and and indirectlyto the development the conceptof al-Maclaliawa al-Nall of in termsof
defining and elaboratingthe latter in connection with the former. Their contribution to this conceptwas subsequentlywell developedby the disciples and jurists from their own schools of thought, particularly in the sphere of theoretical development. The
following chapter discussthe topic of the theoreticaldevelopment the concept will of

of al-Maclalia wa al-Nass.
41
CHAPTER TWO THE THEORETICAL DEVELOPMENT OF THE CONCEPT OF AL-MA$LAHA WA AL-NAYS
2.0 Introduction
The term theoretical is being used as the main subject of this chapter as an and examination of the theories designedand developedby Muslim jurists elucidation be undertaken within the framework of Islamic jurisprudence, concerning the will betweenthe conceptof maclaha and the legitimacy of nasf i. e. the Qur'n correlation the Sunna, both being the primary sources of Islamic law. A topic frequently and debatedamongstMuslim jurists regarding the concept of al-Maclalia wa al-Nafl, is the theory of the priority of maclalcaas a form of legal principle in Islamic law, over the legitimacy of nassin the Qur'dn and the Sunnain particular, as well as the Ijm.
Apart from the theory above,Muslim jurists have formulated the theory of the
levelsof Darriyya,Hdjiyya, andTalisiniyya, which arecloselyrelatedto the concept in that they relate to the primary sourcesof Islamic law such as the of maylalla Qur'n and the Sunna.In addition,the theory of Magdlid al-Sharia-cum-Maclaha
has become popular discussion among Muslim jurists as a new approach to Islamic
jurisprudence It particularlyin dealingwith the nail in the Qur'n andthe Sunna. can be held that the theoryof Magdcidal-Shari a, was developed laterjurists in by also
order to-form a juristic legal principle dealing with the ultimate objective of Islamic law, which is to uphold the commandmentsof Law in the Qur'dn and in the prophetic life of the Sunna.
42
From the aforementioned,the main intention of this chapter is to deal with those three main theories regarding the concept of al-Maslaha wa al-Nash.The first section of this chapterdealswith the theory of priority of maclahaover the legitimacy of nass.This is disputedjuristically among Muslim jurists, particularly regarding the E). view put forward by Najm al-Din al-Tfi (d.716H11316C. The theory of the levels of i arrryya, Iljryya, and Tal:sinlyya in connectionwith the concept of al Ma. clalia wa al-Nall is discussedin the second section of this chapter. The final part of this chapter examinesjuristically the theory of Maga id al-Shari a in conjunction with
Nass.
2.1 The theory of priority of Maflaha over the legitimacy of Napf
It is suggestedthat the juristic discussionregarding the theory of priority of
historicallyduringthe life of Imm overthe legitimacyof nagscommenced maslalca

Malik, the eponym of the Mliki school of law, when he formed Malalla Mursala as
D a legal principle in Islamic legal theory.This is shownby Mu*tafa Zayd in his Ph. thesis(1964)in which he claims there were manyjuristic opinionsmadeby Imm Malik himself andhis discipleswhich upholdthe theory of priority of ma. over 1clalia the legitimacyof nasl'. Moreover,Mu*lafa Shlibi, in his book entitled Talil alAhkm,shared sameview asMustafaZayd regarding theory;that is in some the this
ways Imam Malik's legal opinions, (fatwa) as well as the form of Mallalia Mursala that he designed and legalised, obviously contradict naW. The accusation made against Imam Malik and his disciples of giving some sort of priority to Ma.Flalta
Mursala in particular,over the legitimacyof nail, has subsequently beenjuristically

1Zayd, Maslalia, 128-136. al p. 2 Shlibi,Td iil, 367 p.
43
debated,particularly amonglater Muslim jurists suchas HusseinIlmid Hassanin his Ph.D thesis entitled `Nazaria al Maslaha fi al-Fiqh al-Islmi' (1981), as well as Yushau Sodiq in his Ph.D thesis entitled `Malik's Concept of Maslaha (The Considerationof The CommonGood): A Critical Study of This Method As A Means of Achieving The Goals and Purposes of Islamic law With Special Reference To Its
Application At The Shari 'a Courts In Northern Nigeria (1991).
In addition, not only Imam Malik and his disciples have to be said formulated to the theory of the priority of maclalta over the legitimacy of nag, but Najm al-Din a Uanbali scholar also acceptedthis theory. To some extent, Tiffs point of al-Tfi, to this theory appears to have become a controversial issue, view pertaining later jurists. The debateinvolves not only Tfi's point of view on particularly among
but this within the frameworkof Islamic jurisprudence, also involves his life and
credibility as a Muslim scholar. Some later Muslim jurists seem obviously to oppose Tfi both as a legitimate Muslim jurist and also in his view on this theory, whilst
seemto supporthim and his theory. For instance,al-Bti`s work entitled others juristically to undermine credibility of Tfi asa Qawbi(al-Maclalla(1987) the seems Muslim jurist and particularlyhis point of view on this theory.However,Abdallah
M. al-Husayn al-Amiri's work entitled At-Tufi's Refutation of Traditional Muslim Juristic Sourcesof Law And His View On ThePriority of Regard For Human Welfare As The Highest Legal Source Or Principle (1982) seems to support Tfi's choice of life asjurist and encouragehis work as well as supporting his point of view pertaining to the theory of priority of maclalta over the legitimacy of nail.
44
In order to help clarifying the discussion about the theory of the priority of over the legitimacy of nass,this section will first examine the hypothetical maslaha
form of this theory in the light of Islamic jurisprudence. Secondly, an analysis will be
by of the form of Maylalta al-Mursala suggested Imam Mlik, which has undertaken been claimed to give it some sort of priority over the legitimacy of nalc. Thirdly, this section will explore Najm al-Din al-Tfi's point of view on the theory of priority of over the legitimacy of nass. maclalia
2.1.1 The hypothetical form
It is to be borne in mind that al-Maglaha wa al-Nast was a direct outcome of the theory of the priority of maclalta over the legitimacy of nas. For Ahmad Raysnni, recent developments in Islamic jurisprudence explore the theory of the the legitimacy of nag as well as its application. This is due over priority of maylalaa to the theory can be openly interpreted and examined by all Muslim jurists as it has
in beenexpressed hypotheticalformsby Najm al-Din al-Ti fi in his analysisof the harmto others'6. Hadith of the prophet;`You shouldneitherharmyourselfnor cause
Accordingto Ahmad al-Raysni, there was no juristic evidenceor absolute

examplegiven by Tfi in his analysisof the application of the Hadith of the prophet; `You shouldneither harm yourself nor causeharm to others'. The only exception that
3 al-Rayscini, al-Ijtihd p.49 4Ibid p.37-38. 5Aid 6 The Ilafiith is categorizedas Hassan and narrated by Amru b. YaI ya deriving from his father and from the Prophet. It is reported by Ibn Majah, Darruqutni and Imam Malik in his al Muwa; ('. See Zayd,al Maslaha, p.206.
45
Tfi mentionedwas in the area of transaction(mucamala)and custom (adat), which in somecircumstances connectedwith the theory of the priority of maslahaover the is
legitimacy of na-yi.
For Mustafa Zayd, Tiff, himself wrote no specific work referring to the theory and of maclalaa he made no detailed explanation of mallalta except in his work about the explanationof the forty IHadith of alNawwi in which he made a brief statement in his analysisof the 1Yadithof the prophet; `You should neither harm yourself nor harm to others'. Mustafa Zayd adds that at this stage,Tfi claimed that this cause Hadith legalisesmaslalta as the objective of Islamic law, giving it priority over the as well as the Ijm in the areaof transaction(mucmala)and custom (àdat). To nalc, extent, Mu*tafa Zayd believed that Jamal al-DIn al-Qsimi was a person who some quoted Tfi's point of view theory until it became controversy particularly amongst later Muslim jurists8.
It is worth noting that MustafaZayd also claimedthat not only Tfi had the
theory of priority of maslalta over the legitimacy of nalc but Imm M1ik had
previouslyheld the sameopinionsaboutthe theoryby meansof a form of Maclai a Mursala9.Therefore,later jurist such as Hussein Hmid Hassanhas juristically
debatedon Mustafa Zayd's argumentsregarding Imam Malik's stand on the priority of Maclaha Mursala over the legitimacy of nag10. The juristic debatebetween both
7 a1-Rays-uni, al-Ijtihd, p.38. $Zayd,al Mailalia, p. 113. 9Ibid 10 Bussein, Nazaria,p. 108-183
46
jurists pertaining to this theory clearly indicates its hypothetical form within the framework of Islamic jurisprudence. In the following section, the theory of Maslalia Mursala and its connection with nass is examined in order to elucidate the juristic debatedamongstMuslim jurists regardingthis theory.
2.1.2 The connection of Mallaha Mursala with the legitimacy of Nall
As has been discussedin the previous chapter, a form of Maclalta Mursala was designedby Imam Malik and extensively applied, particularly by Muslim jurists of the Mliki school of law to establishtheir legal opinion of Islamic law. Imm alShtibi, a leading scholarof Mliki school of law, definesMallalra Mursala as a form Islamic legal principle that no specific Naffs (legal text) confirms or denies" but in of general,the maslalia itself is formed to securethe preponderanceof benefit for the At peoplethat is in accordance with the objectives of the Lawgiver12. this stage,Imm Shtibi employs the term al-mun, that is synonymouswith Maclalia Mursala, cib13
in connection which with the Magsidal-Shari a, meansthe ultimate objectivesof Islamiclaw.
It is believedthat the abovedefinition of the conceptof Malalza Mursala is by unanimously accepted the majority of Muslim jurists in the Sunni legal schools.
The conceptof Ma.FlaltaMursala is interrelated with the objectives of the Lawgiver, although it does not necessarily conform to any specific legal text (Nall). At this
lt al-Shitibi, al-f1icm, v.ii, p.362. 12 al-Shtibi, Muwfagt, v.ii, p.2. al 13 al-Shtibi,Op.cit.,v.ii, p.362.
47
stage,Muslim jurists of Mliki school of law in particular, laid out the criteria of Maslalta Mursala in order to establishits validity as an Islamic legal principle.
To this effect, Imam al-Shtibi has set out three criteria of Maslalta Mursala in al-l'tivm under the heading of the distinction betweenheresyand Mallalta Mursala, in Arabic; Ti al-Farq bayna al-Bad wa al-Maslili al-Mursala'. Imm al-Shiibi or insists that the first criterion of Maslaha Mursala states that to be validated as an Islamic legal principle through the objectives of Islamic law (Mag. id al-Shari a) there should be no contradiction with any textual evidence,dalil or nag, juristically to in the Qu'ran, the Sunna and the Ijma'. According to Imm al-Shtibi, the referred by which the validity of Maslajia Mursala can be judged is that it second criterion has no connection with the area of worship, ìbda. As concernsrational matters and the third criterion, Imam Shtibi emphasizes the correlation between Mallalca Mursala and Maga. id al-Sharmaor the ultimate objective of Islamic law regarding the matters of Darriyya(lit. necessities)that is to preserve the five safeguardsfor human beings; religion, life, lineage, intellect and property as well as the matters of raf al-harj; alleviating hardship14.
Through these criteria, Imm Shtibi seeksto validate Ma.FlahaMursala as a legal principle in Islamic law by developing the theory of Mallalta Mursala being
interconnected Magdsidal-SharPain someway, which is referred juristically to with

the legal principle that is laid down by the legal text or nalc. Though Ma.Flaiza Mursala has been legalised as a legal principle independent of legal texts of dalil,
be and evidence nail, to someextentit must,nevertheless connected, parallelwith, or
14 al-Shatibi,al-ftism, v.ii, p.375-379.
48
the basic legal principle of the theory of the Magjid al-Sharma. Many of Imm Malik's legal opinions were developedwith no opposition or contradiction of dalil or from the Qur'an, the Uadith or Ijm, which meansthey follow juristically, the naffs line betweenMaslalta Mursala and Magdsid al-Sharià mentionedabove. parallel
Moreover, Imam al-Shatibi gives ten examplesof Maslaha Mursala which he in discusses the light of Maliki's legal opinion's. It is interestingto note that in order to justify theseten examplesof Ma. lalta Mursala, Imam al-Shatibi draws on, usesas evidence someversesfrom the Qur'n and the Uadith that indirectly verify Mliki's legal opinions on Ma. Mursala16.It is believed that not only Imam al-Shtibi clalia method of elaborating Maclaha Mursala, Imam Malik himself used this employs in which the elaborating of the legal opinions through the form of Majlalta method Mursala is undertaken.In al-Mudawwana, Imam Mlik emphasizes legal opinion the in which the Qur'dn and the Iladith in particular, are silent on the new ruling that was formed by Maslaha Mursala. In other way, the connection of Maclalta Mursala with
if the Qur'an the legitimacyof nail is based principlesof non-existence on whereby the Vadith aresilent on the legal opinionsthat are formedby Ma. lalta Mursala, and
then they are valid.
juristically The following point exemplifyhow Imam Malik andhis disciples

refer to principles of non-existenceof a concept in the Qur'n and the Hadith when forming their legal opinions through Maslaha Mursala, as follows;
is Ibidv. li, 364-384. p. 16 1bid
49
(a) The obligation of the husbandin providing the basic needs such as shelter, food clothing for his wife is based on the husband's capacity and his wife's social and status".
Pertaining to the legal opinion of the Mliki school of law stated above, the can consequences be cited in two examplesor casesas follows. In the first case,the husbandis incapableof affording the basic needsfor his wife; and in the secondcase, the wife is richer than her husband,therefore, shecan afford the basic needsincluding her husband.Thus, these two casesaffect the following questions.In the supporting former case,doesthe wife have full right to seekbasic needsfor the family? And does have a right to appeal for divorce from her husband?In the latter case,is it the she to seek a refund from her husband,thus, considering the husbandto be wife's right indebtedto his wife?
In order to facilitate the acceptanceof those two casesas well as alleviate
arisingfrom them,ImmMlik andhis disciplesusedthe form of Maclalia questions Mursala as the legal principle for their legal opinions.In the first case,the Mliki jurists are in agreement the wife has two choices,either she remainswith her that husband seeks basic needsfor the family, or she may appealfor a divorce the and from her husband'8. form of Maclalta Mursala hasbeenappliedto this casein The
accordance with the concept of Ma. laha itself, that no harm is causedon either party, therefore the wife is given a choice due to the incapability of her husbandto provide for the basic needsof the family191. According to Imam Malik, the form of Maclalia
Mursala appliesto this particular case,as the basicprinciple of the Qur'n and the
17 11, 729. a1-Dardir, al-Shari), v. p. 181bid, ii, 745 v. p. and al-Dsgi,Hshiya,v.ii, 517. 19 Malik, al-Mudawwana,v.2,p.259.
50
Hadith is silent about whether the wife should remain with her husband,or whether In she should leave her husband20. the secondcase,the wife has two choices.Firstly, if the wife choosesnot to leave her husbandfor the sake of her marriage, then, she may choose not seek or a refund from her husband whether he is rich or poor. Secondly,the wife may leave her husbandand if the husbandis rich, the wife has the right to seek a refund from her husband, which makes him indebted to her21. According to Imm Mlik, in the second case, the form of Mallalia Mursala is in consideration the interests of both parties as no evidence or nass exists applied either to up hold or to opposethis legal opinion in this particular case22.
The clarification abovemade by Imm M51ik in his al-Mudawwana regarding this particular legal opinion, clearly indicates that in order to legalise the form of MaslaleaMursala in accordancewith the objectives of Islamic law, and Magsid alSharià, the considerationof legal principles from the Qur'n and the Hadith has to be undertakenas to whether they are silent or in opposition to the case in question.
HamidHassan Hussein that it is incorrectto claim that mostof ImamMlik's claims legal opinionsare overruledby the legitimacy of nag. In fact, it is demonstrated
clearly that the principles of non-existencethat are laid down by the Qur'n and the Hadith, are always utilized in forming his legal opinions through MaclalcaMursala23.
In more detail, HusseinHmid Hassancites ten examplesof Imam Mliks' legal

he claims have no priority over the legitimacy nasj 4. He also argues opinions that that apart from Mallalia Mursala, Imam Malik's legal opinions have been formed by
20 Ibid 21 Ibid 22Ibid 23Ilussein,Nazaria, 108-183. p. 24 Ibid
51
Urf (customary practices) as well as Manat al-Hukm (the cause of the ruling)25. However it should be borne in mind that it is not the main intention of this topic to further Ijussein Hmid Hassan'sargumentson the form of "Urfor the Manal al-Hukm that is concerned with Imam Malik's legal opinions.
In conclusion,the Qur'n and the ljadith are always referred to in as far as no dalil or nassis either verified or opposedin forming Maslalta Mursala in connection with Magdsid al-Shari a. Consequently,the theory of Maslalia Mursala, which in some ways is indirectly interconnectedwith the legitimacy of nag has been proven from the juristic discussionabove. Furthermore, it can be seenthat the theory of alMa.Flalzawa al-Nass has been further developedby later Muslim jurists particularly by al-Tfi, as he claims that in someways maslalta has priority over the legitimacy of In order to illustrate this theoryjuristically, the following sectionwill discussalnalc. Tufi's point of view regardingthe theory of priority of maclalta over the legitimacy of
nags.
2.1.3 al-Tfi's theory
In order to discussal-Tfi's theory in the senseof academicanalysiswithin the framework Islamicjurisprudence, the first stage is importantto demonstrate its it of as from reliablesources. far ascanbe ascertained, As thereare originalityandauthencity
two reliable sourcesregarding al-Tfi's texts on the theory of priority of mallalia over the legitimacy of nass. The first reliable source is Al-Maylal: a fi al-Tashri al Islmi Najm al-Din al-Tfi (1964), written by Mustafa Zayd, in which al-Tfi's analysis wa
25 lbid, p. 116and p. 127
52
regarding the Uadt-thof the prophet; `You should neither harm yourself nor cause harm to others' is set out as well as his controversial theory. The second reliable
source is At-Tufi's Refutation of Traditional Muslim Juristic Sources of Law And His
View On ThePriority of Regard For Human WelfareAs TheHighest Legal Source Or Principle (1982) written by Abdallah M. al"Husayn a1-Amiri, in which al-Tnfi's analysis is translated into English from the Arabic texts in which again support alTfi's authority. It is to be borne in mind that both are PhD thesises;the former was submitted to the University of Cairo in the year 1964 and the latter to the University of California, SantaBarbara, in the year 1982. Hence, in the first stageboth reliable sourceswill be referred to, particularly the latter, in order to presental-Tfi's theory in its originality and authencity prior to the discussion and analysis in the second stage.
Before al-Tfi highlights his theory concerning the priority of maclalta over the legitimacy of nass, previously he examined the significance of the Hadith of the
`You shouldneither harm yourself nor causeharm to others', which it is prophet; The full text of al-Tfi's point of view in this connected the concept malalta. with of is asfollows; regard
Ìts meaning is what we already have pointed out, namely the denial of harm and malicious acts by law. It is a general denial, except for such matters as [legal] argument has particularized. And this necessitatesgiving priority to the obligatory characterof this Tradition over all legal arguments,as well as particularizing them, accordingto its lights, as regardsthe denial of injury and the attainment of Ma.clalia [human welfare]. For if we assumethat some legal sourcesof the Law warrant the infliction of some form of harm, then to deny it on the strength of this Tradition would be to act according to two sources.And if we do not deny it according to it, then we render one of the two sourcesnull and void, namely this Tradition. There is no doubt, however,that harmonizing the texts when we act accordingto their lights is betterthan to nullify someof them' 6.
26a1=Amiri, At-Tuft, p.144
53
Tufi's statementabove clearly indicates that the Iladith of the prophet, `You should neither harm yourself nor causeharm to others' becomesdefinite evidence or dalil, which overrulesother evidencein giving priority to avoiding harm and to attain the maslaha.In other words, Tufi's theory concerningthe priority of maclahaover the legitimacy of nag is rooted in the basis of the Hadith of the prophet, which clarifies the denial of injury and the attainment of maclalzaor public interest. Moreover, in later discussion,Tnfi claims that there were nineteenlegal sourcesof Islamic law that by are accepted Muslim scholarsas follows; `We say, on the basis of investigation,that the sum total of the sourcesof the law that are known to the c(lam' (religious scholars) fall into nineteen categories, as no more. The first is the Book (al-Qur'an), the second is the Sunna, the third is the (Ijmac) of the Community (Umma), the forth is the Ijmaf of the people of consensus Medina, the fifth is analogy (Qiyds), the sixth is the recorded sayingsof the prophets companions, the seven is the unrestricted undefined public interest (al-Mallalca Mursala), the eight is the presumptive continued validity of past legal ruling (alIstiqhb), the ninth is the presumptive exemption from judgment in the absenceof a (al-bar'a al-asliyya), the tenth is acceptedcustom (al-` awaid), the specific ruling is investigation or examination (al-istigrd'), the twelfth is the legally correct eleven contributory action (sadd adh-dhari`), the thirteenth is demonstrationor deduction (al-istidll), the fourteenth is preference(al-istilllb), the fifteenth is adoption of the least burdensome[solution] (al-akhdh bi al-akhaff), the sixteenth is the Ijm of the the eighteenth is the Jjm of the members of the family of the people of al-Kufah, F (al -. itrah), the nineteenthis the Ijmac of the four Caliphs. Some of theseare prophet [universally] agreed upon, others are disputed. However, knowledge of their limits, their prescriptions,the demonstration of their true meaning, and the details of their rulings are to be found in the sourcesof jurisprudence (Ucl al-figh). The saying of the prophet, "La clarar wa l dirr", therefore necessitates that provision be made for the generalwelfare (maslih) by [an implicit] affirmation, and against evil-doing by [an exmplicit] negation.For harm is evil-doing, ad if the Law (al-Sharc) repudiatesit, the good, which is the general welfare (mallaha), is necessarilyaffirmed, for the two are mutually contradictory, with no possibility of reconciliation'27.
After listing nineteen legal sourcesof Islamic law, Tuft insists that some of those legal sources are juristically accepted, whereas some are accepted with
271bid, 144-145 p.
54
by Muslim scholars28.At the end of the above discussion,Tfi claims reservations that the Iladith of the prophet, `You should neither harm yourself nor cause yet again in indicating that good harm to others' is juristically significance concerningma. laha is affirmative but harm must be refused;both are absolutely paradoxical and must be At this stage,Tfi seeminglybegins his theory that the ruling in the no compromised. legalise the validity of ma.lalla. Thus, in the following Hadith of the prophet will Tfi's theory is elaboratedunder the topic of the strongestlegal sourcesas section, follows; `The strongestof these nineteen legal sourcesare the [Qur'anic] text and consensus. Now both of them either agreeon showing regard for ma. or they are opposedto Flalia it. If they agreeon it, no conflict arises,and all is well, for the three legal sourcesare being the text, Consensus and regard for in agreement in their judgment-they latter derived from the Prophet's saying, `Do not causeharm nor repay maslaha- the harm with another'. But if they disagree with it, then regard for Mallaha one the [other] two: [such priority being] by way of necessarily takes priority over them and denying their them, and not by way of suspending explaining and specifying just as the Sunna takes priority over the Qur'an, by way explaining the validity, do not at The determinationof this is as follow: The text and Consensus [latter]. either do. If they do not do so, then they are in injury and evil-doing or they all necessitate [the principle] of regard for Ma. lalia. If they do, however, necessitate with agreement [the infliction ofj harm, then it [that is, the harm] is either their entire justification or it. If it is their entirejustification, then it must necessarilyfall into the category part of "La clarar wa l dirdr ", such as the fixed of exceptions to the prophet's saying, lOdd-punishmentand the penalties for crimes. And if it is part of their justificationby a particular piece of evidence,that evidenceis to be then if it is renderednecessary then both followed; but if a particular piece of evidence does not render it necessary, to the restrictions of the Prophet's saying, "La Barar of them are necessarilysubject 14 dirdr", encompassing the legal sourcestogether'29. all wa
At this juncture, Tll
believes that the Qur'an strongly
the Ijm and
(consensus) are the strongest legal sources apart from the Hadith, which on the is referred to the Hadith of the prophet; "La Barar wa 1 dirdr". subject of malajta From this point of view, Tll claims that occasionally both the Qur'n and the Ijm 28Furtherdiscussion this regardcan be found in the science Islamicjurisprudence. al-Taib, See in of al-Ijtihagp.5-S.
29 Ibi4, p. 145-147
55
either agreeor disagreewith the subject of maslalia as,verified by the liadith of the prophet In the case of disagreement,Tfi states that; `Mallalta necessarily takes
priority over the [other] two: [such priority being] by way of explaining and
specifying them, and not by way of suspendingthem and denying their validity, just as the Sunna takes priority over the Qur'an, by way of explaining the [latter]'. In other words, Tfi insists that the theory of priority of maclalaaover the legitimacy of is quite similar to the theory of priority of the Sunna over the legitimacy of the nall Qur'an by way of explaining and specifying the latter. Tfi later addsthe discussion of priority areato which his theory is applied as follows; `We give priority to due regard for [their] well-being in matters of customs [àda], intercourse [mu`mala], and the like. For due regard for it in these matters is social the very pivot [qulb] of the Law's objective, as opposed to matters of worship [Cibdda],which belongsas of right to the Law, and whose exact formulation cannotbe 30 known exceptthrough its authority, [as expressed]in text and Consensusi
Matters of limitation concerning customs rada] and social intercourse

[mudmala] with the exception of matters of worship [ìbda], are given the priority of mallalza over the legitimacy of nafl, which clearly indicates the legal conditions
that are formed by Tuff, in his theory.He addsthat the priority of mallalzain the [muimala]must be in accordance mattersof customs[cada]and social intercourse with the very pivot of the objectivesof Islamic law. Moreover,Tfi has drawn up in his theorythe priority to maslaltaover the nal.c as well as the threereasons why
Ijm are undertakenas follows; 1. The first reason: ìs that those who have rejected Consensus have upheld the regard for Maclalla, which makesthe latter an occasionfor harmony and Consensusan occasionfor disagreement; and holding to what has beenagreed upon "31,
30 Ibid., p.150-151 311bid, 175 p
56
2. The second reason: ' is that the texts are at variance and in contradiction (mukhnlafa muta`ricla). Thus they are the cause of disagreement in formulating judgments, which is legally blameworthy. Regard for Maslaha, however, is a real matter in itself that occasion no disagreement, and is, consequently, the cause of agreement, which is legally desirable, thus the more appropriate to follow. For the Mighty and Exalted has and 'And hold you fast to God's bond, together, and do not scatter. said, 'Those who have made divisions in their religion ad become sects, thou art them in anything. And he (May peace be upon him) said, 'Do not be not of lest your hearts be at variance. And the Mighty and Exalted at variance has said, in His praise of unanimity, 'And he brought their hearts together. Hadst thou expended all that is in the earth, thou couldst not have brought their hearts together, but God brought their hearts together'. And he (May by upon him) said, 'Be as brothers and servants of God'32... peace
321bid,p.175-181 If one reflects on the quarrels and mutual aversion, which have taken,place among the Imam of ..... Legal Schools,he will see the truth in what we have said Thefollowers of Malik took control of the West[i. e. North Africa], and thefollowers of Abu Hanifah of the East [i. e. east of Egypt], whereby the schoolscan live in harmonywith any other in its own territory, savein tokenfashion. We neither of have beeninformed that when a Hanafite chancesto come among the Hanbalite people of Jilan, they kill him and takehis possessions booty,just as they do non-believers. as Further, we havealso beeninformed about a single Shafi'ite mosquethat was in one of the Hanafite in Transoxiana.Seeingthat mosque,the governor of the town, who used to come out everydayfor the prayer, would say, 'Is it not time to close this church (kinasa)?He went on in this manner till morning he got up one day, and the door of that mosquehad beenwalled up with mud and clay bricks, which pleasedthe governor.Moreover, thefollowers of eachImam prefer their Imam over any other greatly in both their writings and debates,to suchan extentthat 1 have seena Hanafite write a compilation of Abu Hanifah, and then boast in this [compilation] of his followers, such as Abu Yusuf, the virtues of Muhammad Ibn al-Mubarak, et. al. Furthermore, in referring to the other schools,he has said; 'These my ancestors:Can you indeed, show me their like, Whenwe, 0 Jarir, are gathered together in are ' These the Jahiliyya and examples the like are many. Thus of of smacksof thepretentiousness council? party beganto transmit Traditions exalting the merits of its imam. each And so the Malikites transmitted[the saying]: 'Camelsmay be ridden [in all directions], without ever finding anyonemore learnedthan the scholar of Medina. Theysaid. And this is Malik. The Shafi'ites transmitted [the sayings]: 'The imams are from Quraysh, 'Seek knowledgefront Quraysh but do not vie in knowledgewith them. Or 'The scholar of Qurayshhasfilled the earth with his knowledge. Theysaid., 'No one of this description has emerged from Qurayshal-Shaft'i. The Hanafites have transmitted the saying; 'There will be in my community (ummati) a man by the be the lamp of my community. And there will also be a man in my name of al-Nu'man, who will by the nameof Muhammadb. Idris, who will be more harmful to it that than Iblis. community TheHanbalites have transmitted [the saying]: 'There will be a man in my communityby the name of Ahmad b. Hanbal who will follow my Sunna,in the manner of theprophet, or somethinglike thisfor I do not recall the exactwording. Abu Faraj al-Shirazi has said in the beginningof his book, alMinhaj; 'Know that these Traditions are either correct but not valid or valid but not correct. What has been transmittedabout Malik and al-Shafi'1 is good but does not provide any indication of their intended objective. For if [the expression] 'scholar of Medina' is a generic noun (ism]ins), the scholars of Medina are many,and there is no particular designation of Malik, apart from the others.Moreover, if it is a proper noun (ism shakhs), there is no reason to limit it to Malik, since the SevenLegists (alFuqaha' al-Sba'ah) as well as others were among the scholars of Medina who were the teacher of Malik, and who were more famous than he was at the time. The reason that led his adherents to interpret the Traditions as referring to him is due to the great number of his followers and the broad diffusion of his school throughout the lands. This is what instigated them to say what they did The samething applies to [the saying]: 'The imams are from Quraysh; there is no special designationof al-Shafi'1 in it. Moreover, it has beentaken to refer to the Caliphs, as argued by Abu Bakar on the Day of Saqifah. Likewise [the tradition]: 'Seek knowledge from Quraysh...'contains no particular
57
3. The third reason; 'is that it is well established that in the Sunna there are contradictory texts with reference to welfare and other such matters, in a number of cases, some of which [are the following]: Ibn Mas'ud's opposition to the text and Consensus as regards tayammum, in favour of the benefit of precaution in matters of worship, as was mentioned earlier33
designation of anyone. As for his saying: 'The scholar of Quraysh fills the earth with his knowledge. Ibn Abbas might well competer with AI-Syaf'1 over it, for the former si more entitled to it than the latter due to his seniority, his companionship [with the prophet] and the prophet's [s. a.w] supplication to God for him in his saying; '0 my God! Make him erudite in religion ad instruct him in its interpretation'. For he was called the 'Sea of Knowledge' and the Rabbin (hibr) of the Arabs. The motive that led the Shafi'ttes to interpret the tradition as referring to AI-Shaft'I was the fame of his schools and the great number to his followers. Novertheless, the school of Ibn 'Abbas is undeniably famous among scholars. 'As for what has been transmitted regarding Abu Hanffah and Ahmad b. Hanbal, it is a forgery with no factual basis. And as for the Tradition, He is the lamp of my community', it has been cited by Ibn alJawzi as among the among the forged [Traditions]. He [also] mentioned that when the school of AlShafi'ites becamefamous, the Hanafites wanted to discredit it. And so they conspired with Ma'mun b. Ahmad al-Salmi and Ahmad b. 'Abdullah al-Khushari, who were liars and forgers, ad they forged this Tradition in praise of Abu Hanifah and dispraise of A1-Shafi'i. But God refuses but to perfect His light. 'As for what has been transmitted concerning Ahmad b. Hanbal, it is definitely a forgery, for we have already submitted that Ahmad was the most assiduous od men in adhering to the Sunna, and the most rigorous of them in protecting it. It has been established that he has committed to emory a million traditions, and that he said: I composed my Musnad out of 750,000 Traditions, and I let it stand as a testimonial between me and God, sowhalever you do not find therein is as nothing [I value]. Now this Tradition, adduced by al-Shirazi in regard to the virtues of Ahmad, is not found in the latters Musnad; for if it were a genuine one, he would have been the most suitable of men to produce it anduse it as a suitable of men to produce it and use it as a probativeargument during his ordeal, even the most mention of which causes anguish
Observe,by God, sucha disposition that leadsthefollowers [of the Legal Schools] toforge Traditions, in exaltation of their imams and in dispraise of some others. The instigation for it can only be the rivalry among the Legal Schoolsin their preferencefor literal [meanings] and the like, as opposedto regard for Ma$14a, whose explanation is clear and whoseproof is obvious. For if they could have come to an agreement nothing of what we have said aboveabout themwould have comeinto somehow, being. ) 'Know that someof the disagreements among the 'ulama' are due to contradiction (taruc! in what has beentransmittedand the texts (al-riwayat wa al-nusus).Somepeople, however,allege that 'Umar b. al-Khattab is the cause of this, since his companionshad asked his permission to write down the Sunnaat the that time, and he had refused them this. He said, 'I write nothing besidesthe Qur'an, even though he knew that the prophet has said, 'Write for Abu Shah the Farewell Sermon, and also write said. Recordknowledgein writing. [Thesepeople] say that if he had let each of the Companions down whateverhe transmittedfrom the Prophet, the Sunnawould have beenaccurately recorded,and no one would have stood betweenanyone of the communityand the Prophet in every Tradition, save the Companionwho wrote what he had to transmit. Such written records would have been handed downfrom themto us in uninterruptedsuccession the sameway as thoseof Al Bukhari, Muslim and in others 33Ibid, p. 181-184. Also, his saying to 'A'ishah: 'If your people were not recent converts to Islam, I would have ... demolished Ka'bah and built it [a new] on thefoundations of Ibrahim, thereby indicating that its the he constructionon thefoundation of Ibrahim was the right thing to do. Nevertheless, abandonedthe idea due to his regardfor the people's welfare. 'Also, whenhe bade them consider their pilgrimage (ha)as a 'umrah, they said: How is that possible, since we have stated [our intention of making] the haf ? And they abstained This shows a contradictionto the text by way of custom,which is similar to what we are considering. Also, what is related by Al Mawsili- concerning a man who entered the mosqueto pray, and whose appearance pleasedthe Companions-thatthe Prophet told Abu Bakar, 'Go and kill him. Whenhe went hefound him praying, so he let him alone. Then he bid 'Umar [do the same], but the two returned
58
The precedingcitation revealsthree reasonslaid down by Tuff, in justifying his theory of the priority of maclaha over the legitimacy of nass as well as of Ijma". In to the three reasons that he draws up, Tfi also elaborateswith juristic addition examplesand evidencesto support them. As the secondstageof this analysis, at this juncture, Tfi's theory will be examined and discussed including arguments and juristic examples quoted from reliable sources.It is to be borne in mind that there are findings of examination and analysis made by later jurists concerning Tufi's many theory, however, these will not be referred to until the present writer concludes his findings. This approachis employedin order to avoid any bias and prejudice that own in analysingTfi's theory should conclusion coincide with the finding of may occur later jurists. In order to begin the examination and analysis of Tfi's theory, there are
threemainpointsto be discussed asfollows; on
a)
The first point
The Hadith of the prophet;`You shouldneitherharm yourselfnor harm to others' as the basis of discussion Tufi's much on cause
saying, How can I kill a man while he is praying?. The he bid 'Ali kill the man, but when he sought him he did not find him. Thereuponthe Prophet said. 'If he had been killed no two people of my Communitywould have disagreedwith one another.' Therefore,thesetwo companionsabandonedthe ordinance (nass)with no probative evidence[to back them up] than their approval of his coming to worship. It cannot be said that they ignored this ordinance to kill the man on the basis of his having forbidden to kill thoseengagedin prayer, for the latter ordinance is abrogated by said. 'I have been the former, which is more recent and particular to this man. It seemsthat their refusal to kill him indicates nothing more than their discretionary concernfor equity (istibsn),which pertains to the matter concerning us here, [i. e] acting against prescriptive ordinances and the like by [invoking] To ma$la$a. be sure, the prophet did not rebuke them, but let themgo their own way and allowed them judgment,for he recognised[the purity of] their intention and their sincerity. to exerciseindependent And so it is anyonewho gives priority to the mala$a of the people over the rest of the legal sources, for the solepurpose of improving their affairs, regulating their condition, and obtaining what God has granted them in the way of well-being, and bringing them into agreement out of their former disharmony. is necessary It that this bepermissible, if not altogether obligatory. 'It is necessary, therefore, that the priority given to regardfor the mallaha over the rest of the legal judgment (ijtihd) at the very least, or else it sourcesbe one of thosequestionsrequiring independent is a weightyand obligatory [matter], as we have already said'.
59
debated theory of the priority of maclalia over the legitimacy of
nag.
Within the framework of Islamic jurisprudence,the questionmay be raised as to how the connection is made between the former and the latter, particularly the theory of ma. zaitself in terms of juristic discussion.In other words, doesTfi have cla, the juristic approach in correlating the Iladith of the prophet; `You should neither harm yourself nor cause harm to others', and the theory of maclalia. It is vital to clarify this point before further discussion concerning Ttffi's theory takes place. In to deal with this question, Tufi's approach in elaborating the Hadith as order interrelated with the theory of mallalta is examined in the light of Islamic jurisprudence.
The main principle arising from the prophet's Hadith ('You should neither harm yourself nor causeharm to others') concernsforbidding any actions and deeds that cause harm to one's own person or that of another. In conjunction with the
technicaldefinition of the term malla1za which refersto al-Ghazli'spoint of view, To the mainprincipleof theHadith is synonymous. al-Ghazli, first appearance the of laha is an expressionfor seeking somethinguseful, whilst simultaneously ma. indicating the removal of somethingharmfu134. building up the legitimacy of In
maclalta, al-Ghazli insists that it ought to link with the subject of Maglid alShari a, which concerns the preservation the five principles; religion, life, lineage, intellect and property35. some extent, al-San ni also sharedthe sameview as TO To concerning this subject in his analysis of the Hadith of the prophet; `You should
34al-Ghazli, Mustaia, 1, 286-287. al v. p. 35 lbid
60
neither harm yourself nor cause harm to others'. To al-San`ni, apart from the forbidding of harm indicated by the Iladith, it is also important to legalise maslalia as from harm36 the Islamic legal principle in accordance with averting
To someextent, the Ilactth of the prophet; `You should neither harm yourself nor causeharm to others' has been perceiveddifferently by IHadith scholarsin terms of analysis and study. To Imam Malik, the Hadith is examined under the topic of judgement (in Arabic; al-'Agcliyya) which interrelateswith the ruling of public utility, (al-Qad' fi al-Mirfaq)37,whereas,in Ibn IIajar alAsgalni's analysisof the Hadith, it is studied under the topic of business transactions (in Arabic; al-Buyuf), which interconnectswith the issue of the developmentof barren lands, (Ihy' al-Mawt)38. Juristically, both of the Iladith scholarsi. e. Imam Malik and Ibn Hajar al-Asgalni have examined the I adith of the prophet, `You should neither harm yourself nor harm to others', in accordancewith the subject of majla1ja; however, the cause former has discussedthe Uadith under the principle of public utility, while the latter
has studied the Hadith under the heading of businesstransactionsunder the discussed the cultivationof barrenlands.To put another among perspective of way, as Hadith scholars, Hadith of the prophet,`You shouldneither harm yourself nor the harmto others',is interconnected the subjectof majlaha in which ways cause with be discussed from manyperspectives business judgement, transaction and can suchas
the like.
At this point, it can be concluded that Pfi's
approachin analysingthe Hadtth
of the prophet, `You should neither harm yourself nor causeharm to others' as
36al-$anani, Subul, n, 84. v. p. 37Malik, Muwatt , 134 p.
39Ibn Hajar,Bulgh Marm, 272. al p.
61
interrelated with the subject of ma.lalta is juristically acceptedby many prominent Hadith scholarssuch as Imam Malik and Ibn Hajar al-Asgalniwho sharethe same approach. To some extent, Tufi's elaboration of the Ilad th of the Prophet s.a.w concerningthe conceptof maclahais in accordance with Magacid al-Shari a.
b)
The second point
As Tnfi claims, the texts are at variance and in contradiction (mukhlafa mutaricla). Thus, they are the cause of disagreement in formulating judgments, which is legally blameworthy. Regardfor however, is a real matter in itself that occasions no maslalia, disagreement,and is, consequently,the causeof agreement which is legally desirable,and thus the more appropriateto follow.
Thebasicideain the second to be the subjectof dispute,is point, which seems

Tai's view that the texts are at variance and in contradiction (mukhalafa mutari4a).
This basicidea raisesthe following question;doesthe subjectof texts which are in is (al-Ta`druci) really exist or is this a matter of imagination conflict of evidence
Muslim jurists? Again, on what basis does the subject of Ta`rucl(conflict of among
from the perspective Islamic of stand? Thesequestions will be discussed evidence) jurisprudencein order to reach an academicsolution concerningthe subject of
Tadrucl conflict of evidencebefore further examining Tfi's view in this regard. or
To return to the historical development of Islamic jurisprudence, the proper treatment of al-Tadrucl (conflict of evidence) as well as its solution, TarjTl/9, has
39Baku, Conflict, 56 p.
62
been much discussedby Muslim jurists particularly Imam al-Shafii through his lkhtilf al-Hadith and Ikhtilf Malik wa al-Shall :40. valuable works such as According to Imm al-Shfi'i`s work, Ikhtilf al-Hadith, a large number of conflicting Hadith has been revealed relating to the category of the mublt (what is permitted) taking a bath on Friday, such as the Hadith of recitation in the prayer or tashahhicd, women going out to the Mosque and so on41.In order to deal with the conflicting Iladith in Ikhtilf al-Hadith, Imm al-Shfiì applies a particular method of reconciliation (tawfiq) and harmonization (jmf) by meansof specifying the general (takhsi. alSamm) or by considering the differences between events (tagyid alc It mutlq)42. appears,then, that Imam al-Shfiì also applies the method of Bayn or explanation as well as Ta'wil or interpretation in dealing with the ambiguities surroundingthe Prophetictraditions, whilst not contradicting other Hadith43.
Moreover, the subject of al-Ta`rucl wa al- TarjTji, the study of legal texts that refer to the Qur'an and the Hadith in terms of interpretation and the validity of is always a major controversy amongst Muslim jurists44. The Hadith in sources
is thereforecommonlyexaminedby a form 'of the Hadith criticism as to particular both its validity of legal text and chain of transmission(Isnd)45. Therefore,the conflict of evidenceconcerningthe legal texts of Hadith as well as the chain of (Isnd)of the 1tadithcontinues exist in the Islamiclegaltheory. transmission to
40'AR, Imam al-Shfi'i, p. 78 41a1-Shfii, Ikhtilf a1-Hadi1hp. 43-48. 42Ibid; al-Khuli, Miftdh, p. 159. 43Ibn Khaldn,al Mugaddima, 63; p. al-Khatib, U. l,p.283. 44al-Durayni, Maniihij, p.7-12. al 451bnIIazm, al-Ilikm,v.i,p.85
63
In conjunction with his view concerningthe existenceof conflict of evidence legal texts, TO elaboratesthe effect of conflict on the validity and its chain of among authority of the Hadith, which took place particularly during his life. According to Tfi, there were many facts concerningthe Hadith on the subjectof al-Tadrud wa alTarjiii, due to the followers of each school such asMalikites, Shafi'ites, Hanafites and Hanbalites, which began to transmit invalid Hadith exalting the merits of its imm. Furthermore,in order to support his point of view, Tfi quotes in the secondreason Abu Faraj al-Shirazi's analysis, which reveals as forgery with no factual basis the HadTth, which each school of law exalts the merits of imam. At this stage, Tfi's argumentson the existence of the texts which are at variance and in contradiction (mukhdlafa mutadrida) that specifically refer to the Hadith, (as has been elaborated in the secondreasonof his theory), is juristically proven by referring to the form of Tarjili as evidenceof its existence. al-Tarud wa al-
Tfi's argumentcan be employedto rebut Bii46as well as Mu*iafa Zayd47 on the point that Nuyj or legal texts were never at variance and in contradiction
(mukhalafa arguesspecificallythat the Nucf of the Qur'an were mutairida). "Bnti in disagreement in contradiction(mukhlafamutaàricla);he addsthat never and disagreement betweenthe Nuc. occurs on only the basis of understanding and interpretation,never in terms of at variance and in contradiction (mukhlafa
mutd r ! a)48.
It shouldbe said at this juncture, that Bali overlooked Tfi's second
reasonelaboratingthe numbers of Hadith which were at variance and in contradiction (mukhlafa muta'rida). In the second reason of his theory, Tfi never mentions disagreement between the Nulal of the Qur'an, pointing out only numbers of Hadith
46a1-Bti, &wdbi4, p.186-187. 47 Zayd,a1 Maslaha, p. 145. 48 Ibid
64
which were at variance and in contradiction. Therefore, Bhi's analysis clearly overlooksthe reliable sourcewhich Tfi presents.
c)
The third point
Tfi claims that in the case of conflict and disagreementbetween legal texts, the Maslalaa necessarily takes priority by way of explaining and specifying, not by way of suspendingand denying validity, just as the Hadith takes priority over the Qur'an, through explanation.
Tfi's statementaboveindicatesthe analogybetweenhis theory of the priority Ma. laha over the legitimacy of Na$c and the condition of the Hadith which takes of priority over the Qur'n, by way of explaining the latter. Before further analysis of
it the priority of Mala1ja, is importantto studythe legal texts as a subjectof analogy

as Tufi claims in his theory. In Islamic legal theory, specifically by reference to
Tafsiral-Qur'n,it is unanimously by that accepted Muslim scholars the Sunna the or Hadith may necessarily take priority over the Qur'an in terms of interpretation,
Masan justification. In addition, as al-'Awzi (d. 15711/774M) explanation and citing b. Atiya (d.13011/748M)states: `Revelation came to the messengerof God, and ,
Jibriel providedthe sunna,which explainsit'. He also adds; `The holy al-Qurn the In the needs sunnamorethanthe sunnaneeds holy al-Qurn49. orderto morefully
understandthe function of al-IHadith as a commentary on the holy al-Quran, there
49 Abd. Ibn al-Barr,Jm(, 1 234.
65
follows a brief summaryof the conclusion of Sunnaor al-Hadith rules of the holy alQurn50:
`There are at least five functions of the Sunna over the Qur'an. Firstly, the sunna details that which is generalin the holy al-Qurin, for example,the five times of prayer, the amountsdue for zakat, the beneficiaries of zakat, and the rule of pilgrimage. Secondly, the sunna clarifies what is obscure in the holy al-Qurn, especially the meaningsand applications of words and expressions. Thirdly, the sunna contains acts which demonstrate the meanings of the revealedtext. Fourthly, the sunna gives answersto questionsabout the rules of worship and behaviour.Fifthly, the sunna restricts that which is absolutein the holy al-Quran. For example, in Q. 5/38, it is said that the hands of a thief should be cut off as punishment. The sunna restricts that penalty to the amputationof the right hand'. The preceding points clarify how the Sunna as a secondarysourceof Islamic law takes priority over the Qur'n as the primary sourceof Islamic law by explaining the latter but not by suspendingor denying its validity. From this point, an important arises; does the analogy of the Sunna as taking priority over the Qur'n question to the theory of the priority of Mallalaa over the legitimacy of Nass where apply conditions conflict one with the other?
in To address question, the third reason Tfi's theory,thereis evidence this of

is advancedto supportthe theory of the priority of Ma$lalzaover the legitimacy which
of Nagsas follows; The first piece of evidence relatesto Ibn Masd'soppositionto in in the text andconsensus regards tayammum, favourof the benefitof precaution as
matters of worship. The second point of evidence pertains to the Hadith of the Prophet s.a.w which sets out the concept of demolishing the Ka`bah and building it anew on the foundations of Ibrahim should the people of Mekka refuse to convert to Islam. Eventually, the Prophet s.a.w abandoned this concept due to his concern for the
50a_Sibi, al-Sunna, p.344
66
Maslaha. The third piece of evidence concernsthe caseof Ab people's welfare or Bakar and cUmar who ignored the Prophet's order assigningpriority to the Maclaha the people over the rest of the legal sourceswhen they killed a man at prayer in the of According to Tfi, the Prophet eventually agreedwith the decision made by mosque. his two companions on the basis of exercising independent judgment, for he recognised[the purity ofi their intention and their sincerity.
by From the threejuristic evidencessuggested Tufi in his argumentto legalise his theory of the priority of Masla1za over the legitimacy of Nass, the validity of each is supported mostly by reliable sources.However, the evidence peace of evidence by Tfi, categorisesthese as the area of ìbda or worship not that of advanced Mdmala and Àdat. At this stage,Tiff, seemsto contradict his previous statement that the only areaapplicable for his theory is that of Mumala and Àdat.
In conclusion,for the most part, Tafi advances evidencefrom reliable sources;
he thenconcludes juristic solutions providedthroughthe theoryof the priority that are Ma.lalia overthe Nall whenthey are at varianceandin contradiction(mukhlafa of behindTfi's much debated If this werethe reasoning theory,it would mutarida). be concluded the analogyhe madewith the priority of the Sunnaover the legal that by to texts of the Qur'n is juristically accepted reference the specific cases the of Much Hadith which were at varianceand in contradiction(mukhlafamutaCrida).
has been levelled at this stagefrom many aspectsand perspectives,but it is criticism not the main objective of this chapterto take part in this debate.Ironically, by way of acknowledgmentof Tfi's theory, he did his best to develop a new theory as a Muslim jurist out of a senseof responsibility towards solving the critical phenomena
67
of the variance and contradiction of the Iladith, which occurred during his life. It is also important to note that many Muslim jurists have developed the theory of the levels of l?arriyya, Hjiyya, and Talzsiniyyadue to its significance in the concept of al Ma. Flaha wa al-Naffs. The following section will therefore discuss the theory juristically.
2.2 The theory of the levels of Parrryya, IIj yya, and Tahsiniyya and the concept of al-Mqlaha wa a1Naff.
The Muslim jurists are in agreementthat the theory of levels of Varrryya (lit. necessities),Hjiyya (lit. needs), and Tahsiniyya (lit, improvements) are originally rooted in the concept of Ma. lalta or Magcid al-Shari a, designedand discussedby in al-Mustasfa 51and followed then by many Muslim jurists in their works al-Ghazli
52.As Wael B. Hallaq asserts, levels of the such as al-Shtibi in al-Muwafagat

J arriyya, Hjiyya, and Talisiniyya are very close to Ghazali's taxonomy, which is in
turn by al-Shtibias the existentialpurposeof the Shari a; to be the protectionand

In promotion of the three legal categories53. other words, 4 arfiriyya, Iljiyya, and
Talisiniyya threelevelsof legal categories, havebeenexamined are underthe which heading Maflalia or Magacid,alsodefinedasthe aimsof the law. of
Notwithstanding Darriyya, Hjiyya, and Talisiniyya as three legal categories in accordancewith the aims of the law, these have been classified as a medium or in achieving the aims or objectives of Islamic law. As Jaml al-Din Attiya vehicle claims, the levels of Darrryya, UdjTyya,and Tahsiniyya are not concernedwith the
sl al-Ghazli, Mustasfa, v.i, 286. al p. 32al-Shatibi, al-Muwfagt,v.,p.4. 53 Hallaq, A History, p. 168.
68
the law but act only as a medium in achieving the objectives of the objectives of
law54
Jamal al-Din Attiya cites juristic examples to support his point of view regardingthe levels of Varriyya, Hjiyya, and Talisiniyya as the medium to achieve Islamic law,55.In order to elaborate his theory, food is seen as a the objectives of medium to achieve the objective of preservation of life, which is divided into three levels. The first is Darrryya, the basic necessity to eat the right kind of food to a body healthy. It would be harmful to the body to be deprived of food, thus, maintain food is a necessity (Darr yya). The second level is HjTyya, the need to have a food suchas fresh or organic products.The third is Taltsiniyya, 'improvement' quality judgement, good manners,restraint and in eating food; that is, one should demonstrate the like. This example suggeststhat food becomes a medium within three types of life of humankind56 level to achievethe objective of preservingthe
In orderto correlatethe theory of al-Mallalia wa al-Nacwith the levels of Darriyya, Hjiyya, and Taijsiniyya, an important question arises; what basis, juristically with the (Miyr) could the theory be inter-related criterion or standard Attiya 57, threemediums achievethe objectivesof Islamic law? For Jamalal-Din to between theoryof the therearetwo typesof M:Cyrwhich accordwith the correlation
al-Maclalia wa al-Nafi and the levels of Parriyya, Hjiyya, and Talisiniyya.
54Attiya,Naltw f f ii, p.51 al-14, " Ibid., p.51-52. 56 ibid. 57 Ibicl, p.59-60.
69
The first type of Mi'yr refers to the nature of al-Hukm al-Taklifi (defining law) which defines rights and obligations. Should al-Hukm al-Taklifi constitutes the type of wjib (obligatory) or the type of muharrm (unlawful), it could be possibly referred to as Darriyya. Alternatively, should al-Ijukm al-Taklift constitutesthe type (commendable)or the type of makrh (reprehensible),it could be referred of mandb to as Hjiyya. Finally, should al-Hukm al-Taklifi constitutes the type of mubdh (permissible), it could be referred to as Talisinryya.To Jaml al-Din Attiya, this type 8. In addition, the correlation betweenthe of M(ydr could be termed asM(yr Shakli theory of al-Maslalia wa al-Nag and the type of Mi ydr Shakli is proven by the in the Qur'n and in the Iladith dealing existence of enormous numbers of verses with al-IHukm al-Taklffi directly; this constitutes the ruling of wjib, muharrdm, mandb,makrh and mubl9.
The second type of M(yr in this regardhas beentermedM(yr Mawdu'F,

refers to the level degreeof Ma,claha or the level degreeof Mafsada, whereby which both levels interconnect with al-Hukm al-Taklifi. Should the level degree is high in
Mallal: a or Mafsada,it couldpossiblybe referredto as1 arfiriyya; However,if low, in Mallalta or in it couldbe definedas TalLsiniyya. middle level of degree The either Mafsada could be referred to as UdjTyya60. the case of M(yr Maw(IT, the In
indicators of al-Hukm,al-Taklifi such as wajib, multarrm, mubh, mandb common and makruh will not be included in the justification of every single level in M1`yr Mawda'T. However, the indicator of Malalca or the indicator of Mafsada will important. In this regard, as al-Shtibi asserts,the typical indicator of Maclalia is the form of 'awmir, (commandments)particularly from the Qur'an and the Sunna. On
58 Ibid. 591bid 60 Ibid.
70
the other hand,the typical indicator of Mafsada is the form of nawhi, (forbiddances) found in the Qur'n and the Sunna61. Thus, the form of 'awmir particularly as (commandments) the form of nawdhi (forbiddances)derived from the Qur'n and and the Sunnademonstratecorrelation betweenthe theory of al-Maslalia wa al-Nass and the type of M(yr Mawd i.
It is important to point out that the two types of Mfyr (including Shakli and Mawd fl are two indicators signifying the correlation between the levels of Darieriyya, UdjTyya,and Tahsiniyya and the theory of al-Maclalia wa al-Nag. For it accordswith al-Hukm Imm Izz al-Din Abd al-Salm62, concept of ma, the clalia as ifi could be divided into three categories,which refer to the level degree of al-Takl lalia, as follows; firstly, Majlilt al-Mubdlit; secondly, Ma.Flili al-Mandabat; ma. thirdly, Majillih al-Wjibt. He adds that the level degree of Mafsada could be
divided into two categories, follows; firstly, Mafsid al-Makrht;and secondly, as

Mafsid alMuharramt63.
These categorizations drawn up by Imam Izz al-DIn Abd al-Salm, as
examined above,obviouslyemploytwo typesof MPyr; that is, ShakilandMawcli, in Furthermore, his effort to two concepts which could be applied simultaneously. havebeendeveloped collateMtyr Shakliwith Mt'yr Mawdi i, new terminologies
whereby the five terms ( Mallilc al-Mubht, Macdlilt al-Mandbt, Ma.Flili alWjibt, Mafsid al-Makrhdt, and Mafsid al-Muliarramt) are introduced with specific reference to the theory of al-Maglalia wa al-Nall. These terminologies clearly indicate the connection between al-Hukm al-Taklifi and the concept of
61al-Shatibi, Muwfagt, v.iii, 153. al p. 62Ìzz al-Din, QawaC i,p.8-9. idv. 63 Ibid.
71
Mallaha and also with Mafsada. Nevertheless,Imm Izz al-Din Abd al-Salam's categorization of levels of Darriyya, Hjiyya, and Talisiniyya or Takmili appears
he adds further explanation. For Imam Izz al-Din somehow unclear until elsewhere
Abd al-Salm,the level of Darrryya can be divided into two categoriesas follows; firstly, al-Darrry al-Ukhrdwi, whereby the Muslim submits by carrying out stated obligations and avoiding unlawful actions, and secondly,al-Darrry al-Dunydwry, the basis of daily life such as food, drinks, clothes,house,marriage and the like. He also claims that the level of IljTyya can be attained by carrying out al-Sunan alMu'akkada,(commendableactions) and al-Sha"'ir al-7ahira, (extemal rituals)65.For the level of Talisinryya or Takmili, he advocatesit by actions such as eating good food, drinking quality water, living in a luxury houseand the like.
The foregoing represents a juristic discussion on the development of the theory of the levels of Qarriyya, Hjiyya, and Tahsiniyya designedby Muslim jurists . in their analyses the framework of the concept of al-Maflalta wa al-Nag. This within
juristic terminologies juristic discussion also examined has basedon elaboration of by the termsDarriyya, Udjiyya,and Talisiniyya,suchas that undertaken Imm Izz Abd al-Salm.To some extent, the presentdiscussionalso highlights the al-Din
theory of the levels of Darriyya, Hjiyya, and Talzsiniyyain dealing with juristic methodssuchMfyr Shakli and Mt'yr Mawclif 1in that both are interrelated with the ,
ultimateobjectives Islamiclaw (Magd id al-Sharia). of
In addition, in Islamic legal theory, discussion on the five constituentsof the levels of Darriyya is of interest to Muslim jurists. Some, for example are concerned
64Izz al-Din, al-Faw'id p.38-40 63
jbia.
66 ibid.
72
with the order of priority the five constituentsare placed, and the limitations either five or six constituentsin the levels of Darrryya. Discussion in this respectis based theoriesof Islamic legal principles developedby Muslim jurists through thejuristic on Islamic jurisprudence. Eleven views of Muslim jurists approachwhich accord with have therefore been tabulated for close analysis.It will be seenthat there are five or levels of Darriyya, eachviews will therefore be examinedin the light of six priority
the concept of al-Maslalia wa al-Nags.
73
2.2.1 The Priority Levels of Darrryya ; The Views of Muslim Jurists Levels
Jurists
Ghaz5li67 Religion Life Al-xazi a) b) Life Life Property Intellect

Life
Intellect
Lineage
Property
Lineage Religion
Lineage
Religion Property
Intellect
Intellect Lineage
Property
Al-Arnidi69 Religion
Ibn Hajib
Religion Life Religion Religion Property Life
Lineage Lineage Intellect Honour Intellect
Intellect Intellect Property Intellect Lineage
Property Property Lineage Religion Property Honour Honour
A1-Qa'af, Life
AI-Baydwl
Life Life
Ibn
Taymiyya73
Ibn SubkV4 Religion Shatibi
a) b) c)
Religion Life Religion Life Religion Life
Lineage Intellect Lineage
Property Lineage Intellect
Intellect Property Property
AIIbn "Ashur
Life
Property
Lineage Intellect
Religion Property
Intellect Lineage
Honour
Religion Life
67al-GhazZM, Mustasfa,v.ii, 258. al p. 70Ibn Hajib, Hshia, ii, 153 v. p. 71al-Qarfi,Sharli, 391 p. 72a1-Baycwi, Minhj, p. 59
69al-Rzi, Mahsl, ii, 220 a1 v. p. and p. 612. 69al-Amidi, Ahkm, al v. ii, p. 252
73Ibn Taymiyya, Majma, 343 p. 74Ibn Subki, Jam, ii, 281 v. p.
75al-ShMXibi,Muwfagt, v.i, 38, 3, 47 al p. v. p. andal-1'Iti4m,v.ii,p. 189. 76al-Zarakshi, Bal: r, v.v,p.206 al 17Ibn Ashr,Maga. k 89. p.
74
Diagrammatic representationas shown clearly indicates that religion and way of life have been chosenby the elevenjurists as the first level of Varriyya, beginning with followed by al-Amidi, Ibn Ijajib, Ibn Subki, Shtibi and Ibn cAshr. al-Ghazali, and This can be explainedby the concept of mallalia which preservesfirstly religion, and life. This group of jurists are thus unanimous in believing that most subsequently Islamic rulings are concernedfirstly with religion and then life78.The legitimacy of Jihd, and the punishmentof ltudd and Qicf are among factual examplesof this; in juristically with the theory of al-Ma.Flaha wa al-Nall. This derives from accordance the fact that there are an enormousnumber of verses or legal texts from the Qur'n the Vadith concerning the preservation of religion and life particularly through and form of Jihd 79, punishmentof budd8and QiW1 the the
It is interesting to note here that five jurists namely al-Rzi, al-Qarfi, alBaydwi, Ibn Taymiyya and al-Zarakshi, have agreed upon life as the first level of Qarriyya instead of religion, although without justification. Given this lack of
justification, it is assumed (basedon the arguments al-Ghazliand Izz Abd alof
7$Seeal-Ghazli, al-Mustasfa, l, p.481. v. 79Exemplifiedas follows; In Sura A1-Baqarah:190; Allah s.w.t says;Àndfight in the Way of Allah thosewhofight you,. but transgress the limits. Truly, Allah likes not the transgressors not 8The exemplifyin this regardsas follows; Narrated A'isha r.a; Allah's Messenger s.a.w said; Àre you interceding regarding one of the punishmentprescribed by Allah? He then got up and gave an address saying, '0 people, what destroyed your predecessors just that when a person of rank among them committeda theft, they was left him alone; but when a weak one of them committed a theft, they inflicted the prescribed p unishment him on 1The exemplifyin this regardsas follows;
In Sura Al-Baqarah: 178; Allah s.w. t says; `0 you who believe! AI-Qisas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother (of the relatives, etc.) of the killed against blood-money, then adhering to it with fairness and payment of the blood-money to the heir should be made in fairness. This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i. e. kills the killer after taking the blood-money), he shall have a painful torment
75
Salm) that under particular circumstances,it is permitted to give priority to life instead of religion, such as, permission to use the words of riddah (apostasy)under 2.In addition, Ibn Taymiyya's ruling on life as the the circumstancesof compulsion first level of 1 arrryya has brought significance to studiesin this subject. According to Dr. MuhammadAmmra, during Ibn Taymiyya's life there was political instability the Mamlik emperor; thus, Ibn Taymiyya has perhapsdecidedupon life as the under first level of Darriyya due to the necessityof preserving the life of ummah during . Juristically, Ibn Taymiyya's ruling clearly indicates the application of the that time3. theory of Maslalta in preservinghuman life, thus demonstratingthat the objectives of Islamic law (Magsid al-Shariyya) are always parallel with evolution and priorities humanlife. of
As shownby diagram,opinionsof Muslim jurists differ upon third and the fourth levels of Darriyya. Al-Ghazli, al-Bay4wi,and Shlibi for example,have
intellect and lineage interchangeably as the third and the fourth levels of chosen Qarrryya. The justification of the intellect as the third level of I?arriyya basically
the preservation intellect is due to the to the theory of ma. of refers Flaha,whereby
the human intellect and to prevent the dysfunction that manifestsitself as a efficacy of kind of disruption particularly, by drinking alcohol. Thus, the consequence any of
intended avertthe in for alcoholconsumption Islamic law is a deterrent to punishment disruptionof humanintellect84. the otherhand,thejustification of lineageas the On
fourth level of I?arriyya is due to its lesser importance comparedwith the intellect. Though the preservationof lineage meansto conservethe quality of Muslim lineage, the preservation of intellect is however much more important; this is due to the
82Ibid., i, p.258. and Izz al-Din, v. al-Faw'ic4p. 58-64. 83Afliya, Nahw Taf il, p.46.
84al-Ghazli, Mustasfa,v.i,p.286. al
76
the intellectual faculty of the individual, which becomesthe basic criterion conceptof of taklif, (i. e. the law concerns itself with circumstancesthat affect the sanity and the individual such as duress, minority, intoxication, interdiction, error capacity of and insanity85).
Instead of the intellect and lineage being interchangeableas the third and fourth level, honour has been chosenas the third level of VararTyya.As can also be from tabulated opinions, however, Ibn Taymiyya chooseshonour as the third seen level of Darr'ryya,although no justification is made for this. Again, honour has been level of I?arriyya, by al-Qarfi, Ibn Subki and al-Zarakshi; it is chosenas the sixth that ruling upon honour as the sixth level of 1)arryya is due to the hadith; assumed "So he who guards against doubtful things keeps his religion and honour A6 In this honour has a similar position with religion as a result of blameless! regard, by a good Muslim againstdoubtful things. Thus, the conceptof maylalca a standmade in the preservationof religion as well as honour is evident through the Hadith.
It can alsobe seenfrom the diagramthat propertyis chosenas level five of I?arriyyaby manyMuslimjurists suchas al-Ghazli, al-Amidi, Ibn Hajib, al-Qarfi, Ibn Subkiand Shtibi.basedon the Vadith; `Hewho died in defence his property of that is a martyr'87, is clearthat theseMuslim jurists are in agreement propertyhas it become level five of Parriyya after religion, life, intellect and lineage.
$sKamali,Principles, p.351. 86The text of the Hadith;
All ,
I_
Mj
This Hadith narratedby Bukhri, $'a4ili,no:50, Muslim, $alli,no:2996 and Tirmidhi,Sunan,no:1126. 87 The text of the Hacith:
Al ": 4- sa a, LrA
i.
This Hadith narratedby Bukhri,$aliI i,no:2300, Muslim,$'ajuji,no:202 and Tirmidhi,Sunan, 1339. no.:
J' u
t-i cesui"JW
Ail
77
Consequently,one may learn that if a person dies in the effort to preserveproperty, that person is classified as a martyr. In this regard, the preservationof property is obviously within the theory of maclalia that in accordance with the level of
l? arriyya.
To sum up the discussionabove,juristic opinion as tabulated is divergent on takes priority within the five or six levels f i arriyya. This which constituent indicates the variety of interpretations and choices of priority made by phenomenon Muslim jurists concerning these levels of Varriyya. Importantly, one may also
concludethat al-Ghazli's point of view on the five levels of Qarrryya is a basis and foundation for associated juristic discussion.In other words, the priority of the five ' levels of Darriyya i. e. religion, life, intellect, lineage and property as laid down by
becomes basic frameworkfor many Muslim jurists in the al-Ghazlisubsequently As their worksconcerning theoryof mallaha or Mag. al-Shariyya. the theory the cid
of Maglid al-Shariyya becomes a juristic concept in this regard, therefore, the following sectionwill discussits connection with nall as the Islamic legal texts.
w
2.3 The theory of MagJidal-Shariyya in connectionwith Nag.
Juristically,the term Magid al-Shar`Fyya interchangeable is with the term Mallaha. Muslim jurists have discussed both terms in the light of Islamic legal
theory. At this stage,their main concern is how both terms deal with Nall as Islamic legal texts. Therefore, the concept of Magcid al-Shariyya in connection with Nass
will be discussed in order to examine how the former has been developed on
juristically by Muslim jurists in dealing with the latter. This examination is vital in
78
terms of the theoretical development of Magacid al-Shariyya in connection with Nass,as an integral part of the main concept of al Maslaha wa al-NaIc.
According to al-Shatibi, theoretically, this connectionis significanceto freeing humanity from the grasp of its own notions and desires, it justifies Magsid alShariyya by referring to Naffs that effect to be the servant of Allah by preference88. To someextent, al-Shatibi insists that the interest of humanity becomesa top priority in legislating to establishthe legal principles of Islamic law that in accordancewith the purposes the Hereafter set apart from the purposesof the world89. of
In understanding theory of Magcid al-Shariyya in connectionwith Nac, the Muslim jurists have developed a juristic method which can be applied to many identify the legal texts (Nall) (particularly in the Qur'an and in the Uadith) in
)ya Magsidal-Shay harmony of with the concept
follows; as
Identifying Mag. id al-Shariyya from the literal meaningof legal texts9o a)
As the bulk of the legal texts in the Qur'n as well as in the Hadith have been in the sense of literal meaning, the significance of these legal texts is revealed therefore to deliver the messageof Magsid al-Shariyya, (the ultimate objectives of Islamic law) directly and definitively to humanity91. Imam al-Shfii, every single To Hadith revealedin the literal and generalsensecan be understood per se except where
88al-Shfibi, Muwfagt, v. ii, 168. al p. 89al-Shtibi, Op.cit.
90al-Juwayni, Burhn, v.i,p.280 aJ 91 Ibid.
79
there is an ambiguity92.Additionally, Imam Bayhaqi insists that priority must be To given to the literal meaning in the Hadith rather than interpreting any ambiguity93. illustrate this method, someversesor legal texts (from the Qur'an and in the Uaaith) now follow; i). Allah s.w.t. says; Àllah intends for you ease,and He doesnot want to make things difficult for yo'94.
ii). Allah s.w. t. says; `He has chosen you (to convey His Message of Islamic Monotheism to mankind by inviting them to His religion of Islam), and has not laid upon you in religion any hardship'95
iii). Narrated (Ibn Àbbas) r.a.: Allah's Messenger s.a.w said, `You should neither harm yourself nor causeharm to others'96 To Nu'man Jughaim, the verses in (i) and (ii) clearly signify the ultimate Sharfa or Magasid al-Shayiyya; that is, to create ease(particularly for objectives of the Muslim) in practising the Islamic religion as the way of life and, therefore, to
difficulties andhardships97. Moreover,the Hadith in (iii); signifiesfurther avoid any

Shari a or Magdcid al-Shardryya,that is to circumvent harm ultimate objectives of
both to ourselvesand to others. In this sense,the three legal texts above are definitive and direct legal texts that can be understood conveying as categorised as literal meaning.This elaboration thus showsthe significanceof the study of legal
texts which are revealed as direct and definitive in the senseof literal meaning in
(the ultimate objectivesof the subject of Magd$id al-SharCiyya accordance with Islamiclaw).
92a1-ShWi,al-Risla,p.341.
93al-Bayhgi, Mangib, v. ii, p.30. 94 al-Bagara; 185
93al-Hajj; 78 96 This Hadith is reported by Al mad and Ibn Majah. Ibn Mjah reported something similar to, the Hadith from Ab Sa'id's narration;it is found inAl Muwal(d' in a Mursal form. aforesaid SeeIbn Ijajar al=Asgalni,Bulgh alMarm, p.324. 97 Numan,Turuq, 65 p.
80
b) Identifying Magsid al-Shariyya through the form of awmir
(commandments) and the form of nawdhi (forbiddances)that derive from the Qur'n
Hadith 98 and the .
Thus, apart from the literal meaning of legal texts in the Qur'an and the hladith in identifying the concept of Maqa. id al-SharCiyya,the form of awmir (commandments) the form of nawhi (forbiddances)that derive from the formers and can also be acceptedto identify the latter. To Imam al-Shtibi, the great part of the form of awdmir (commandments)and the form of nawhi (forbiddances)both from the Qur'n and the Hadith have conveyedthe significance of Magjid al-Shariyya in delivering the commandments and the forbiddances from the Lawgiver to humanity. In this respect,there are two types of the form of awmir (commandments) the form of nawhi (forbiddances) revealed from the Qur'n and the Hadith, and The following legal texts illustrate both types; termed direct and indirect99. which are
i) Direct type of awdmir (commandments)and nawdhi (forbiddances); Allah s.w.t. says; Ò you who believe! Fear Allah (by doing all that He has by abstaining from all that He has forbidden) as He should be ordered and feared. [Obey Him, be thankful to Him, and remember Him always], and die not except in a state of Islam' [as Muslims (with complete submission to Allah)]'
Allah s.w.t. says:Ànd kill not anyonewhom Allah has forbidden, except for a just cause(according to Islamic law). This He has commandedyou that you may understand't01.
98a1-Shatibi, Muwfagt, v.iii, p. 153 al 99 Ibid iooAli-Ìmrn: 102 101 Al-'Anam:151
81
ii) Indirect type of awdmir (commandments) and nawhi (forbiddances);
Allah s.w. t. says; `So whoever of you sights (the cresent on the first night of) of the month (of Ramadan i. e. is present at his home), he must observe Saum (fasts) that month's2.
Allah s.w.t. says;Ànd forbids Al-Falcsha' (i. e. all evil deedse.g illegal sexual acts, disobedienceof parents,polytheism, to tell lies, to give false witness, to kill a life without right), and A! Munkar (i. e. all that is prohibited by Islamic law: polytheism of every kind of evil deeds),and AI-Baoh (i. e. all kinds of He oppression). admonishes you, that you may take heed. The first verse of type one above clearly highlights the objective of Islamic law in living as good believers; to fear Allah and die in a state of Islam. This form of commandmentby Allah is direct form in order to elaborate the way of life which should be lived by good believers in Islam. To Nu'man Jughaim, this direct form of To the way to fear Allah for Muslim believers'04. this commandmentsignifies clearly end, good Muslim believers must fear Allah by implementing all Islamic principles
laid downby Him andby abstaining from all forbiddances He hasdirected.Good as

believers are also directly ordered to keep their lives in the way of Islam until death. Thus, it can be seenthat this directive by Allah is revealedas a definitive objective of
in Islamiclaw for the way of goodbelievers Islam.
The sameapproachis seenin the secondverse of type one; it is by way forbiddento kill anyone in for a just cause accordance except with Islamic principle. for The directiveby Allah in this regardis to signify the killing is forbiddance except
justified causes'os Juristically, then, one of the main objectives of Islamic law (Magcid al-Shariyya) is clearly highlighted to preserve the life of humanity. The
102 al-Bagara: 185 103 90 al-Nah1: 104 Numan,Turuq, 65 p. 103 IblcL
82
importanceof the preservationof life is shown in directive commandments Allah, of such as in verse 151 of Sura Al-'An"m. The juristic approach thus justifies the connection between the theory of Magdcid al-Shariyya and Naffs (the legal texts) through the direct form of nawdhi (forbiddances).
The first verse of type two above shows the indirect form of awdmir (commandment).It concernsobligatory fasting on sight of the crescent on the first of the month of Ramadn. Thus, the commandment obligatory fasting for night is Muslim through the month of Ramacln conveyedby indirectly; via first sight of the crescent moon. On one level, juristically, the main objective of Islamic law in obligatory fasting through the month of Ramadanis to preservereligion prescribing life of Muslim 106 Though the commandment is revealed indirectly, it is as well cleared that the objective of Islamic law in this respect is juristical. This elaboration thus demonstrates that the concept of Mag. id al-Sharìyya (the objectives of Islamic law) always in connect with Nall (legal texts) although by the way of the indirect form of awmir (commandments) such as is exemplified in the Sura al-Bagara:. 185.
is The indirect form of nawhi (forbiddances) shown abovein the second

type two. This verse is categorised as the indirect form of nawhi verse of
(forbiddances) throughthree terms; i.e, al-Falisha', al-Munkar and al-Baghy.This indirectform illustratesthat the ultimate objectivesof Islamic law in forbiddingalFalisha , al-Munkar and al-Baghy are to preserveexactly the five constituentsintegral to Islam i. e.; religion, life, intellect, lineage, property, and simultaneously to prevent all things harmful to Muslim life. To Nu'man Jughaim, this indirect form of
106 ibid
83
forbiddance also signifies the need to avoid any harmful activities in Muslim life, such as al-Fahsha, al-Munkar and al-Baghy. He claims that the significance of this forbiddance is interrelated with the ultimate objective of Islamic law in terms of preventivestepslo7
To sum up the above discussion, two approaches are used to examine juristically the theory of Magdid al-Shariyya as it connects with Nam; firstly, by analysingthe former in the light of the literal meaning of the latter, and secondly,by the former through the form of awmir (commandments)and the form of analysing (forbiddances) that derive from the Qur'n and the Hadith. These two nawhi approachesshow the juristic methods that can be applied to illustrate the ultimate Islamic law (Magdcid al-Shariyya) through legal texts such as the objectives of Qur'n and the Hadith. Because of this 'significance of study, Muslim jurists have
designated juristic process `ratiocination'of Islamic law (Tatlil alAhkm althe as

Shariyya). That is, this process has evolved as a consequenceof the theory of Magcid al-Sharìyya as it connects with Nall, in which logical and linguistic
behind the Divine commandments. analysisis usedto identify the exact reasoning The subsequent thereforediscuss significance Talil alAhkdm for the of chapterwill the conceptof al-Mallalia wa al-Nall from the standpoint Islamicjurisprudence. of Howeverprior to this discussion, is useful to concludethis chapterwith a brief it
summaryas follows.
107 IbicL
84
2.4 Summary
Through this chapter, the theoretical development of the concept of alMallalza wa al-Nall has been examined via juristic discussion of three theories;
firstly, the theory of the priority of maclalia over the legitimacy of naffs,secondly,the theory of the levels of Parriyya, Iljiyya, and Talisiniyya, and thirdly, the theory of Magcid al-Shari a.
The main finding to emergefrom discussionof the first theory is the effort of Muslim jurists to link the concept of public interest (Mallalia) with the Divine legal texts (Nall) suchas the Qur'n and the Hadith. To this end, someMuslim jurists have formed a legal principle of Maslaha that doesnot complete with any textual evidence, dalil or nasl. This form of legal principle is termed al Mallalia al-Mursala,
form thetheory developed Imam Malik. Also TO hasdrawnup as a hypothetical by

the priority of maclalia over the legitimacy of nail. However, because of its of many Muslim jurists have examined this theory from various controversial nature,
in the light of Islamicjurisprudence. Despitethe multiplicity perspectives aspects and critical views regardingthis theory, it can be statedthat at the very least Tfi of to contributed newtheoryin response juristic crisesof his age. a
It can be seenfrom the foregoingthat Muslim jurists have developed the

theory of the levels of Parriyya, Hjiyya, and Talzsiniyyato incorporate the basic human needs,particularly the preservationof religion, life, lineage, intellect, area of
hereis the priority of legal level in Islamic property honour.Of greatsignificance and
law; that is, in order to apply Islamic law to humanity, the priority levels of
85
Darriyya (lit. necessities),Udjiyya (lit. needs), and Ta#siniyya (lit. improvements) to be taken into account. To put it simply, Islamic law is prescribed law, are always but is nevertheless flexible in its application to humanity.
The main conclusion to emerge from this study of the theory of Magsid alShari a as it connects with Nags is the significance of every single legal text from both the Qur'n and the Hadith, and of their ultimate objectives for humanity. This demonstrates that Islamic law (as the Divine law given to humanity) is a civilised law that has at its heart sound objectives which accord with the human capacity for reason,as can be examinedthrough the legal texts of the Qur'n and the Iladith. This be elaboratedin the next chapter. will
To bring this chapter to a close, it is worthy of note that the theoretical
development the conceptof alMaclaha wa al-Nall illustratesthat Islamic law is of

evolving and living law, its purposeto protect humanity through its Divine rules. an
86
CHAPTER THREE THE SIGNIFICANCE OF TA`LIL AL-AHIKM FOR THE CONCEPT OF ALMA$LAAIA WA AL NA$S
3.0 Introduction
Apart from the ultimate objectives (Magagid) as one of the featuresof Islamic law, ratiocination (Ta`lil al Ahkm) also highlights Islamic law as a dynamic law for humanity. That is, every single legal text from the Qur'dn and the Iladith can be in order to identify ultimate objectives (Maglid) as well as `ratiocination' examined (Taclil al Ahkm). This processof Ta`lil al A)ikm becomesa crucial subject in the of Islamic jurisprudence, due to its significance in determining the ultimate science Islamic law (Magsid al-Shari a), public interest (Maclaha) and the objectives of wisdom at the heart of each Divine commandment(liikma). Indeed, Ta`lil al Ahkm
in hasbecome essential the process establishing theoryof Maclalta,as al-Sharia an

Abdullah al-Kamli demonstrates the Arabic version, al-UUilal-Mabniyya àla alin Ma lilzl. In other words, the processof Tad1T1Abkam is critical in clarifying both al
Mag.id al-Sharia andMaslaliathroughthe conceptof al-Mallalia wa al-Nag.
This beingso,this chapterwill analyse significance Ta`lil alAliknm for the of the concept al-Mallalia wa al-Nall. As a first stepto analyse process Ta`lil the of of Alzkm juristically, it is importantto examineits definition in the frameworkof al
Islamic jurisprudence. For this reason,the views of Muslim jurists on the subject of Talil al Ahkdm will be discussed, followed by a consideration of the concept of
Taibbudiyya it connects as with Ta`lil alAbkam . The main focus will be uponthe
1al-Kamali,Min Fiqh,, 79 p.
87
significance of the process of Ta`lil al Ahkm as it relates to the concept of alMaslaha wa al-Nash.
3.1 Definition of Ta`r! alAhkicm
Juristically, the term Taclil al Ahkm is rooted in the concept of cilia (ratio legis), which is at the heart of Qiys2(analogical deduction). The Muslim jurists are in that ìlia is the effective cause in Islamic jurisprudence. unanimous agreement Shawknihas drawn up three alternative definitions of the term ìlla3. Firstly, ìlia is to as sabab, meaning `cause'; secondly,ìlia is referred to as manl al-liukm, referred the causeof the law (liukm); thirdly; villa is referred to as amrah al-Ilukm, meaning the sign of the law (liukm). When the term villa becomesTalil al Alikm almeaning
Shari a, it is definedas the processof seekingthe effective causeof Islamic law,

in the Qur'an and the IHadith4. particularly
Many attemptshave been made by later jurists to translate Ta`li1al Alikm alShari a into English. Muhammad Khalid Masud, for example, takes the term Tt 111 al Alikm to mean `the determination of the cause of Divine commandmentsby
logical and linguistic analysis's. Again, Mohammad Hashim Kamali tends to define TaClilal Ahkdm as ratiocination whereby searchingfor the effective causeof a ruling6
is-undertaken Islamic law. On the face of it, thesetwo approaches apparently in are
similar; however, Khalid Masud's definition is more juristic in that he uses the
2Mu$tafa,Tcflil, p. 112-128,and al-'Ungar, Tali1, 34 p. 3 al-Shawkni, Irsh4 p.207. 4 al-ÙnganOp. cit, p.33. s Masud, Shatibi's Philosophy, 284. p. 6Kamali,Principles, p.420.
88
method of logical and linguistic analysis in determining the cause of Divine commandments.
3.2 The Views of Muslim Jurists On Ta`lil alAhkm al-Shari a
There is considerablecontroversyamongMuslim jurists on ways in which of Ta`lil al Ahkdm al-Shari a is applied to the Qur'an and the Iladith7. Nevertheless,it be borne in mind that the Qur'dn and the Iladith in particular, are in fact legal must texts and documentsof Islamic legal theory. As Wael B. Hallaq asserts, Qur'n is the recognizedas a legal documentwhich contains some 500 verseswith many legal and quasi-legalstipulations, such as the legislation of selectedmatters of ritual, alms-tax, property and the treatment of orphans, inheritance, usury, consumption of alcohol,
divorce,sexual. intercourse, adultery,theft, homicideand the like8. It can marriage,

thus be seenthat the legal and quasi-legal stipulations of the Qur'n deal explicitly implicitly with the subject ofMaslajia, as will be discussedin a later topic. and
Apart from the holy book of the Qur'an, the Sunnaor Hadith is unanimously that arevalidated accepted the second as sourceof Islamic law andaslegal doctrines by tradition.It is the primaryfountainof knowledge after that of the Qur'an. Indeed, it hasbeencompiledwith numerous texts that deal explicitly and implicitly with the Maclalta9.Furtherelaboration the way the Sunnaor Ijaaiith dealswith subjectof on
the theory of al-Mallaha wa al-Nashwill therefore take place in part B.
7 SeeIywni, Td`lil, p. 169. $Hallaq,A History, p.3 9Zayd a1 MaF1alia p.13.
89
A different view among Muslim jurists appearson the subject of TaClil alAhkm al-Shari a in accordancewith the primary sourcesof Islamic legal theory i. e. the Qur'n and the Iladith or Sunna.There are three differing Islamic legal schoolsof thought on the subject of TaIil al Alikm al-Shari a. The first group totally reject any to undertake Ta`lil al Alikm al-Shari a on the basis that no Taflil could be attempt on the Lawgiver's action (af al Allah) and the Divine commandments.Ibn made Hazm, for example, assertsthat àl-Qiyas wa al-Talil al Alikm Din Iblis'. This meansal-Qiys and Ta`lil al Ahkdm is the way of the Devil10.The samepoint of view is held by al-Jahmia 11 'Ashàriyya12. and madhhabal-
The secondgroup takes al-Mittazila's point of view, which holds that MITI Ahkm on of il Allah (the Lawgiver's action) and the Divine commandmentsis al
Theyarguethat ìlia, is a major elementin the process Talil alAlikm of obligatory. (also called waif dhdti or identical attribute) as a meansby which the Divine
Thus, it is absolutely necessarywhen seeking the commandmentsare understood. senseof malalia in afl 13. Allah
The third groupcouldbe described holding a liberal opinionon the subject as Ta`lil alAlikm, basedon rational points of view which fall betweenthe two of fundamental Islamic legal schoolsof thought.This groupaccepts significance the of its contributionto the process Talil alAlikm in Islamicjurisprudence, of particularly
Ijtihd(lit. exertion), which is the highest accomplishmentin Islamic legal theory. It is noteworthy that this third point of view became the most prominently held among
lo SeeIbn Hazm,al-lhkm, v.viii, p. 113 il See Ibn Taynffyyah,Minhj, i, 463; Ibn v. p. aI-Qayyim, Shf, v.i,p.312 ,12
186; and Ibn al-Najar, Sharp, p.
See 50; Mu`jam,p.313; al-Amidi,Ghya, 224 al-Bagilani, al-Tamhic4p. Samira, p. 13 al-Sharastani, See alMilal, p.63; andal-Juwayni, alIrsh 4 p.287.
90
Muslim jurists14including IIanafi's juristsl5, Ibn al-Qayyim'6 and Ibn Taymiyya'7. As the majority of Muslim jurists fall in the third group, Ahmad al-Raysni, therefore applies the term Ijm or consensus18.
In the light of this consensusthe present writer will elaborate on T flil
al-
Ahkdm as it applies to al-Maclaha wa al-Nall. This application gives rise a number for many Muslim jurists. Does every ruling in Islamic law haveìlia, (the of questions ? If any ruling in the Qur'an and the Hadith has no ìlia effective cause)and maclalia does it only deal with ta`bbudiyya (worshipping or strict obedience)19, and mavlaha, leading thereby to the process of Talil al Ahkm being rejected by a number of
Muslim jurists? What is the best solution for theseparticular questions?
As steptowardsfinding this solution,the following sectionwill focuson the in of ta`bbudtyya the light of TaClilalAlikm, but in the frameworkof alconcept
Maclalia wa al-Nafl.
3.3 The concept of Ta`bbudiyya in conjunction with Ta`!i7 al Ahkdm
It is significant that The Encyclopedia of al-Fiqhiyyah, applies the term al-
Firstly, to the activitiesof al-ìbda, (worship) ta!bbudiyyainto two circumstances. (piety and devotion).Secondly, any Islamic ruling, which has no to andal-tanassuk,
14al-Jurjani, Sharlt, iii, p. 162, v. 15 al-Tiftazani, Shari,, v. ii, p. 63
16 al-Qayyim,Shy, p. 186; Ibn and Ibn al-Najar,Sharh,v.i, p.8330 17 Taymiyya,Minhjv. i,p. 143,MajmuIbn , v.vili, p.81. 18al-Raysni, Naaariyya, 226-227. p. 19Literally, MuhammadKhalid Mas'ud defines ta'bbudryya as strict obedience.In English, obedience doing what is told to do or willing to obey. means SeeMasud, Shatibi's Philosophy, p. 196; and Homby, Oxfor4p. 796.
91
addedmeaning of liikma, (wisdom), but only the senseof tabbud, i. e., worship per se. One who obeysthe Islamic ruling would deservereward from the Lawgiver, while disobediencewould meanpunishment20.
In the first application of tabbudiyya, it is unanimously acceptedby Muslim jurists that the application of Islamic law in Muslim life meansworship (ìbada) and piety and devotion (tanassuk)to the Lawgiver, Allah, the Lord of the universe. Every law such as offering prayer (joldt), fasting, performing lzajj (pilgrimage), the single punishmentof ltudd, Islamic transactionsin banking and the financial sector and the like, is focusedon the path of ta`bbudryyato the Lawgiver. The secondapplication is complex as it appearsto deny the existence of Itikma in any Islamic law and more allowing only for the senseof ta`bbud(worship)per se. However, does (as Abdullah
(worship)or does argues)the origin of Islamiclaw only consistof tacbbud al-Kamli

it also consistof the processof Ta`JT1 Alikm, which would entail finding the liikma al for any Islamic ruling?21.In addition, the presentwriter would arguethat if the second tabbudiyya is accepted,why is it that the concept of izikmaper se application of
shouldnot be applicableto many Islamic rulings particularly in the Quran and the Hadith? And why is the conceptof tatbbudiyyaoccasionallyconjoinedby some Muslimjurists with the conceptof hikmawhich in turn becomes main impetusin the the theoryof al-Maflalia wa al-Nall?.
This apparentspilt between tatbbudiyya with reference to TaìT!al Ahkm in the framework of Islamic jurisprudence has exercised Muslim jurists since the
20al Maws'a al-Fighiyya,,v. 12,p201 21al-Kamli,Min Fiqh,,p. 103
92
beginning of the 7th century A.H22. Many prominent Muslim jurists such as the Shf(is jurists, Ibn Taymiyyah, Ibn Qayyim, al-Zarkashi, al-Shtibi took part in the debate, as well as later jurists such as Ahmad al-Raysni, Khalid Masud and MohammadHashim Kamali.
Saad al-Din al-Taftazani of the Shfl is jurists claims -that originally, the Islamic ruling appliesonly to ta'bbudiyya, and there is no senseof al-tatlil unlessit is by dah-1,(evidence) particularly from the Qur'an and the Hadith23. A supported paradox occurs later with Ibn Taymiyyah and his student, Ibn Qayyim who contends that every single Islamic ruling has a senseof al-taClil. It is therefore blil (invalid) false to claim that tdbbud takes place only because of Islamic rulings. Ibn and Qayyim adds that the Shari a is not only a question of legal rulings but rather of Ilikma or the existence of intellectual activity24.In order to support his claim, Ibn .
in Qayyimhasprovidedevidence the form of ten examples Islamic rulingswhich of

have a senseof Itikma. This contradict the Muslim jurists who allege that Islamic rulings have no senseof liikma. Ibn Qayyim arguesthat Qiys al-$'allt can be applied
to the Shari a without conflict, becauseit is always parallel with the Divine He commandments. adds that intellectual activity has been elevatedthrough the becomes process Qiysal-Salifli as well as TaClilalAl: km, and this (he asserts) of the majorevidence its application nagtestifies to the valueof al-ag125. that to
22Zayd, Mallab ala, p.21. 23a1-Taftazani, Sharh, ii, p.64. v. 24Ibn al-Qayyim,flm, v., p.51. 25 Ibid,v,u,p.40.
93
Muslim jurists are agreed that Ibn Qayyim's arguments form the juristic division of Ahkm al-Shari a into two categories26. first categoryinvolves hikma, The by nag and Ta`lil al A1ikm. The secondcategorydoesnot refer to liikma, supported is there any referenceto nassand MITI al-A6kaM27. neither
The term hikma as used by al-Zarakshi has become the main indicator in Ahkm al-Shari a, leading to two definitions in Islamic jurisprudence. categorising Based on The Encyclopedia of Fiqhiyyah, the first definition of ltikma is mallalta alCabd;that is, the public interest of humankind in preserving religion, life, lineage, intellect and property. The second definition of hikma is maclalia al-akhTrat, (the the hereafter) whereby obedienceand purity are necessaryin the process mallaha of ta`bbudiyyato the Lawgiver28. of
Juristically, the two categories of Ahkm al-Shari a created by al-Zarakshi the final endeavourin Islamic legal theory in terms of intellectual research were not by Muslim jurists. Al-Sh5libi's research in al-Muwfagt made a tremendous to academicanalysis,particularly on the subject of Aijkm al-Shari a as contribution
it accords of and of with the concept ta`bbudiyya the process
29 TaC1i1Alikm.
al
26al-Zarakshi, al-Bal:r, v.v, p. 127. 27 Ibid. 28al Mawsu"a al Fighryya, v.xii, p.201 29 al-Shlibi's work entitled al Muwafagat ft UFl al-Shari a has been unanimously acceptedby Muslim jurists due to these particular characteristics; Firstly; the reconciliationbetween Maliki's legal thought and Hanafi's legal thought directly and indirectly on some points of Islamic legal principles. Secondly; introduction of the theory al Mag. id al-Shari a, which employsthe concept ofMagla is the in corroboration of the primary sources of Islamic law, i. e.Qur'an and Sunna, Thirdly; the discussionon the Islamic legal theory, which has been divided academicallyinto four comprehensive parts consisting of four book i. e ahkm (Islamic ruling), magfid (objectives), adilla (sources) and Utihd (legal reasoning). See al-Ubaydi, al-Shtibi,p.104-112; and Masud, Shatibi's Philosophy, p.120-124.
94
For al-Shtibi, Talil al-alikm is part of the processistigr' bi al-nujiij, (the in Islamic legal induction into legal texts) in justifying the concept of ma. Flaha The main function of the processof Talil al Alikm, is seekingand finding theory30. the Magdcid al-Shari a (the ultimate objectives of Islamic law)31,despite differing its validity in Islamic legal theory32. Again, many later jurists, such as opinions on Muhammad Abn Zahra, are agreed that Ta`lil al Ahkdm is the major cause in Hammdi al-Ubaydi, for the Ìlm al-Maga id, the scienceof Magdsid33. establishing states that the process of TaìT! al Alikm is a necessarycondition for example, from al-Shtibi's perspective(Dawbil al-Ma1laha ind al-Shlibi)34. maclalla
Al-Shtibi adds that Ta`lil al Alikm may be applied in various contexts including Cibdaand mu`dmala, as both these conceptsare referred to in the Qur'an and the adith where the sense of tafbbdiyya exists35.In this way al-Shtibi
highlights the universality of the concept of tacbbudiyya, MuhammadKhalid as

Masud observes:"tacbbud and mana/maclalia (...... ) are not opposite terms for Thus, tabbud, is parallel with maclalta; the processof Ta`lil alAltkm Shtibis36.
becomes of the most authoritativemethodsof seekingthe magcd therefore and one lUkmain textual evidence.The,conceptof al-Mallalta wa al-Nall is thus seento
30al-Shtibi,al Muwfagt, v.ii, p.315 31 bid.,,v.iii, p.146 I 32 Ibid., v.ii, p.391 33Ab Zahra, Ucl,p.293. 34 There are five qualifications of maslaha from al-Shatibi's point of view: a) al Majill al-Zamni meansthe scope of maslaha which covers wordly and hereafter, b) al Majl al Mawduci meansthe applicationof the concept al-Intij , utility in Islamic legal theory, 3) The authority of Mag. id alShari a, 4) Tctlil al Ahhdm, 5) The priority of universalityinto ma. laha. Seeal-cUbaydi,al-Shdtibi p. 139-147. 31al-Shlibi,Op. v.ii,p.51. cit., 36 On this topic, Khalid Masud brought four characterizationsof ta'abbud by various statements, which were madeby Shatibi. Firstly, "al-ruju' ila mujarrad ma haddahu al-Shari' " (recourseonly to what the Lawgiver has determined); Secondly, "al-Ingiyad li awamir Allah" (being bound by the commands God); Thirdly, "ma huwa haqqun lillah khassatan" ( that which is the exclusiveright of of God; Fourthly, "raji'un ila 'adami ma'quliyat al-ma'na (that which refers to the non-intelligibility of its reason).SeeMasud, Shatibi's Philosophy, 202 p.
95
(togetherwith the processof Tadlil al Alikm) in seekingthe magdand lzikma apply with specialreferenceto textual evidence from the Qur'n and the Iladith.
Pendingdetailed discussion,it is worth noting here that most of the Mliki and Hanbali jurists seem to agree that there is no distinction between the ìlia and the hikma37 In other words, the terms of cilia and ltikma are virtually interchangeable. From this perspective, the process of T flil al Al: km has as its main purpose the identification and justification of villa or hikma by means of two indicators; firstly, the indication given by nass,(or textual evidence from the Qur'n and the Iadith38) the indication justified by Ijm (consensus).Here Ijtihd will be and, secondly, through tangih al-man( (isolating the ìlia) as distinct from the other two applied to as takhrij al-manl (extracting the ìlia) methods referred (ascertainingthe ìlia) respectively39. and tahgiq al-man(
The scopeof this study will limit detailed considerationto the first indication, that is the purpose of identification and justification of ìlia or lakma within the
of Ta`lil alAlikm given by nalc (textual evidence)of the Qur'an and the process indicatorjustified by Ijmacwill thereforenot be referredto in this Hadith.The second
chapter.
In examining how the processof
TaCli1 Alzkm is applied to textual al
evidence in the Qur'n and the Hadith, specific factors must be taken into consideration,especially the use of certain Arabic particles, such as kay-la (so as not to), li-ajli (becauseof), li, fa, bi, anna, inna, li-all, min ajli, la'allahu kadha, bi-sabab
37AbilZahra, Usl,p. 188. 38al-Shawkni, Irshd,p.210-212. 39 Jbid;, andKamali,Principles of Islamic, p.213.
96
kadha, etc., all of which are key terms in the processof TaIil al Alikm40. Also to be is the application of istiqra' bi al-nas, (the induction to legal texts) which considered is also associatedwith the process of Ta`li1 al Alikm41. As Ibn Qayyim42and alShatibi argue,in caseswhere the ìlia is not indicated by textual evidence, the process of istiqra' using the indications of al-kulliyt al-istigrafiyya43(universal rules known inductively)44 may be applied to seekthe ma. or the ltikma. Flalza
3.4 The significance of Ta`lil alAhkm as in relation to the theory of alMallalia waalNafl
To give a clear example of how the processof Ta`li1al Alikilm can be applied to the textual evidenceof the Qur'n and the Hadith in order to seekthe ìlia and the hikma in the light of the theory of al-Maclaha wa al-Nall, the paradigm below.may be helpful.
40al-Shawkani, cit, p.211. Op. 41al-Shatibi, al-Muwfagt,v.ii, p.3. 42According to Iianundi al-Ubaydi, al-Shibi was not the only jurist who introduced the processof istigr' into the textual evidencebut also Ibn Qayyim in his work 1lm al Muwagiin, emphasizes istigr' as a method of istinbdl al-ahkm, (inferring or deducing a somewhat hidden meaning of Islamicruling from a given text) in seekingthe maslalia or the hikma. Seeal-Ubaydi,al-Shlibi,p. 139. 431bid 44Masud, Shatibi's Philosophy, 279. p.
97
The Process of Ta`ll-I al Ahkdm from the Nass of the Qur'n or the Hadith
a) Nall from the Qur'n or 1/adilh
b) Identification
villa through; of
b.1) certain associatedArabic particles. or b.2) The application of al-kulliydt al-istigr'iyya. or b.3) Seeking the hikma. c) Justification of the hukm or ruling.
d) Finding the magcd /magid or maclaisa
The paradigm above showsthe significance of the processof Ta`1i1 Altkm; al
juridical sequence. a) beginswith the selection a Step it operates four-step of within a from the Qur'dn or the Hadith, then movestowardsthe process of particularnag
Talil al Alikm in step b. There are then three alternative processesof Tadlil al-
Alikm whereby identificationof Ciliais: i) throughthe association certainArabic of ii) the applicationof al-kulliyt al-istigr'iyya, or iii) seeking 10kma. the or particles,
At this stage,the ruling or Izukmfrom a particular nall can normally be justified by
When the ìlia or the Itikmahasbeenidentified in stepb, the the preceding process.
processcontinuesto the final step d, which is the finding of the maqdor mag. or Fid maclaha.
98
It can be seen that there are many instances of nass (particularly from the Qur'n or the Iladith) to which the processof Talil al Alikm may be applied in the framework of the steps above. As an example, these steps and processescan be applied to the Quranic text (al-Mdi'da: 5:38) as follows; a) Nqc from the Qur'n : (al Mdi'da: 5:38)
:l UM UZ tom, 1:4 sf, i jjn; Ml 1" 4;

(emphasisadded) Translation; "As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in Power. Full of Wisdom."
b) The process ta`lil al-ahkamby usingb.1), which is the identificationof of

ìlia through certain associated Arabic particles. From the aboveverse, the s fa in the term 1, particle indicates two things; firstly, lil-tagib (the
lil- ìlia (the cause)45. this case,the particle In punishment) secondly, and fa indicates cause the punishment logically follows the theft;. the of which
thus the theft itself is the causeof the punishmentto cut off a thief's hand
to the legislationof huddlaw. To put it clearly; according The ìlia: the theft itself is the absolute to cause according the Quranictext
(al Mi'da: 5:38). c) The Justification of hukm or ruling; this is obligatory for the
law punishment cutting off a thief's handin the applicationof Itudid to of

be carried out. d) Finding the magfd Imagdfid or maflaha: The liudiid penalty and punishmentfor theft is to protect the lives and properties of the people46
asal_KWy al-Dallt, p.216 46Kamali,Principles, p.208.
99
Many Muslim jurists are unanimousin agreeingthat a greatnumber of Hadith have been compiled which deal both directly and indirectly with the subject of Maclaha47From the perspectiveof the processof Tadlil al Alikm in the framework of the concept of al-Maslalta wa al Nall, it would therefore be useful to apply'the
paradigm to at least one example from the Iladith, as the secondarysourcein Islam the Qur'n. after
a) Nags from the Hadth Muslim: 3733 and Tirmidhi: 1784.
: This Hadith is narrated by Bukhari: 5147,
r . .
3 J r-mau,, _. . .
JJ
Translation; The Prophet said, Every intoxicant is wine and every intoxicant is " forbidden".
b) The processof Ta`lil alAl: km throughthe Hadith aboveis clearlyshown by the term muskir (intoxicant) which becomesthe obvious cilia in the prohibitionof alcohol.
c) The Justification of hukm or ruling; that it is forbiddento drink any kind to of alcoholaccording the clearnall of the Hadith andfrom the obviousìlia, which is stated muskir (intoxicant). as
d) Finding the magfd /mag id or maslaha; the ruling which forbids the
drinking of alcoholor anykind of intoxicantderivesfrom both the wisdomof
47 Zayd, alMaslalia, p. 13.
100
preserving of the efficacy of the human intellect and of preventing the dysfunctionalbehavior that manifestsitself as a consequence alcohol 48. of
Thus, applying the paradigm to these two examples demonstratesclearly how the of Ta`lil al Alikdm interlocks with the concept of al-Maclaiza wa al-Nall in process the juristic processdesignedby Muslim jurists to seek the effective cause('ilia) the ruling (hukm) and finally in finding the ultimate purposeor objective of Islamic law (termed variously as magcid, Itikma and mallalia). The significance for Islamic jurisprudenceof Talil al Alikam as it relatesto Malaa thus be seen. can
3.5 Summary
The juristic discussionon the significance of the process of Talil al Alikm
highlightsIslamic for the concept al-Maclaliawa al-Nag, examined this chapter in of

law as a dynamic law for humanity. Every single injunction of Islamic law deriving from the Qur'an and the Hadith has rational and reasonablesense.This conclusion has been reachedthrough the processof Ta`lil al Alikm or ratiocination; it can thus
be seenthat the applicationof Islamic law as Divine rule is basedon the five to constituents necessary preserveand protect humanity. Therefore, Islamic law decrees only correct modesof worship, but also providesthe basis of human not fulfilment in daily life.
Although Muslim jurists differ on the acceptance Ta`lil al Afikm as a valid of processof ratiocination, it appearsto be a significant method in justifying effective
48a1-Ghaz51i, al-Muslasfa, voll, p.286.
101
causes,ultimate objectives and the wisdom of Islamic law. Over and above this, however, the application of Ta`lil al Alikdm to the Nass of the Qur'n and the
Iladith will highlight Islamic law as a systematiclaw with featureswhich differ from all other forms of law.
In order to demonstrate the systematic nature of Islamic law through the Tdlil al Altkm to the Nass, the following section (part B) will processof applying focus on the Hadith and its connection with the concept of al-Maclaha wa al-Nag. The authenticity of the Hadith or the Sunna as one of the primary sourcesin Islamic law apart from the Qur'an will be examined. In part C the paradigm previously
developed be appliedto the book of Bulgh al-Marm, as one of the authentic will
books of the Hadith in the framework of the concept of al-Maclalia wa al-Nall.
PartB now follows, entitled`The Authenticityof Hadith andIntroductionTo

The Book of Bulgh al Marm'.
102
PART B THE AUTHENTICITY OF THE ADITH AND INTRODUCTION TO THE BOOK OF BULIIGHAL-MARfiM
Introduction
to Part B
The Hadith as a primary sourceof Islamic law after the Qur'n has generated a great deal of discussionamongstMuslim scholarsas well as Western scholars.Its authenticity has been juristically much examined and criticized particularly by Western scholars; viz. Ignas Goldziher, Guillaume, Sachau,Wensinck, Schacht and Robson'. Nevertheless,later Muslim jurists such as Mohammad Mu*tafa AZmi2who has devoted a book to this subject does refute such criticisms and has verified the the Uadith as beyond juristic doubt3.Thus, attempts to disprove the authenticity of Hadith as a primary source of Islamic law after the Qur'n definitely proven as false bogusin the light of juristic discussion. and
Moreover, the authenticity of Hadith to some extent meansthe quality of the
chain of narrators(isndd) and the validity of the text (matn)4,which are both the main elementsof the IHadith. In fact most traditionists are in classified as
that these two elementscan be divided into at least three levelss; the first agreement
is Sziz (lit. validity), the secondis Hasan (lit. fairness) and the third is 1? aìf (lit.weak)6.
1 See AZmi, Studies, 5-10 p. 2jbjd
3lbici 4Ibid. 5Ibn Uajar,Nukhba, 39 p. 6lbid
103
As the first and highest level, $alali meansthat the Iladith has a continuous chain of narrators(isndd) made up of the most trustworthy narrators("adil), possessed the most accurateand greatestpowers of memory (ddbfq).Simultaneously,in terms of of validity of text, the Hadith has neither,irregularities (shudhiidh) nor defects (ìlia). This is a definition which has beenjuristically drawn up by traditionists, viz. Ibn alSalat (d.643H11245A. D)7, al-Nawwi (d.676H11277A. D)8, Ibn Iiajar al-Asgalni (d.852H11449A. D)9, al-Suyti (d.911H11505A. D)1 and al-Qasimi
(d. 133211/1914A. D)11.At the same time, the above definition also demonstratesthe featuresof ,Sahib.In order to discussthese featuresof $ahilz, the following IHadith is exemplified as well as its explanation;
The prophet is narrated as having said; "My people will come on the Day of Resurrection with bright faces, hands and feet from the traces of Wud' (ablutions or cleansing). If any of you can lengthen his brightness, let him do So"j2.
This Hadith is derived from the two authentic books of the Hadith, the first book (namely Jams` al-$d11i)is compiled by Bukhn, and the second (namely al$abTli)is compiled by Muslim, and is classified as $1ji t because it has the following
features; (isnd),in accordance with a) TheHadith hasa continuous chainof narrators below13; theparadigm The Prophet: Ab Huraira4Nacim+Said4 Khlid b. Yazid4. Laith b. Saad+ Yahya4Bukhri.
7 Ibn al-$alb,Muqaddima p. 10. 8 al-Nawwi, al-Tagrib,p.2. 9 Ibn IIajar, Op.cit.,p.39 lo Shkir,Sharh, 3 p. 11 al-Qsimi,Qaw k4p.79 12SeeBukhri, Sahili,no.133 and Muslim, $aliih, 362 no. 13SeeCD Maws a: al-Kutub al-Tita
104
b) Every single narrator of the Hadith is juristically identified as trustworthy (àdlo and possessed the most accurateand greatestpowers of memory of
((Iabit)14
c) The Uadith is juristically identified as having neither irregularities (shudhdh)nor defects(ìlla)ls
The featuresanalyseddemonstratethe strict criteria in identifying the quality of the chain of narrators(isnd) and the validity of the text (matn). It can be seenthat the main objective is thus to securethe authenticity of Hadith as a primary source of Islamic law after the holy Qur'an16.
The second level is Hasan (fairness), means the Uadith which have a
continuouschain of narrators(isnd), made up of the most trustworthynarrators . (àdil) but possessed lessaccuracy powerof memory(khaftf dbi() compared and of
with Shih. Simultaneously, in terms of validity of texts, the Hadith has neither irregularities (shudhdh)nor defects (ìlia). The main difference between $l:ilj and
Hasan is in the area of accuracyand power of memory (clbif) of the narrators, f the first level is the more accuratewhile the secondis less so (kha,if alwhereby dabl)17. This second level of classificationis also known as Hasanlidhtih; that is, even though Hasan lighayrih refers to the narrator who has inaccuratepower of this memory, narratoris nevertheless accepted narratorof the Hadith. An example as
is as follows;
14 Iiajar, al-Icba,v.iv,p. 112. Ibn is Op.cit., CD MawsCa al Kutub : al-Ttsà, 16 Hajar,Nukhba, 42 Ibn p. 17Ibid, p.63 andal-Suyi, Tadrib,p.42
105
The prophet is narratedas having said; "Whatever (portion) is cut off from an it is alive is dead(meat)" 18. animal when The IHadith above is derived from two other but lesser authentic books of Hadith, the first book (namely Sunan) is compiled by Ab Dwd and the second book (namely Sunan) is compiled by Tirmidhi. The following points elaborate and clarify the featuresof Hadith Hasan as discussed; a) The Hadith has a continuouschain of narrators (isndd) in accordancewith below 19. the paradigm Iarith4At' The Prophet :Anf b. a1-I. b. Yassar4Zayd b. Aslm4cAbd. Al-
Rahman4Salma b. Raj'+Muhammad 4 Tirmidhi. b) These narrators of the Hadi'th are juristically identified as trustworthy (àdil) and possessed the most accuracyand greatestpowers of memory of
(dbit); two of them, however,are juristically identified as having less (khajIf al-ciabt),i.e. Abd. Al-Rah. man accuracyand powersof memory
Salmab. Raj'20.Thus, the Hadith is categorizedas Hasan due to this and feature21. specific
Hadith is juristically identified as having neither irregularities c) -The (ìlla)22. (shudhdh) defects nor
both the juristic processof determiningthe This elaborationdemonstrates authenticity Hadith, andthe applicationof strict classification of criteria suchasthose of $a zi1z and Uasan.From this processit can be seenthat the authenticityof the
Hadith is verified only at the levels of Shilt and Hasan, which are consideredas the ,
18 cit., CD Maw0a : al-Kutub Op. al-Tisà 19 Tirmidhi, Sunan,v.5, p.215 20Ibn liajar, al-If ba,v.3.p.45 21Ibn Ijajar, Bulgh al Mardm, 15. p. 22Op. CD Mawsaà : al-Kutub cit., al-TWa
106
primary source of Islamic law after the holy Qur'an23. Thus, every single 1Iadith categorized as FdltTb and Hasan is also considered as a Divine ruling of Islam, derived from the prophetic life of Muhammad s.a.W24.
The third level (Daìf lit. weak) refers to the Iladith which have a discontinuouschain of narrators, made up of the least trustworthy, lacking in powers of memory. Simultaneously,in terms of validity of texts, most of the Hadiths have either irregularities (shudhdh)or defects (ìlla)25. To put it simply, lea`f meansthe Hadith which have no features such in Sdhih and Hasan. The level of I)aif (in
describingthe prophetic life of Muhammad s.a.w) exhibits a multiplicity of narrators
but their chainsof narration, hasno verified features thoseof the levelsof and suchas
Slli and Hasan26.
Juristically, traditionists have drawn up many categoriesof 1)aìf, based on the levels of discontinuity of the chain of narrators,discrepanciesin levels of memory
levelsof defect27. Hibbanal-Busti(d.354H/965A. has for Ibn D)28, example drawn and 49 levels or categories of Daìf. Juristic scholarsassertthat under specific up to the Hadith I)aif canbe upgraded the level of Hasanif supported circumstances, On by the quality of narration29. the other hand, if the level of defectis juristically identified as high, it will be categorizedas Mawd (Fabricated)30. This kind of is categorisation typically employedin the science Hadiith.However,manybooks of
23Ibn Hajar,Nukhba, 46. p. 24 lbid 25al-Nawwi,Tagrib,p.5; a1-Suyuj Tadrib, 'v.i, 179 Subbi,Ùlm al-Ilafith, p. 165 and p. , 26Op.cit., Ibn Iiajar, p. 48 27Ibici, Ibn Ilajar, p.49 281bn al-$al, Mugaddima,p.37. 29Op.cit., a1-Suyti, 1,p.53 v. 30al-Sakhwi, Fatli, v.i, p.99.
107
of the Hadith are not only compiled with numerousnumbersof the Hadith $1i1 and the Hadith Hasan, but also numbers of the Uadith Qaìf. This phenomenonraises important questions. If the Iladith Sa ffli and the Hadith Hasan are the only
authenticsourcesof the Hadith, then why are the Hadith pacif are also included?
Traditionists and Muslim jurists are in agreementthat the Had th 1? is not aif the authentic Hadith - the primary source of Islamic law after the holy al-Qur'an31. Only the Hadith Sdhih' and Hadith Masan are acceptedas the authenticHadith in the 32. light of Islamic jurisprudence Nevertheless, the Hadith Daìf acceptablein limited areas,but within strict conditions, as follows; a) The level of Daìf forgery33. does not approximate to the level of fabricated or is considered
b) The ruling or injunction derived from Qaif must be parallel with $00
andIlasan34. c) It is forbidden to believe in I?aif as derived from the prophet Muhammad
s.a. w35. d) Reference Hadith Qaif is allowed only in the areaof motivation for to doinggoodandprevention from doingevi136
despitethesestrict conditions, Nevertheless, Hadith PdTf havebeencompiled togetherwith Hadith S zi z and Hadith Hasan in many authenticbooks such as
Musnad Ahmad, Sunan Abi Dwd, Jam( Abi Isa al-Tirmidhi, Sunan al-Nas'i and
31al-Nawwi,Taqrib,p.5; al-Suyuli, Tadrib, 1, 179 v. p. and Ibn al-$a1AJMugaddima,p.165. , 32 Ibid. 33al-Sakhwi, al-Qawl,p.4 asIbid 35 Ibid 36Op.cit.,al-Nawwi,p.8.
108
SunanIbn Mja. Yet there are also authentic books in which only the Hadith Sltilt and the Hadith Hasan appear,such as Sldlt al-Bukhri and Sltih Muslim. However, some traditionists make the accusation that even these are compiled with small numbersof the Hadith Daìf.
Again, a book exists where Iladith $dItTli, Iladith Hasan and Hadith I,)aìf are compiled together, and which also refers to those many authentic books of the Hadith previously listed. This kind of book is entitled Bulgh al-Marm -a summary of authentic books of the IHadith, compiled with the Hadith $dIt li, the liacdith Hasan and the Hadith Daif.
In accordancewith the scienceof Hadith, part B will examine analysesof the authenticity of the Hadith in accordancewith its main references.The main points of
This B havebeenhighlightedthroughits introductionas previouslydiscussed. part

part B consiststwo chaptersi. e. chapterfour and chapterfive. Chapter four focuseson the sevenauthenticbooks of the main references,while the book of Bulgh al-Marm
formsthe core of the study.Chapterfive thereforeintroduces work of reference, this its part C analyses contentasit connects while with the main topic of this thesis- the
conceptof al-Maclalia wa al-Nan.
109
CHAPTER FOUR THE MAIN REFERENCE SOURCES FOR THE BOOKS OF, (IADITH
4.0 Introduction
In the science of Iladith (Ùlm al-Iladith), there are numerous references works for the books of Uadl-th.Most traditionists agreethat there are sevenbooks of Hadith which are classified as main reference sources(viz. Saliilt al-Bukhdri, Sahib Muslim, Musnad Alimad, Sunan Abi Dwd, Jam( Abi Ìsa al-Tirmidhi, Sunan alNas'ie and Sunan Ibn Mja)', compiled during the third century of Hyra2- the golden ageof Islamic civilization3.
Their classification as the principal reference sources is based on certain
juristic features,in accordance with the levels of authenticity of the Iladith as

discussed.Thesejuristic features will now be examined in detail through previously
out this chapterto highlight the quality and value of theseworks of referenceas
primary sourcesof Islamic law apart from the Qur'an.
includea brief discussion eachauthor'sbiographyas The analysis will also of levels of the Hadith well as the featuresof eachbook, focusingon incorporated $ald1z, Hadith Hasanandthe Hadith I Cif.This analysis the will be cross-referenced the book of Bulgh al-Marmin orderto validateits authenticityasa definitive with
work of referencein this field.
1 Ibn IUajar,Bulgh Marm, al p.3. 2 al-Zuhrni, Tadwin, p.271.
3Hitti, History,
p. 138
110
4.1 Fa alBukhri thi
The author of Faltih al-Bukhri is 'Ab Abd Allah Muhammad b. Ismil b. Ibrahim al-Mughirah al-Bukhri4.He was born in 19411/910M Bukhara and died in at 256H/870M at Samarqand5. best-known name is Imam Bukhri6. Imam Bukhri His is acknowledgedas one of the greatestscholars in the science of Iladith due to his in the area of memorization, knowledge of the chain of narrators of the mastery Hadith and the variety of their sources7. the time when he lived memorization At were highly valued; his ability to identify authentic texts amongthe multiplicity skills the Ijadrth was therefore verified by a number of tests8.He showed a remarkable of to successfully differentiate between authentic and non-authentic Hadith9. ability Indeed, it is reported that Imam Bukhri was able to memorize one hundredthousand
Hadithsandtwo hundred ffadithslo. thousand authentic non-authentic
The title of FajiT#al-Bukhri was assignedby traditionists to acknowledge Imam Bukhri's efforts to compile authentic Hadith ($aliils) in one single bookll. While Imm Bukhri himself names his book al-Jam:' al-$altili al-Mukhtar min
'umr RaslilLahf. "a.w wa sunanihi wa ayymihi'2,the easierand shortertitle of by $aliili al-Bukhri is preferred mosttraditionists.
4 Ibn Ilajar, al-I. v.i,p.47, al-Baghddi,Trikh,v.i, p.6 and Ibn Khallikan, Wa yat, v.i,p.455. 1cba, Ibid 6Ibid 7Ibid Ibn }{ajar, Huda,v.i,p.6 Ibid. lo Ibid 11 Ibici 12 ibid
111
The book of FaItTli al-Bukhdri is juristically recognizedas a main referenceof Hadith dueto the following features; a) All narrators of Uadi-thare juristically identified as having a continuous chain of narrators(isndd) through disciples of the prophet (s.a.w) and their successors, culminating in Imam Bukhri himself. All are recognized as trustworthy (àdil) and possessed the most accurateand greatestpowers of of memory (dbfq)'3. b) It was the first book of Hadith to be compiled as chapters and sub topics14.It is suggested that there are 7,275 jadith'5 . into 77 chaptersand 3,888 sub topics. The book of Sahib al-Bukhri has been analyzedand commentedby many c) traditionists. It contains analysesand commentariesby many traditionists, sevenin all, in which every single Vadi-this analyzedfrom every possible viz. scholasticperspective16; 'Elam al-Sunan (Khailbi Abi Sulaiman), alKawkab al-Darri ,T Shari Faliili al-Bukhri (al-Hfi? Shamsuddin divided which are
Muhammad), Fatli al-Bri (Imam Ibn I ajar alAsgalani), cUmdaal-Qri
(al-Hfiz Badruddin Abi Muhammad, Irshd al-Sri (Shihbuddin Lmf Ahmad), Fay4 al-Bri (Sheikh Mul}ammadAnwr al-Kashmeri),
al-Darri (IIjj Rashid Alhmadal-Kankuhi) .
Though traditionists are mostly in agreement that the book of $al:ili alBukhri is juristically recognized a main reference the Hadith, somescholars for as doubtthe validity of sometexts. One of thesewas Imam Daraqujni who formally
13 Hajar,al Isaba, v.ii,p.70 Ibn 14 Hajar,Huda,v.i,p.8. Ibn 15 a]-$alla, Ulm, 16. Ibn p. 16al-Zuhrni,Tadwin, 122. p.
112
few narrators, which he classified as doubtful and fraudulent in its chain criticized a 7. Consequently, Imam Ibn Hajar al-' Asgaldni in turn examined the of transmission' by Imam Daraqutni, rebutting his arguments as lacking in both accusations made judgment and evidence's. He thus strongly defended the validity of narrators in Sulnli al-Bukhnri19.
The importance of Sahi/i al-Bukhnri as the principal source for the Hadiih is further upheld by many other reference books such as Bulgh al-Marnm. For
from 1,572 Ahddith in Buligh al-Murdrn, 557 AhOdilh are derived from example, Suhih al-Bukhnri, to in 16 chapters. This cross-referencing is and are referred
illustrated in the diagram below (557);

The Numbers of Ahadith from Sahih a4Bukhari in Bulugh alMaram : 557
160
140
136
120
jfl, ll
100
80
60
20
16 Chapters
of Buluyh
NAai. un
13 Purification
Prayer
O Funerals Offenses 0 Emancipation
O Zakat
Fasting
13 Pilgrimage O Foods
Business Transaction O Marriage IN Oaths and Vows 0 Judgement
Prescribed Penalties O Jihad Comprehensive Book
" Ibn Hajar, Huda, v. i, p. 13. 'x Ibid. 19 Ibid. This kind of detailed examination he found in many traditionists books and analysis can in those seven books of the commentary of Sa/iih al-Bukheirias listed above. particularly
113
4.2 FahihalMuslim
The author of Sahih al-Muslim is Ab HusseinMuslim b. al-Hajjj b. Muslim al-Qushairi al-Naiysbri20.He was born at Naysabnr in 204H and died in his homelandon Sunday,in the month of Rajab, 261H21. His best-known name is Imam Muslim. He was a gifted disciple under Imam Bukhri, and was endorsedas such by Imam himself2. Thus, Imm Muslim's approachand methods followed those of the 23 Imam Bukhri very closely.
Imm Muslim is thus acknowledged as one of the greatest scholars in the science of Hadith apart from Imm Bukhri24.He is well known for mastery in the area of memorization of the Alidith, establishingthe chain of fadith narrators and
the varietyof their sources, science criticizing its narrators, distinguishing the of and
betweenthe valid and the weak amongstthem25.
The title of Sahilt al-Muslim was assignedby traditionists to acknowledge
ImamMuslim's effortsto follow Imm Bukhri's work in compilingthe numbers of

authenticAhdith in one single book26.Nevertheless,Imam Muslim himself entitles
his book al-Musnadal-$ajtT The book is compiled from 300,000of AlOdith i27.
20Ibn alImd, Shadhara, ii, 144; v. p. and Ibn I5ajar,al-lF ba,v.x,p. 126. 21 Ibid. 22 Ibid 23 Ibid 24 Ibid 25 Ibid 26a1-Zuhrani, Tadwin, 125. p. 27 Muslim,Mugaddima, 3. p.
114
directly to Imm Muslim by the authentic narrators of the which were passedorally Hadith28.
The book of Salzih al Muslim is recognizedas a main referencesourcefor the book of Hadth after $a iili al-Bukhri due to the following juristic features;
All narratorsof Hadith arejuristically identified as having a continuous chain a) (isnd) through the disciples of the prophet (s.a.w) and their of narrators successors,culminating in Imam Muslim himself. All are recognized as trustworthy (cacl) and possessed the most accurateand greatestpowers of of memory (dbiq)29. b) It was the secondbook of Uadith to be compiled as chaptersand sub topics30 Scholarshave estimatedthat there are 5,362 numbers of Jladi-th31 which are divided into 56 chaptersand 1,423 sub topics. The book of Fahili al Muslim has been analyzed and commented upon by c) many traditionists. There are six books of commentariesin which every single
from everypossiblescholastic Hadith of $aYOal-Muslimhasbeenanalyzed fT ;viz. perspective32 al-Muffahim Sharli Muslim (Abd al-Ghfirb. Ism5i1 ald. Frisi, 529H), alMuCallimft Shari Muslim (Abi AbdullahMuhammadb. Ali,d.536H), Ikml al-MuCallim bifawai'd Sharli aliili Muslim (Al-Qdi Abi IyaO,d.544H Shari SalzihMuslim (Abi Amr b. Uthmnb. alal-Fadl , d. Silah, 643H), al-Minhj ft Sharh $allhMuslim (Abi Zakariyya Ya1ya b.
281bid 291bn p. al-$alab,Siyna, 76. 30Ibn liajar, Hud4v. i,p.8. 31al-Suyii,Tadrib,p.104. 32a1-Zuhrni, Tadwin, 122. p.
115
Sharp al-Nawawi, d.676H), Ikmdl al-Ikmdl (Abi al-Rh Isa b. Masd alZawwi al-Mliki, d.744H).
As a second main reference source for the book of Hadith after $ahih alBukhdri, $ahili al-Muslim's work has also generateda great deal of discussionas well as criticism amongst traditionists. Imam Ab Zarah al-Rzi was one of those who juristically criticize some narrators disqualified by Imam Muslim, such as A11' b. Muhammad b. Amr b. algamah33. But surprisingly, Imam Daruqutni and al-Saib who vociferously criticizes some narrators validated by $alli al-Bukhari,
acknowledges Imam Muslim's judgement concerning the quality of all nevertheless 34 his narrators. As a result, a later scholar, Dr. al-Fadhil Rabi b. Hadi al-Mudakhali has in turn undertakenresearchon the quality of all narratorsin alffli al-Muslim. His lead him to conclude (controversially) that all narratorsof $alli al-Muslim are studies
the level of $altili, including95 narratorsheld as disqualified by some qualifiedat

traditionists3s
As the importance main referencesourcefor the book of Hadith, $al ii alMuslim hasbeenreferredto more recentlyby many othersbooksof Hadilh, suchas
Bulgh al Marm. For example, from 1,572 AlOdTlh in Bulgh al-Marm, 745
This Aladithare derivedfrom $ahili al-Muslim, and are referredto in 16 chapters. is below (745): cross-referencingillustratedin the diagram
33al-Nawwi,al v.i,p. 10. -AMrnhj, 34 lbid 35al-Mudakhali,Bayna, 15 p.
116
Ahadith Cross-Referenced
Between Sahih aMuslim
and Bulugh alMaram
184 180
180
140
120
100
80 60 40
20
0 Purification
0 Prayer Marriage Judgement
O Zekal 0 Prescribed PenaltiesO Book
Fasting Jihad
0 Pilgnmage 0 Foods
O Business Transactior Oaths and Vows
0 Comprehensive
4.3 Musnad Ahmad b. ttanbat
Ahmad b. IUanbal is AN The author of Pv1u. 5'nad Muhammad b. Hanbal b. Hill Izuhiuluwwul,
cAbdullah Ahmad b.
al-Shaybni36. He was born in the month of'
164H at Baghdad and died on Friday, 120' Ruh(ulawwa/, 24111i.I lis
best-known name is lm-im Alunad b. Hanbal. Ile is acknowledged as one of the greatest scholars in the area of theology, Islamic law and in the science oC/Iadiih.
' al-Baghddi, Trikh, v. iv, p.412; and Ibn Khalikan, ZW'u%uyt, p. 17. v. i, 37Ibid.
117
He is also known as one of the four foremostImams of the Islamic juristic school due to his contribution as the founder of the Hanbal's juristic school (Madhhab AlHanbaliya)38.
In the science of IHadith, Imam Ahmad showed remarkable skill in memorizing one million Ajtadith39.Furthermore, his work of compiling the Alidith (the Musnad) using his unique methods of classification - highlights his expertise in the areaof the history of Iladith's narrators.
The book of Musnad Ahmad b. Hanbal is recognized as one of the main for the book of Hadith due to the following juristic features; referencesources
a) The narratorsof the Hadith arejuristically divided into $lli (lit. validity),
by Hasan(lit. fairness)andJ aìf (lit. weak)40. is suggested Ibn al-Jawzi It

that Musnad Ahmad b. Hanbal also contains some fabricated narrators (Muwdui)al Nevertheless,most traditionists agree that Musnad Abmad is
still recognized the foremostreferencesourcefor the book of Hadith as due to the large numbers of authentic narrators in its chain of
42. transmission
b) It was the first book of Hadith to be compiled in which every single narratoris classifiedinto many levels of disciplesof the prophet(s.a.w)
3sIbid 391bicL 40 al-Jazri, al Musdactp. 34.
41Ibn Taymiyya,Majmu",v.xviii, 26. p. 42al-Zuhrni,Tadwin, 107-108. p.
118
and their successors. Furthermore, some narrators are classified by the belonged 43 name of the place to which they are The book of Musnad Ahmad has been analyzed and commented upon by c) many traditionists, viz. Khasd 'is al-Musnad (Abi Msa al-Madini), AlMusuùd al-Alnnad
al-Jazri)
(Shamsuddin
and Al-Qawl
al-Jazri),
al-Musaddad
Al-Musnad
Ji al-Zib
ul-A unad
'an Musnad
(Shamsuddin
Alamad (Ibn Hajar al-Asgalni)44
The importance of Musnud Abmad b. l lanbal as one of the main references for the book of HudTih is further upheld by many other reference books such as Bulgh For example, from 1,572 Ahdith in Bulicgh al-Murm, 259 A ,diih are al-Murim. derived from Musnad Ahmad b. Hanbal, and are referred to in 16 chapters. This
is illustrated in the diagram below (259); cross-referencing

Ahadith Cross-Referenced Between Musnad Ahmad b Hanbal and Bulugh a4Maram
so
70
60
50
40
30
20
10
U
16 Chapters of Buluyh Maram
O Purification Oaths and Vows
0 Prayer 0 Judgement
O Funerals Offenses 13Emancipation
O Zakat
Fasting
0 Pilgrimage O Foods
Business Transaction 0 Marriage
Prescribed Penalties 13 Jihad Comprehensive Book
43 ibid. 44 Jhid
119
4.4 Sunan Ab Dwd
The author of Sunan AbU Dawd is Sulaiman b. al-Ashathb. Ishak al-Azdi al-Sijistani. He was born in Basrah in 203H/817M, where he lived until his death on Friday in the month of Shawwal 275H/888M45. is best-known as Ab Dwd, and He also studiedunder Imm Al mad b. IIanbal along with al-Bukhn. He later becamea Iladith scholar,teachingmany scholarssuch as al-Tirmidhi and alNasi'ea6.
As one of the great scholars at that time, Ab Dwd collected 5,000,000 Ahdith but he compiled only 4,800 Alzdith in one single book entitled al-Sunan47 The book of SunanAb Dwd is juristically recognized as a main referencesource of Uadith due to the following features;
a) The narratorsof Iadith are juristically divided into $ si t (lit. validity),

Hasan (lit. faimess) and 1? (lit. weak)48.Though Ab Dwd himself aìf referred to many narrators authenticated by Imam Bukhri and Imam
by Muslim, it is argued Imm Ibn IIajar al-Agalni that smallnumbers of these are juristically identified as having discontinuity;that is, certain
members of the chain of narrators should be categorized as the least
trustworthyand as lacking in powersof memory.At the sametime, in terms of text validity, the Hadiths concernedhave either irregularities
(shudhdh)or defects(ìlla)49.
45aI-Samani, b,v.ii, p.29; al-Nawwi, Tahdhib, ii,, p.709; Ibn Kathir, al-Bidya,v.xi,p.55; and al-An v. Ibn Khalikan, Wafa-yal, i,p.271. v.
"6 Ibid. 47
Ibid asal-Jazri,al Musaa4p. 34. 49 Hajar, Ibn al-Nakt,v.i,p.435.
120
b) Scholarshave estimatedthat there are 4,590 Alidith in the book of Sunan Ab Dwd, which are divided into 35 chaptersand 1,879sub topics. c) The book of Sunan Ab Ddwd has been analyzedand commentedupon by many traditionists, viz. Sharh Mddlim al-Sunan (AbU Sulaiman IHamd b. Muhammad b. Ibrahim al-Khattabi,d.388H), Murgat al-Suud ila Sunan Abi Dwd (al-Suyli,d.911H Fath al-Wadd ala Sunan Abi Ddwd , (Abu al-HassanMuhammad b. Abd. al-Hdi al-Sundi, d. 1139H),Àwn alMa`bd Sharh Sunan Abi Ddwd (Sheikh Shamsuddina1-'Aim Abdi,
d.1329H),Bazl al-Majhdfi Hal Abi Dwd (SheikhKhalil Abmad alSaranguri,d. 1346H)so
The importance of SunanAbi Dwicd as one of the main referencesourcesfor
bookssuchasBulgh the book of Hadith is further upheldby many other reference

al-Marm. For example, from 1,572 Al: dith in Bulgh al-Marm, 444 AlidTth are derived from Sunan Abi Dwud, and are referred to in 16 chapters. This crossis illustrated in the diagram below (444); referencing
50a1_Zuhrni, Tadwin, 136. p.
121
Ahadith
Cross-Referenced
Between Sunan Abu Dawud and Bulugh a4Maram
140 120 100 80
60 40 20 0
16 Chapters of Bulugh aNaram O Purification 0 Prayer 0 Judgement O Funerals Offenses Emancipation O Zakat Fasting O Pilgrimage 0 Foods
0 Business Transaction O Marriage 0 Oaths and Vows
D Prescribed Penalties O Jihad 0 Comprehensive Book
4.5 Jmi Abi `lsa al-Tirmidhi The author of Juni Abi CLsu ul-Tirmidhi Muhammad b. Ìsa b. Sra b. Msa b. was
al-Dhahak al-Sulma al-Bughi al-Tirmidhl51. He was born in the town ul"Tirmdh,
Uzbekistan in 209H, where he died on 13`x' Rujub 2791152.1 is most commonly Ie of

known as al-Tirmidhi. As a student of Imam Bukh5ri, aI-Tirmidhi his showed
by compiling approximately 4,000 Ahdii/i in one single book scholastic attainment namely ul-JjInii`53. Most importantly, al- firmidhi pioneered a juristic methodology to
determine in Hudith the level of Hunan (lit. fairness)54. l le also analyzed the level of Du`Ff'(lit. weak) in his book on the subject of al-ÌIU155
The book of Jdmi` Abi Ìsu al-Tirmidhi reference of Hudith due to the following features;
is juristically
recognized as a main
51 Ibn Khalikan, Wafdyat, i, 278; v. p. al-Dhahabi, ladhkira, v. ii, p.635, Ibn Ìmsd, S wdhtzra, v. ii, p. 174 and al-Zirikli, al- AÌnm, v. 7,p. 213. 52Ibid. 53Ihid. saIbid. 55Ibid.
122
(a) The narrators of Hadith are juristically divided into $dIIT#(lit. validity), Hasan (lit. fairness) and Daif (lit. weak). Though al-Tirndhi himself
referred to many narratorsvalidated by Imam Bukhn and Imam Muslim, Imm Ibn Hajar al-Agalni assertssome of thesearejuristically identified as having a discontinuous chain of narrators, made up of the least lacking in powers of memory.56 trustworthy and those (b) Scholarshave estimatedthat there are 3,965 Alidith in the book of Sunan Abi! Dawd, which are divided into 47 chaptersand 2,036 sub topics. (c) The book of Jam: Abi "Isa al-Tirmidhi has been analyzedand commented by many traditionists, viz. C rida al Allwzi (al-HfiZ b. al-Arbi alupon d. Mliki, d.546H), Sharp al-Tirmidhi (Ibn Rajab a1-Hanbali, 795H), Tuhfa al Ahwiizi (Abd a1-Rahman al-Mubarakfuri)57.
for Theimportance JmiAbi Ìsa al-Tirmidhi asoneof the mainreferences of

the book of Hadith is further upheld by many other referencebooks such as Bulgh For example, from 1,572 Altaith in Bulgh al-Marm, 298 Altadith are al-Mardm. derived from JmP Abi Isa al-Tirmidhi, and are referred to in 16 chapters.This cross-
is below (298); referencing illustratedin the diagram
56Ibn Ilajar, v.i,p.435. al-Nakt, 57a1-Zuhrni, Tadwin, 140. p.
123
Ahadith Cross-Referenced Between Jami al-Tirmidhi and Bulugh al-Maram

140
120
100
80
60
40
20
0 16 Chapters of BL I yh . d-M, uam
DPurification 0 Business Transaction Oaths and Vows
a Prayer O Marriage Judgement
[]Funerals Offenses OEmancipation
DZakat
[]Fasting
[]Pilgrimage 0Foods
Proscribed Penalties DJihad ComprehensiveBook
4.6 Sunan al-Nasn'i The author of Sunan al-Nasd'i Ahmad b. Shuaib b. 'Ali was Sinan Ab Abd.
Rahmaual-Nas'i5x.He was born in the city of Nis' in Khurasanin 21511,where he

died in the year 3031-1 Makka59. He is most commonly known as a! As a at -Nasa'1. student of Ab Dwd, al-Nas'i is acknowledged as a 1kuliih scholar due to his
mastery in the area of memorization and his methodology of analysis of the i Iadi1Ii.
Al-Nasd'i's famous book of Hudith is entitled Sunun al-Nast'i.
The book of Sunun al-Nus'i is juristically HudTlh due to the following features; (a) The narrators of HudTIh are juristically Husun (lit. fairness) and Dui/'(lit.
recognized as a main retcrcnce of
divided into SiMil (lit. validity),
weak). "Though u1-Nusra'i himself referred to
many narrators recognized as authentic by Imam ukhri and Imam Muslim,
58Ibn l1ajar, Iahdhib, v. i, p.266, Ibn Khalikan, Wufyat, v. i, p. 77, and al-Dhahbi, l4dhkiru, v.ii, p.270. 59Ibid.
124
here as elsewhere,a small number of narratorsarejuristically identified as the leasttrustworthy and also lacking in powers of memory60. (b) Scholarshave estimatedthat there are 5,662 Ahadith in the book of Sunan al-Nas'i, which are divided into 51 chaptersand 2,535 sub topics. (c) The book of Sunan al-Nasa'i has been analyzedand commentedupon by traditionists such as Sharh (al-Sheikh Sirajuddin cUmarb. "Ali b. al-Mulgin alShfii, 804H) and Sharli (a1-HfiZJalluddin a1-Suynxi, 911H)61 d. d.
The importance of Sunanal Nas'i as one of the main referencesfor the book of Iladith is further upheld by many other referencebooks such as Bulgh al-Marm. For example,from 1,572Ahdith in Bulicgh al-Marm, 271 Aliddith are derived from Sunan alNas'i, to in 16 chapters. This cross-referencing is and are referred
illustratedin the diagram below(271);
60Suyap,Sharli,v.i, p.3-5. 61al-Zuhrni,Tadwin, 143. p.
125
Ahadith Cross-Referenced Between Sunan al-Nasa'i and Bulugh al-Maram

80
70 60 50
40 30 20 10 0 16 Chapters of Bulugh al-Maram 13Purification 13Prayer OFunerals Offenses Emancipation DZakat DPrescribed Penalties Comprehensive Book Fasting 13JIhad OPilgnmage 13Foods
Business Transaction U Marriage 0Oaths and Vows Judgement
4.7 Sunan Ibn Mjah Ehe author of Sunan Ibn Mnjuh Muhammad b. Yazid b. Maja al-Qizwini `'`, was
born in the city of Qizwin in 207H. There he died in the month of Rama(ln 27311" . He is best-known as Ibn Mjah. As a student or Imrn W lik and other scholars, Ibn Majah is acknowledged as a Hudith scholar due to his skill in
memorization,
the
history of narrators and analysis of the Nadilh. I-Fismost Famous book of lIachilh is
entitled Sunan Ibn Mjuh.
The book of Sunan Ihn Mjuh is juristically
recognized as a main reference
for the HuaTthdue to the following features; source

(a) The narrators of Haditli are juristically divided into Shih (lit. validity),
Hasan (lit. fairness), Duff (lit. weak) and Muwihi ' (tit. fabricated). Nevertheless, many scholars argue that the book does have a discontinuous chain of
62Ibn al-Ìmd, SIIadhara, ii, 164; Ibn Khalikan, Waf v. p. yat, v. iii, p.407. G3Ibid. and al-Suyriti, 1abagal, v. ii, p.279.
126
the least trustworthy and the most deficient in powers of narrators,madeup of
At the sametime, text validity is marredby either irregularities memory64.

(Shudhdh) defects(Ìlls). or (b) Scholarshave estimatedthat there are 4,333 Alidith in the book of Sunan Ibn Mjah, which are divided into 33 chaptersand 1,536subtopics. (c) The book of SunanIbn Mjah has been analyzedand commentedupon by traditionists such as Sharlt (al-Alamah Abi al-HassanAli b. Abdullah many b. Nimah al-An*ri,d.567H), Micbl: al-Zujdjah àla Sunan Ibn Mjah (ald. Iifiz Jalaluddin a1-Suyti, 911H) and al-Dibjah Sharli Sunan Ibn Mjah (Sheikh Kamaluddin Muhammadb. Msa al-Damri al-Shfi'i, d.808H)65.
Despite the defects described,Sunan Ibn Mjah is upheld as one of the main for the book of Hadt-th.From 1,572 Altdith in Bulgh al-Marm, referencesources for example,240 are derived from SunanalNas'i, and are referred to in 16 chapters. is This cross-referencing illustrated in the diagram below (240);
64a1-Bgi, Dirsc4p. 1519. 65al-Khaiifa,Aladrasa, 345-346. p.
127
Ahadith
Cross-Referenced
Between Sunan Ibn Majah and Bulugh aMaram
60 50 40 30 20 10 0
18 Chapters of Bulugh al -Maram O Purification Business Transaction Oaths and Vows 0 Prayer O Marriage Judgement O Funerals Offenses 0 Emancipation O Zakat D Prescribed Penalties Book Fashng O Jihad 0 Pilgrimage O Foods
Comprehensive
Thus, in comparison with the other five books of Hucri{h, (viz. Ilusnad Almnut!, Sunun AT Ddwd, Jinni` AT Ìsu al-Tirmidhi, Sunun al-NusiVie and Sunan Ihn
Mjuh), it can be seen that Suhih al-Bukhnri and Suhtl al-Mus hin have the most juristic features as source references. Nevertheless, the other five books authentic discussed are also juristically recognized as important relerence sources, although to a lesser degree.
There is, however, much cross-referencing between Bulfigh al-Murn, n and the books of Hudi-th examined, as well as reference to other existing source seven
This suggeststhat the book of Bulgh al-Mari-im could not have been material.
drawing upon the wealth of other extant and juristically compiled without accepted
For this reason, additional source material used in compilation will now be works. briefly investigated.
128
4.8 Other Reference Sources
Of those reference sourcesfor the books of Hadith judged as supplementary, most were written in the second, fourth and fifth centuries of Hyra66. Their classification by traditionists was according to their juristic features; that is, a less acceptable quality of narration and narrators compared with the seven books of Hadith67as previously discussed.However, although this latter material is classified as supplementary,it neverthelesscontinues to be of importance for reference. It is therefore useful to highlight the following juristic features;
4.8.1 Muwa((a' al-Imam Malik
The author of Muwalld' al Imam Malik is Abu Abdullah Malik b. Anas al-
Asbahi68. The book of Muwall' allmm Malik is juristically recognizedas an importantreference beforethe emergence the works sourcefor the Hadith. Indeed, of
of $allili al-Bukhri and $aliile Muslim, Muwall' Malik was judged by al-Imam
Imam al-ShfiCi be the most authenticreferencesource for the gadith after the to holy al-Qur'n69. However,most scholars now agreethat Muwalt' al-ImamMalik shouldbe rankedas only supplementary are reference materialsincejuristic features of lowerquality70.
66al-Zuhrni,Tadwin, 271-276. p. 67 Ibfd 68He was born in 84H and died in 179H. He also known as one of the leading Imams of the Islamic juristic schooldue to his role as the founder of the Mliki school (Madhab al Mlikiyya). 69Ibn al-$a11,1,lm,p. 14 `[ 70al-Zuhrni,Op. p.93. cit.,
129
The book of Muwatl' al Imam Malik is also drawn upon for authentication by important reference books such as Bulgh al Marm. This cross-referencing revealsthat in the book of Bulgh al Marm, 24 A1tdith are derived from Muwatd' al Imam Mal ik .
4.8.2 ,yahih alImm Ibn Kizuzaima
The author of Sa1dltal-Imm Ibn Khuzaima was Ab Bakr Muhammad b. Ishak b. Khuzaima al-Nisaburi7l. The book of $aliili al-Imm Ibn Khuzaima is
juristically classified as one of the supplementarysourcesfor the Hadith together with by many other references,as suggested Ibn al-$alb72,given that its juristic features are much more similar to the sevenmain referencesourcespreviously discussed.
In addition, the works of $alli al-Imm Ibn Khuzaima are further referred to by many sourcebooks such as Bulgh al-Marm, where 20 Alidith are derived from SajtTjial-Imam Ibn Khuzaima.
4.8.3 jahThIbn Hibban
The author of $aliili Ibn Hibban is Ab Hatim Muhammadb. H. ibban b. A1? b. Hibbanal-Busti73. anothersupplementary As for the book mad reference source
of Iladith, $all: Ibn Hibban has juristic features which are in many ways similar to those discussed.Nevertheless, the book of $a1jili Ibn Hibban emphasizesthe strict
71al-Dhahabi, Tadhkira, ii, p.720. v. 72Ibn a1-$al, Ùlm,p. 17. 73 Tadhkira, iii, p.924. al-Dhahbi, v.
130
For a1-Suyli, this kind of feature renders the book of classification of altdTth74. $ahilt Ibn IIibban distinctive7s.This distinction is further upheld by referencebooks Bulgh al-Mardm, where 20 Ahddith are derived from Sahili Ibn Hibban. suchas
4.8.4Sunan al-Daraqu(ni
The author of this reference source was Ab al-Masan, 'Ali b. Umar b. Ahmad b. Mahdi al-Baghdadi76. One of its main juristic featuresis the explanationof the three levels by which eachHadith which is judged (i. e. $llile [lit. validity], Hasan [lit. fairness] and paff [lit. weak])77.For this reason, 19 of its Alidith are found in the book of Bulgh al Marm.
4.8.5 Sunan al-Kubra al-Baihag!
The author of Sunanal-Kubra al-Baihagi is AbU Bakr Ahmad b. al-Husseinb. "Ali al-Baihaqi78. Like the preceding reference source, Sunan al-Kubra al-Baihagi
the strict criteria for the determininglevels within each 1Iadith79. also examines found in the book of Bulghal-Marm. Sixteen its Alidith aretherefore of
74al-Suyati,Tadrib,,v.i,p. 109. 7sIbid 76al-Baghdadi, Trikh 77al-Zuhrni,Op.cit.,p. 173. 78al-Dhahbi, Tadhkira, v,p.345 v. 79al-Zuhrni,Op.cit.,p. 175.
131
4.9 Summary
The foregoing examination of main referenceand other supplementary Hadith underlines their authenticity as the primary source of Islamic law apart from the Qur'n on the basis of juristic evidence as shown, in line with the three juristic measures(i. e. $ltih [lit. validity], Hasan [lit. fairness] and I?aif [lit. weak] ).The seven books of Hadith can thus be termed the most authentic compared principle with other supplementarysources with lesser juristic features. Nevertheless,these supplementarysources are alluded to at length in later works such as Bulgh alMarm, along side referencesto the principle sevenvolumes.
Indeed, a cross-referencingbetween the later work of Bulgh al-Marm, the
supplementary sourcesand the sevenmain books of Hadith highlights the lesser juristic textsas an importantsourcewithout which Bulgh alMarm could not have
been compiled. The juristic featuresof this work and its connectionwith the reference for the book of Hadith will therefore now be discussedin chapter five under sources the headingof ìntroduction to the book of Bulgh al-Marm'.
132
CHAPTER FIVE THE INTRODUCTION TO THE BOOK OF B UL UGH AL-MAR"
5.0 Introduction
The book of Bulgh al Mardm is classified by many scholars as the most book of Iladithl, compiled by Ibn Ilajar al-Asgalni in one volume only. It concise therefore differs from other works of Iladith in this, and in its divisions into 16 Kutb (chapters)and 93 Abwb (sub-topics)- one of its juristic features.
Why Bulgh al-Marm has been collected in one single volume is interesting question of methodology -a be addressedin the following question which will
togetherwith a brief discussionof Ibn Hajar alAsgalni as an author for the analysis, book of Bulgh al-Marm.
5.1 The author's biography
The author of Bulgh al-Marm was Ahmad b. Ali b. Muhammadb. Asgalni4. wasborn in the He b Muhammad Ali2. He is best-known Ibn Ilajar3 a1 as he died on Saturdaynight of 28thof Sha'bn5,773Hat Qaherah, where month of Zulhi ah, 852H11449M6.
1Khalifah,Madrasa,v.i,p. 193 2 Ibn Hajar,Raf al-Asr,p.36; Anb'al-Ghumar, 1-3; al al-Sakhw% lawhir, p. 15; al-(aaw,p. 10. p. 3 Ibn Hajar was a nicknameinherited from his grandfather, Abmad. Seeal-Sakhwi,Ibid, p. 15. 4 Geographically, Asgalanrefers to the highlandsby the seas,located betweenthe Gaza strip and Bayt Jibrin in Palestine.Al- Asgalini indicates the name of the place belonging to the descendants Ibn of Ilajar. SeeYaqut,Mujam,v.iv,p. 122. ' Historiansdiffer on the birthdate Ibn l a A1-Shawkni walof arguesfor the 2d of Shd`bn77311, ar. and Ibn Imad al-Hanbali for the 12thof Sha`bn773H, and Ibn Taghri Bardi for the 22id of Shcfbn773H. See al-Shawkni,al Badr, p.88; al-SuytXi, al-Munjam,p. 130; Nazm al- Igyn,p.45; Ibn
133
Ibn Iiajar al-Asgalni lived in and absorbed environment knowledge of an

during his childhood. He entered primary school when he was six years old and memorized the Qur'an at the age of nine, under the supervision Sadr al-Din al-Sufti (d.845H1144M)7. the age of twelve, he went on a pilgrimage to Mecca with his At guardian,al-Kharrbi in the year 784H/1382M, where he stayedfor two yearsto learn the book of Sahib al-Bukhri with Sheikh Afif al-Din al-Nishwari
(d.790H/1388M)8.
In the year 790H/1392M, under the tutelage of Mu1iammadal-Qafln a1-Mi*ri (d.830H/1410M), Ibn Hajar alAsgalni learned Islamic jurisprudence, linguistics When he was nineteenyears old, he developeda great admiration and mathematics9. for literature and wrote many volumes of poetry in anthology entitled Diwn Ibn Hajar1.
At the age of twenty, in the year of 795H/1392M, Ibn Hajar al-Asgalni
became scholarof Islamicjurisprudence, logic, philosophy, literature,mathematics, a linguistics and calligraphyll. According to al-Sakhwi, a year later rhetoric,
(796H/1393M), he started his learning in the science of Iladith from Zainuddin al-
cIragi(d.80611/1404M)12. took ten yearsto finish his studiesin the areaof Vadith He andhewaslaterknownasa leadingscholarin this field, ashe wasin others.
Imad al-Iianbali, Shadhra, 380; Ibn Taghri Bardi, al-Nujm, v.xv,p.533. See also Suliaman,Ibn p. Hajar al-Àsgaldni,p. 1-12. Shadharc4v. p.273. al-Sakhwi, allawnhir, p.277; al-IPaw, ii, p.40 and al-Dhahbi, v. vii, 7 al-Sakhwi, Ibici, p.22 81bid 91bid io Ibid 11 lbid 12 Ibid
134
Many books were thus written in the area of history (Inba' al-Ghumar bi Anb' al-Ùmr, Rat` al-Isr àn Qudt Misr and al-78m fi man walla Misr fi alIslam), literature (Diwdn al-Shaìr and Diwn Khutb), Tafsir (a Quranic exegesis which includes al Alikm Ii bayn m fl al-Qur'an min al Aliknm) and the Uadi-th itself. Here, amonghis important Worksare Bulagh al Mardm min Adillah al Ahkdm, Muqaddimah Fath al-Bri fi Sharli FaltFbal-Bukhri, Nuzhah al-Nazr fi Tawdlli
Nukhbahal-Fikr, Tahdhib fi Asm' Tagribal-Tahdhib,al-Icbah Tamyiz al-TahdhTb,

al-$ahbah,al Algb al-Ruwt.
The prolific nature of Ibn Hajar a1= Asgalni's writings in this area point to his masteryof the specialisedknowledge necessaryin the scienceof Vadith. For this reason,his particular expertisewill be examinedthroughout this chapter.
5.2 Meaning and significance
ThetermBulghal-Marmhassomesignificance, indicatedin the author's as introduction;

Ì have named it (this book) Bulgh al-Mardm min Adillat al-Alikm; and I pray to Allah not to render what we have learnt a calamity against us; but may He to act accordingto what pleasesHim - the Glorified and Exalted One' 13 guide us
13SeeEnglish Translationof Bulgh Marm, 1996, Dar al al-Salam,Saudi Arabia,p.9. It is referredto this chapterafter this asEng. Trans B.M.
135
In Arabic, the term Bulgh is derived from the verb balagha, meaning; to reach,getsto, attain, arrive at and come Bulgh can be translated to14.Thus, the term
àttainment' or àchieving"5. The term al-Mari m originates from the word ramy, as 16.The title in its totality intention, target, objective, purpose,aim and goal meaning; (Bulgh al-Marm min Adillat al Abkam) therefore translates as Àttainment of the 17. to the guidelines of the Holy Ordinances' ultimate objectivesaccording
The significance of Bulgh al-Marm for its intended readership is also highlighted in the introduction; clearly `To proceed;this is a concisebook comprising the Hadith evidencesourcesof Shari a which I have compiled meticulously so that the one who memorizes it the his peers,it may assistthe beginner studentand the learnedone seeking excels among knowledgemay find it indispensable" more .
Asgalni's ùltimate objectives' is seen to be to Thus, one of Ibn Hajar a1= the early level of studentto learn the Hadith as a divine sourceof Islamic law19. assist The work is written in a concise manner and in only one volume for this reason.
Nevertheless, despiteits brevity, the book of Bulgh al-Marm has valuedjuristic

featuresas follows.
14 al-Baalbaki, Mawria p.247. al is Ibid 161bidp. 1014. 17The term Bulgh al Marm min Adillat al has also been translated as Àttainment of the -Abkam Objectiveaccordingto Evidenceof the Ordinances'.SeeEng. Trans.B.M. is Ibid 19Suliaman, cit.,p.134. Op.
136
5.3 Juristic features
As indicated elsewhere,the Aliddith of Bulgh al Marm are central to this study. For this reason, a principle aim is to determine the quality of the book of Bulgh al Marm as a definitive source of Hadith20.This will be done by applying the paradigmdevelopedto establishthe three authentic levels of the Hadith i. e. FdjtTji (lit. validity), Masan(lit. fairness)and I)aìf (lit. weak).
5.3.1 Hadith 4'M1:
Analysis of Iladith $dIdIt in the book of Bulgh al-Marm will therefore focus on the numbers of aliddith ahT in every chapter and sub-topic to determine The method of calculation will be applied to all 1,572 Alidith. Reference validity.
for alidith alli will alsobe examined orderto identify the variety of in materials ,
their sources.
In terms of validity, then, from 1,572Alidith in the book of Bulgh alMarm,it is calculated that thereare 1221Alidith $61dit from 16 Kutb (chapters)
and 93 Abwb (sub-topics). The following chart shows the numbers of Alidith
in $ldli from eachchapter greater detail:
20Suliaman, Op. cit., p.204 -208.
137
The Numbers of Hadith Sahih in Bulugh alMaram

350
300
250
200
150
100
50
0 Purification
0 Prayer
O Zakal
F asting
0 Pilgrimage 0 Foods
Business Transaction O Marriage Oaths and Vows 0 Judgement
13 Prescribed Penalties Q Jdiad Comprehensive Book
The above chart highlights that the chapter of prayer has the highest numbers Hudi-th Suhih, calculated as 308 Ahdith, due perhaps to the seventeen sub-topics of therein. It can thus be said that its juristic validity is thereby increased. In contrast, the lowest numbers of "adith Suhl!, are found in the chapter of emancipation. This
calculated as 15 Ahndiih Sulrih from the total chapter contains only one sub-topic, numbers of 19 uhddith.
The numbers of Hudith Suhilr in Bulgh al-Mart-nn as juristic evidence are
to in both the sevenhooks of [Judith and in other referencesources.'these are referred tabulatedin greaterdetail below.
Ibn Abu Others Majah Chap./Ref. Ahmad Bukhari Muslim Dawud aI-Nasai'e al-Tirmidhi 16/31 21/29 26138 13/24 40/54 Purification 45 69 28/48 52/63 50154 52/77 27137 79199 Prayer 139 76/95 182 5/8 9/10 8/131 Funerals 8 12/161 23 13/17 35 214 13119 Zakat 4/4 5/8 8 419 9 1118 Fasting 9/10 912 12114 11113 8/10 34 10/14 32 518 10/15 Pilgrimage 11113 37 10/11 4111 45 12/17 IBusiness Transaction 28/44 71 28/35 24131 2 3/39 45/73 74 36/50
138
Marriage 28/37 Offenses 5/8 Prescribed Penalties 4/14 Jihad 4/9 Foods 10/11 Oaths and Vows 4 Judgement 7/9 Emancipation 3/6 Comprehensive Book 2/7 71 16 21 27 17 12 13 9 37 74 20 24 25 23 14 12 10 63 40/62 10/17 7/17 12/20 14/16 4 10/14 2/5 9/14 24/35 10116 6/17 8 6 1 6/7 2/5 9/12 24/34 6/10 5/11 6 6/7 2 7/8 2/3 12/29 29/39 39/64 5110 11/19 5/13 5/14 1 14/19 7/8 9/11 1 5 4/5 10/16 1/3 3/5 -17/27 9/14
Total:
191
580
711
294
205
200
156
315
As can be seen,juristic evidence in terms of numbers is highest in Muslim (711) and Bukhn (580), and lowest in Ibn Mjah (156) and Imam Ahmad (191). It is that thesehigh figures are due to the validating work of Imm Bukhri and suggested Imam Muslim as against a smaller degree of such work in the books of Sunan Ibn Mjah and Musnad Imm Ahmad. Numbers for Abi! Dwd (294), alNasi'e (205), al-Tirmidhi' (200) and others (315) can also be found in the book of Bulgh al-
Marm, which can thereforebe seenas supplementary of sources Hadith reference

$ahila apart from the main works i. e. $allili al-Bukhri and $a1ff1i Muslim.
Importantly,also found in the book of Bulgh al-Marm are threemodesof The first of thesewas coinedby Ibn classifyingHadith $aldh as reference sources. Hajar alAsgalni as a definitive classificationmeaningàgreedupon' (Muttafaq àlaih ) with particularreference $alli al-Bukhri and $a1d1i Muslim, as in the to
following exemplar;
`NarratedAnas r. a.: Allah's Messengers.a.w usedto supplicate frequently: "Our Lord, give us good (things) in this world and good (things) in the Hereafter, and defend us from torment of [the] fire[s of hell]". [Agreed upon]'21.
21Ibn liajar, Bulgh Marm, (no: 1563). al
139
The secondmode of classifying Uadi-th$allih in Bulgh al-Marm is based on the direct condition of Sahib (validity), which is regularly used as a criterion to This is demonstratedin following Hadith; verify ahdTth.
`NarratedJbir r.a.: Allah's Messengers.a.w said, "If a[large] big amount of intoxication, a small amount of it is prohibited". anything causes [Ahmad and al Arbaa reported it; Ibn IIibbn gradedit $'a1T1t (validity)]22.
The third method of classifying Hadith $ahih in Bulgh al Mardm is an indirect version of Fai iz (validity), very occasionally used as a criterion to verify demonstrated the following instance; in ahddith, as `NarratedAisha r.a.: Allah's Messengers.a.w usedto divide visits to his wives equally and say,"0 Allah, this is my division concerningwhat I possess, do not blame me concerningwhat You possess I do not". so and (validit1?, [Reportedby al Arbafa; Ibn Hibbn and al-Hkim gradedit $'a1ti1i but al-Tirmidhi preponderated that it is Mursal (non-continuouslinkage)] .
Although the above Hadlth is juristically
identified as $'aldli by two
by traditionists(i.e. Ibn Hibbnand al-Hkim) it is neverthelessargued al-Tirmidhi linkage(Mursal) to the Prophet to be invalid dueto the conditionof non-continuous Under thesecircumstances, $alh cited can be classifiedas an indirect the s.a.w. $aldizin accordance between traditionists. versionof with the disagreement
Thus, given the sheernumber of referencesto the Yadith $'alzili in Bulgh al-
Marm, togetherwith the three classificationmodesdiscussed which are used as validity criteria, it can be statedconclusivelythat the book of Bulgh al-Marm is
22 Ilajar, Bulgh alMarm, (no: 1248) Ibn 23 Ibid., (no: 1056)
140
proven to be authentic. These criteria, together with those examined elsewhere, will now be applied to the large numbers of Hudith Hadith Sahih in Bulicgh al-MaMm. Hasan which exist aside from the
5.3.2 Hadith Hasan
There are 253 uhdclith Husan referred to in the book of Bulicglh alMart-im - obviously a small figure compared with the numbers of Hudilh Suliili (1221 uhddith). Indeed, this contrast between numbers of references within these two levels of authenticity does suggest that it was the author's priority to seek juristic validation through compiling many ahddilh suhl{l rather than numbers of u/:dRh husun.
These 253 uI, a7lh /iascm are divided into 16 Kulrrh (chapters) and 93 Ahw h (sub-topics), as highlighted in the following chart;
The Numbers
50 45 40 36 35 30 2r, 25 20 15
lil
of Hadith Hasan in Bulugh
alMaram
44,
_.. _.........
10
5 0 O Puntication Prayer Marriage Judgement Q Funeials Offenses Emancipation
_----Ll
Lekdr Fasting O1 iiynmape 13 F oode
Business Transaction[] Oaths and Vows
11
0[
0 Prescribed Penalties Q Jihad omprehensive Book
141
As shown, the chapter on marriage contains the highest numbers of Hadi-th Hasan (44) as against other chapterssuch as the chapter on prayer (36), on business transactions(33), on comprehensiveethics (28) and on purification (26); there are, however, no Masan referencesin the chapter on oaths and vows. The lowest number (only one) is found in the chapter on food. The chart also illustrates the samepattern low Hasan content in the chapter on emancipation (3), on fasting (6) and on of (7). This phenomenonunderlines the low priority of Uasanin the prescribedpenalties mind as againstthe importanceof Hadith $al:ih. writer's
Despite the small numbers of Iladith Hasan (253) in Bulgh al-Marm, it is helpful to tabulate the variety of referencesto other Hadith sourcesas nevertheless
follows,
Chap./Ref.
Abu Ahmad Bukhari Muslim Dawud
Ibn al-Nasai'e al-Tirmidhi Majah
Purification Prayer Funerals Zakat Fasting Pilgrimage

Business Transaction
8 7 3 4 1 4
11
0 0 0 0 0 0
0
0 0 0 0 0 0
0
12 11 4 10 11 4
11
4 8 0 3 2 1
6
12 5 4 3 2 5
5
Others 9 8 10 4 4 1 4 2 2 2 2 2
7 19
Marriage Offenses PrescribedPenalties Jihad Foods

Oaths and Vows
9 3 10 0 0
0
0 0 0 0 0
0
0 0 0 0 0
0
20 7 10 6 1
0
11 6 11 0 0
0
9 4 6 0 1
0
9 5 5 0 1
0
23 7 9 1 0
0
Judgement Emancipation ,Comprehensive Ethics ,
2 3 4
0 0 0
0 0 0
4 3 5
1 3 3
1 1 14
1 1 5
4 1 9
Total:
69
00
119
59
72
53
104
142
It can be observed from the above table that the highest number of Hasan referencesare to AbU Dwd (119), to òthers' (104), to al-Tirmidhi (72), to Abmad (69), to al-Nasi'e (59) and to Ibn Mjah (53). Interestingly, the table also highlights the absenceof Masan references to al-Bukhri and Muslim, the most juristically authenticcompilers of Iladith.
Although the small numbersof Hadith Hasan (253) suggesttheir low priority in terms of material, accordingto the three modes of internal classification described, significant juristic featuresdo occur. For example, the first pattern of Hadith Hasan is a cross-category betweenMasan and .Sabi z, as illustrated; `NarratedAnas bin Malik r.a: Allah's Messengers.a.w was askedabout He said, "No (it is prohibited)". [Reportedby making vinegar out of wine. Muslim, and al-Tirmidhi and the latter gradedit Hasan-$a1ii1t(fairnessvalidity)']24.
Muslim assigns to this pattern the term of $al:i :, while al-Tirmidhi

downgradesthe material slightly to Hasan-$a1ti1:, thus creating this type of juristic
The Vadith is in this way juristically authenticated a level which at cross-category. to that of $alziz,but not quite. nearlyapproximates
is not an indirect, but a direct versionof The second modeof classification Hasan, which is exemplifiedasfollows;
`NarratedAb Huraira r.a.: The Prophet s.a.w said, "A believer's soul is attachedto his debt till it is paid on his behalf'. [Reported by Ahmad and al-Tirmidhi who gradedit Hasan]25.
24Ibn Vajar, Bulgh al-Marm,(no: 22) 25 Ibid, (no:529)
143
Apart from this direct type, Bulgh al-Marm also applies a third indirect verifying criterion of Hasan, which is illustrated in the following example; `NarratedMuadh bin Jabalr.a.: Allah's Messengersaid; "If anyonedisgraces his brother for a sin, he will not die before committing it himself'. [AI-Tirmidhi reported it sayingit is a Hasan but a Munga(i' (disconnected)]26.
This type of Hadith is firstly juristically categorized by al-Tirmidhi as authentically Hasan, but nevertheless disconnected in its chain of transmission (Mungatf). Secondly,Bulgh alMarm downgradesthe Hadith to the level of Paif (weak). Thirdly, the science of Hadith regards the occurrence of Mungafc' as a disqualifying factor. This means that the Hadith will be unanimously rejected by traditionists as neither FaItT6 Masan. Fourthly, al-Tirmidhi does suggestthat the nor Hadith hascertainjuristic featureswhich at least qualify it for the level of Hasan. For
thesereasons, patternof Hadith canbe classifiedasan indirectversionof Uadith this

Hasan.
The book of Blgh alMarm is therefore shown to be of the most importance as a reference source of Hadith, as it provides a sophisticated to gradethe quality of eachlegal text within the level of Hadith classification model Hasan. Apart from Hadith Hasan,small numbersof Vadith paìf are alsofound in ., this book,which will now be discussed.
26Ibn Ilajar, Bulgh al Marm, (no:1516)
144
5.3.3 Haditlz Daif
The numbers of Iladith Dueif (99) in the book of 13ulighal-Muriirn are very small indeed compared with those of Hudith Husun (253) and Huch{ Su1ii i (1221), underlining their lesser importance in terms of juristic validity. These 99 uhnuith Daìf are scattered throughout 16 Kutub (chapters) and 93 Abwh (sub-topics), shown schematically as follows;
35 30 25 20 15 10 5D
5
Q Purification 0 Prayer 0 Funerals D Zakat Fasting 0 Pilgrimage .................. .... ... Business Transaction D Marriage Offenses O Prescribed Penalties Jihad Foods Oaths and Vows Judgement Chapters Emancipation 30 0
The bar chart form shows clearly that only three chapterscontain more than 10
uliacith Duif; 18 in the chapter on purification, 29 in that on prayer and 15 in that on
business transaction. In other chapters, numbers of Quìf are even smaller, in that on funeral rites only 1, zukat 2, fasting 1, pilgrimage 3, marriage 3, prescribed penalties 3, jihad 6, food 3, judgement 3, 1, offences 1,
emancipation
comprehensive ethics 5, yet none at all in the chapter on oaths and vows.
145
Thus, it can be inferred that in terms of juristic validity IHadith i?aif are relatively unimportant in the book of Bulgh al Marm, as is reflected throughout all other volumesof Ijadith. The table below showsthis pattern diagrammatically;
Chap. /Ref. Purification Prayer
Abu Ahmad Bukhari Muslim Dawud 8 0 0 3 0 0
Ibn al-Nasale al-Tirmidhi Ma ah 7 9 0 7 13 0
Others 7 4 11 2
Funerals
Zakat
0
0
0
0
0
0
0
0
0
0
0
2
0
0
1
2
Fasting
Pilgrimage Business Transaction Marriage Offenses Prescribed Penalties Jihad Foods Oaths and Vows
0
1 5 0 0 0 5 1 0
0
0 0 0 0 0 0 0 0
0
0 0 0 0 0 0 0 0
0
1 3 2 0 0 2 1 0
0
0 1 0 0 0 0 0 0
0
2 2 1 0 0 0 0 0
1
0 9 1 0 3 0 0 0
0
1 9 2 1 0 4 2 2
Judgement Emancipation Comprehensive Ethics
2 0 1
0 0 0
0 0 0
4 0 0
1 0 0
1 0 0
1 1 0
4 1 1
Total:
26
00
29
28
25
45
This patternhere is from highestto lowest, beginningwith the categoryof òthers' (45) throughto Ab Dwd' (29), al-Tirmidhi (28), Al mad (26) and Ibn
Majah (25). Only two Hadith I?aif are referred to in alNasi'e, and none at all in
eitheral-Bukhrior Muslim, confirmingtheirjuristic validity.
146
Within these Ilaarth Daif, there are three internal modes of classification (identified elsewhere). The first of theseis definitive and is exemplified as follows; `NarratedIbn Umar r.a: Allah's Messengers.a.w said, "Two types of deadanimals and two types of bloods (sic) have beenmadelawful for us, the typesof deadanimals are locusts and fish (seafood),while the two types of bloods are the liver and the spleen". [Reportedby Alimad and Ibn Mjah, ] and this Hadith has someweakness.127 The secondmode of classifying is based on a multiplicity of factors, among which is quality of narration, as the following example shows: `NarratedUbai bin Imara r.a.: I asked,"0 Messengerof Allah, may I " wipe over the Khuffain (leather socks)? The Prophet s.a.w replied, "Yes". I asked,"For one day? He replied, "For one day". I again ", " asked,"And for two days? He replied, "For two daystoo". I again ", asked,"And for three days? He replied, "Yes as long as you wish". [Reportedby Abn Dwd, who said, "It is not strong"]'2S
According to Imam al-Nawwi one of the multiple classifying factors here is
the untrustworthynature of narrators,juristically identified by traditionists as

`disqualified'. For this reason,the content itself is juristically classified as invalid and unsound29.
The third classification modeis basedon indirect conditions,as demonstrated

in the following instance:
`Narrated Àbdullahbin Abu Bakr r.a: The book written by Allah's Messenger am for Amr bin IIazm alsocontained: "None except s.
a pure personshould touch the Qur'n". [Reported by Malik as a Mursal and by al-Nasi'e and Ibn Hibban asMawql. And it is gradedas Ma`ll (defective)]30
27Ibn Uajar,Bulgh al Marm, (no: 11) 28Ibid, (no : 64) 29$anni, Subul al-Salm, i,p.34. v. 30Ibn ljajaz, Op. cit., (no: 75)
147
Here traditionists identify the indirect condition as `non-continuouslinkage of narrators' (Mursal) between the reporting disciple and the Prophet s.a.w. Himself. Nevertheless,al-Nasi'e, Ibn I;iibbn and Haithami grade this Uadi-thas Maw. l `connectedlinkage' as well as qualified narrators31. Aside from this difference of opinion, the majority of traditionists agreeon a classification of VdTf, with defective 32. in the chain of transmission narrators
Analyses here (and indeed throughout this thesis) demonstrate how the developed by the writer can be used as an instrument to classification model determinethe quality of eachHadith. Thus, while the low juristic priority of I,)aif is despite their small number these Ijadith do have complementaryvalue as affirmed, referencesources,along with the Hadith $'ahi# and the Hadith Hasan.
As discussed the concisenatureof the book of Bulghal-Marm previously,

the interesting question of the author's compilation methodology. To a raises discussionof this, the writer now turns.
5.4 Compilation methodology
In this slim volume, Ibn Hajar alAsgalni has laid down a defining in termsof thoseHadith selected inclusion33; clear for the compilation methodology
arrangementof general topic chapters (16) and sub-topic divisions within those chapters(93); and, thirdly, a specific and highly economical system of referencing
31Sanni, cit.,, v.i,p.70. Op. 32 Ibid 33Suliaman, cix, p. 170. Op.
148
across all volumes of Hadith. Each of these compilation elements will now be
discussed turn. in
5.4.1 Numbers of Vlant h
Unusually, Ibn Hajar al-Asgalni doesnot appearto regard either numerical sequencing Hadith or their actual numbers as significant, unlike previous and more of recent compilers. Perhapsthis was considered unimportant at that time. A personal shows,however,that there are 16 Kutb (chapters)and 93 Abwb (sub-topics). count
Asgalni, For many later traditionists, as for compilers prior to Ibn H. ajar al Hadith would point to both the quality and the juristic features in sheernumbers of book of Hadith. Thus, some have calculated the alidith in Bulgh al-Marm each
their own method of calculation.MuhammadRashadKhalifah for example using

total of 1,373 alidith34and Ab Zahw 1,40035,whereasMuhammadHmid claims a al-Fiqi has come up with 1,56936.
Why, then, does this discrepancy exist? It seemsthat different calculating depending what they wish to proveon the by different scholars, are systems used on in basisof eitherinclusionor omissionof Hadith37That is, someIjadith arerepeated discrepancies will manychapters sub-topics, and while othersarenot. For this reason, Hadith areincludedin somefinal numbers not in others. but occurwhenrepeated
34Khafa,Madrasa,p.447. 33 Ab Zahw, al-Iladrth, p. 347 36Ibn Ilajar, Bulgh al Marm, p.214. 37Suliaman, cit.,p. 170. Op.
149
However, in order to specify exact numbers of IHadith in Bulgh al-Mardm, every IIadith should be calculated within each chapter and sub-topic regardlessof The writer considerssuch methodologyto be fair andjust, since no single repetition. Hadith is in this way ignored. By way of illustration, this methodologyhas been used to tabulate the numbers of Hadith $aItTli, Masan and I)aif shownbelow. in Bulgh al-Marm,
/Numbers Chap.
Purification
Overall
147
Sahih
103
Hasan
26
Daìf
18
Prayer
Funerals Zakat Fasting Pilgrimage Business Transactions Marriage
373
65 49 58 75 191 195
308
53 34 51 63 143 148
36
11 13 6 9 33 44
29
1 2 1 3 15 3
Offenses PrescribedPenalties Jihad Foods Oaths and Vows Judgement Emancipation Comprehensive Ethics
46 56 62 41 22 36 19 132
35 35 49 37 22 25 15 991
10 18 7 1 0 8 3 28
1 3 6 3 0 3 1 5
Total
1572
1220
253
99
It will be seen to that eachchapter sub-topichasbeenanalysed showtotals and Ijasan and1? Out of the total numberof Ijadith of of IIadith $aliih as against aìf . 1572, the very high figure of 1220areHadith $alalt, whereas 253 areHasanand only 99 are Daìf. Percentage-wise, thesefigures are calculatedas 77.6%, 16.08%and
6.29% respectively. The dominance of Hadith $61J thus demonstratesconclusively It the juristic value of Bulgh al-Marm as a reference sourcefor the IIadith, while the small numbers of Hasan and I?aif reference. provide important supplementary variety of
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Aside, then, from the unusual disregard for both numbering sequencesand actual numbersof Iladith, the succinct arrangementof chaptersand sub-topicswithin them is another unique aspect of Bulgh al-Mardm and of its compilation methodology.To an analysisof this the writer now turns.
5.4.2 Arrangement of chapters and sub-topics
A significant feature of the compiler's layout methodologyfor the 16 chapters and '93 sub-topics is that of terminology. Firstly, each chapter topic is assignedthe term Kitb (meaning `book'); within these, all the alidith are categorized into specific sub-topicsor Bib. Thus, as an example, Kitb al-Tahrafi Kitb BulighalMarm would translate literally from the Arabic as `Book of Purification in the book
demands of Bulghal-Maram. In the writer's opinion,however,academic specificity

the term `chapter' rather than `book', since the latter implies too much generality.
As for the interestingterm `Bab', the compiler usesthis as a kind of frame is within whichto groupsub-topics; metaphorical symbolicdimension thusadded a or for to the conceptof `door'. This literary device is notedby al-$ancani, whom the indicates launchpoint for discussion a particular termBib is a metaphor the which of juristic themewithin eachchapter38. anotherway, the `door' actsas a `portal' or Put `doorway',leadingthrough into a kind of discussion forum. However,in line with bestbe translatedas `sub-topic'.An academic specificity,the term Bab can perhaps
38a1-$anni, Subulal-Salm, v.i, p. 14., Suliaman,Op.cit., p. 171.
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this `Kitab' and 'Bab' structure is shown below, to demonstratehow this example of methodologyworks in practice:
The Chapter on Purification Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic Sub-topic :
1. Water 2. Utensils 3. The nature and cleansing of impurities 4. Ablutions 5. Wiping of leather socks 6. The nullification of ablutions 7. The manner of dealing with natural body functions 8. Taking baths and precepts regarding sexual impurity 9. Purification with soil
Sub-topic 10. Menstruation
Secondly,each of these chaptersand sub-topics is set out in accordancewith for holy living and worship as laid down in the Qur'an - as a kind of principles instruction manual. Further, these instructions start with the most basic practical for the Muslim way of life, that of `purification', with its 10 sub-topics. requirement Next comesthe discussion 'Prayer' then logically follows, containing 17 sub-topics39. forum on `funerals'; here (interestingly) there are 65 Hadith, yet no sub-topic arrangementao
Anotherimportantpracticalareaof the Muslim way of life thenfollows - that for for Zakt- settingout instructions financialassistance the poor.Herewithin 49 of 24 al:dith are categorizedinto 3 sub-topics;i.e., adagat al-Fi(r, Hadith, only
39The following list is 17 sub-topicsof the chapteron prayer; Sub-topic1. The times of prayers Sub-topic 10.Prayer in congregationand the imamate Sub-topic2. The call to prayer Sub-topic 11. The prayer of a traveler and a patient Sub-topic3. The conditionsof prayer Sub-topic 12.Al-Jumu'a (Friday) prayer Sub-topic4. Sutra (screen)in prayer Sub-topic 13. Prayerin the time of fear Sub-topic5. Humility in prayer Sub-topic 14. The prayersof the two 'Eids Sub-topic6. Mosques Sub-topic 15. The prayer at an eclipse Sub-topic7. The descriptionof the prayer Sub-topic 16. Prayerfor rain Sub-topic8. Prostrationdue to forgetfulnessin prayer Sub-topic9. Voluntary Prayer Sub-topic 17. The mannersof clothing 40SeePart C for full analysis.
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voluntary alms and the division of Fadaqat.As for the remaining (unclassified) 25
ahdith, thesecan be divided in terms of known juristic areas;the obligatory Zakt41, the measurement seedsand plantations42 inherited wealth43. of and
The chapteron fasting then follows Zakt, consistingof 58 alidith. 22 only of these are divided into 2 sub-topics; i. e., firstly; voluntary fasting and the prescribed days of prohibited fasting, and, secondly; keeping vigil in the mosque to offer voluntary prayers during the nights of Ramadan.The remaining 26 alidith are noncategories, but do concern matters such as sighting of the crescent moon of
intention to fast46and Sahr Ramadn44,prohibited fasting on non-sighting days45, (taking a meal before fasting)47.
41The exemplified Hadith as follows; `NarratedIbn Àbbasr.a.: The Prophets.a.w sentMu'adh r.a. to Yemen- he mentionedthe rest of theHadith which has:"Allah hasmadeobligatory for them, in their wealth, a Sadaqato be takenfrom their rich andhandedover to their poor. [Agreed upon andthe versionis of Al-Bukhari]' SeeIbn Hajar, Bulgh al Marm, (no: 586) 42The exemplified 1fadith as follows; `NarratedSahlbin Abu Hathmar.a.: Allah's Messengers.a.w orderedus, "When you estimate(the Sadaqaof fruits like dates)take them leaving a third; and if you do not leavea third, leavea quarter (of the estimated Sadaqafor the owners)". [Reportedby Al Khamsa exceptIbn Majah. Ibn Hibban andAl-Hakim gradedit $ahih]. Ibid, (no : 604) 4nThe exemplified IHadithas follows; `NarratedÀmr bin Shuàibon his father's authority from his grand father r.a.: Allah's Messenger s.a.w said,regardinga treasurewhich was found by a man in a wastedplace- "If you find it in an inhabitedvillage, a fifth is payableon it and on buried treasure". [Ibn Majah reportedit through a a good chainof narrators]. Ibid, (no : 611) 44The exemplified Hadith as follows; `Narrated Ibn Ùmar r.a.: The peopletried to sight the new moon and he informed the Prophet s.a.w that he had seenit, so he fastedand commanded peopleto fast. [Abil Dwtd reportedit and the al-HakimandIbn Hibbn gradedit $'alh]. Ibici, (no: 639) 45The exemplifiedIladith as follows; `NarratedÀmmarbin Yasir r.a.: He who fastson a day that (the starting of Ramadan)is doubted hasdisobeyed Abu al-Qasims.a.w. [Al-Bukhari mentionedit as a Mu'allaq, but al-Khamsatraced it backto the Prophet s.a.w as a Mawfal and Ibn Hibban gradedit $alh]. Ibid, (no: 636)
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Next comesthe doorway into `pilgrimage', with its 75 ahdith within 6 subfollowed by the chapter on `businesstransaction' (191 alidith). The 22 subtopics48, topics in this latter chaptercauseit to be consideredas the biggest sub-topicin Bulgh Marm 49, although the discussion forum on `marriage' has 195 alidith - the al highestnumber comparedwith other chapters.
46The exemplified Iladith as follows; 'NarratedHafsar.a., Mother of the Believers:The Prophet s.a.w said,"No fastingis acceptedfrom the onewho doesnot commit his intention to fast before dawn". [Reportedby Al Khamsa, Al-Tirmidhi and alNas'i preponderate (sic.) it as Mawqf, Ibn Khuzaima and Ibn Ilibbn authenticatedit asMares. Ibid, (Hadith: 641) 47The exemplified Hadith as follows; `NarratedAnasbin Malik r.a.: Allah's Messengers.a.w said,"Take a meal (just) before dawn, for thereis a blessingin Sahr (taking a meal) at the time". [Agreed upon]' Ibid, (Hadlth: 645) 48The following list is 6 sub-topicsof the chapteron pilgrimage; Sub-topic 1. Its merit and the definition of those to whom it was prescribed Sub-topic2. Mawgit (time and location) Sub-topic3. Mannersand natureof the Ihrdm Sub-topic4. The Ihram and its relatedactivities Sub-topic5. The natureof the pilgrimageand enteringMakka Sub-topic6. Missingthe pilgrimageandbeing detained 49The following list is 22 sub-topicsof the chapteron business transactions; Sub-topic1. Conditionsof business transactions thosewhich are forbidden and Sub-topic2. Conditionalbargains Sub-topic3. Usury Sub-topic4. Permission the saleof al Aryd and the saleof trees and fruits regarding loansand pledges Sub-topic5. Paymentin advance, Sub-topic6. Bankruptcyand seizure Sub-topic7. Reconciliation Sub-topic8. The transferof a debt and surety Sub-topic9. Partnership and agency Sub-topic10. Confession Sub-topic11.al-'Aariya (the loan) Sub-topic12. Wrongful appropriation Sub-topic13. Option to buy neighbouringproperty Sub-topic14.al-Qird4 Sub-topic15. al-Musaqat and al-Ijara (tendingpalm-treesandwages) Sub-topic16. The cultivation of barrenlands Sub-topic17. Endowment Sub-topic18. Gifts, life-tenancy,and giving property which goesto the survivor Sub-topic19.Lost andfound items Sub-topic20. Bequests Sub-topic21. Wills and testaments
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`Marriage'has 14 sub-topics50,although 31 alzddith within these are nonA logical arrangement would be sub-topics such as motivation for categories. 53,the engagement54, dowryss the marriage51, choosinga wife52,the marriage sermon conditions of marriage56 the temporary marriage57. and
Sub-topic22. Trusts soThe following list is 14 sub-topicsof the chapteron marriage; Sub-topic1. Equality in marriageandright of choice Sub-topic2. Relationswith wives Sub-topic3. Thejointure (Mahr) Sub-topic4. The weddingfeast Sub-topic5. Division of visits to eachwife Sub-topic6. Separating from a wife and compensation Sub-topic7. Divorce Sub-topic8. Al Raja Sub-topic9. Al-'lyla', al-Zihar andal-Kaffara Sub-topic10. Invoking curses Sub-topic11.Al-'Iddah, al Ihdad, Al-Istibra, and other pertainingmatters Sub-topic12.Al-Rida' Sub-topic13.Maintenance Sub-topic14. Guardianship sl The exemplified Iladith as follows; `Narrated(Aras bin Malik) r.a.: Allah's Messengers.a.w usedto commandus to marry and forbid severely celibacyand say,"Marry womenwho are very prolific and loving, for I shalloutnumber " by the Prophets you on the Day of Resurrection. [Reportedby Ahmad and Ibn Hibbangradedit Sahih).The aforesaid Hadith hasan authority by Abu Dawud, al-Nasa'ieand Ibn Hibbanfrom Ma'qal bin Yassar's Iadith. SeeIbn Iiajar, Bulgh al Marm, (no: 962&963) 52The exemplified Iladiith as follows; 'Narrated Abu Huraira r. a.: The Prophet s.a.w said,"A woman maybe marriedfor four qualities,for her property,her rank, her beautyand her religion; so get the religious one and prosper. [Agreed " upon;with the rest of al-Saba]. Ibid, (no: 964) 53The exemplified Iladith as follows; 'Narrated 'Abdullah bin Mas'ud r.a.: Allah's Messengers.a.w taught us al-Tashahhdin caseof someneed,which is: "Praiseis due to Allah Whom we praiseand from Whom we ask help and He pardon.We seekrefuge in Allah from the evils within ourselves. whom Allah guideshasno onewho canlead him astray,and he whom He leadsastrayhasno one to guide him. I testify that " thereis no god but Allah, and I testify that Muhammadis His slaveandMessenger. And recited threeverses.[Reportedby Ahmad and al Arbda; al-Tinmidhiand al-Hakim gradedit Hasan]. Ibici, (no: 966) saThe exemplified Hadiith as follows; 'NarratedIbn'Umar r.a. Allah's Messengers.a.w said,"One of you must not ask a woman in marriagewhenhis brother has done so already,until the suitor giver her up beforehim or gives
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This chapterthen leads into that on òffences' consisting of 46 alidith within 4 sub-topics; i. e., types of blood money, accusationsof murder and taking oaths, killing of transgressors fighting againstoffenders and killing apostates. Here, the and 16 ahdith which are non-categories could be arranged into sub-topics such as Q4dc58, in QiW o rulings on offences59 reconciliation and
him permission. "[Agreed upon. The versionis of al-Bukhn]. Ibid, (no: 971) ssThe exemplified Hadith as follows; " Àb Dwd reportedthis Hadith from Abu Huraira r.a.: He asked,"What do you memorize? He replied, "Sura al-Baqara and the onethat follows it." He then said,"Get up and teachher twenty " verses. Ibid, (no: 972) 56The exemplified Hadith as follows; `NarratedAbu Burda bin Abu Musa on the authority of his father; Allah's Messenger a.w said, s. "There is no marriagewithout a guardian. [Ahmad and al Arbda reportedit; Ibn al-Madini, " al-Tirmidhi and Ibn IHibbn gradedit $ahih, but it was regardeddefectivefor beingMursal]'. Ibid, (no: 975,976) s' The exemplified Hadith asfollows; `NarratedÀli r. a.: Allah's Messenger a.w forbadethe temporarymarriagein the year of Khaibar. s. [Agreedupon]'. Ibid, (no: 991) 58The laws of equalityin for punishment wounds etc. in retaliation.The exemplifiedJIadith on this regard asfollows; `NarratedIbn Masud r.a.: Allah's Messenger a.w said,"The blood of a Muslim who testifiesthat, s. `thereis no god but Allah andthat I am Allah's Messenger'may not be lawfully shedbut for one three reasons: marriedmanwho commitsfornication; a life for a life; and one who turns away a from his religion and abandons community. [Agreed upon].' " the Ibid, (no: 1156) 59The exemplified Iladith asfollows; 'Narrated Samura a.: Allah's Messenger "If anyonekills his slavewe will kill him, and if r. said, anyone maimshis slavewe will maim him." [Reportedby Ahmad andal Arba'a; al-Tirmidhi gradedit Hasan, and it is from Hasanal-Basri's version on the authority of Samura,but it was disagreed upon whether he hasheardfrom Samuraor not]. ' Ibid, (no: 1159) 60The exemplified Hactth as follows; 'NarratedAnasr.a. : al-Rubaiyi' daughterof al-Nadr his paternalaunt broke the front tooth of a girl andthey (the peopleof al-Rubaiyi') askedthe girl's peopleto pardonher, but they refused; then they offered a fine, but they refused,and they went to Allah's Messenger a.w but they refused s. anyoffer but retaliation. So Allah's Messenger a.w orderedretaliationto be taken. Then Anasbin s. al-Nadrsaid,"0 Allah's Messenger, will the front tooth of al-Rubaiyibe broken?No, by Him Who hassentyou with the Truth, her front tooth will not be broken. Allah's Messengers.a.w then " " replied,"0 Anas,Allah's Decreeis retaliation. But the peopleagreedto pardon her, so Allah's Messenger a.w said,"Among Allah's slavesare thosewho, if one adjuredAllah, He would s. Consent it." [Agreed upon; the wording being of al-Bukhri]'. to
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Òffences' then into connectswith `prescribedpenalties' which has 56 alidith divided into 4 sub-topics;i. e., prescribedpunishmentfor committing fornication, for foul accusation,for theft and for drinking of alcohol, followed by explanation of the terms ìntoxication' and flogging and ordinancesregardingassailants.
The discussionforum on `Jihd' then follows consisting of 62 aliddith, which incorporate 2 sub-topics; i. e., head tax and truce, and racing and shooting. The 43 which are non-categoriescould perhapsbe arranged in sub-topics such as ahdith Jihd6l, categories of war62,the methods of war63,war hostages and obligatory Jihd as its appliesto women65
Ibici, (Hadth: 1168) 61The exemplified Hadith as follows; `NarratedAbu Huraira r.a: Allah's Messenger a.w said,"He who dieswithout having goneor s. " for Jihad will die guilty of a kind of hypocrisy. [Reportedby Muslim].' thought of going out Ibid, (no: 1258) 62The exemplified Iiadith as follows; `NarratedAnasr.a.: The Prophet s.a.w said,"Use your property, your selvesandyour tonguesin " [Ahmad and al-Nasa'iereported it; Al-Hakim gradedit Sahih].' the striving against polytheists. Ibid, (no: 1259) 63The exemplified Hadith as follows; bin 'Narrated Sulaiman Buraida on his father's authority (from Àishar.a.): WheneverAllah's Messenger a.w appointeda commander Sariya, he instructedhim to fearAllah s. over an army or a Himself andconsiderthe welfare of the Muslims who were with him. He then usedto say,"Go out in For Jihad in Allah's Name in Allah's Path and fight with thosewho disbelieve Allah. Go out for Jihad anddo not indulge in Ghulu (stealingthe war booty before its distribution), or be treacherous, kill a child. When you meetyour enemy- the polytheists,summonthem to or mutilateanyone,or leavethem alone:Call threethings,and acceptwhicheverof them they are willing to agreeto, and and themto Islam, and if they agreeacceptit from them, and summonthem to leavetheir abodes transferto the abodeof al-Muhajirin (the Emigrants).But if they refuse,then tell them they will be like the desertArab Muslims, thus they will haveno Ghanima or Fai' unlessthey participatein the Jihad with the Muslims. If they refuseIslam, demandthe Jizya from them. If they refuseseekAllah the Most High's help againstthem and fight with them.When you besiegea fortress, andits people wish you to grant them the protection of Allah andHis Prophet,grant them neitherbut grant them for it is less seriousto break your guarantee protection than to break that of Allah your protection, of And if they offer to capitulateand havethe matter referredto Allah's judgement,do not grant this, but let themhavethe matter referredto your judgement,for you do not know wheteheror not you " them. [Muslim reported it]. ' will concurwith Allah the Most High's Judgement regarding Ibici, (no: 1268)
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The chapteron `foods' which follows has 41 alidith and 3 sub-topicswithin these; i. e., hunting and animals which may be slaughtered,sacrifices and al 'agiqa. The 12 alzddith which are found as non-categoriesin this chapter could be divided into 2 supplementarysub-topics; i. e., food which are suitable or unsuitable67 for human consumption.
Òaths and vows' then follows, with 22 aliddith (here without sub-topics) leading to the doorway into `judgement'. This consists of 36 altdith divided into 2 i. e., testimonies, and claims and related evidence. For the 13 ahildith sub-topics; which remain as non-categories,new sub-topics are suggestedsuch as the specific judge68,the legal reasoning of judges69and the suitability of women as role of judges70.
64The exemplified Hadith as follows; 'Narrated'Imran bin Hussainr. a.: Allah's Messengers.a.w exchanged two Muslim men from " captivity with a Mushrik man. [Al-Tirmidhi reportedit, he gradedit $ajdh (sound).Its origin is in $ahih Muslim].' Ibid, (no: 1284) 'Narrated'Aisha r.a.: I said,"0 Allah's Messenger, Jihad prescribedto women? He replied, is " "Yes", a Jihad which is without fighting; it is the pilgrimage(Haj) andthe 'Umra', [Reportedby Ibn Majah andits origin is in $ahih al Bukhri]'. Ibid, (no: 1260)
65 exemplified 1h asfollows; The liad
66 exemplified The Iladith asfollows;
'Narrated Ibn Abu Aufa r. a.: We went on sevenexpeditionswith Allah's Messenger a.w andwe s. ate locuts. [Agreedupon]'. Ibid, (no: 1323) 67The exemplified Hadith as follows; 'NarratedJabirr.a.: On the day of Khaibar, Allah's Messenger a.w forbadethe flesh of domestic s. but asses, permittedhorse flesh. [Agreed upon]. A versionby al-Bukhari has:"He gavepermission". Ibid, (no: 1322) 68 The exemplified Hadith as follows; 'NarratedBuraidar.a. Allah's Messengers.a.w said:"Judgesare of three types,two of whom will go The one who will go to Paradise a manwho knows what is right and to Hell and oneto Paradise. is givesjudgementaccordingly;but a man who knows what is right and doesnor give judgement accordinglyandactsunjustly in his judgementwill go to Hell, and a manwho doesnot know what
158
Èmancipation' is next introduced with 19 alidith consistingof only one subtopic; i. e., matters pertaining to Mudabbar, Muktab and Umm al-Walad. Since 9 are non-categories,new sub-topics are suggestedsuch as priority for the ahdith freedom of slaves7l, provisions for freeing slaves72,and wealth due to freed children73.
The final discussion forum is on `comprehensiveethics', with 132 ahdith integrating 6 sub-topics; i. e., good behaviour, kindness and joining the ties of relationship, ascetismand piety, cautioning againstmischievousconduct, exhortations to good character,remembrance Allah and supplications. of
is right andjudges peoplewith ignorancewill go to Hell." [Reportedby al Arba'a, and al-Hakim gradedit $ahih]'. Ibid, (no: 1383) 69The exemplified Iladith as follows; 'Narrated Àmr bin al-'As r.a.: He heardAllah's Messengers.a.w says,"When a judge gives a ruling havingtried his bestto decidecorrectly and is right, he will havea doublereward; andwhen he givesa ruling havingtried his best to decidecorrectly and is wrong, he will havea singlereward" [Agreedupon]'.
Aid, (no: 1386)

70The exemplified Ijactth as follows; `NarratedAbu Bakar r.a.: The Prophet s.a.w said,"A peoplewho make a womantheir ruler will " neverprosper. [Reportedby al-Bukhari]'. Ibid, (no: 1395) 71 The exemplifiedIHadlthas follows; 'Narrated Abu Huraira r. a.: Allah's Messengers.a.w said,"If a Muslim man emancipates Muslim a man,Allah will set free from Hell an organ of his body for every organ of his (the emancipated man'sbody)". [Agreed upon]'. Ibid, (no: 1419-1421) 72The exemplifiediiadith as follows; but `NarratedSafinar.a.: I was a slaveof Umm Salama a., and shesaid,"I shall emancipate you, r. on conditionthat you serveAllah's Messengers.a.w aslong as you live." [Reportedby Ahmad, Abu Dawud, al-Nasa'ieand al-Hakim].' Ibid, (no: 1428) 73The exemplified Hadith as follows; 'Narrated Àishar.a.: Allah's Messengers.a.w said,"The right of inheritancefrom an emancipated slavebelongsto the one who set him free." [Agreed upon, in a long Hadith]. ' Ibid, (no: 1429)
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The significant question addressed throughout this chapter,then, has been that of `selection'. That is, in selecting specific topics and sub-topicsfrom the wealth of Islamic jurisprudence,Ibn IIajar al-Asgalnihas clarified the order of priority for the basics of Islam. At the same time, he has introduced a standard compilation for the inclusion of many Uadt-thin one volume. This he achieves methodology through the metaphor of a `portal' or `doorway' leading through into a kind of discussionforum on a theme.
An important part of this method is its sheer economy.Not only an economy of selection,but also an economyof crossreferencingbetweenthis and other volumes of Hadith. That is the author of Bulgh al-Mardm' has coined specific terms to refer to specific groups of narrators, thus eliminating the need for elaborate individual
At acknowledgement. the sametime, this extensivecross referencingmarks out

Bulgh al-Mardm as the most authentic compilation of Hadith in terms of authenticity.To a discussionof this the writer now turns.
5.4.3 The specific terms of reference sources
For the first ever in the scienceof HadUh,Bulgh al-Marm initiates the for There are six specifictermsthat specifictermsof reference sources the Hadith74. havebeenintroduced the authorto demonstrate reference by for the sources most of the IHadithin Bulgh al-Marm'. The six specific terms are al-Sabca, al-Silta, al-
74Suliaman, cit.,p. 190. Op.
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Khamsa,al Arbaca, al-Thalatha, al-Muttafaq àlaih. In the introduction of his book, the author clarifies the significance of thesespecific terms as follows; Ì haveindicated at the end of every Iladith, the Imam who collected it, in order to be honestto the (Muslims) Umma.And therefore,al-Sab/a (the Seven)standsfor Ahmad, al-Bukhri, Muslim, AbU Dwd, al-Nas'i , al-Tirmidhi and Ibn Mjah. AI-Sitta (the Six) standsfor the rest excluding Ahmad. Al-Khamsa (the Five) standsfor the rest except al-Bukhri and Muslim or I may sayAl Arbaà (the Four) and Abmad. I meanby AI Arbaca (the Four) the rest except the first three (i. e. Ahmad, al-Bukhri and Muslim), and by Al-Thalatha (the Three) I meanthe rest except the first three and the one. I meanby al-Muttafaq àlaih (the Agreed upon) al-Bukhri and Muslim, and I might not mention with them anyoneelse and any other thing from theseclarifications is clear'.75 apart
Importantly, eachterm showsthe referencesourcefor the Hadith and clarifies it level of authenticity of Hadith. For thesetwo reasons,the examination will be made eachterm which in line with the Hadith in Bulgh al Mardm, as follows; on
Al-Sabà 5.4.3.1
The term al-Sabrahas been used by the author to illustrate the reference for source 10ahdithin Bulghal-Marm.In provisosof validity of the Hadith,the between term al-Sabra the most authenticitydue to the collectiveagreement verifies
seven narrators i. e. Imam Alimad bin IIanbal, Bukhri, Muslim, Ab Dwd, al-
Tirmidhi, al-Nas'i, Ibn Mjah. There are two patterns of al-Sabawhich are in established Bulghal-Marm.
The first patternis called as a definitive al-Saba. In terms of numbers, there are9 hadithin this pattern,which canbe exemplifiedasoneof thembelow;
75Ibn Hajar,Bulgh Marm, 3. al p.
161
`NarratedAnas r.a.: The Prophet s.a.w on entering the lavatory usedto say: "0 Allah, I seekrefuge with You from devils - males and females(or all offensive and wicked things, evil deedsand evil spirits, ect.)". [Reported by al-Sabà]76. The second pattern is termed as indirect al-Sabra which indicates only one Hadith as follows; `NarratedÀli r.a: At the battle of Khaibar, the Prophet s.a.w forbade the temporarymarriage of women, and eating the flesh of domestic [AI-Saba exceptAb Dwd reportedit]. '" asses. Although the above Hadith is referred to al-Saba, the author nevertheless the exception of reference to Ab Dwd. In general, this provision can be made understoodthat without the reference to Ab Dwd, it will therefore six narrators only for the Ijadith (al-Sitta). However, the author does mention in the above regarding the stand of al-Sitta is for the rest of sevennarrators excluding quotation
Ahmad.For this ground,the statement 'al-Saba exceptAb Dwdreportedit' of is not the same the term al-Sitta. as
Al-Sitta 5.4.3.2
Accordingto Ibn Hajar al-Asgalni, term al-Sitta is appliedto the Iadith the ,
' which is referred to the six narrators of Hadith i. e. al-Bukhri, Muslim, Ab Dwd,
al-Nas'i, al-Tirmidhi and Ibn Mjah. This term can be seenas the secondmost in authenticityafter al-Sabàdue to the collective concurrence terms of narration.
However, none at all of the Hadith in Bulgh al-Marm is referred to the term Al-
761bid, (no: 86) 771bid, (no: 992)
162
Sitta. At this stage,the author can be seenas ignoring to demonstrate IHadith of althe Sitta althoughit is mentioned at a first place in his introduction.
5.4.3.3 Al-Khamsa
The term al-Khamsa meansthe narration of Uaath which is referred to the five narrators i. e. Ahmad, AbU Dwd, al-Nas'i, al-Tirmidhi and Ibn Mjah. Two narrators are excluded in this term i. e. Bukhri and Muslim. In terms of numbers, there are 60 altadith that are in line with the term al-Khamsa, which can be divided into 3 patternsas follows;
The first pattern is classified as definitive al-Khamsa which is exemplified in
the following HadTth;

`Narrated(Aisha) r.a.: When the Prophet s.a.w came out of the privy, he " usedto say,"Ghufranaka (0 Allah! Grant me Your forgiveness). [Reportedby al-Khamsa.AbU Iltim and al-Hakim gradedit $alzili].i78
Thesecond is indirectof al-Khamsa that is illustratedbelow; pattern

`NarratedAisha r.a.: The Prophet s.a.w said, "The prayer of a woman, who has reachedpuberty, is not acceptedunlessshe is wearing a Khimar (cover)." [Reportedby al-Khanna except al-Nasi'e. And Ibn Khuzaima gradedit Sahih].'79
The third patternis basedon disapproval in demonstrated the al-Khamsaas

following instance: `Narrated(Ab Huraira) r.a.: Allah's Messengers.a.w said: "When the (month of) Shabnis halfway, do not fast." [Reportedby al-Khamsa. Ahmad disapprovedit]. '80
78Ibid, (no: 98) " Ibid, (no: 204) 8 Ibid, (no: 676)
163
5.4.3.4AI Arbaà
AI Arbaà is a term which has been used to indicate the ahdith that are to the four narrators i. e. Ab Dwd, al-Nas'i, al-Tirmidhi and Ibn Mjah. referred In this term, three narrators are eliminated i. e. Ahmad, Bukhn and Muslim. For the term al Arbaca, there are 59 aliddith which are referred to and they are classified into two patternsas follows;
The first pattern is classified as definitive al Arbaa, which can be exemplified in the following Iladith; `NarratedJbir r.a.: Allah's Messengers.a.w said, "If anyonesayswhen he hearsthe Adhn : `0 Allah! Lord of this perfect call and of the regular prayer which is going to be established!Kindly give Muhammad s.a.w. the right of intercessionand superiority, and sendhim (on the day of Judgement)to the best and the highest place in Paradisewhich You promisedhim', he will be " intercession. [Reportedby al Arba"a] '81 assured my of The second pattern in based on indirect version of al Arbaà, as in the
following exemplar;
`NarratedIbn Abbasr. a.: The Prophet s.a.w usedto saybetweenthe two prostrations:"(0 Allah, forgive me, have mercy on me, guide me, heal me, for and provide sustenance me)." [Reported by al Arbaà except al-Nas'i, this is the version of Ab Dwd and al-Hakim gradedit $aldlj]. '82 and
Al-Thaltha 5.4.3.5
For the author,the term al-Thalthameans Hadith which is referredto the the three narrators i.e. Ab Dwd, al-Nas'i and al-Tirmldhi. Four narrators are
11 Ibid, (no: 202) 82 Aid, (no: 299)
164
disregardedin this term i. e. Ahmad, Bukhn, Muslim and Ibn Mjah. There are 14 alldith which are in accordancewith the term al-Thaldtha that has one pattern only in terms of narration. The pattern is called as definitive al-Thaltha which is exemplified as follows;
`Narrated AbU Said al-Khudri r. a.: Allah's Messenger s.a.w said, "Water is pure and nothing can make it impure. " [Reported by al-Thaldtha, and Abmad it, Sahih]. ' 83 graded
5.4.3.6al-Muttafaq àlaih
The term al-Muttafaq calaih means the reference source for the Uadith is agreedupon only by the two most respectedscholars i. e al-Bukhri and Muslim. The Hadith which is referred to this term is juristically considered the most authentic Hadith. In the book of Bulgh al-Marm, there are 435 aliddith which are in line with the term al-Muttafaq alaih.
In terms of pattern, there is only one pattern in the term al-Muttafaq àlaih
is exemplified follows; which as

`NarratedHudhaifa bin al-Yaman r.a.: Allah's Messengers.a.w said, "Do not drink in silver or gold utensils, and do not eat in plates of suchmetals, for suchthings are for them (the disbelievers) in this worldly life and for " you in the Hereafter. [Agreed upon].)84
Apart from the term al-Muttafaqàlaih, the authorregularlyreferseitherto

below; al-Bukhri or Muslim in separateterm, which demonstrates `Bukhri's version adds:"Then perform ablutions for every prayer".85 Ìn the version of Muslim: "I usedto scrapeit (the semen)off the garment of Allah's Messengers.a.w and then he offered prayer with it" 86
831bid, (no: 2) 84lbid., (no: 14) g5 Aid, (no: 66)
165
The coining of the six specific terms in line with the referencing across all important books of Hadith can be stated conclusively as the remarkable compilation Bulgh al-Marm. Importantly, some of thesesix specific terms have methodologyof been referred and utilized by many latter jurists in their books particularly in terms of Iladith. It will therefore be concluded that the book referencingacrossall volume of of Bulgh al-Marm can be considereda first model of concisebook of Uadith which hasbeen followed by many other books later on.
5.5 Summary
This chapterjuristically shows the author's biography of Bulgh al-Marm and more importantly the significance and featuresin which the book is consideredas a concise book of Hadith. The analytical approach has been applied to examine the
threeauthenticitylevels of Hadith i. e. a1dli,HasanandDaìf. As a result,the book

of Bulgh al-Marm authentically consists of 77.6% ,Saldli, 16.08% Hasan and 6.29% Daif. These figures of percentage-wiseprove the quality and significance of
Bulgh al-Marm as the importancereferencesourcefor Islamic legal texts of the Hadith.
The examination of compilation methodology of Bulfigh al-Marm i. academically a definingapproach verifies of within threemain elements e. numbers Hadith, arrangementof chapters and sub-topics and specific terms of crossreferencing.Moreover, this pattern of compilation methodology has been followed by many later jurists as a benchmark approachto compile the legal texts of Ijadth.
86lbid, (no: 25)
166
To further analysisof Bulgh al-Mardm, the next part C will examinethe legal texts of IHadith in the framework of juristic concept of al-Malaha wa al-Nag. This analysepart will explore conceptually the significance of public interest through the Islamic legal texts of Uadlth. To a discussionof this the writer now turns.
167
PART C ANALYSIS OF THE HADITH Introduction to Part C The Ahddith of Blgh al-Mardm have been analysedand commentedupon by many jurists. Muhammad RashadKhalifa, ' for example, statesthat there are at least seven jurists who undertookthis task. The most well-known of theseis al-Imm Muhammad b. Ismil al-Sanni (d.1182H), who entitles his book Subul al-Salm. The six jurists include al-Qcli Sharfuddin al-Husein (d. 1119H), whose works (alremaining Badr al-Tamam) were written in manuscript, al-Sheikh Ab al-Khayr Mir al-Hasan Khan, who wrote a commentary of Blgh al-Marm (Fatly al Allm) and alAllma Ab 'L'aib $adiq HassanKhan, whose analysesof the Ahdith of Bfilgh alMarm were written (interestingly) in Persian.As yet, there is no known title for this later work. alAllma Ahmad Ijasan al-Dahlwi has produced two volumes of Muntakhab, while other commentatorsare al-Sheikh Mut ammad Abidin Al mad alAnri (d.1257H) and al-Sheikh Muhammad Ali Ahmad, lecturer in UUluddinat alAzhr University, for whose works there is also no title, perhapsdue to unavailable or unpublishedmaterial.
Significantly, these sevenbooks mostly have a very similar pattern in terms of For instance,Subul al-Salim falls into three parts: definitions analytical methodology. of terminologies used in the Uadith, followed by a biography of each narrator, then juristic discussionon Islamic rulings contained therein. This threeconcluding with a part pattern can be classified as the classical approach
1Khalifa,Madrasa, v.2, p.202
168
Methodology of Analysis
In part C, the writer will apply the contemporary approach to analyse the Alldith in Blgh al-Marm, particularly that chaptertermedKitdb al-Buyuc,because of its central importance to the focus of the present study. Nevertheless, those classical commentaries already discussed will be referred to in this analysis, particularly the book of Subul al-Salm, written by al-$ancani.The contemporary
differs from the traditional method in that the conceptof alapproachsuggested

Maflaha wa al-Nash will be applied to this analysis. That is, the Hadith will be examined through the `juristic themes' as set out in the book of Blgh al-Marm. This examination aims to pinpoint the significant principles of public interest (Ma. laha) which emergefrom the Islamic rulings enclosedwithin it.
More specifically,theseprincipleswill be determined throughthe process of ratiocination(Tacit!alAhkm). That is, the examinationwill focus on the effective followedby causes Islamicrulings,applyingboth linguistic andinductivemethods, of simpleandconcise elaboration.
In other words, this section will analyse the objectives of Islamic rulings as
laid down in the AlldTthof al-BuyTI'in Blighal-Marm For example,in the sub . topic of ùsury',the discussion in line with will single'out thoseobjectives which are
the concept of public interest (Malajta). Each Hdith in turn will then be scrutinised for those rulings and teachings which are in accordancewith the principle of public interest (Malaha). In order to do so, the process of ratiocination (Taflil al Ahkm) be applied to identify the main objectives of Islamic law, also termed in Islamic will
169
jurisprudenceMagd$id al-Shari a. For somejurists, these objectives are synonymous To with the term hikma, the wisdom of the Divine Commandments. this analysis, the writer now turns.
170
CHAPTER SIX KITAB AL-BUY(f : APPLICATION OF THE CONCEPT OF ALMA, LAIIA WA AL-NAFF TO THE A. JDITH OF AL-BUY(f
6.0 Introduction
This chapter forms the heart of the present study, building a specific the juristic framework of public interest in legal texts (almethodology within Maclaha wa al-Nass) for the analysis of Kitb al-BuyCaccording to the practical principles drawn up from the 22 juristic `themes' or sub topics therein. The processof (tadlil al-ahkm) is applied to identify the main objectives of Islamic law ratiocination
setout in Kitb al-&04'. as
Prior to this analysis, the definition and significance of al-Buyi
be will
the first sub topic of this chapter,with the aim of justifying both its as examined
inclusion and the way in which rulings and teachings are set out in accordancewith the juristic principle of public interest (al-Ma. lalia wa al-Nag). In addition, juristic
features the Addi-th from eachsubtopic of al-Buyi will be highlightedto verify of their authenticity .
6.1 Definition and Significance of al-Buyuc
In termsof a literal definition,the book of Subulal-Salmdefinesthe termalBuyY(sing.al-Bay") as (tamlik mal bi-mal) or `conveyancingproperty by property"
where the term `conveyancing'is translatedfrom the Arabic `tamlik'. In the alMawrid dictionary, the term tamlik is translated literally as ìnvestmentwith
1al-Sanni, Subl, 2,p.449 v.
171
in possessiontransfer (of ownership), conveyance(of property), ownership, putting delivery and cession'2,which demonstratesits alienation, making over, assignment, strong connection with the subject of property. As further verification of this strong link, Collins Cobuild Learner's Dictionary defines conveyancing as `the process of transferring the legal ownership of property'3, which underlines the sense of òwnershipof property' to which the term tamlik refers.
In the English language,the term al-Buyu' (sing.al-Bay`) translatesin several this is seen,for example, in Rayner4,where the term is defined as `the contract ways; of sale' in a comprehensive discussion in the chapter entitled `The Theory of Contractsin Islamic law'. Kitb al-Buyu' is thus translatedby Rayner as `Chapter on Sales'. Interestingly, however, scholars do translate this differently. The English translation for the book of Bulgh al-Marm, as a further example, defines Kitb al-
Transactions'.At this stage,the term al-Buyii Buyuf as `The Book of Business

businesstransactionand the term Kitab is literally translatedas the book. means
is Selecting accurate translationfor the two terms discussed thus not an an task. However,in view of the numeroustypes of businesstransactionlisted easy topic under the headingof al-Buy it is clearly preferablein the within eachsub , the transactions' than `sales'.As contextof this studyto choose term `business rather for the term Kitab, althoughthe meaninghere is literally `the book', to translateas `the book of businesstransactions the book of Bulgh al-Marm' nevertheless in For seems strange. this reason,`chapter' is preferredto `book' for the term Kitb.
2 al-Baalbaki, Mawri4p. 372. al 3 Cobuild,Learner's Dictionary, 239. p. 4 Rayner,The Theory,p. 103-143.
172
Accordingly, from hereon `chapter on businesstransactions' will refer specifically to Kitb al-Buyuf.
In juristic terminology, the term al-Buyuc is defined as òffer and acceptance two types of property'; however, this type of transaction does not include on donations or gifts, and specifically excludes the context of `dealing and giving'5. is Elsewherethe term al-BuyC defined as the èxchange' of property (as againstòffer
both donationsand `giving'6.Importantlyfor and acceptance') which also excludes

this study, the first of these definitions (the condition of òffer and acceptance')is in line with the principle laid down in the Qur'an which insists on `mutual consent' as a fundamental ethic when engaging in trading or in business transactions7. The definition thus embodies a classic Islamic principle when interpreting the preferred term al-Buy, on which manyjurists are in agreement8.
jurists agreethat the principle of òffer and acceptance' Furthermore, many

the fundamental ethic of mutual consentas applied to the contract of al-BWf within
is equallyapplicableto other contracts, thosein areassuchas marriage, particularly family, descendants, finance and court judgements9, arguedfor exampleby In as Ashr10. main objectiveof this legal principle is thus to preserve rights of The the interested involvedin any contractor transaction. is for this reason It that the parties sectionconcerning al-Buyu' is chosenfor analysis,since it embodies vital legal a
principle (that of `mutual consent') laid down between contracting parties.
3 Op.cit., al-Sanni, 449. p. 61bid Allah s.w.t says;Ò you who believe! Eat not up your property amongyourselvesunjustly except it be a trade amongstyou, by mutual consent.(Al-Nisa': 29). 8 al-Jaziri,Kitb al-Figh,v.2, 147. p. 9Ibid 10 Ashhir, Ibn Magdsid,p.302.
173
This view is upheld by the book of Subul al-Salm as the definitive textual for the Alzdith of Bulgh al Marm, where the importance of al-BuyY is analysis highlighted as forming a fundamental part of human life. For al-$anni, business transactions act as a medium through which human objectives are legitimately in a straightforward manner". In other words, incorporated into this attained important areaof human activity are principles and methodsfor businesstransactions as laid down by the Prophet s.a.w in many authentic Altdith, with the objective of humanity towards dealing uprightly and legally in businesstransactions12. guiding These significant principles of business transactions will thus now be further discussed within the framework of juristic concept of al-Ma. lalia wa al-Nall.
6.2 Chapter on BusinessTransactions
In the book of Bulgh al Marm, the chapter on businesstransactions is the largest compared with others, particularly in terms of sub topics. There are 22 sub topics, including specific numbers of the Alith follows; conditions of business as
(3 transactions thosewhich are forbidden (44 alt dith); options of transaction and (17 aladith); the saleof alCAryandthe sale ahdith);usury permission regarding treesandfruits (7 ahdith);paymentin advance,loansand pledges(8 aliddith); of bankruptcy seizure al:dith); reconciliation(3 alidith); the transferof a debt (8 and (1 (8 andsurety(4 aliddith); partnership agency aludith); confession aliddith); and
loan (4 alldith); al-Ghasb (5 alidith); option to buy neighbouring property (5
ahdith);al-Qird (2 ahdith),tendingpalm-trees wages(9alidith), developing and

11 Subul, 3,p.3-4 al-Sanni, v. 12 Ibid
174
barren lands (9 ahdith); endowments (3 ahdith), gifts, life-tenancies and giving property for the recipient's life time (11 alidith); lost and found items (6 ahdith); sharesof inheritance (13 alidith); wills and testaments (5 alidith) and trusts (1
alidTth).
175
6.2.1 Conditions of businesstransactions and those which are forbidden As the first sub topic in the chapter on al-Buyuf or businesstransactions,this is the 37 4 largest sub topic becauseits consistsof 44 Aliddith that are encompassed $alii z, Hasan and 3 Datif. In terms of reference, this sub topic is referred to authentic the Hadith such as Ahmad (narrated 14 Alzdlth), Bukhri (narrated 18 narratorsof Ahddith), Muslim (narrated 18AhaCth), Ab Dwd (narrated 11Aladith),al-Nas'i (narrated 9 Aladdith), al-Tirmidhi (narrated 10 Aliddith), Ibn Majah (narrated 10 Ahdith), and others' (narrated 16Alidith).
This sub topic hastwo interrelated main points to highlight i. e. i) conditions of businesstransactionsii) those which are forbidden to deal in businesstransactions. There are 35 Ahdith in line with the conditions of business transactions and 9 Ahdith in connection with the particular items which are forbidden to deal with
business However, former andthe latter areinterrelated eachother the to transactions.

in specific topic.
To begin with, those 35 Alidith in conjunction with the conditions of business
transactions be examined will within the frameworkof juristic conceptof al-Maylalia

wa al-Nass.
The first Hadith that in line with the conditions of businesstransactions emphasises two typesof work that are earningthe besti.e. a mans'swork with his on
1 In this chapter, the term òthers' is referred to scholars of adith such as Mlil, al-Shfiì, Abil Htim, Ibn Khuzaimah,Ibn Hibbn and al-Hkim.
176
hand and every businesstransaction which is approved2. For a1-$anni3, Hadith this is a proof on the reward of the effort of work. Since there are only two types of work laid down in the Hadith, somejurists differ to interpret a type of profitable work and to determinewhich is the best one. For al-Mawardi, a type of profitable work refers to farming, businessand manufacturing. At this stage,al-Nawwi highlights farming is the best profitable work becauseit would gain a senseof reliance to Allah almighty. However, Shfii's scholarsprefer businessas a profitable work comparedwith the These argumentscan be understood simply that practical work is a juristic others4. to gain profitable. The best of practical work is either physical work or cause business.In line with juristic concept of Mallalza or public interest, both physical business would benefit the life of humanity. In terms of profitable for work and humanity, businessis the best becauseof its feature that can be related to many areas as agricultural business, industrial business, educational business and so on. such
in line with Islamic principle that aims to However,thosetypes of business must

the right of both parties either seller or buyer. This condition has been preserve by the Prophet s.a.w in the third Hadith of this sub topic. underlined
In the third IHadith, Prophets.a.w underlines solutionfor two peoplewho the a between business disagree thereis no proof to arbitrate transaction a arearranging and them,the seller'sword is final, or they may breakthe deals.For the authorof Subul this the al-Salm, Hadith is a proof to endorse authorityand right of seller eitherto
2 1) NarratedRif- Rfi'. b. At +1-j: The Prophet tLi was asked,'What type of earning is best? He replied, "A man'swork with his hand and every businesstransactionwhich is approved. " ' (Reportedby al-Bazzr;al-I3kimgradedit $a1ui (sound)). 3 al-$anni, Subul, 2,p.452. v. 4Ibid, 3 3) Narrated Ibn Masud 1r I heard Allah's Messenger eLj 446 At , saying,"When two 'uj: people who are arranging a businesstransaction disagreeand there is no proof to arbitrate between them, the seller'sword is final, or they may break the deal. (Reported by al-Khamsa and validatedby " al-Hakim).
177
break a deal in the transaction for particular reason such as disagreement persist or buyer6.This provision is in line with the concept of public interest in which the with is preserved from loss and damage of his wealth or property. right of ownership Furthermore, in the case of disagreement between seller and buyer, the Islamic be applied to gain justice and right for both principle of claims and proofs must This is in line with the Uadith of the Prophet s.a.w, `the proof lies on the parties. the oath must be taken by him who rejects the claim'7. The juristic plaintiff and in this lVadi-thclearly providesjustice and right for both parties who are in principle disagreement proving the proof for plaintiff and confessingthe oath for defendant. by This juristic principle is in line with the basic fundamentalnecessityof public interest in Islam whereby the preservation of wealth is undertaken by implementing the justice and right for both parties who are engaging the business principle of transaction.
how Within the fifth Iadith of this sub topic, the Prophet s.a.w demonstrates to deal with a sale that binds within the condition of al-Istithn' or exception. In the fifth Hadith, the Prophet s.a.w has returned the camel and its price of which he bought from the buyer who gave a condition in the transaction that the camel should be to ride it to his home8. In the examination of this Hadith, Muslim jurists allowed
6 Op.cit., al-$anni, 2, 457. v. p.

60 a-
A*
OL"
ix
rl
8 5) NarratedJabir b. Abdullah 1-+Ir Al J: I was travelling on a camelof my own which had grown jaded and I intendedto let it off. The Prophet followed me and madesupplicationfor 44- AI tUi me and struck it, then it went as it had never done before. He then said, "Sell it to me for one Uqiya." I replied, "No." He again said, "Sell it to me." So I sold it to him for one Uqiya, but conditionedthat I shouldbe allowed to ride it to home. Then when I reached(home), I took the camelto him and he paid me its price in ready money. I then went back and he sent someoneafter me. (When I came),he said, "Do you think that I askedyou to reduce the value of your camel'sprice to take it? Take your camel andyour coins;for it is yours." (Agreed upon; and this is Muslim's version).
178
differ on the legality of condition of al-Istithn' that includes in the contract of sale. For Imm Abmad and Mlik, the contract is legal and valid if the buyer knows clearly on the condition of al-Istithnd' that is dealt with9. However, mostjurists of Shfii and Hanafi reject the contract that binds with the condition of al-Istithn' due to its This Hadith and its rulings form a legal choice for the buyer uncertain and doubt10. either to proceedthe transactionwith the knowledge of the condition of al-Istithn' or to cancel this type of transaction. In line with the concept of public interest, either
that dealswith this type of seller or buyerwould havea legal choiceof transaction
contract.
In dealing with the buyer of sale, the sixth Hadith11 of the Prophet s.a.w underlines a bankcruptcy is a particular characteristic of buyer that is not allowed to invole in the sale12.However, a leader or government of state can be appointed as a
in for It representative a bankcruptcy dealingfor any transaction. is obviousthat the

behind this is to preservethe interest of seller from loss in the transaction with reason a bankruptcy buyer. A detail discussion on this regard and its connection with the conceptof public interest will take place in the sub topic six.
The seventh,eighth and ninth Hadith in this sub topic deal with the topic of
food andbusiness In transaction. the seventh"andeighth animalsin connection with
9 al-$an'ani,Subul,v.2,p.459. 'o Ibid 116) Narrated (Jbir bin Abdullah)1. x. Al A man of us declaredthat a slaveof his own would be -a. free after his death,but he had no other property. The Prophet AA- AI Ul- sent for him and sold ] him. (Agreedupon). 12al-$anàni, Subul,v.2,p.461. 137) NarratedMaimuna4c 4 Al m: A mousefell into some the wife of the Prophet rl-A Prophet eLi q.,, Al l- was askedabout it and he replied, "Throw it and what is gheeand died. The r- L " surroundingit away and eat it (the ghee). (Reported by al-Bukhri; A$mad and al-Nasal added:"into ") a solid ghee.
179
Iladith, both discussthe mousethat falls into gheewhich is solid, must be thrown and what is surrounding it away; but if it is in a liquid state do not go near it. In connectionwith the chapter on al-Buyuc or businesstransactions,these two alidith have no significant at all. In the analysis of these two ahdaCth, book Subul althe Salm has no elaboration that relates'to the topic on al-Buy However, al-$anani . doesrelate the seventhHadith to the juristic concept of public interest.For al-$anani, this Hadith emphasises the application of attaining benefit for humanity in caseif a on solid ghee is entered by a mouse, thus, the mouse should be thrown and what is surroundingit away. Accordingly, the solid ghee is safety to eat. However, the eight Iladith underlines the application of avoiding harmful to humanity whenever the Prophets.a.w disallows to eat a liquid gheeif it is enteredby a mouse1s
Many jurists discussboth alicith in reasonablechapters such as chapter on
food and chapteron purification.None of primary sourcesfor the book of Hadith

the aforementionedHadith16in the chapter on al-Buy except in the book of arranges
Bulgh al-Marm. Only Ibn Hajar alAsgalni as an author could give reasonable
reasonson why both seventh and eight ahdith are arranged in the chapter on alBuyuc.
148) NarratedAb Huraira Al uX Allah's Messenger ., lc, said, "If a mousefalls into 91gheewhich is solid, throw the mouseand what is surroundingit away; but if it is in a liquid state do not go near it. " (Abmad and Ab Dwd reported it; al-Bukhri and Abii Htim ruled it to be misconceived). is al-$anni, Subul, 2,p.461. v. 16The aforementioned Hadith has been arranged by al-Tirmidhi, Ab Dwud and al-Drimi in the chapteron food. Al-Drimi also categorises Hadith in the book on purification (831). this
180
In the ninth IHadith17, topic on cats and dogs have been highlighted by the a Prophet s.a.w by which it is not allowed to sale except for domestic purposesuch as hunting and the like. Somejurists such as Ab Hurairah, Tws andMujhid statethe in for selling dog or cat is forbidden'8. The fourth19Hadith also encompasses ruling However, mostjurists agreethat it is permissibleto saleboth for domestic this regard. hunting and guarding20. This ruling is in line with the principle of reason such as juristic concept of public interest in which the interest of humanity is preservedand the benefit of animals are utilised for sensiblereasons.
Further discussion on the preservation of the life of humanity has been Alidith but interrealatedto eachother regardingspecific detailed within six-separated topic on the sale of slave.Thesesix Alldith are the tenth, eleventh,twelfth, sixteenth,
thirtieth andthirty-first.
Prior to the prohibition of slave in Islam, those four A10dith discuss on the the sale of slave. The tenth Hadith21rules the legitimacy of recorded or condition of
179) NarratedAbi3Zubair' $cj: I askedJbir (k Al Le;-J) about the paymentfor cats and dogs 4 he replied, "The Prophet Lu A-. Al rebuked that." (Reported by Muslim and al-Nas'i; the and latter added:"excepta hunting dog.") 18al-$anni, Subul, 2,p.464 v. 194) Narrated Ab Masd al-An1ri L A'j: Allah's Messenger 4l Al ,L- prohibited the ,, " for a dog, the paymentmade to a prostitute, and the gift given to a soothsayer. (Agreed price paid uon).
20 Ibid
21 10) Narrated Aisha 4kc-Al Baraa cameto her and said, "I had arrangedto buy my freedom j: for nine Uqiya; one to be paid annually, so help me." A'isha 4.'---Al Lj replied, "If your people are that I should count them out to them, and I shall have the right to inherit from you, I shall do willing " Barira went to her people and told them about it, but they refusedthe offer. When shecameback so. Allah'sMessenger (, u446Al (in the house).She said, "I offered that to them,but they was sitting insistedthat the right to inherit from me shouldbe theirs." The Prophet heardthat and A46Al . A'isha 4:- Al "Take her on the condition that told him about it, so he saidto A'isha t Al -) the right to inherit from her will be yours, for the right of inheritancebelongs only to the one who has Al did so. Allah's Messenger -,, then stood up among set a slavefree." A'Isha 4k,- Al uj ulthe people, and after praising and extolling Allah, he said, "To proceed;what is the matter with some in Allah's Most High Book? Any condition which is not in men who make conditions which are not Allah's Book is worthless. Even if there are a hundred conditions, Allah's Decision is more valid and Allah's Condition is more binding. The right of inheritancebelongsonly to the one who has set a slave
181
for liberation of a slave by paying money to his master. For those written contract for liberation of a slave,they have the right of inheritanceof slave.For Imam who pay Abmad and Mlik, this ruling is classified permissible if both parties satisfied on the However, for Ab Hanifa it is not permissible to sell a slave written contract22. it because would lose the ownership of master23.
Hadith, the Regardingthe right of inheritance of freed slave, in the sixteenth24 by Prophet s.a.w reminds that the inheritance is forbidden to be sold or gifted because its part of slave's lineage. It can be learned that this stipulation was applied analogy that time to preservethe inheritance of wealth of freed slave. on
The specific discussion on ' selling a salve and its conditions has been in the eleventh25, twelW6, thirtieth27and thirty-first28Ijadith. In terms of prolonged
hadbornechildren,the eleventh Hadith rulesasforbidden sellinga slavewomenwho

the twelfth Hadith constitutes as permissible. For al-$anni, the ruling of whereas forbidden in the eleventh Hadith has been abrogated by the ruling in the twelfth
free." (Agreed upon; the version is of al-Bukhari). A version by Muslim has: "Buy her, set her free and makethe stipulationthat the right to inherit from her will be yours." 22al-$anani, Subul,v.2,p.466-467. 23 Ibid 2416) Narrated (Ibn 'Umar) At At forbade sellingor giving j Allah's Messenger ] awaythe right of inheritancefrom a freed slave.(Agreed upon). 2511) Narrated Ibn *Umar L At 'Umar (4-%r. who I Le,; forbade the saleof the slavewomen j: -J) have given birth to children (of their owners) and said, "She is not to be sold, bestowed as a gift or inherited; but he (the owner) enjoys her as long as he lives and when he dies, she becomesfree." (Reportedby Malik and al-Bayhgi). 6 12) Narrated Jbir At -j. We used to sell our slavewomenwho had borne children when the L,,: At Prophet ,4 was alive and he saw no harm in that. (Reportedby alNas'i, Ibn Mjah and al-DaraqutniandIbn Hibbn gradedit $alh (sound)). 2730) Narrated Abu Ayyb al-An4ari At , Lm saying, At I heard Allah's Messenger ] "If anyoneseparates mother from her child, Allah will separate him from his beloved oneson the Day a " of Resurrection. (Reportedby Al}mad; al-Tirmidhi and al-Hakim gradedit $ahih (sound)). 2831) Narrated 'AH b. Aba Talib At Allah's Messenger e4 me commanded to u-. betweenthem. When I madementionof sell two youths who were brothers. I sold them and separated At that to the Prophet he said, "Find them out and get them back; and do not sell them j ul. m, but together. (Reported by Abmad) And the narrators of this version are reliable, and indeed Ibn " Khuzaima, al-Jrd,Ibn IIibbn, al-Hakim, alTabarani and Ibn Qattngradedit $alli (sound). Ibn
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Iladith in which it is permissible to sell a slave women who had borne children. It that this ruling would give freedom for a slave from slavery and he would suggests gain the rights as humanity. However, in the thirtieth Iladith, the Prophet s.a.w rules that it is forbidden to separatea mother from her child in the caseof selling a slave women. The same principle applies into the thirty-first Hadith in which the Prophet s.a.w underlinesthe prohibited of selling separatelytwo slave youth of brotherhood. This ruling is applied on that time in order to preserve the lineage and humankind. The discussion on slavery transactions in this topic is changed into discussion on selling transactionthat regardson the significance of measurementand weighting of or foods, which takes place in the eighteenthHadith. goods
The condition of measurementand weighting of goodsor foods must be given by seller prior to the sale. This condition has been emphasised the Prophet by priority
in the eighteenth29 IIadith of this subtopic. The purpose this conditionis to s.a.w of in give quality and quantity value of goodsor foods for purchaser the sale. This is in line with the juristic conceptof public interestin which the right of purpose is to purchaser preserved buy the goods or foods with theirs quality as well as
quantity. Furthermore, the Qur'an reminds the punishment in the Day of judgement for thosewho deal in fraudulent transactions3o.
29 18) Narrated (Ab Huraira) ' L,,: Allah's Messenger fL u4 At jL- said, "If anyonebuys -j. grainhe must not sell it till he weighs it. " (Reportedby Muslim). Allah s.w.t says; `Woe to Mu(affrfun (those al who give less in measureand weight). Those who, when they haveto receiveby measurefrom men, demandfull measure.And when they have to give by measure weight to (other) men, give less than due. Do they not think that they will be resurrected or (for reckoning),On a Great Day?'. (1-5 : Sura al Mulafffin).
183
In connection with fraudulent transactions, within the nineteenth31and Hadth there are four types of fraudulent transactionsi. e. i) the condition twentieth32 loan combined with a sale, ii) two conditions relating to one transaction,iii) the of a from something which is not in one's charge,iv) selling what is not in profit arising This four conditions or types of fraudulent transactions are one's possession. deal with. The juristic reasons of prohibition on these four types of prohibited to the transactionsbecause interrelated featuresto uncertainty conditions of contract that loss and damagefor one party. These four unlawful transactionshave no may cause interest due to unfair and fraudulent elements in its senseof preservationof public transactions.Furthermore,the Islamic transaction emphasises the condition of alon Qabd or certainty of delivery of good of purchasewithin the contract of sale. The third and fourth conditions of the above fraudulent transactionsclearly indicates the or certainty delivery of good of purchase. of absence al-Qabd
The discussionon the condition of al-Qabcl or certainty of delivery of good has been extendedin the twenty-secondand twenty-third Hadith of this of purchase Ijadith is a proof to indicate the void topic. For al-$anani,the twenty-second33 sub selling of which the commodities such as oil or fruits to be sold on the spot where
3119) Narrated(Ab Huraira) ur- At -a: Allah's Messenger ei At forbadetwo transactions c, in one. (Reported by A1mad and al-Nasi, al-Tirndhi and Ibn, 11ibbngraded it''ahtli combined (sound)). Ab Dawd has: "If anyonemakestwo transactionscombinedin one be must confirm that of a lower 'rice, or he is involved in committing usury." 2 20) Narrated Amr b. Shuaibon his father's authority from his grand father ( Allah's At Messenger j A- At said, "The condition of a loan combinedwith a saleis not lawful, nor two to one transaction, nor the profit arising from somethingwhich is not in one's conditions relating " charge, nor selling what is not in your possession. (Reported by al-Khamsa. al-Tiirndhi, Ibn Khuzaimaand al-HAkimgradedit $ahih (sound)). 3322) Narrated Ibn 'Umar L At I bought someoil in the market and when I cameto receiveit, u- J: a man met me and offered to give me good profit for it; and when I was about to seizethe price from him, a man caught hold of my hand from behind. So I turned and found that he was Zayd b. Thbit ( He said, "Do not sell it in the place where you havebought it from, till you take it to your -C- At ). dwelling;for Allah's Messenger L, 14- At forbadethe commoditiesto be sold on the spot where uLthey were bought from, till the traders take them to their dwellings. (Reported by Atmad and Abu " Dwd;the versionis of the latter; Ibn Ijibban and al-IW. gradedit $ahi z(sound)). kim
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It they were bought from, till the traders take them to their dwellings34. appearsthat this type of commodities needs a proper place before selling as requirement of alQabd. However, in the twenty-third Iladith35, the Prophet s.a.w underlines the valid for golden dinars, takes silver dirhams, and vice versa, provides this exchange selling is concludedat the current rate. For Sh5fii's jurists, this transactionis in line with the condition of al-Qabcl becausethe featuresof dinar and dirham currency are certainty delivery and transferable commodity36.This provision is in line with the juristic interest in which the condition of al-Qab j is applied to the concept of public transactionthat aims to preservethe right of ownership for purchaser.
Another discussion on condition of transactions takes place in the twentyHadith, twenty-eighth Hadith of this sub topic. In the twenty-seventh37 seventh and the Prophet s.a.w emphasiseson unethical manner of broker who takes advantage
from village supplier who are unawareof the market price of their merchandise.
Hadith, the Prophet s.a.w warns unethical.manner of However, in the twenty-eighth38
to the takesadvantage manipulate marketprice by controllingthe terms supplierwho demandingand supply. If this were the case for the purchaser,it would be of In the to dealwith the form of al-Khiyr or optionby canceling transaction. suggested
this Hadith, the preservation of traders is given priority at this stage by which the
34al-$anAni, Subul,v.2,p.481-482 3523) Narrated (Ibn 'Umar) At I said, "0 Allah's Messenger,I sell camelsat al-Bgi.I sell j: for Dinars and take Dirhams (for them), and sell for Dirhams, and take Dinars (for them), I take this for "There is no harm in taking that and give that for this." Allah's Messenger rL,, 4ti At replied, " leaving somethingstill to be settled. (Reported them at the current rate so long as you do not separate by al-Khamsa al-Hkim gradedit $ahi z(sound)). and 3 3727) NarratedTAwsfrom Ibn Abbs A' Allah's Messenger L1,, Aj6 At uL- said, "Do not A go out to meet riders (to conduct businesswith them), and a towner must not sell for a man from the desert. I askedIbn 'Abbas At " "What did he meanby 'A towner must not sell for a man from "' the desert. He replied, "He should not act as a broker for him." (Agreed upon; the version is of alBukh5ri). 3828) Narrated Ab Huraira At " j: Allah's Messenger 3 46 4. said, "Do not go out to , meetwhat is being brought (to market for sale).If anyonehas met so and someof it is bought, when its owner comesto the market he hasthe choice (of cancellingthe deal)." (Reportedby Muslim).
Op.cit., al-$anani, p.481.
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suppliers should not manipulate the price of market because of over demanding factor. At this stage,the priority of public interest goes to the traders or purchasers and not to the suppliers.
Furthermore,in the thirty-third IIadith39, the Prophet s.a.w forbade al-I ztikr for future profit particularly made by suppliers.For Ab Yussuf, this or storing goods is applied to all types of goodsthat may leads to harmful effects of the interest ruling of humanity40
In the analysis of the twenty-seventh Hadith, Muslim jurists differ to determinethe ruling of unethical manner of broker who takes advantagefrom village supplier who is unaware of the market price of his merchandise. For Imm alHaramain, the ruling is forbidden for the broker to practice with such unethical
for However,for Imam Ab Hanifah and a1-Awzci, is permissible broker it manner. from village supplier within the to deal with the market price of merchandise
condition of unharmed effect to the consumers. For Hadwiyya and Shfiis, this
dealingis bondedwith the condition of al-Khiyr or option of transaction; either to Importantly,al-$anni highlightsthe significanceof the concept cancelor proceed.
of public interest in dealing with the rulings of both aliddith. The twenty-seventh
Hadith signifiesthe preservation consumers well as village suppliersfrom the of as to unethicalmannerof broker who takes advantage set high price of goodsin the
market.
3933) NarratedMadmarb. AbdullahA. Al Allah's Messenger e *" goodstill the price risesbut a sinner. (Reportedby Muslim). Subul, 2,p.498. v. al-$anni,
Al
"None keeps uL- said,
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The discussion on unethical manner of transactions has been extended and in the twenty-ninth41 Hadith. In this Uad44 the Prophet s.a.w forbade five asserted types of transaction or criteria of dealer of which few of them have been discussed follows; i) unethical broker, ii) unethical bidder, iii) sale of overbidding, iv) above as to engagedwomen, v) a woman to ask to have her sister to proposean engagement divorced for the purposeof wealth. The ruling of forbidden is applied to those types transactiondue to juristic reasonsof injustices such as deceit, cheating, peril and of loss for one party in such transactions. The ruling of those types of transactions the prevention of harmful effects for one party, whilst simultaneously verifies the preservationof justice and interest for both parties of transactions.This affirming obviously refers to the theme of public interest in Islam. principle
IIadith also In line with the preservation consumers, thirty-fourth42 the of

highlights in this matter by applying the form of al-Khiyr or option within three days to return the goods because of their defects. In returning the defected goods
in the purchaseof a dairy cattle, the thirty-fifth43 fadith rules the particularly be madeas compensation the seller on the amountof a Sa' (2.6 for should payment
kg.) of any kind of grains. It suggeststhat this is becausethe dairy cattle may be
by the buyer prior to its returning. Thus, the seller is entitled to get utilised
At 4129) Narrated(Abt1Huraira) 4- At forbade, a towner to sell Allah's Messenger -j for a man from the desert; one to bid against another; a man to buy in opposition to his brother, to z womanafter his brother hasdone so, or a woman to ask to have her sister divorced in order propose to depriveher of what belongsto her. (Agreed upon). Muslim has: "A Muslim must not offer a price that offeredby anotherMuslim." above At At LA: The Prophet eLi 4234) NarratedAba Huraira said, "Do not tie up the udders -j. goats,for he who buys them after that (hasbeendone) hastwo choicesopen to him after and of camels " them: he may keep them if he wishes, or may return them along with one Sa' of dates. milking (Agreedupon). Muslim has: "He has three days in which to decide whether to keep them or " A version by Muslim which al-Bukhri termed as Muàllaq has: "He must return with it one Sa' not. but wheat." (al-Bukhri said,"One Sa' of any dates"is mentionedin many ahddTth). of anygrain a' 35) Narrated ibn Mas"d Cc AI ui if anyonebuys a goat whose udder has been tied up and he it, he must return with it one S'.(Reportedby al-Bukhri). Al-Ismaili added: "of dates. " returned
187
Sa' that laid down in the thirty-fifth Haath. In compensationsucha certain amount of the returning of the defected goods, the last Hadith" in this sub topic accepting highlights the blessing and forgivenessfrom Allah almighty for the seller who sticks to the contract of sale. However, during the time given of returning the purchase, the buyer entitles to get any profit of the goods and take responsibility of any loss. This is ruled in the thirty-eighth45of Hadith Daif which is juristically classified provision the weak quality of authenticity of the Hadith.
For Sanhri 6, the thirty-fourth Hadith also indicates the fraudulent transaction on the sale of Mucarrdt (animals whose udders have been tied). For fis, Hana. this type of transaction is forbidden whereas Shfiìs and Ijanbalis consider Theseprovisions are ruled to preservethe interest of that to be deception(Ghushsh)47.
in dealingwith the fraudulenttransactions. This principle also appliesto consumers

the transaction of al-Ghish or cheating of which the Prophet s.a.w describesthis as forbidden in the thirty-sixth48 Hadith of this sub topic. In line with the fraudulent
in twentytwenty-firstsl,twenty-fourthS2 transactions, the fifteenth49, seventeenth50,

4444) Narrated(Ab Huraira) A Allah's Messenger -j 46 At said, "Whoever accepts back what he had sold to a Muslim, Allah will forgive his fault." (Reported by Aba DAwud and Ibn lkim). Majah andvalidatedby Ibn Iiibban and al-I; 4338) NarratedA'isha 10. At Allah's Messenger '4c At c said, "Any profit goes to the j: ,. " who bearsresponsibility. (Reportedby al-Khamsa;al-Bukhri and Abi? DawtId gradedit L)a if, alone Tirmidhi, Ibn Khuzaima, Ibn al-Jrd, Ibn Ijibbn, al-Ij5kim and Ibn al-Qattn graded it ajiTli bound)). Masdir,v.2,p. 183. Sanhri, 47Ibid 4836) NarratedAbd Huraira At _: Allah's Messenger fL., -46 A LL- once cameupon a heapof and when he put his hand inside it, his fingers felt some dampness, he asked the owner of the so grain, "What is this, 0 owner of the grain? He replied, "Rain had fallen on it, 0 Allah's Messenger. " " grain, He said,"Why did you not put it (the damppart) on the top of the foodstuff so that peoplemight seeit? has He who deceives nothing to do with me." (Reportedby Muslim). 4915) Narrated (Ibn 'Umar) 141c. At -_: Allah's Messenger -j 14r-At forbade the transaction c,: uL,. Habalal Habala'which was one entered into in the Jahiliya era, whereby a man bought a shecalled was to be the' offspring of a she-camelwhich was still in its mother's womb. (Agreed camelwhich this versionis of Bukhri). g on, upon, and At i": Allah's Messenger e'i -46 At 4. forbade a transaction Narrated Ab Huraira , t, determinedby throwing stones, and the transaction which involves some uncertainty (or cheating). by (Reported Muslim).
188
fifthS3and twenty-sixth54 Hadith, the Prophet s.a.w forbade the transaction of al-,Uabl al-Habla, Ilast, al-Gharr, al-Najsh, Muhagala, Muzbana, Mukhabara, Thunya,
Mukhadara, Mulmasa, and Munbadha.
In the analysis of those types of fraudulent transactions,it is interesting to highlight the work of Ahmad Hidayat, a later scholar who examinesthe prohibiton of its connectionwith the above prohibited transactions.The examination of gharr and literal meaning of the term gharr covers some adjectives of negative elements such deceit, cheating,danger,peril and risk that might lead to destruction and loss55. For as Ahmad Hidayat, the prohibition of ghardr that derives from the Hadi-thcan be divided into two categoriesi. e. i) incorporated the element of gharr with the gharnr sale as the Habl al-Habla sale and the Ilast sale, ii) incorporated the element of such without gharr sale such as Thunya, Munbadha, Mulsama, Mukhdara, gharar
Muzbana Muhgala.However,the transaction al-Najshis found Mukhbara, and of

in to be categorised both categoriesof the prohibition of gharr. not
The prohobitionof IHablal-Habla can be deduced from the explanationof Ijadith in which indicatesthe absolute futurity anduncertainty text of the seventeenth deliveryof the contract.For Imam Malik, ShfiiandJamaa, juristic causefor the of is this typeof Jahilryyatransaction the ignorance definitetime of delivery,whereas of
5121) Narrated CAmr b. Shuaibon his father's authority from his At grand father j): Allah's forbade the type of transaction in which earnest money was paid. Messenger eLi 46 Al (Reportedby Malik, who said, "I was told on the authority of Amr b. Shuaibthat" i. e., the aforesaid Hadith). 5224) Narrated (Ibn 'Umar) At Allah's Messenger eLi qr- Al u forbade bidding against j: one another.(Agreedupon). 5325) Narrated J bir b. Abdullah At At The Prophet eLi forbade Muhgala, j: -. L,,: UIMuzbana, and Mukhbara. He also forbade Thunya making an exception unless it was explicit. (Reportedby al-Khamsa excludingIbn Mjah; al-Tirmidhi gradedit $alh (sound)). 4 26) NarratedAnds At u, j: Allah's Messenger., At forbadeMuhgala, Mukhdara, ulMulmasa,MundbadhaandMuzbana. (Reportedby al-Bukhri). 55Buang,TheProhibition, p. 131-132.
189
Imam Ahmad, Ishk and Jamaindicate the sale of nonexistent goods and the sense S6. juristic causes for this prohibited transaction Although the of ghardr as the transactionof Habl al-Ilabla physically different with Hagdt by which literally known as pebblethrowing trade, but both is having the samejuristic causes.
In the contract of Thunya Munbadha and Muldmasa, the same juristic , reason of prohibition is applied to these contracts that is the unknown of knowledge regarding the nature of the object of the sale. In terms of practice of Jahilliyya, Thunya is referred to the sale of goodswith the exemptedpart of it is unknown. The difference betweenMunabadha and Muldmasa is a degreeof acting. The former only is dealt with the act of throwing somethingwhereasthe latter by touching the object. In dealing with both transactions,the purchaserhas no right to inspect thoroughly the
objectof sale.
For the prohibited transactions such as Mukhdara, Mukhbara, Muzbana
juristic causefor the prohibition is want of that andMuhagala,it appears the general
knowledge in the quantity as well as quality. Although the practice of those transactionsdiffer to each other but they have the same causeand effect in terms of
In by transaction. the practiceof Mukhdara,the purchaser cannotbe guaranteed the the quantityof the goodsbecause contract is agreedprior to the time of the seller
The transaction of Mukhbara refers to a lease contract of the goods57. consumption agricultural land where the lessee cultivates the crops for himself and for the of lessor58. The conflict might occur betweenboth parties if they got differently in terms
of the quantity and quality of the crops. In the transactionof

56al-$anni, Subul, 2,p.474. v. 57Shawkni, Nayl,v.5,p. 151and Saati,al-Fa4, v. 15,p.43. 5smit Daqiq Id, lhkdm,v.3,p.131.
Mu bana and
190
Muhgala, both refer to the barter sale of the crops which are still on the tree59.The former refers to barter sale of dried datesfor fresh dates whereasthe latter refers to barter saleof harvestedcrops with crops.
The observation on those prohibited transactions clearly indicates theirs juristic causeis want of knowledge in the quantity as well as quality of the goods the contract.From those prohibited transactions,the purchaseror lesseeis due within to have loss, damageand injustice.
The same degree of injustice exists in the transaction of al-Najsh of which to auction or bidding that purely aims to increasethe value of price of the similar and not genuinely to sell them60.For Ibn Baxll, the unethical bidder is goods
in the perspective disobedient the sellingof al-Najshis classified void considered and Multaddithn. However,for Mliki, the transaction auctionis bondedwith the of of of option(al-Khiyr)that isjuristically justified on the intentionof bidder61. condition Importantly,unethicalbidder signifiesthe sense deception(khidii) and deceiving of (gharr)62.The prohibition of this transactionaims to preservethe interest of
as well as ethical bidders. Apart from the preservationof their interest, the purchasers
Iladith verifiesthe preservation the interestof traders. thirtieth-second of
In connectionwith the interest of traders, the thirtieth-second63 J-ladith

the preservationof the interest of traders by imposing unfixed price of the underlines
59Saati, al-Fath,v. 15,p.44. 60al.$anani, Subul, 2,p.473. v. 61 Aid 62 Ibid 6332) NarratedAndsb. Malik At u When prices were high in Medina in the time of The Prophet .) Messenger, 4, the people said, "0 Allah's prices have become high, so fix them for us". j t1..
191
For al-Sanni,this Hadith indicates a proof that fix price is an injustice market. for traders. Thus, the ruling of injustices is forbidden. However, under particularly for Imam Malik, the fix price is permissible particularly for reasonablecircumstances, basic necessitiesof humanity such as foods. This ruling is applied to prevent the At harmful effect of humanity due to high price of basic necessities. the meantime, the this provision is to preservethe interest of consumersas well as their application of life.
The preservationof wealth of fundraiser and its interest has been affirmed in the thirtieth-ninthM Ijadith in this sub topic. This Uadi-thalso rules the principle of from the owner of property prior to the selling. This principle aims to approval the wealth of owner from loss in such selling. Furthermore, this Hadith also preserve that no personal profit could be gained from the selling of sacrificial animals, rules it is permissible.The profit from this type of selling must be given to charity although or public purposes.
Apart from the preservation of interest of humanities such as consumers, the thirtieth-seventh Hadith underlines the importance of the traders and suppliers, in the business transactions. In this Hadith6S, the Prophet preservation of religion
446 At Ll- replied, "Allah is the One Who fixes prices, Who withholds, gives Allah's Messenger e lavishly and provides, and I hope that when I meet Allah the Most High, none of you will have any for an injustice regarding blood or property." (Reported by al-Khamsa excluding alclaim on me Nas'i; Ibn Hibbngradedit ,Sahib(sound)). 6439) Narrated Ùrwa al-Brigi Al The Prophet 44r-At c Lm gave him a Dinar to buy a i: ] He bought two goats with it, sold one of them for a Dinar and brought him a goat sacrificeor a goat. Dinar. So he invoked a blessingon him in his businessdealings,and he was such that if he had and a bought dust he would have madea profit from it. (Reportedby al-Khamsaexcept al-Nas'i; al-Bukhri it within anotherIladith and did not report its version). alsorecorded 6537) Narrated Abdullah b. Buraida on his father's authority U*. At "Allah's Messenger At LL. -: 4-1' said, "Whoever hoards grapes in the vintage seasontill he sells them to those who get wine them, has hastily thrown himself into Hell-fire with clear knowledge." (alTabarni reported it in out of al-Awsatwith a good chainof narrators)
192
s.a.w warns the punishment of Hell-fire for those who involve in the transaction of selling grapesto make wine. Most jurists in agreementthat this kind of transaction is forbidden due to the consuming of alcohol or the like such wine66.There are two juristic causesfor this ruling; firstly, al-Khamr or alcohol is classified impurity and In secondly,the effect of intoxicant of consuming alcoho167. line with the concept of interest,the application of this ruling will preservethe interest of religion, life public intellect. and In the secondpart of this sub topic, the examination will focus on nine alidith that relate to the ruling of forbidden in dealing with particular types of transactions. There are four types of transactionsthat can be divided in this regard as follows; i) prohibited contracts related to animals and theirs goods, ii) prohibited contracts
iv) to humanity,iii) prohibitedcontractsrelatedto agriculturaltransactions, related

prohibited contractsrelated to natural resources.
Under the type of prohibited contractsrelatedto animalsand theirs goods, that have been highlightedby the Prophets.a.w in the there are eight transactions fourth69, fourteenth70, fortieth7l,fortieth firs92,fortieth second73 fortieth second68, and
" al-$anni, Subul, 2,p.504. v. 671bid. 682) NarratedJbirb. Abdullah I-a-Ir. At At I heard Allah's Messenger .,, sayingin the of the Conquestwhen he was in Makka, "Allah and His Messengerhave forbidden the We of year dead animals,swine and idols." He was asked, "0 Allah's Messenger,what about the fat of a wine, dead animalfor it is used for caulking ships, greasingskins, and making oils for lamps? He replied, ' "No, it is unlawful." Allah's Messenger j A464 -" then added: "May Allah curse the Jews, when Allah the Most High declaredthe fat of such animalsunlawful they melted it, then sold it and enjoyed " the price they received. (Agreed upon). 694) Narrated Ab Masd al-An*ri 1 At j: Allah's Messenger ri+. 446 At Lm prohibited the " price paid for a dog, the paymentmade to a prostitute, and the gift given to a soothsayer. (Agreed upon). Al uaJ: Allah's Messenger -J -tiL At I- forbade the 14) Narrated Ibn 'Umar sale of a , (Reportedby al-Bukhari). stallion'ssemen. 7140)Narrated Ab Said al-Khudri Al The Prophet e1-i 146 t forbade buying what is .y birth, in the wombs of domestic animals till they give or selling what is in their udders, buying a
193
Hadith as follows; i) selling dead animals, ii) selling swine, iii) the price paid third74 for a dog, iv) the sale of a stallion's semen,v) buying an animal's fetus, vi) selling the that still in the uddersof an animal, vii) selling the fur that still on the back of an milk buying the fish that still in the water. animal, viii)
The juristic reasonsof the prohibited of eight transactions can be concisely follows; the impurities of the deadanimals, swine and dog asjuristic reasons statedas However, transactionfor type one, two and three as mentioned above7s. of prohibited for Ibn IHajaralAsgalni and al-Nawwi, the exemption is given to the utilization of dead animal's skin that has been tanned as refers to the transaction of type one76. a The uncertainty of delivery in terms of quality and quantity is a common juristic for the prohibited transactions of type four, five, six, seven and eight as reason
above". mentioned
The abovediscussionon juristic reasonsof the prohibited of eight transactions
approach that laid downby the alidith of the Prophets.a.w highlightsthe reasonable
Islamic rulings to the life of Muslim believers. Conceptually, the of application of interestedparties of businesstransaction is given priority by Islamic preservationof
law to ensure achievement justice andrightswithin its applicationto humanity. the of

slave,buying booties before they are divided, buying $'adagatbefore they are receivedand the runaway lucky strokeof a diver. (Ibn Mjah, al-Bazzrand al-Daraqutnireported it with a weak Isnd). 7241) Narrated Ibn Masd A$ Allah's Messenger CL. A46Al L- said, "Do not buy fish is in the water, for it involvesuncertainty. (Reportedby A$mad who said it is correctly Mawquf " which untraceable)). 3 42) Narrated Ibn Abbs Al Al forbade the selling of a j. Allah's Messenger eLAj uLfruit till it becomes ripe, or the selling of fur which is (still) on the back (of an animal) or milk which is (still) in the udder. (Reported by al-Tabaraniin al-Awsat. AI-Daraqutni reported it too. Abi? Dwid reportedin the Marasil of'Ikrima and al-Bayhgiendorsedit). 7443) NarratedAbu Huraira' Al 11 forbade the saleof what is in the The Prophet e . c of a domesticanimal or the sementhat is in the body of a stallion. (Reported by al-Bazzrand womb in thereis weakness its Isnd ) 75al-$enàni, Subul, 2,p.454. v. 76 Ibid
77 IMd
194
Under the type of prohibited contracts related to humanity, there are two transactionthat have been underlined by the Prophet s.a.w in the fourth78adith as follows; i) the paymentmade to a prostitute and ii) the gift given to a soothsayer.The juristic reasonof both prohibited transactionsis the immorality of prostitution and the falsification of the activity of soothsayer79. line with the concept of public interest, In both transactionsare prohibited becausethe harmful effects to the religion, life and honour of humanity.
The type of prohibited contract related to agricultural transactionsthat can be in this sub topic is the selling of unripe fruit that still on trees which has examined Hadith. The main juristic been underlinedby the Prophet s.a.w in the fortieth second8 of this prohibited selling of unripe fruit that still on trees is because the reason
have delivery in terms of quality and quantity.The purchaser might uncertaintyof

damageand loss of the fruits on the day of delivery. This provision may prevent the deceptionof such transaction and whilst simultaneouslypreservesthe ineffective cost
of purchaser.
In this sub topic, the prohibited contract related to natural resourcesrefers to
the sellingof excess waterthat hasbeenverified by the Prophets.a.w in the thirteenth S1of Hadith in this subtopic. The prohibition of this transaction appliesto the activity
784) Narrated Abu Mascudal-An$ri L$ Allah's Messenger -., 46 Al ul- prohibited the " paid for a dog, the paymentmade to a prostitute, and the gift given to a soothsayer. (Agreed price upon). 79al-$anni, Subul, 2,p.458 v. 8 42) Narrated Ibn 'Abbas AI --: Allah's Messenger *46 Al k,1. forbade the selling of a L,: fruit till it becomes ripe, or the selling of fur which is (still) on the back (of an animal) or milk which is (still) in the udder. (Reported by al-Tabaraniin al-Awsat. Al-Daraqutni reported it too. Abil Dwtld in the Marasil of'Ikrima and al-Bayhaqiendorsedit). reported 8113) NarratedJabir b. Abdullah Al sah's Messenger ] 446 Al L. prohibited the sale .,
(Reported Muslim).In a version,he added:"And hiring a camelto impregnate by water. of excess a " she-camel.
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than neededwhether it sourcesfrom a well or of withholding or selling surpluswater the ownership of the land of sources.However, it is permissible spring and regardless The to sell personalstoredwater82. juristic reasonof this prohibited selling of surplus to its feature as a basic necessityof human life83 which is obviously in water refers line with the theme of the concept of public interest in Islamic law of which to the life of humanity. preserve
In dealing with the sub topic on conditions of businesstransactionsand those forbidden, the above examination on 44 ahdith within the framework of which are Nan conclusively signifies a dynamic living the juristic concept of al Maclalta wa a1 of the Hadith as primary source of Islamic law after the Holy Qur'an, in line source the preservationof the interest of humanity. The significant principles of public with
have been identified through the interestin the conditionsof business transactions
on 35 ahdith of this sub topic. Those 35 alidith clearly signify the analysis
of interestedparties in businesstransactionssuch as traders,sellers, preservation buyers,brokers,suppliers,consumers the like. Furthermore, prohibition of the and fraudulent transactions, those35 aldidith, highlights which hasbeendiscussed within
its juristic reasonsthat have been identified by jurists of which demonstrate their
with the concept public interest. of connection
The examinationon the remaining 9 al0dith of this sub topic juristically the relatedto particularpartiessuchas animalsand underlines prohibitedtransactions theirs goods, humanity, agricultural transactionsand natural resources.In terms
although 3 of 9 aluadithare classified Paìf (weak) but their juristic rulings narrations, .
82al-$anni, Subul, 2,p.471. v. 93
1bki
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to the numbersof authenticIladith such asSaldlt and Hasan particularly in are similar the examination of prohibited transactions. The prohibition on those particular transactions indicates the relation between the preservation of religion and the preservationof life of humanity.
To some extent, this first sub topic demonstratesan introduction and general themes of the chapter on businesstransactions.Further discussionwill focus on the topic of al-Khiyr or options of transaction which has also been discussed particular in this sub topic. generally
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6.2.2Al Khiyr or Options of transaction
2 The subtopic of al-Khiyr consistsof 3 alidith that are encompassed $ajdji and 1 Masan. In terms of reference,this sub topic is referred to many authentic narrators of the Iladith such as Ahmad (narrated 1 Uadith), Bukhri (narrated2 alidith), Muslim (narrated 2 ahdith), Abn Dwd (narrated 1 Hadith), al-Nas'i (narrated 1 HadTth), (narrated 1 Hadith), a1-Draquuni (narrated 1 Hadith), Ibn Khuzaima al-Tirndhi (narrated 1 Iladith) and Ibn al-Jrd(narrated I Ijadtth).
In the figh literature, the subject of al-Khiyr has been discussedjuristically There are at least five categories by jurists particularly in terms of its categorisations. i. e. Khiyr al-Majlis, Khiyr al-Shar(, Khiyr al-'Aib, Khiyr al-Ru yat of al-Khiyr
Khiyr al-Ta`yin.In a simple definition, al-Khiyr can be defined a unilateral and either to cancel (Faskh) or ratify (Imd') a contract of sale'. For the five choice of al-Khiyr, the concisedefinition is referredto their categorisations categories For the themselves. Rayner2, concisedefinition of the five categories al-Khiyr can of
be demonstrated follows; Khiyr al-Majlis (option of contractual session),Khiyr as (option of condition or stipulation), Khiyr al-'Aib (option of defect), Khiyr al-Shari
yat (optionof inspection) Khiyr al-Tayin(option of determination). and al-Ru
In line with the threeahddith of this sub topic, al-Sanani3 indicatesthat the
Iladith are referred to the category of Khiydr al-Majlis (option of first4 and seconds
I Rayner,The Theory,p.305. 2Ibici, p.380. 3 al-$anni, Subulv. 3,p.6-9. 4 692-1 Narrated Ibn 'Umar 1-4: Al uJ: Allah's Messenger ' u1. said, "Both parties in a rAj' business transactionhave a right to annul the bargain, so long as they have not separatedand are together;or one of them tells the other to exercisehis right and he does it, then they make the bargain
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The firstHadith highlights the condition of Khiyr al Majlis in contractual session). the transactionis bondedbetweenseller and purchaser.The category of Khiyr which to both parties as long as they are either in two conditions; i) they al-Majlis applies have not separated are togetherin a contractual session,or, ii) they separateafter and having made the bargain and none of them' has annulled it. However, in the second Hadith, the Prophet s.a.w reminds that it is forbidden to rescind the contract because the separationbetween the buyer and the seller. This ruling aims to preserve the of interest of both parties in terms of loss and damage of goods of purchase. In the objective of Khiydr al-Majlis, the third JJadith underlines an connection with for both parties to declare a statementof `deceiving is not allowed (in ethical manner in the contract to avoid any element of ghardr or the religion)'as a reminding fraudulent transaction'.
Basedon three alidith in this sub topic, it can be concluded that the notion of to Khiydr al-Majlis clearly indicates its connection al-Khiydr with particular reference interest that aims to preserve the interest of both parties with the concept of public involve in the contract. who
to that, the transactionbecomesthen binding; or when they separateafter having made the according bargainand none of them has annulledit, the bargain becomesthen binding." (Agreed upon, and the is of Muslim). version 3 693-2 Narrated Amr bin Shuaibon his father's authority from his grandfather ( Al j): The Al transactionhave a right to annul it so long Prophet rL. '41-said, "The two partiesin a business they havenot separated unlessit is a bargainwith the right to annul it, attachedto it; and one has not as " the right to separatefrom the other for fear that he may demand that the bargain be rescinded. (Reportedby al-Khamsaexcept Ibn Mjah, al-Daraqutni, Ibn Khuzaima and Ibn al-Jrd reported it " too). Anotherversionhas: "till they separate their place(of transaction). at 6 694-3 Narrated Ibn 'Umar Utk- Al At that he was i: A man told Allah's Messenger fLi UL. being deceivedin businesstransactions,and he replied, "When you make a bargain say, 'Deceiving is (in the religion)'" (Agreed upon). not allowed 7 al-$anni, Subul, 3,p. 10-11. v.
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The discussion on the preservation of the interest of related parties in the contract of transactionwill further detail in the next topic that regardswith al-Rib.
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6.2.3Al-Ribd or Usury
This sub topic consists of 17 alidith within variation on numbers of the authentic follows; Sahili (14 ahdith), Uasan (2 alidith) and I?cfif (1 Hadith). In Iladth as have many authentic narratorsof the Hadith such as terms of narration,those ahdith (narrated 4 alidith), Bukhri (narrated 5 alidith), Muslim (narrated 9 Ahmad AbUDwd (narrated5 aliddith), al-Nas'i (narrated2 a#dith), al-Tirmidhi ahdith), (narrated 3 ahddith), Ibn Mjah (narrated 2 aliddith), al-Hakim (narrated 3 aliddith), Qattn (narrated 1 Hadith), Bayhgi (narrated 1 Uadith), Ibn Hibbn (narrated 1 Ibn Hadith), Ibn al-Madini (narrated 1 Iladith), Isbq (narrated I Hadith), al-Bazzz 1 Hadith), Ibn Khuzaima (narrated I Hadith) and Ibn al-Jar5d (narrated 1 (narrated Hadith).
For al-Sancni, those 17 alzdithcan be divided at least into two specific topics to the subject of al-Rib namely the cursed individual who involve in the that relate transactionof al-Rib and the prohibited transactionsof al-Rib.
In the first specific topic of the cursed individuals who involve in the there are 4 ahdith in this regard i. e. the first', second`, transaction of al-Rib, thirteenth4 HadTth. Prior to analyses of those 4 alidith, it is vital to twelfth3 and
1 695- 1 Narrated Jbir At Allah's Messenger L, 46 At ul- cursed the one who accepts the onewho gives it, the one who recordsit and the two witnessesto it, saying, "They are all the usury, " (Reportedby Muslim). Al-Bukhri reported somethingsimilar from Abii Juhaifa'sIiadi-th. same. 2 696-2 Narrated Abdullah b. Masc AJr.At A46 .. id : The Prophet said, "Usury has ] Lj categories,the least one in sin is as that of a man who marries his mother, and the very seventy-three of usury is the violation of the honour of a male Muslim." (Ibn Mjah reported it in a short essence form andal-Hakimin a completeone. The latter also gradedit $alli (sound)). 3 706-12 Narrated Abu Umma At -j. The Prophet -., 4*6 At ul said, "Whoever intercedes L,,: for his brother and that one gives him a presentwhich he accepts,becomesguilty of a serioustype of " (Reportedby Abmad and Aba Dwd, but someof its narrators' reliability hasbeendoubted). usury.
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highlight a literal and standard definition of al-Rib in the perspective of Islamic transaction.Literally, the term al-Ribd is defined al-Ziyda or increasein capital5. In `Dictionary of Islam', al-Rib is literally translated as ùsury', èxcessive interest' a ùsuriousinterest'6.The standarddefinition of al-Ribd is referred to Èncyclopedia or Islam' in which it is defined as àny unjustified increaseof capital for which no of is given'7. From this simple and standarddefinition of al-Rib, it can be compensation the ruling of al-Ribd is obviously forbidden. understoodupon why
In line with the above definition of al-Ribd, those 4 al0dith emphasise on individuals who have been cursed by the Prophet s.a.w becauseof their particular involvement in such activities of al-Rib. In the first Hadith, the Prophet s.a.w. four types of individual who have the same degree of curse as follows; i) classifies
ii) one who gives usury, iii) one who records usury, iv) one who acceptsusury,
for usury's transaction. In addition to those four categories, the Prophet witnesses w highlights in the secondHadith that indeed usury has seventy-threecategories. s.a.
is 73 However,at this stage, detail explanation givenregarding categories usury of no the Prophet s.a.w highlights the least and very essenceof its category. except
According to the Hadith, the least category of usury is that of a man who marries his
andthe very essence usuryis the violation of the honourof a maleMuslim. of mother
The discussion the categoryof usury has been prolongedin twelfth and on thirteenthHadith of this sub topic. From the both al:adith, juristically, the Prophet
4 707-13NarratedAbdullah b. Amr b. al-'As Le. A+' j Allah's Messenger U-- cursed -:. r1""j c, . the one who bribes and the one who takes bribes. (Reported by Abii DAwd and a]-Tirmldhi, who it $ahi4 graded al-Shirbini,Mughni al Muhtj, v. 2,p.21, andNihya al Mulitj, v. 3,p.39. 6Hughes, Dictionwy, p.230 A `Ribs', E2,v. 3, p. 1148. Schacht,
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bribery as another type of prohibited transaction of usury. For s.a.w. underlines the thirteenth Uadith rules that accepting the gift example, after making
for a bad deed is classified by the Prophet s.a.w as a serious type of recommendation This ruling also applies to the involved individuals such as (al-Rdshi) or one usury. bribes and (al-MurtashO or one who takes bribe. Those types of individual have who been cursedby the Prophets.a.w in the thirteenth Hadith.
The abovediscussionclearly highlights the element of injustice and corruption juristic causesin the prohibited transaction of bribery. In line with the as main interest, this prohibited transaction of bribery aims to prevent any concept of public fraudulent element in such transaction that may leads to injustice and corruption to The discussion on fraudulent elements particularly in usury particular parties.
hasbeendetailedby the Prophets.a.w in numbersof aliadilh of this sub transaction topic.
Thereare 13 of 17altadithin this subtopic that havebeendiscussed regarding

fraudulent elementsof usury transactions.From 13 alta th, 9 of them highlight the Rib al-BuyY Rib al-Fadl i. e. the third8, fourth9, fifth1, sixth", seventhi2, type of or
fifteenth15 sixteenth16 Uadith, and ninth14, eighth13,
Al $ 697-3 NarratedAbil Said al-Khudri Al The Prophet said, "Do not sell gold j: U crlfor gold unlessit is sameamountfor the sameas amount, and do not make one amount greater than the do not sell silver for silver unlessit is sameamount and do not make one amount greater than the other, do not sell for readymoney someof it to be given later." (Agreed upon). other, and 9 698-4 Narrated'Ubda b. al-$mit'l Al Allah's Messenger -j said, "Gold is to E c'j. 4,1. be paid for with gold, silver with silver, wheat with wheat, barley with barley, dateswith dates,and salt for same quantity and equal for equal, payment being made on the spot. If with salt, samequantity differ, sell asyou wish if paymentis madeon the spot." (Reported by Muslim). theseclasses 10699-5 Narrated Ab Huraira Al i: Allah's Messenger rLAj 4j6 -1t uL. said, "Gold is to be for with gold, both being of equal weight and of same quantities; silver is to be paid for with paid both being of equalweight and of samequantities.If anyonegives more or asksfor more of it, it silver, is thenusury." (Reportedby Muslim).
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In a standarddefinition of Ribd al-Buyuf or Rib al-Fadl, its definition refers to the exchangecontractsthat applies to six items i. e. gold, silver, date, raisin, wheat barley and the like of them'7. The prohibition of this contract is based on the and fraudulent element that may occur particularly in terms of inequality in potential in the exchangebetween those items and a potential delay in quantity and quality delivery. This juristic causeor villa for the prohibition of Rib al-BuyCor Rib alFadl has been termed by Hanafis jurists as al-Kayl (measurement) or al-Wazn Numbers of ahadith highlight in this regard such as the third, fourth, fifth, (weight)18. seventh,eighth, ninth, fifteenth and sixteenth Hadith. sixth,
In contrast with the juristic cause of the prohibited of Rib al-Buyii, the
Prophets.a. affirmsthat if the contractapplies the equalityin quantityandquality to w is between in the exchange thoseitemsand immediatedelivery,thus,the transaction
11700-6 NarratedAbi! Said al-Khudri and Abil Huraira At Allah's Messenger 4a At L. appointeda man over Khaibar and he brought him dates of a very fine quality. Allah's Messenger eLj At asked,"Are all the datesof Khaibar like this?" He replied, "I swearby Allah that they ulnot, 0 Allah's Messenger.We take one Sa' of this kind for two, and even for three. So are certainly 1- At Allah's Messenger said, "Do not do so. Sell the mixed datesfor Dirhams,then buy the .]{;Dirhams. And he " fine dateswith the that the sameapplieswhen things are sold by weight. said very (Agreedupon).Muslim has: "and so is the weight." 12701-7 NarratedJabir b. Abdullah > At Lr-: Allah's Messenger L. 446 Al forbade selling a -j. Llof dateswhosemeasure was unknown for a specificquantity of dates.(Reportedby Muslim). g3uantity 1 702-8 Narrated Mamar b. Abdullah IJ- At I used to hear Allah's Messenger el-,, 4 hi vL. i: "Food for food, of same quantities. Our food at that time consisted of barley. (Reported by " say, Muslim). 14703-9 Narrated Facjlab. Ubaid Al': I bought a necklacefor twelve Dinars at the battle of Khaibar and there were gold and gems in it, so I consideredthem separatelyand found that it was At more than twelve Dinars. I told the Prophet el-j about that and he said, "It must not worth " be soldtill the contentsare considered separately. (Reportedby Muslim). is 709-15NarratedIbn 'Umar At -=-: Allah's Messenger c,., A46At forbadeal-Musdbanur, L, LIthat a man sells the fiuit of his garden, if it consistsof palm-trees(fresh dates), for dried means which datesby measure;or if it consistsof grapes,for raisins by measure;or if it is corn, he sells it for a corn. He forbadeall that. (Agreed upon). of measure 16710-16Narrated Sa'd b. Ab Waqqas st I heardAllah's Messenger tUj A At 6 uL- being about buying dry dates for fresh ones. He replied, "Will fresh dates get diminishedwhen they asked becomedry?" They answered,"Yes." So he forbade that. (Reportedby al-Khamsaand graded$'alli by Ibn Ibn al-Madmi,al-Tinm1dhi, Hibbn and al-Hakim). 17 Monzer Kahf, Types of Riba, in lam: 1Avww. islamonlinVe fatw, n (ish/Fah all aD 1 Sp? HfatwalD=22659,13/08/2004. 18 al-Zuliayli,Fiqh al-Islmi, v. 5, p.2706.
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lawful. This provision has been laid down by the Prophet s.a.w in the third, legal and fourth, fifth, eight and ninth Iladith of this sub topic.
At this stage,the preservationof equality is given priority by the Prophet s.a.w in the exchangebetween those items, but not only applies to the quantity and quality to particular party who involves in such transaction. This objective of moreover is in line with the concept of public interest for which to gain benefit for transaction harmful effects to their life. humanity, whilst simultaneouslyto prevent
line with the above theme of public interest, this sub topic highlights In transaction of al-Rib, which is termed Rib al-NasTa. another type of prohibited and seventeenth21 There are at least 3 alidith in this regard i. e the tenth'9, eleventh20
Hadith.
Rib al-Nasia refers to the contract of loan in The prohibited transaction of
is addedto the premiumof the loan because the late of the additionalamount which Most jurist agreethat this transaction a type of Rib also covers time of payment22.
Rib of debts23.A main juristic cause for this prohibited al-Fadl as well as
is the chargeof additionalamount.Thus, in the tenthYadith, the Prophet transaction

forbade sellinganimals 19704-10Narrated Samurab. Jundub 4ti At. oj: The Prophet +I ] for animalswhen paymentwas to be madeat a later date. (Reported by al-Khamsa)Ibn al-JrtIdand alTirndhi gradedit ahili (sound). st 20705-11 Narrated Ibn cUmar 14- At ui: I heard Allah's Messenger say, "When ,jit back for lower price, a anything on credit to anyoneon the condition that you will buy you will sell follow the cattle, prefer agriculture and give up Jihad. Allah s.w. t. will make disgraceprevail over you strip it off from you till you return to your religion." (Reported by Ab Dwtd from the and will not 4 but there is an unreliable narrator in its Nfi on the authority of Ibn 'Umar version of Abroad reported somethingsimilar from the version of "A,45'. Its narrators are reliable and Ibn chain. gradedit. alh (sound)). al-Qafln At 21711-17Narrated Ibn 'Umar At forbade selling a debt to be The Prophet u -46 ulfuture date for anotheri. e., a debt for a debt. (Reported by Is$q and al-Bazzrwith a weak paid at a Isnd). 22Op.cit., Monzer Kahf. 231bicL
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forbade selling animals for animals when payment was to be made at s.a.w obviously later date.It suggests that the chargeof additional amount in this transaction would a loss and damagefor the debtor.However, in the eleventhHadith, the difference effect the former in terms of the condition of contract. For al-$ancni, the emergeswith Hadith also indicatesthe prohibited transaction of Àina in which the selling eleventh is madeby credit on the condition that the seller will buy it later at lower price24.It that this transactionleadsto loss and injustice particularly for the buyer at the appears end of the stageof transaction.
In the seventeenthHadi-th of Dd f, the Prophet s.a.w highlights a type of transactionin which selling a debt to be paid at a future date for another i. e. a debt for debt. For al-Sanni, althoughthe Hadith has been categorisedDaìf, its still a proof a transaction25.However, Imm Ahmad suggests that it is not of such prohibited to engage a debt for a debt26.The reason behind this ruling can be permissible
clearlythat a debt is considered burdenfor debtor.To engage another a understood debt will thereforeincrease degreeof burden for debtor.This solution obviously a with the conceptof public interestthat aims to removeharmful effectsand contrast
to gain benefit for the life of humanity. simultaneously
Hadith in this subtopic dealswith the legal transaction alThefourteenth27 of Qard.For al-$anni, Hadith is a proof to indicatethat no al-Ribs transaction this on
but the alternative is formed in the transaction of al-Qarcl To put it simply, animals
24al-Sanni, Subul,v.3,p.24. 25 Ibid, p.31 261bid 27 708-14 Narrated (Abdullah b. Amr b. al At . ' The Prophet rLi st -'Aas) U" him to equip an army, but when the camelswere insufficient, he commandedhim to keep commanded back the young camelsof Sadaga. He said, "I was taking a camel to be replaced by two when the " $adagacame. (Reportedby al-Hkim and al-Bayhgi;its narrators are reliable). of camels
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is a contract of equity sharing between investor and trader. al-Qarcl or al-Mudraba Further discussionon this regardwill take place in the specific topic of al-Qird.
In conclusion, this topic has significantly discussedthe principles of public interestthrough the juristic causesof ruling from numbersof altadith that relate to the subject of al-Rib. The prohibition of al-Ribd's transactionsclearly aims to prevent harmful effects to the life of humanity and simultaneouslywould preservetheir basic of necessities life.
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6.2.4 Permission regarding the sale of al-Àrya and the sale of trees and fruits
This sub topic consistsof 7 ahdith Salli. In terms of narration, those aliddith have Ahmad (narrated 1 Iladith), Bukhri (narrated 5 many authentic narrators such as Muslim (narrated 6 alldith), Ab Dwnd (narrated 1 Hadith), al-Tirmidhi ahdith), (narrated 1 Hadith), Ibn Mjah (narrated 1 Iladith), Ibn Hibbn (narrated 1 Hadith) (narrated1 IHadith). and al-Hakim
In thefigh literature, the sale of al cArya refers to the exchangecommodities that have same measurementin terms of quantity and quality'. For al-$an%ni, this is permitted by the Prophet s.a.w becauseof the principle of equality in transaction and quality that applieswithin the contract2.The application of the sale of alquantity
cAryato the legalbusiness the conceptof al-Tarkhii that aimsto transaction verifies
facilitate the transactionof commodities such as dates,grapesand grains. In line with this concept, there are at least two ahddith highlight on this particular sale of al-
Àryai.e.the first3andsecond4 Hadith.
In the first and second UaXth, the Prophet s.a.w emphasiseson the basis of
of dry commodities a basicconditionfor the permission the saleof as of computation

For instance,in the secondHadTth,the permission of al CArdya applies to al-Àrya.
1al-$anni, Subul, 3,p.32. v. 2Ibid 3 712-1. Narrated Zayd b. Thbit A: Al -j: .l Allah's Messenger i LI- gave permission Arya for its sale on the basis of a calculationof what the dates would be when dry by regardingal (Agreedupon). measure. Muslim has: "He gave permissionregarding the al-Arya for its sale in which the householdbuys its fruit on the basisof a calculation of what the dateswould be when dry, yet they could eat them when fresh. " 4 713-2. Narrated Abu Huraira At Allah's Messenger -j 146 At gave permission ulthe saleof al-Àrya for a computation of their amount when dry on the condition that they regarding be lessthan five Awsuq, or amountingto five Awsuq. (Agreed upon).
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dry dates on the condition that they would be less than five awsuq (more than eight to five Awsuq. The reasonbehind this is to give a standard quintals), or amounting dry commodities for the benefit of traders as well as and equal measurementof consumers.
In the sale of al Àrya, the measurement of quality and quantity of is given priority by the Prophet s.a.w to avoid their possibility of loss commodities damageparticularly at the stageof delivery. In the caseof the absenceof quality and thus, the Prophet s.a.w forbade the sale. This provision and quantity of commodities, has beenunderlined in the thirds, fourth6, fifth7, and sixth8.
Those four al0dith underline the prohibited sale of fruits unless they are in
the it hasbeenhighlightedin the third Hadilh. At this stage, term of conditionas good to the condition that the fruits were safe from blight. Most good condition refers
jurists agreethat this condition aims to avoid any fraudulent element in the sale of a! -
cArya9. Furthermore, restthreeHadith signify the bad conditionof fruits that are the forbadeto be sold suchas colourful of reddishandyellowish (in the fourth Ifadi h),
black of grapesand hard of grains (in the fifth Hadith) and affected fruits by blight (in
s 714-3. Narrated Ibn 'Umar st uJ : Allah's Messenger ] -46 4 forbade the sale of fruits till they are clearly in good condition, forbidding it both to the seller and to the buyer. (Agreed upon). At " A versionhas:"When he was askedaboutwhat is their good condition? He replied, , -446 "Till they were safefrom blight." 6 715-4.Narrated Anis b. Malik 4 At -j: y forbade the saleof fruits till The Prophet Lj ulthey become colourful. He was asked what that meant, he replied, "Till they become reddish and " yellowish. (Agreedupon and the version is of al-Bukhri). 716-5.Narrated (Ans b. Malik) A: 4L,,: -j The Prophet 4l At c. forbade the saleof grapes j sLm till they becomeblack and the sale of grain till it becomeshard. (Reported by al-Khamsaexcept alNas'iand graded$ah by Ibn Ilibbn and al-IHkim). 8 717-6.Narrated Jbir b. Abdullah At ui: Allah's Messenger ] A* At said, "If you sell j1. fruit to your brother and it was smittenby blight it would not be lawful for you to take anything some " from him. Why shouldyou take your brother's property unjustly? (Reported by Muslim). A version by At 1- commanded Muslim has: "The Prophet that unforeseenloss be remitted in respectof j -46 L, is affectedby blight." what 9 al.$anni, Subul, 3,p.35-36. v.
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the sixth hladith). However, in the sale of pollinated tree, the fruits belong to the seller has sold them unlessthe buyer makes a condition to buy them together with the who tree. This provision has been laid down by the Prophet s.a.w in the last1 Hadith of this subtopic.
In line with the concept of public interest, the permission of the sale of alCArya demonstratesthe flexibility of Islamic transactions in the sale of dry dates, grapes and grains. However, the contract of al Àrya commodities such as be in line with the condition of measurementof good quality and quantity of must This condition clearly highlights the theme of public interest in which commodities. the interest of buyers as well as consumersis preservedfrom fraudulent elements in such transaction.
10718-7.Narrated Ibn %Jmar1"e Al '96 -41 -j. The Prophet said, If anyonebuys a palm Le-: tjLtree after it has been fecundated,the fruits belong to the seller who has sold them unless the buyer " a makes condition. (Agreedupon).
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6.2.5 Payment in advance (al-Salm), loans (al-Qar41) pledges (al-Rahn) and
This sub topic consists of 8 ahdith within variation on numbers of the authentic Hadith as follows; ,Sahn: (6 alidith), Hasan (1 alidith) and IVaìf (1 a1dith). In terms of narration, those ahctth have many authentic narratorsof the Hadith such as
Bukhri (narrated 4 alzddTth),Muslim (narrated 2 ahdith), Ab Dwd (narrated 1
Iladith), al-Hkim (narrated 2 alzdith), Bayhgi (narrated 1 Hadith), al-Draqutni (narrated 1 IHadith)and al-Iirith (narrated 1 Hadith).
There are three transactions in this sub topic i. e. al-Salm, al-Qar and alRahn. From 8 ahdith of this sub topic, 2 alidith relate to the transaction of al-Salm, Hadith. For the transaction of al-Qard, 4 alidTthof this sub i. e. the first' and second2
to, i.e. the third3,fourth4,sevenths eighth6 JJadith.The rest 2 topic arereferred and
1 719.1 Narrated Ibn AbbsL At When the Prophet (+u - c. A) came to Medina, they u-=u: two yearsin advancefor fruits, so he ( (j qr. 4 vI- )said, "Those who paid in were payingone and for a specifiedtime." (Agreed for fruits must do so for a specifiedmeasurement and weight advance " Al-Bukhri has:"Thosewho pay in advancefor anything. upon). 2 720.2 Narrated Abd. al-R, At -j "We used to get *man b. Abza and Abdullah b. Abu Awfa w.: At from those of Syria used to booties along with Allah's Messenger , and somepeasants , " to us and we would pay in advanceto them for wheat, barley and raisins. A version has: "and come oil for a specifiedfixed time." It was asked, "Did they have standing crop?" They replied, "We olive were not askingthem aboutthat." (Reportedby al-Bukhri). 3 721.3Narrated Ab Huraira Air-At The Prophet 46 At said, "If anyoneacceptsother j. . belongingsmeaningto pay back, Allah will pay back for him; but if anyone accepts them people's him." (Reportedby al-Bukh ri). to squander them, Allah the Most High will squander meaning . 722.4 Narrated A'isha 43- At j: I said, "0 Messengerof Allah, so-and-sohas brought clothes from Syria, how about if you sent someone him and you get from him two garmentson credit till it to " is easy for you to repay? So he sent someoneto him but he refused. (al-) kim and al-13ayh5gi it, andits narratorsare reliable). reported 3 725.7NarratedAb Rfi Ak- Al At borrowed a young camel from a The Prophet L' uz-j ulAt to pay the man his man,and when somefadaga camelscameto him he orderedAb Rfi ( "I can find only an excellent camel in its seventhyear." camel.He told him (. -46 "t), young " He said, "Give it to him, for the best person is he, who dischargeshis debt in the best manner. Reportedby Muslim). At Allah's Messenger tUi A46At u 726.8 NarratedAli said, "Every loan which leadsto j: " benefitis usury. (al-Iirith b. Abia Usmareported it, but there is omission in its chain of narrators). a The aforesaidHadith has a weak citation on the authority of Fadla b. cubayd A J by al-1r. Bayhgi.It hasalso anotherMawquf version reported by Abdullah b. Salam At L,.:.j and al-Bukhri reportedit.
211 this subtopic arein line with the transaction al-Rahn,i. e. the fif& and of ahddithof
Hadlth. sixths
The definition of al-Salm is equivalent to an advance payment for future delivery. Technically, the sale of al-Salm refers to a contract in which payment is in advancefor the goods which are delivered at a concurred later date9.In the made first and secondHadith, the Prophet s.a.w verifies the transaction of al-Salm by stated the condition of specified measurementof goods in terms of quantity, quality and delivery. This condition is applied to the terms of contract of al-Salm. Furthermore, Muslim jurists are in agreementthat this transaction can be applied to any type of goodsor productslo.
In line with the concept public interest,thetransaction al-Salmwithin the of of

in terms of their quantity, quality and condition of specified measurementof goods
deliverywould preserve interestof buyerfrom gettinglossandbeingthe victim of the fraudulent elements.
For the juristic themeof al-Qard, literally it can be defined as interest free
loan or gratuitous loan" of which it has been ruled by the Prophet s.a.w as
This ruling is laid down in the fourth Hadith. In line with this type of permissible.
7 723.5 Narrated Abtt Huraira Al -=.j: Allah's Messenger eLj 44- +$ said: "An animal may ul., be riddenfor spendingon it when it is in pledge and the milk of a camelmay be drunk for spendingon it when in pledge. And the responsibilityof caring for it is upon the one who rides ('it) and drinks (its " (Reportedby al-Bukhri)." milk). 8 724.6 Narrated (Ab Huraira) '' Allah's Messenger eLi qr- usaid: "A pledge does ,becomelost to its owner when he does not redeemit in time. Any increasein its value goes to him not loss must be borne by him." (Reportedby al-Draqutniand al-}Ildm. Its narrators are reliable, and any but it is Mursal accordingto Ab DAwd and others). 9 al-$an ani, Subul, 3,p.41 and www. rnuamalat. v. com.my (19.8.2004). lo Aid 11 Razali,al-Qard al-Masan, in http://slamic-world. net/economic,19/08/2004.
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loan, al-$annisuggests that the third 1Yadithof this sub topic highlights an ethical 12.In this Uadt-th,the manner for borrower to deal with the transaction of al-Qar4 . Prophet s.a.w reminds the importance of good intention of borrower that will be by Allah s.w.t and vice versa for the bad intention of borrower. In the case rewarded that the borrower kindly gives somethingelse or pays someprofits to creditor with the money, thus, the Prophet s.a.w praise his giving as underlines in the sixth principle Hadith. At this stage,both alidith clearly emphasison an ethical manner of intention borrower in dealing with the transaction of al-Qarcl and the way to appreciate the of This ethical manner of transaction would lead a good relationship between creditor. borrower and creditor as part of the way to preservethe interest of both parties in the transaction of al-Qard. Furthermore, the last Hadith of this sub topic which is Daìf classified signifies the transaction of loan that leads to a benefit which
by creditoris usury. particularlymade
Regarding transactionof al-Rahn or pledgeor pawn, for al-$anni,the the fifth Iladith rules the right of pledgeeor pawnbrokerto utilise the belonging or
13. borrower with the senseof responsibility during the time of possession property of However, Muslim jurists agree to impose the condition of permission from the
borrowerprior the utilisation of his belonging14. line with the responsibilityof In belonging,the sixth Vadith signifies that the increaseand decrease its value of
be responsibility of owner or borrower and not to pawnbroker. The reason would behind this is to give equal right for both pawnbroker and borrower. Since the borrower would get benefit from the value of property in the transaction of al-Rahn,
therefore it is equal right for the pawnbroker to utilise the property within the period
13 Ibid 14 Ibid
12 cit.,al-$anni. Op.
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The application of equal right in this transaction would preserve the of possession. interestto both parties as part of the principle of public interest.
In conclusion, these three types of transactionsi. e. al-Salm, al-Qarci and alRahn mostly highlight the principle of transparencyof transaction between creditor debtor.The significanceof ethical manner for both partieshasbeen highlighted as and fundamentalcondition to achievethe principle of transparencyof transaction. In line a the conceptof public interest, the significant principle of ethical manner aims to with devastating effect of humanity that might occur in those types of prevent any transactionssuch as bankruptcy and seizure. Further discussion on such devastated transactionswill take place in the next topic.
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6.2.6 Bankruptcy and seizure or al-Tafts wa al-IIajr
The sub topic of al-Taflis wa al-Hajr consists of 8 ahddith ,sa1zilc. In terms of those ahddith have many authentic narrators of the Hadith such as Alhmad narration, (narrated2 ahdith), Bukhri (narrated3 ahddith), Muslim (narrated 4 alidith), Ab Dwd (narrated4 alzdith), al-Nas'i (narrated 3 ahdith), al-Tirmidhi (narrated 1 Hadith), Ibn Mjah (narrated 2 alidith), Ibn Hibbn (narrated 2 ahddith), al-Hakim (narrated 4 aliddith), al-Draqutni (narrated I Hadith) and In Khuzaima (narrated I Hadith).
The first' Iladith of this sub topic highlights the right of creditor on debtor's if the debtor is declared a bankrupt. At this stage,the creditor becomes the property due to the bankruptcy of his debtor. Shall the debtor dies, his owner of the property is belonged to the creditor becauseof the debtor's condition of bankruptcy. property jurists observethat this regulation laid down by the Prophet s.a.w is juristically Many in the light of the concept of public interest. For instance,Imm Ibn Abd aljustified Salam argues that in the case of bankruptcy, the interest of the creditor is given
1 1. Narrated Ab Bakr b. Abd. al-Aaliman on the authority of Aba Huraira Air. Al Le;-.x We heard Al o "If a creditor finds his very property with a debtor who Allah's Messenger say, ]4 " bankrupt,he is more entitled to it than anyoneelse. (Agreed upon). becomes Abis Dawd and Malik reported the aforesaidHadith from Abtl Bakr b. Abd. al-Raliman's version in a Mursal form with this wording: "If anyone sells some goods (on credit) and the one who buys them bankrupt and doesnot repay any of the price to the seller who then finds his very goods (with becomes him), he is more entitled to them (than anyoneelse); if the buyer dies, the owner of the goods is then " to the other creditors. (al-Bayhgi reported it with full chain of narrators but graded it weak equal to Ab Dwad'snarration). according Abil Dwd and Ibn Mjah reported the aforesaidiiadith from Ùmar b. Khalda's version and it has: Al "We went to Ab Huraira regarding a friend of ours who was bankrupt. Ile said, 'I shall judgementabout him in accordance with the judgement of Allah's Messenger pronounce certainly Al A41-- If anyonebecomesbankrupt or dies and the owner of the goods finds his actual goods he Flat . "' has most right to them. (al-IIkim graded it $ahfh (sound); Abd Dwad proved it to be weak, and termedthis addition regardingthe mention of the deathto be weak). also
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the interest of the debtor2. In this respect, the priority is given to the priority over the solution to pay back his credit through the seizureof debtor's property. creditor as
Hadith affirms the In line with the seizure of debtor's property, the second3 the seizureis lawful, although this would effect to dishonour and punish for ruling of the the debtor. For a1-Sanni, Iladith also highlights the ruling of forbidden to debtor deliberately delays the payment of credit4. It appearsthat the late payment of who by the debtor will effect many difficulties to the creditor. For this reason, credit made in the thirds JIadTth,the Prophet's.a.w allows the creditor to take debtor's property through the process of legal action or by court permission. The third HadTth also that a bankrupt debtor who is undertaken of seizure is allowed to accept underlines donation from donors. This provision demonstratesthe application of the cadaga or interest in which the life of bankrupt debtor is preserved by the concept of public of donors. assistance
Regarding discussion seizureof bankrupt'sproperty,the fourth6JJadTlh the on legalityof seizure throughthe process legal actionthat aimsto payback a of rulesthe depends the legal capacity debtof bankrupt creditor.The legality of seizure to on also
2'Izzi Dien, Qawacidal Ahkam, v. 1,p.79. At 3 2. Narrated Amr b. al-Sharidon the authority of his father: Allah's Messenger ]4 ul- said, "Delay in paymenton the part of one who possesses meansmakesit lawful to dishonourand punish the him." (Ab Dwd and al-Nas'i reported it, al-Bukhri reported it without Isnd, and Ibn Ijibbn it ,Sahib(sound)). graded 4a1-$an'ni, Subul, 3, p.54-55. v. Al In the time of Allah's Messenger fl -Ai 3. Narrated Abti Said al-Khudri j: ul- a man loss affecting fruits he had bought, owed a large debt and became bankrupt, so Allah's suffered Messenger ] 14- At u said to the people, "Give him . adaga." They did so, but as that was not to repay his debt in full, Allah's Messenger tLi qr- At said to the creditors, "Take what enough find, andyou will havenothing other than that." (Reportedby Muslim). you can 6 4. Narrated Ibn Ka' b b. Malik A: At -=,j on the authority of his father: Allah's Messenger At L, uA46 seizedthe property of Mu%dh and sold it in return for a debt he was indebted for. (alt1"yj Draqulnireportedit, al-Hakim gradedit $ahil: (sound); Ab Dwd reported it through a Mursal form it andpreponderated asMursal).
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bankrupt as the fifth7 and sixth8 Hadith underline the age of maturity is fifteen of For al-Sanni in the context of vice versa, the fifth Hadith indicates that years. , Thus, it can below fifteen yearsis disqualified legal capacity of businesstransactions9. be learned that the provision of the age of maturity of businesstransaction aims to the harmful effects of contract such as fraudulent element and discrimination prevent that might occur in such contract. This preventive objective is related to the concept interestfor which to preservethe right and equality of interestedparty of the of public contract.
In line with the preservation of right and equality, the seventh10 and eight" Hadith highlight on this respect.The seventhHadith rules the right of women to deal her wealth such as dowry, inherited property and the like without permission of with
In the her husband. the conceptof public interest,this ruling will preserve right and
for married women to deal with her property for the best of her interest. In equality with this topic and its ruling, the eight Hadith highlights the permissible of contrast
beggingfor those who are in one of three conditionsas follows; a man who has
7 5. NarratedIbn 'Umar is A$.. j: I was brought before the Prophet Aj6 l L. on the Day of . .c Ubud when I was fourteen years old but he did not give me permission to fight. I was afterwards brought beforehim on the Day of al-Khandaq(the battle of Trench) when I was fifteen and he gave me to fight. (Agreed upon). Al-Bayhgi'sversion has: "He did not give me permissionto fight permission and did not find me having attainedpuberty." (Ibn Khuzaimagradedit $allj (sound)). 8 6. NarratedAfliya al-Qurazi'. Al on the j: We were brought before the Prophet )4A, ulm day of Quraiza.Those who had beganto grow hair (on their private parts) were killed, but those who had not, were set free; I was amongthose who had not begunto grow hair so I was set free. (Reported Ibn by al-Arbaa. Hibbn and al-Hkim gradedit $alli (sound)). 9 al-$anni, Subul, 3,p.60. v. 107 Narrated Amr b. Shuaibon his father's authority from his grandfather ( A, Allah's Messenger i 44- Al said: "It is not lawful for a woman to give a gift without her husband's " permission. A version has: "It is not lawful for a woman to disposeof anything regarding her property when her husbandis responsiblefor her." (Reported by Al mad and the authors of al-Sunan except al-Tirmidhi andal-Hakimgradedit $ahih (sound)). 11 8 Narrated Qabisab. Mukhariq al-Hilli l -:-x Allah's Messenger tLj ,4b Al said, L, "Beggingis allowableonly to one of three (people): a man who has become a guarantor for a payment, to whom beggingis allowed till he gets it, after which he must stop begging; a man whose property has beendestroyedby a calamitywhich has smittenhim, to whom begging is allowed till he gets what will support life; and a man who has been smitten by poverty, the genuineness which is confirmed by of " threeintelligentmembers his people. (Reportedby Muslim). of
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become a guarantor for a payment, a man whose property has been destroyed by a has smitten him and a man who has been smitten by poverty. Those calamity which three conditions can be seenthe juristic causesof permissibility of begging. The main of this provision is very clear for which to preservethe life of those who are objective in one of three conditions above. In connection with the seventhHadith, it suggests that a wife who has wealthy ownership should help her husband who is in in for predicamentas discussed the eight IladTth. The assistance those who are in such is juristically classified as a humanity obligation particularly for those predicament who have material capability. In such predicament situations, a solution of al-$'ulh or
betweentwo parties of contract is part of the best way to achieve reconciliation to understanding simultaneously preventharmful effects of life as the whilst mutual
principle of Islamic public interest. Further discussion on al-$ulh or main
will takeplacein next topic. reconciliation
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6.2.7Al- ulh or Reconciliation
This sub topic of al-Sullzconsistsof 3 ahdith Salh. In terms of reference, this sub topic has referred to authentic narrators of the Hadith such as Bukhri (narrated 1 Iladith), Muslim (narrated 1 Hadith), al-Tirmidhi (narrated 1 Vadlth), Ibn Hibbn
(narrated 2 alidith) and a1-IIkim (narrated 1 Uad4h).
In the fiqh literature, the term al-Sully can be literally defined peace or However, according to al-$an'ani, Muslim jurists divide the subject of reconciliation. into severalcategories,which are technically defined upon which based on its al-$ulh For example,the term al-$ull: is defined as treaty and truce in subject and category'. the subject of political such as a treaty betweenMuslim and non-Muslim, and a truce
in the subjectof marriage between as rebelsandgovernment, whereas rapprochement husband wife. In the subject of financial between and suchasa rapprochement the term al-$ulii canbe definedas reconciliationbetweentwo partiesof transaction, on whoweredisagreement particularterms. contract
In line with the above definition, the first2 ffadith of this sub topic underlines
js particularly betweenMuslims. However, the the ruling of permissibleof al-Sul Hadith rules the permissibility al-$ulh in generalterms and does not refer to of contractsuchasfinancial contractandso on. Primarily, the Hadith rulesthat specific
1al,$anani, Subul, 3,p.63. v. 2 1. Narrated Amr b. 'Auf al-Muzni 4I Allah's Messenger aj Aj3z . said, "Reconciliationis allowable between Muslims except such which makes unlawful somethingwhich is lawful, or makeslawful somethingwhich is unlawful; and Muslims must keep to the conditions they have made, except for a condition which makes unlawful somethingwhich is lawful, or makeslawful is unlawful." (al-Tirmidhi reported and graded it $alth! (sound), but the Iladith somethingwhich disagreedwith him becausethe narration of Kathir b. Abdullah b. Amr b. 'Auf is weak, scholars al-Tirmidhi consideredit reliable for its many ways of narration). Ibn IUibbandeclared the perhaps Vadith to be soundfrom the version of Abis Huraira. Ak-Al .-, j aforesaid,
219
the contract of al-Sully must not against any basic principle of Islamic law while simultaneously must not change unlawful into lawful and vice versa. Furthermore, jurists agree to affirm that the mutual consent of ethic must be taken into many for both parties in the contract of al-,Sul1i3.This condition clearly in account connection with the theme of public interest that aims to preserve the right and for interestedpartiesthat involve in such contract of transaction. equality
In the context of social right of community, the mutual consent of ethic that applies to the contract of al-Sully must be practiced by each person.The second and third Hadith rule the condition of mutual consent of ethic as a basic principle in the of al-Sulk within a specific example. In line with this principle, the second contract Hadith demonstrates specific example whereby one must not prevent his neighbour a
from fixing a beamon his wall. At this stage,the mutual consentof ethic must be by each neighbourto achievethe social right of community. Shall this practiced
is to be ignored by each person,the Prophet s.a.w rules that it is unlawful to principle
take somethingfrom someonewithout permissionand have no senseof mutual This provision has been ruled in the thirds Vadith in which the consentof ethic. Prophet a.w affirmsthat it is unlawful to takehis brother'sstick exceptwith his good s.
will.
3 a1-$ancani, cit., p.65. Op. The Prophet 2. Narrated AbtsHuraira said, "One must not prevent his ] 4- + u1 from fixing a beam in his wall. " Abis Huraira'l then said, "Why do I seeyou turn neighbour w-'j from it? I swearby Allah that I will alwaysnarrateit to you." (Agreed upon). away s 3. Narrated Ab IIumayd al-Saidi Al uj: Allah's Messenger f ""j A46Al I. said, "It is not , lawful for a person to take his brother's stick except with his good will. " (Ibn IIibbn and al-Ijakim it in their two, Sahihbooks). reported
220
In the perspectiveof public interest, the concerning on mutual consent of ethic between each party who involve in a contract would lead the social right for each party as well as community as a whole. The stability of social right in community will the peaceand prosperity of life of humanity as one of basic principles of the preserve
interest. concept of public
The topic of al-$ullz will be further detailed in the subject of financial transactionwith particular referenceto the transaction of al-Hawla wa al-Pamn in the focus is given on the examination of the transfer of debt and surety. which
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6.2.8 The transfer of a debt and surety or alIIawla wa al--amn This subtopic of al-Hawdla wa al-IDamdnconsistsof 4 aliddith that are encompassed 3 Sahih and 1 Daif. In terms of narration, mostly, those a1: dith have authentic
such as Ahmad (narrated 2 ahdith), Bukhri (narrated 2 alidith), Muslim narrators (narrated 1 Hadith), Abn Dwd (narrated 1 hladith), al-Nas'i (narrated 1 Hadith), (narrated 1 Hadith), Ibn Hibbn (narrated 1 Hadith) and al-Hakim al-Bayhgi (narrated 1 Uadl-th).
The first' Hadith of this sub topic rules two injunctions regarding the the transaction of al-Hawla or the transfer of debt. For a1-$anni, Hadith highlights the injunction of forbidden for a rich man to delay the payment of debt becausethis
lead to injustice for the creditor2. The secondinjunction that can be deduced would from the Hadith is the permissibility of transferringdebt to other creditor. This
injunction would help the debtor to pay back a debt to the creditor by transferring the debt to other party. This type of transaction can be applied to the critical situation in
the debtorhas no capabilityto pay the debt. At this stage,the Prophets.a.w which insiststo acceptthe transferof debt from critical debtoras the way to help him out
from such predicamentof debt. Somejurists agreethat at this stageit is obligatory to
the transferof debtfrom critical debtor3. accept
The importance of payment the debt through the transaction of al- fawla in the caseof debtor's death has been emphasisedby the Prophet s.a.w in particularly
1 1. NarratedAbil Huraira AlkAl Allah's Messenger rLj A46Al "Delay in paymentby uLm said, a rich man is injustice, but when one of you is referred for paymentto a wealthy man he should accept " the reference. (Agreed upon). A version by Abmad has: "And if anyoneis referred to another, let him acceptthat." 2 al-$anni, Subul, 3,p.69. v. 31bid
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the second41Yadith.In the analysis of that Hadith, Muslims jurists agree that the transactionof al-Daman or surety is applied to debtor's death for which his relatives take responsibility to pay the debt as the way to free the debtor from the burden must debts.In line with this topic, in the third Hadith, the Prophet s.a.w underlines the of of relatives of a dead body to pay his debt to creditor. However, vital responsibility the Hadiith rules the responsibility of government to take over the payment of debt in the case of one dies and leaves nothing to pay his debt. This provision is clearly to the significance of public interest for which the authority parties such as related leaders should take social responsibility to help needed governmentand community suchas hopelessand poor debtor. people
The discussion on the transaction of al-I?amn or surety is closed with the
fourth?Iladith of 1)aif in which the Prophets.a.w rules the exemptionof Ituddor in the application of al-Pamn. Although the ruling that prescribedpunishment
includes in the Haduh can be deduced as invalid, but the question of why no al-
here. It is suggested that Damanin the liudd is worth interestingto be discussed is simpledistinguishbetweenthe transactionof al-Buyd and the liudd laws. there
4 2. NarratedJbir Al A man of us died, so we washed,embalmedand shroudedhim; we then uZ6j: Al brought him to Allah's Messenger j A4+lc i, L- and ask him to pray over him, he went forward " and asked, "Did he owe anything? We replied, "Two Dinars." Ile turned away, but Abfl some steps At ) Qatda(Alr-Al took upon himself the bearing of them. We then cameto him ( rL-j )) u1, c-Al "I shall dischargethe two Dinars." Allah's Messenger A46Al uLAbi! Qatada(, )) said, and . be thereupon said, "Will you responsiblefor paying them as a right to the creditor; and the dead , " then be free from them? He replied, "Yes." So He prayed over him. (Reported by Alamad, man will Ab Dwd and al-Nas'i.Ibn Hibbn and al-Hakim gradedit $alli (sound)). s al-$an ni, Subul, 3,p.70-71. v. 6 3. Narrated Abu Huraira 1-k-4$ man who had died in debt would be brought to Allah's ,yA " Messenger j 14- 4 and he would ask, "Has he left anything to dischargehis debt? If he was told that he had left enoughhe would pray over him, otherwisehe would say, "Pray over your friend." But when Allah brought the conquestsat his hands he said, "I am closer to the believers than their so if anyone dies leaving a debt I shall be responsiblefor repaying it. " (Agreed upon). A ownselves, versionby al-Bukhrihas: "If anyonedies and leavesnothing to dischargehis debt." 7 4. Narrated Amr b. Shuàib on his father's authority from his grandfather (4 Allah's cr; -j): Al Messenger " said, "No suretyis allowed regarding a prescribedpunishment. (Reported -46 by al-Bayhgi with a weak Isndd).
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The simple distinguish between both of them is referred to the juristic concept of public interest. In terms of the application of benefit to humanity, the transaction of is seenmore applicable comparedwith the #udd laws. Although both are in al-Buyzf line with the concept of public interest, but the former has more interactions and benefits to humanity whereas the latter is seen has little interaction but more
to humanity. punishments
Further discussionon interaction and benefit to humanity in the transaction of take place in the next topic of partnership and agency or al-Shirka wa al-Buyu` will
al-Wakla.
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6.2.9 Partnership and agency or al-Shirka wa al-Wakla
This sub topic consists of 8 aliddith within variation on numbers of the authentic Hadith as follows; ,Sahib (6 ahddith) and liasan (2 ali ith). In terms of narration, havemany authentic narratorsof the Hadith such as Ahmad (narrated 1 those ahdith Bukhri (narrated 3 ahdith), Muslim (narrated 3 alidith), Ab Dwd Iladith), 3 ahdith), al-Nas'i (narrated 1 Hadith), Ibn Majah (narrated 1 Uaalith) and (narrated akim (narrated1 Hadith). al-I
The first' IIadith of this sub topic verifies the significance of al-Shirka or in a contract of which Allah s.w.t becomes the third (partner) of two partnership long as no fraudulent elements exist in the contract. The Prophet s.a.w partners as is away from the mercy and bless that the fraudulent elementsof the contract affirms in business would deserve Allah almighty. For al-$ancni,the smart partnership of for the fraud partnership2. In other words, the profit and reward and vice versa be applied within the transparencyof contract between transactionof al-Shirka must two parties.
In line with the transaction of al-Shirka, the second3Uadith can be classified indicate historically that al-Shirka was applied before Islam to Arab as a proof to but it has been endorsedand legalised during the life of the Prophet s.a.w. community
1 1. NarratedAb Huraira At -,j: Allah's Messenger eu., 44- At vL- said, "Allah the Most High L ,,: I am the third (partner) of two partnersas long as one of them does not cheat his companion,but said, I he cheats departfrom them."' (Reportedby Abil Dwild and al-HAkim gradedit $alJji (sound)). when 2 al.$anCni, Subul, 3,p.74. v. 3 2. Narrated al-S'ib al-Makhzmi I was a partner with the Prophet Lu Ai', At UI + j: before the Prophethood and when the day of Conquest (of Makka) came, he said, "Welcome my " brotherandmy partner. (Reportedby Abmad, Ab Dwd and Ibn Mjah).
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In terms of practice during the life of companions, the third Hadith signifies the in non-businessactivities of which has been termed permissibility of partnership Shirka al-abdn. For Imm Abi! Hanifa and al-Hadwiya, this type of transaction is and legal if every party knows the terms of contract. However, al-ShfiCi allowed differs on this transactiondue to fraudulent elementsthat may exist in the transaction in the aspect of measurementof profit, which is considered uncounted particularly of profit in non-businessactivitiess. At this stage, a1-Shfii'sargument can measure be rebuttedas the profit of non-businessactivities can be defined and clarified by in the terms of contract, thus, the fraudulent elementscan be avoided. eachparty
Regardingthe transactionof al-Wakdla, there are five alzdith of this sub topic this transaction i. e. the fourth6, fifth', sixth8, seventh9and eighth1 .jaaith. verify Those a(idith rule the permissibility of al-Wakla or agency in many forms such as
tadldyya (sacrificing the animals), collecting and distributing the worshippingof . (alms poor), punishmentof lzuddlaws. The main condition that must be adaga
4 3. Narrated Abdullah b. Masd Ammr, Sad,and I agreedto be partnersin whatever A' 'j: get of booties on the day of Badr." The reporter quoted the rest of the llactth which we would " "Then Sadbrought two captives,but neither 'Ammar nor I brought anything. (Reported by concludes: alNas'i and others). s al-$anni, cit.,v.3,p.74 Op. 6 4. NarratedJbirb. Abdullah At I intendedto go to Khaibar, so I went to the Prophet e: st and he said, "When you meet my agent at Khaibar take fifteen Wasq (of dates)from him." eLi AbDawd reportedand gradedit $'ahili (sound)). ' 5. Narrated%Trwa al-Barigi'At j: Allah's Messenger j -46 At ul- sent him with a Dinar to buy a sacrificialanimalfor him. (The reporter mentionedthe rest of the Iladith. Al-Bukhri reported it in the context of anotherpreviouslymentionedHadth). 8 6. Narrated Abu Huraira ' At "Allah's Messenger eLi Ai6 At ui- sent Umar to collect -: Sadaqa. The reporter mentionedthe rest of the Hadith. (Agreed upon). " At u "The Prophet 7. Narrated Jbir ' At ui: slaughteredsixty three (sacrificial) , " 'Ali <- At e to slaughterthe remainder. The reporter mentionedthe rest of the and ordered camels Hadith. (Reportedby Muslim). fo 8 NarratedAbu Huraira k. At regardingthe story of the hired servant:The Prophet -46 At uL. "Unais, go to this man's wife, and if she confesses,stone her to death. The reporter " i said, the mentioned rest of the Hadith. (Agreed upon).
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applied to the transactionof al-Wakdla is certainty of agreementof contract between agencyand ownership"
In the perspectiveof public interest, both transactionshave been legalised by the Prophet s.a.w to attain benefit for interestedparties within the certainty agreement of the contract, which aims to avoid the existence of fraudulent elements in the transaction. In connection with this principle, al Igrr or the confession is one of forms of transaction, which applies to achieve the transparency and truth many in the agreementof contract. Thus, a specific discussion on al-Igrdr will particularly take place in the next sub topic.
11 $anni, Subul, 3,p.77-79. v. al.
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6.2.10 Confessionor al-Igrdr
This sub topic of allgrr
consists of 1 Iladith yaldli which has one authentic
narrator of the Ijadith i. e. Ibn Iiibbn (narrated I Uadlth) as follows;. Allah's Messenger M 1. Narrated Ab Dhr said to me, j: j'A, c "Say the truth eventhough it is hard." (Ibn Hibbn gradedit $alzi: (sound) as a part of a long Uadlth). ani highlights the ruling of obligatory to In the analysis of the Uadith, al-San declare or affirm the truth in any transaction although it is hard in the practice. This and its principle are in line with many versesof the Qur'an such as verse 171 of ruling Sara al-Nis' in which Allah s.w.t says:"nor say of Allah aught but the truth". In the businesstransaction,the affirmation of truth in the agreementof contract is vital for both parties that aim to avoid the existenceof fraudulent elements in the transaction.
4 Moreover,this principle is juristically appliedto the punishment Hudd and QLF of

to seekthe truth in the procedureof accusationand prosecution. of which
In line with the concept public,interest,the declaration truth madeby any of of of transactionwill preserveits honourablelife as well as religion. The party
declaration of truth will also bring the justice and right for a person who declaresthe
the truth andto whomhe declares truth.
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6.2.11 al- Èiriya or loan
This sub topic consistsof 4 Al: ddith Falfflz. In terms of narration, those aliddith have authentic narrators such as Ahmad (narrated 2 aliddith), Ab Dwd (narrated 5 al-Nas'i (narrated4 alidith), al-Tirmidhi (narrated2 al:dith), Ibn Mjah ahdith), (narrated 1 Iladith), Ibn Hibbn (narrated 1 Iladith) Abi! IHtim (narrated 1 Hadith), al-Hkim (narrated3 ahdith). and
In thefrgh literature, the term al- criya refers to two categoriesi. e. i) crlya Madmicna or guaranteesof simple loan, ii) riya Mu'adda or a trust of borrowed In line with those two categorizationsof al- cAriya, for al-$anni, the first' object. Hadith is a proof to indicate the obligatory of returning something that belongs to
However,in the analysisof the Hadith, Muslim jurists differ to determine someone. the Hadith is a proof to indicate that `riya can be classified under the whether
`riya Madmna or criya Mu'adda. There are at least three different category of
on this regard.The first groupof jurists affirms that the jadtth is a proof of opinions cAriya Madmna,whereas secondgroup of jurists verifies that the Iiadilh is a the
to indicate that it is not obligatory of Macimnaor guaranteeson a simple loan. proof
The third groupof jurists seems similar to the secondgroupbut they affirm that the
Madmna is not apply to a good borrower and a proper storehouseas condition of in the Iladith of which narratedby al-Draqutni and al-Bayhgi2.It suggests that ruled the third group of jurists highlights an ethical manner of borrower in dealing with the transactionof `riya.
1 1. Narrated Samurab. JundubILk- lL,,: f Allah's Messenger Al i.. said, The hand which -, eLj c, " takes is responsibletill it pays. (Reported by Abmad and al-Arbaa; al-Hkim graded it $al,ili sound)). v. al-Sanani, Subul, 3,p.81-82.
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In line with an ethical manner of borrower, the second3and third4 Uadith this aspect by affirming the category of CAriya Mu'adda. In the second underline Hadith, the Prophet s.a.w emphasiseson ethical manner of borrower to give back hasbeenentrustedto him by the lender who trusts him, while he warns borrower what to cheatagain the lender who cheatshim. However, in the analysisof jurists, they not differ on the punishment of cheater whether to prosecute him or not to prosecute. Briefly, most of jurists in agreementthat the prosecution of cheater is juristically that in accordancewith the principle of Islamic law laid down by many necessary legal texts. Only few jurists suggestthat the judge should refer to the ruling of the Hadith of which to warn the cheater and not to punish him. However, many jurists
by their arguments referringto manyversesof the Qur'an and many authentic rebut . Hadith that insist to stop abominablethrough prosecutionand educations.This
is obviously in line with the concept of public interest of which the principle
of propertyis givenoneof the top priorities in the life of humanity. preservation
In connection the category `riya Mu'adda, the third jadith rulesthis with of lenderandborrower.In the between the mutualconsent agreement within of category transaction riya Mu'adda, the borrower will not be charged for the lost or of
damageof borrowed object. However, this is not in the category of Àriya Maclmna
3 2. Narrated Abu Huraira Al uJ: Allah's Messenger 4-14- Al said, "Give back what has beenentrustedto you to him who trusts you, and do not cheat him who cheatsyou." (Reported by alTirmidhi and Ab Dwd; al-Tirmidhi graded it Hasan (fair) and al-l3kim graded it $alli (sound). Abu Htim al-RAzidisapprovedit). 4 3. Narrated Yala b. Umaiya & Al Allah's Messenger i Ai6 Al said to me, "When my -*--: c, uLcome to you, give them thirty coats of mail" I asked, "0 Allah's Messenger,is it a loan messengers of its return, or a loan that must be paid back?" He replied, "No, it is a loan with a with a guarantee of guarantee its return" (Reported by Alimad, Abt1 Dwd and al-Nas'i. Ibn 1Iibbn graded it $aliTi csound)). v. al-$an'ni,Subul, 3,p.83-85.
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of which the lost or damageof borrowed object will be chargedto the borrower as the fourth6Ijadith rules in this respect. In other words, the condition of guarantee is to the transactionof riya Macimnathat aims to preservethe right of lender applied his belongings.This objective is in line with the concept of public interest in which on the interest and right of ownership is preservedin the businesstransactions such as
Criya Maclmicna.
6 4. Narrated Safwnb. Umaiya Al At the battle of Hunayn, the Prophet rL., 4b Al uborrowed coatsof mail from him and he asked,"Are you taking them by force, 0 Muhammad(4 vL""j )7" He replied, "No, it is a loan with a guaranteeof their return." (Reported by Abo Dwod al-IHkim gradedit $ahih (sound)). andal-Nasd'i;
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6.2.12al-Ghalb or Usurpation
This sub topic consists of 5 ahdith within variation on numbers of the authentic Iladith as follows; Fahili (3 alidith), Masan (1 Hadith) and Daif (1 Uadith). In terms this sub topic is referred to authentic narrators of the Hadith such as of reference, (narrated 1 Ihladi-th),Bukhari (narrated 3 alidith), Muslim (narrated 2 Ahmad Ab Dwd (narrated 2 ahdith), al-Tirmidhi (narrated 2az dich) and Ibn ahdith), Majah (narrated1 Iladith).
The discussionon the transactionof al-Ghab or usurpation in this sub topic is to the land which has been taken and utilised without appropriate technically referred from the owner. There are 4 aijdith of this sub topic discuss on this permission
i.e.the first', third2,fourth3andfifth4 Jadith. matter
For al-Sancani, first and fifth Hadith are classified as proofs to indicate the the
forbidden of the transactionof al-Ghacb that leads to injustice and ruling of
' 1. Narrated Said b. Zayd k Al Allah's Messenger tUi Ai6 At L. said, "If anyone takes a j land unjustly, on the Day of Resurrection Allah will put around his neck its size taken from span of " (Agreedupon). sevenearths. 2 3. NarratedRf? b. Khadi-J At Allah's Messenger rLi A46At ul s said, "If anyonesows in Akj: land without their permission,he has no right to any of the crop, but he may have what other people's it. " (Reported by Ahmad and al-Arba'a except al-Nasa'i. Al-TirmIdhi graded it $aliTi he spent on but it hasbeensaidthat al-Bukhri proved it weak). sound), A man amongthe Companionsof Allah's Messenger uL4. Narrated"Urwa b. al-Zubayr At A+ At said, "Two men brought a disputebefore Allah's Messenger fL. A6 WL- concerninga rUi land in which one of them had planted palm trees and the land belonged to the other, so Allah's At that the land belongsto its owner and commandedthe owner of the Messenger j ruled " his palm trees, and he said, "The labour of an unjust person has no dues. trees to uproot palm (Reportedby Ab Dwd and its chain of narrators is JIasan. The quoted part of the aforesaidIladth is found in the books of the authorsof al-Sunan from Ùrwa's version on the authority of Said b. Zayd, it is Maw. ul or Mursal and the determinationof the name but there is disagreement regardingwhether At first quoted it from the Prophet tUj Companion who of the u" . 5. Narrated Abu Bakra' At - i: In his Khutba (religious talk sermon) on the Day of Sacrifice at "Your blood and your property and your honours have been Mina, the Prophet tUi AJ- At said, by you, like the sacredness this day of yours, in this month of yours, in of againstviolations sanctioned this town of yours." (Agreedupon).
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In the first Iladith, the Prophet s.a.w warns the severe committing a major sin. in the day of resurrectionfor those who took part in the transaction of alpunishment Gha, In the analysis of the HaaCth,many jurists agree that the transaction of alcb. Ghaybmust be applied to the condition of a guaranteeof the land. In other words, any damage and lose on the land which has been taken through the transaction of alGhacbmust be paid back to the owner.
Furthermore,the third Iladith of Vdif underlines that the usurper has no right land but he may have what he spent on it. This principle has been to the crop of the by the Prophet s.a.w in the fourth Hadlth of which he rules the injustice on repeated the land that belongs to someonewithout his permission. the activity of cultivation on In line with this principle, in the secondsHadith, the Prophet s.a.w verifies the borrowed object in the case of damage and compensationon value and quantity of a loss. This provision will bring justice for the owner for the cost of damageand loss of borrowed object he has had. In line with the principle of public interest, the a for the cost of damage and loss of the goods will prevent harmful compensation particularly to the owner. effects
s 2. Narrated Ans The Prophet 1.14- Al ulm was with one of his wives when one of ' j: j the Mothers of the Believers sent a bowl containing food with a servant of hers. Then she struck with her handand the bowl was broken. He collectedthe piecesof the bowl and beganto collect the food in it and said, "You eat", and gave a soundbowl to the messenger kept the broken one. (Reported by and The latter namedthe one who broke it as A'isha (41&Al al-Bukhri and al-Tirmidhi) wz-.)) and added: Al " The Prophet then said, "Food for food, and a vesselfor a vessel. (al"Tirmidhi also j' ulgradedit $aliili (sound)).
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6.2.13al-Shura or Option to buy' neighbouring property
li, This sub topic of al-Shufda consistsof 5 ahdith that are encompassed3 Falz 1 Hasan and 1 1Daif. In terms of narration, those alidith have many authentic such as Abmad (narrated 1 Uadt-th),Bukhri (narrated 2 alidith), Muslim narrators (narrated 1 Hadith), Ab Dwd (narrated 1 Haaith), al-Nas'i (narrated 2 alidith), (narrated 1 Hadith), Ibn Mjah (narrated 2 alidith), al-Bazzz (narrated al-Tirmidhi 1 Uadith) and Ibn IIibbn (narrated 1 Uadith).
The transaction of
al-Shut a refers to the condition of option to buy
immovable property that particularly belongs to neighbour. This type of transaction has been underlined by the Prophet s.a.w in all altdith of this sub topic. The first'
Hadith rulesthe transaction al-Shufa which is applicableto immovableproperty of

land, garden, house, shop etc. In the Hadith, it is also ruled the right of such as option to be informed before selling the property. However, the rest three partner's
dith2underline that the mostpreference buyerin the transaction al-Shuta is of of al:

the neighbour of the property. In the analysis of those three alidith, some jurists
1 1. NarratedJbir b. Abdullah 1 Al Allah's Messenger j 416 Al L. decreedthat the right j: , to buy a neighbouringproperty is applicableto everything which is not divided but when boundaries fixed and separate roads madethere is no partner'soption." (Agreed upon; the version being of alare Bukhri). Muslim's version has: "The right to buy a neighbouringproperty is applicableto everything is shared,whether a land, a dwelling or a garden and it is not lawful to sell before informing which Al " decreedthe right of partner's partner. Al-Tabawi's version has: "The Prophet one's ul,, " option regardingeverything. (Its narratorsare reliable). 2 The rest threeahddith is referredto the second,third and fourth Hadth as follows; l Al u1." said, "The neighbour of the 2. NarratedAns b. Mlik j: Allah's Messenger j4 househasthe most right to buy it. " (Reportedby al-Nas'i and Ibn 1 ibbn graded it $ahil:, but it has a defectconcerningits narrationthrough two different chainsof narrators). A' --6j. Allah's Messenger ru, Al - said, "The neighbourhas more 3. Narrated Abu Rfi L, L, " to be given preference. (al-Bukhri reported it andit involves a long story.) right 4. Narrated Jbir ' Al L, j: Allah's Messenger rk., 4 Al said, "The neighbour is most entitled --. to the right of option to buy his neighbour'sproperty and its exerciseshould be waited for, even if he is absent,when the two properties have one road." (Reported by Abmad and al-Arbaa;its narrators are reliable).
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(a it is not necessary offer the transaction of al-Shu, only to the potential to affirm that neighbour of the property but it can be offered to any potential partner of the sold In rebutting this argument,Ibn Qayyim assertsthat the priority is given to property. the neighbour who entitles a close friend of the owner of property3. In addition, it that the right of neighbour should be preferred rather than the right of nonappears in the transactionof al-Shuf a as two Altdith, 'alai: rule in this respect. neighbour
The fifth4 IIadith of Paìf in this sub topic highlights that the absence of the transaction of al-Shuf à. However, Ibn Qayyim potential partner would annul that the temporary absenceof neighbour in the transaction of al-Shuf a does suggests his right to buy the property5.His suggestionon this regard can be learned not rescind in the transaction of property of al-Shuf à. In as the significant right of neighbour
the right of neighbouris preservedalthough in the transaction of other words, this is in line with the themeof the concept public interestin Islam. of propertyas
3 al-$anW, Subul,v.3,p.97-101. 4 5. Narrated Ibn 'Umar Udr- 11 'i The Prophet -' said, "The right to buy . ulis like loosening a strap." (Reported by Ibn Mjah and al-Razz r, who added: neighbouringproperty . "There is no option to buy a neighbouringproperty to one who is absent. Its chain of narrators is " weak). . 5 al-$anni, cit. Op.
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6.2.14al-Qird or Equity sharing between investor and entrepreneur
This sub topic of al-Qirdd consistsof 2 altddith that are encompassed1 Faldli and 1 Daif. In terms of reference,this subtopic is referred to some narrators of the &I-ih such asIbn Mjah (narrated 1 Uadith)'and a1-Draqulni(narrated 1 Hadith).
In the analysis of the topic of al-Qiraa, al-$anni affirms that the term alQird can be defined as al Muddraba of which frequently refers to profit and property'. A standard definition of the term al-Qir/ and al-Muclraba can be
to Rayner's definition as an equity sharing between bank or investor and referred client or entrepreneur2.
In the topic of al-Qird, the authorof Bulgh alMarm refersto oneHactlh paìf as the first31Iadith.Indeed,the Hadith hasno indication of the legality of alQird and al Muclraba, however the term al-Mugracla has been highlighted in the
Hadith of which refersto the transaction taking and payingof loan as one of the of
two blessedtransactions.Apart from the transaction of al Mugracla, the &ctth also
highlights the transaction in which payment is agreed on a fixed later time as the
The Ijadith also highlights the mixing of wheat transactions. the blessed of second barleyfor personal but not for sale as anotherblessedactivity that contains use and
blessingsor al-baraka.
1al-$anani, Subul, 3,p. 102. v. 2Rayner,TheTheoryp.381. 3 1. Narrated Suhaib' Al Al uThe Prophet said, "There are three things which L' blessings:A businesstransactionin which paymentis agreed on a fixed later time, taking and contain " payingof loan, and mixing wheat andbarley for one'shouseholduse but not for sale. (Reportedby Ibn Majahthrough a weak chainof narrators).
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In the analysis of that Iladith, al-$anni examines the term al-baraka that
For to thosetransactions4. the first transaction in which payment is agreed on a relates fixed later time, the term al-baraka or blessings is referred to the application of tolerance, supportand assistance debtor who deals with creditor to pay the credit on to fixed later time. In the transaction of al-Mugracla, the term al-baraka or blessings a is referred to the objective of al-Mugracla that. aims to assist and facilitate people involve in taking and paying of loan. In the mixing of wheat and barley for who blessingsis referred to this activity only and not for sale. personal use, al-baraka or This is because mixing of both seedsin the sale is classified fraud and cheat. Thus, the This principle is obviously in line with blessingsin that transaction5. no al-baraka or the concept of public interest of which to prevent harmful effects to the life of humanity suchas fraudulent elementsin the businesstransaction.
The second or last Hadith of this sub topic underlines the agreementsthat incorporated in the transaction of al-Qird Mu jl raba. Both parties i. e. and al
follow to the agreement al-Qircl or alinvestorandentrepreneur of must stick and is Mudraba. Although no compensation paid for the loss of property but the its loss is required in this transaction.Furthermore,the profit of responsibilityof for business the terms of agreement the sakeof mustbe divided in accordance with
4 al-$anani, Subul, 3,p. 102. v. s Ibid 6 766.2 Narrated al-Hldm b. Hizm' Al j: He used to make a condition on the man to whom he gave his property to trade with and the profit being sharedbetween both, but any loss falling on the propertythat: "You shouldnot trade with my property in living beings,transport it by sea,or settlewith it at the bottom of a ravine; and if you do any of the aforesaid acts you should then guaranteemy " (al-Daraqulnireportedit and its narratorsare reliable). property. Malik said in al-Muwaf' from al-Al' b. Abd al-Rahmanb. Yaqb from his father on the authority his grandfather Also that he traded with the property belongingto Uthmn ( that the profit of be divided in halves between both of them. (This Iladith is Mawquf (untraceable)and $alsili would (sound)).
237
justice and right of both parties as this principle is in line with juristic theme of the conceptof public interest in Islam.
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6.2.15 al-Musdgt (cultivating and sharing the profit of the land) and al-Ijra
(wages).
7 This sub topic consists of 9 aliddith that are encompassed $alli and 2 1)aì/
In
terms of narration, those al:dith have many authentic narrators such as Bukhri (narrated 3 altdith), Muslim (narrated 5 alzddith), Ibn Mjah (narrated 1 Hadith), Abn Yala (narrated 1 Iladith), al-Bayhgi (narrated 2 alidith), Jbir (narrated 1 Hadith), and Abd al-Razzq(narrated 1 Uadi-th).
The first' Hadith of this sub topic is a proof to indicate the legality of the
definition of A transaction al-Musgt is alsoknown asal-Muzraà2. standard or of

is referred to the transaction of cultivating the land and sharing its profit al-Musgt
the owner of the land3.One of the differencesbetweenthe transaction'of alwith

Musgt and al Muzdrata is that the former is usually referred to the cultivation of the latter is referred to of fruit trees. Historically, the first 1fadFth grains whereas
highlightsthe applicationof al-Musgtto the peopleof Khaybar,a groupof Jewsin the the Prophet's In the transaction al-Musgt, Jewsof Khaybarcultivatedthe of era.
the land of Khaybar that belongs to Islamic state. In the agreement palm-trees on
between them andthe Prophetas a ruler of the state,the former shouldemploytheir in working on it and the profit should be divided to the latter in own resources
1 1. Narrated Ibn cUmart* c At At Allah's Messenger j4 had agreedwith the people uL. of Khaibarto give (to the Muslim authority) half what it producedof fruits or crops. (Agreed upon). At ") to confirm them in it on A versionby alBukhri and Muslim has: They askedhim (k that they should do all the cultivation and have half the dates.Allah's Messenger 46 atuL. condition LU replied them, "We shall confirm you in it on that condition as long as we wish." So they were At in it till cUmar(4rconfirmed j) deportedthem. Muslim has: Allah's Messenger ] -46 At ul-- handedover to the Jews of Khaibar, the palm-trees the land of Khaibar on condition that they should employ their own resourcesin working on it and and keephalf of its produce. Zal-$an ni, Subul, 3,p.105. v. 3IbicZ
239
the terms of agreement.This type of transaction had also been accordancewith that within the transaction of al-Musgt applied in the companion's era4.It suggests the transactionof al-Ijara of which the wageswill be paid to the lesseeas also applies the paymentof the profit madeby the lessor as agreedin the contract of agreement.
Ijadith rules the wages of In line with the transactionof al-Ijra, the second5 and silver as the payment of cultivating the rental land. Furthermore, the Hafith gold to the owner of the land particularly in the case of disaster of also rules no wages land except for the portion that producedthe crop. This principle has cultivated rental been endorsedin the third Iladith. Despite the endorsementof the transaction of alIjra, the third IHadith however forbids the transaction of al-Muzraa in the time of the Prophet s.a.w. This is becausethe land was less in that time while numbers of
increase. transaction al-Muzraàin that time would burdenthe The of were people lesseeto divide the profit of crops with the owner from the cultivated rental land.
Thus, the Prophet s.a.w rules the transaction of al-Ijra that will easethe lesseeto pay
the basis of rental land to the owner. However,whenevermore lands of only on

were allocatedparticularly in the era of the companions,thus, the ruling of agriculture forbidden is changedto permissible in this respect.This provision is juristically in line
41bid 3 2. NarratedIianZalab. Qais (Ak-At I askedRfi b. Khadp4 ' w,: about letting out land for -j j): silver and he replied, "There would be no harm in that for the people used to let out land in gold and L. for what grew by the streamlets,and the edgesof the the time of Allah's Messenger rl--sAi6 L brooks or for somethingof the crop; but sometimes this portion of the crop would be destroyedwhile the other is saved,or vice-versa,thus no wages were payableto the people (the owners of the land) for the portion which produced a crop." Therefore, he rebuked (practising) it but for something except known and guaranteed there would be then no harm in it. (Muslim reported it). It includes an account of what was summed up by al-Bukhri and Muslim regarding the general forbiddance letting out land. of 6 3. Narrated Thbit b. Pal bak At At Allah's Messenger forbade employing ] LL. people on land for a share of the produce and ordered that they should be employed for wages. by (Reported Muslim).
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the concept of public interest in which the interest of people is preserved that with basedon their priority of life.
The rulings of the transaction of al-Ijra have been prolonged in the rest six this sub topic i. e. the fourth, fifth, sixth, seventh,eighth and ninth Hadith. ahdith of The fourth? and fifths Hadith rule the wage of cupper is lawful although the Prophet describesthe earningsof a cupper are khabith or technically can be defined as s.a.w The sixth9 Hadith underlines the punishment on the day of unreasonablecharge. for those who unpaid wage after receiving full service from the worker. resurrection The same punishment is entitled to two groups i. e. those who betrayed after in the name of God and those who sold a free man and monopolised his confessing price.
In connection the most worthy wagesto be received,the Prophets.a.w with

Hadith that the Qur'an is the best in this regard. However, highlights in the seventh10
jurists differ on receivingthe wagesof teachingthe Qur'an whetherit is lawful some Briefly, al-$ancani to the IHadithof the Prophets.a.w of which it is refers or unlawful.
At u..: Allah's Messenger rL. 4 At 4,1. had himself cupped and 4. Narrated Ibn Abbs the one who cupped him his pay; and if it was prohibited he would not give him (his pay). gave (Reportedby al-Bukhri). Allah's Messenger Lj A46At 5. NarratedRfib. Khadij AIr- Al j said, "The earningsof a " cupperare impure. (Reportedby Muslim). 9 6. NarratedAb Huraira k At u,: Allah's Messenger 14- At usaid, "Allah Who is Great , be and Glorious have said, 'There are three whose adversaryI shall on the Day of Resurrection:A man gave a promise in My Name and then betrayed; a man who sold a free man and consumedhis who and a man who hired a servant and, after receiving full service from him, did not give him his price; (Reportedby Muslim). wages"' 107. Narrated Ibn Àbbas U+11-At At j: Allah's Messenger t"j -116 Lj - said, "The most worthy thing for which you receivepaymentis Allah's Book. " (Reportedby al-Bukhari).
241
lawful to receive the wages of treatment of patient by using the reciting from the
Qu 'an .
The last two ahddith Vaif of this sub topic i. e. the eighth12and ninth13Hadith to pay wages for the worker before his sweat dries as a underline an ethical manner in the senseof humanity. Although the sourcesof this ruling are derived in metaphor Daìf but a main lessonthat can be learned from them is that the right of two alidith be fulfilled by employer as this principle is in line with the wages of employeemust interest in Islam. concept of public
11al-$anni, Subul, 3,p. 112-113. v. 128. NarratedIbn 'Umar At L, -.: Allah's Messenger 1414 At c,1- said, "Give the hireling his -: beforehis sweatdries." (Reportedby Ibn Mjah). wage Abu Yala and al-Bayhgi reported somethingto the same effect on the subject of wages from Abu Al-Tabarni also reported somethingsimilar from Jabir; but all theseA101lith are HurairaAk- At'-. weak. 139. NarratedAb Said al-Khudri At 1m said, "When anyonehires At The Prophet -i ,: , " hireling he shouldpay him all his wages. (Reportedby'Abdul Razzaq,but there is Inqila' (omission) a in it, but al-Bayhagiproved it Mawfl through the narration of Abi1 ILanifa).
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6.2.16Ihya' al-Mawt or developing barren lands
This sub topic of Ihyd' al-Mawt consistsof 9 aliddTththat are encompassed yalzili, 4 3 Hasan and 2 Daif. In terms of narration, those alidith have many authentic
Ahmad (narrated 2 aliddith), Bukhri (narrated 1 Hadith), Abu narrators such as Dwd (narrated 5 alzdith), alNas'i (narrated 1 Iladith), al-Tirmidhi (narrated 2 Ibn Mjah (narrated 2 alldith), Ibn al-Jrd (narrated 1 Hadith), Ibn ahdith), Hibbn (narrated1 IHadith) and al-Bayhgi (narrated 1 Iladtth).
In thefigh literature', the transactionof Iliy' al-Mawdt is practically based on factors which are in line with the necessityof people's custom or known as alcertain cUruf as follows; i) developing the land for the purpose of public interest (tabyi(1al-
'Ar4), ii) cultivatingthe land for the purpose agriculture(tangiatuhaLilzara), iii) of a wall arounda barrenland for the purpose building a house(bin' al- ! 'it of putting
àla al-'Ard).
In connection with those factors of the legality of the transaction of 11! aly' Mawt, there are two aladiththat rule the ownership of barren lands i. e. the first2 and
second3Hadtth. Both alzdithaffirm that a developerof barren land, which is not belongingto any Muslim or non-Muslim, entitles to get ownership of the land.
However, Muslim jurists differ on whether to get prior permission or not from the
1al-$anni, Subul, v.3,p.114. 2 1. Narrated Urwa from Aisha Al -6j: The Prophet AA- Al ol- said, "He who develops L L, land which has no owner, has the most right to it. " (Reported by al-Bukhri) Urwa said that Ùmar ruled accordingto that during his caliphate. 3 2. Narrated Said b. Zayd Ai The Prophet L, -46 4 ulm said, "If anyonemakesa barren ,: land productive, it belongsto him." (Reported by al-Thalatha;al-TirmIdhi graded it Ilasarn saying that it was reportedin a Mursal form which is the casebut there is disagreement regardingthe Companion Al it was said that it was Jbir, A'isha or Abdullah who first quotedit from the Prophet j4 , b. cUmar,andit is preponderated that it was the first one (i. e. Jbir))
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government in the transaction of Ilry' al-Mawdt. It suggeststhat prior permission from the governmentis necessary the transaction of Ilty' al-Mawt due to prevent in injustice and harmful effects in developingthe barren lands. This is juristically in line with the theme of public interest that will remove any harmful effects of humanity it will preservethe element of justice and transparency for the whilst simultaneously of the life of humanity. purpose
The discussion on the transaction of Ily'
has been extended al-Mawt
through several aliddith in this sub topic. Some of them laid down basic principles that incorporatedin the transaction of Iliy' al-Mawdt. For instance,the third4 Ua th highlights no preservedland except what belongs to Allah and His Messenger. In the the Hadith, Muslim jurists insist that no reserve land is given by the analysis of
but only for the purposeof public interest to individual or leadership government
for juristic reasons.In other words, the gift of reserve land to individual except
would bring injusticeandharmful effectsfor the society.In line with this ownership injunction, the fourths Hadith rules a generalprinciple that can be related to the is that "You shouldneither harm yourself nor cause transaction 11zy' of al-Mawt
harm to others" (La Qarar wa l I?irr). It appearsthat this principle can be seenas a
guidanceto achievejustice, peace and mutual understandingamong the social membersof society.In the transactionof 1' this principle must be al-Mawt,
4 3. Narrated Ibn 'Abbas Al " that al-$a% b. Jaththmaal-Laythi Al uJ told him that the , Al L had said, "There is no preserve except what belongs to Allah and His Prophet ] " Messenger. (Reportedby al-Bukhri). 3 4. Narrated (Ibn "Abbas) Al uj: Allah's Messenger r1' said, "You should neither u1... harm yourself nor causeharm to others. (Reported by Al mad and Ibn Mjah). Ibn Mjah reported " somethingsimilar to the aforesaidHadith from Abu Said'snarration; it is found in al-Muwall3' in a Mursal form.
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applied officially by the governmentto develop any barren land that aims to benefit for the people and country and not to bring harmful effects to their lives.
The rest five ahdith of this sub topic can be classified as the legal proof to the individual ownership of the land, the necessity constitute some principles such as of Harim and the right of people to utilise and benefit the natural sources.
Regarding the principle of the individual ownership of the land, there are at least four ah5dith on this regard i. e. the fifth6, sixth7, seventhsand eighth9 Iladith. Each Ijadith rules the right of particular individual to get ownership of the land from the governmentsuch as someonewho puts a wall around a barren land for the purpose building a house,someonewho digs a well for the benefit of people, someonewho of
to get an estatefor the purposeof agriculturefor fixed period and someone entitles who entitlesto get an estateas a reward of his servicesthat benefit to Islam and
Muslim ummah.
Concerning the principle of the necessity of Harim, for al-$anni, the sixth Hadith examinesin this respect.Although the Hadith is juristically classified Qaìf, . but Muslim jurists analyse its ruling that parallel with the ruling in some ali ilh
$a zi zsuchin the fifth Hadith Thus,in a1-Sanni's analysisof the sixth Hadith, he .
6 5. NarratedSamurab. Jundub' At j: Allah's Messenger el"i 4r- s U1- said, "If anyoneputs a wall around a barren land, it belongs to him." (Reported by Ab DAwd and Ibn al-Jrd graded it (sound)). Sahhh 3 6. Narrated Abdullah b. Mughaffal At j: The Prophet rLtj 46 At ul.,m said, "If anyonedigs a well, he has forty cubits (of land) as resting place for his animals near the water." (Reported by Ibn Majah through a weak chainof narrators). 8 7. NarratedÀlgamab. W'il from his father At him j. "The Prophet 446 At L" assigned ] " land in Hadramout. (Reportedby Ab Dwd and al-Tirndhi. Ibn Ijibbn gradedit $al!Tli(sound)). 9 8. NarratedIbn 'Umar At The Prophet fL.. 4- At L. assignedto al-Zubayrthe land his r: horsecould cover at a run. He madehis horserun, and when it stoppedhe threw his whip. Ile then said, "Give to him up to the spot his whip hasreached. (Reportedby Ab Dwd, but it hasweakness). "
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that apart from the rule to give ownership of the land for someone who digs a states well for the benefit of people,the Hadith also rule the necessityof IIarim. A standard definition of Ilarim is referred to natural sourcesthat are preservedfrom developing and monopolising becauseof their harmful effects to the life of humanity. In line with the Iladith, the well is classified as Ilarim because of its benefit to the life of humanity. In this regard, Muslim jurists affirm that apart from well, river and conservatoryareaare also classified as Harim.
The last1IIadith of this sub topic rules the principle of the right of people to and benefit the natural sourcesparticularly pasture,water and fire or electricity. utilise For al-$anni,the Hadith is a proof to rule the public utility of those three natural and no personalbelonging to them in the caseof necessary condition". Those sources
havethe samefeatureof public utility. At this stage,it can be three naturalsources

learned that on the other words, the Iladith rules the priority of public interest is given important rather than the priority of the right of personal belonging. This more
is justified with the conditionof fundamental basicnecessity humanlife principle of

as natural sourcesand the like. such
10 NarratedA man of the Companions 9. o1a + w%j :I went on an expedition with the Prophet 41 -j Ar- and heardhim say, "Peopleare partnersin three things: pasture, water and fire." (Reported by Alimad andAbu Dwfid; its narratorsare reliable). " a1-$ad5ni, Subul, 3,p. 124-125. v.
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6.2.17 al-Waqf or Endowment
This sub topic of al-Waqf consistsof 3a zddith $'ahili. In terms of narration, those have authentic narrators such as Bukhri (narrated 2 aliddith) and Muslim alidith
(narrated 3 ahddith).
The transaction of al-Waqf or the endowment refers to the donated property to benefit the public interest. Any profit that obtained from the donated that aims be allocated continuously to the purpose of public interest. property must Furthermore,the transactionof al-Waqf is divinely classified as one of the three most for Muslim death. The first' Hadith affirms the most valuable valuable rewards for Muslim death is reckoned on three types of actions i. e. i) adaga or gifts rewards
to from which benefitcontinues be reaped, ii) benefitis continuous, knowledge whose

iii) the supplication of a good son or daughter (for his or her died parents). It appears Hadith is a proof to indicate that being a rich person who deals in the that this
transaction al-Wagf is promisedby the Prophets.a.w to gain the most valuable of

after his death. reward
In conjunction the transaction al-Wagf, the secondandthird &dith of with the typesof propertyof al-Wagf.The second2Raditlz underlinesthe land as a rule
1 1. NarratedAbt3Huraira At -j: Allah's Messenger 1L A* At ol- said, "When a son of Adam dies no further reward is recorded for his actions, with three exceptions:. adaga, whose benefit is or knowledgefrom which benefit continuesto be reaped;or the supplication of a righteous continuous; son (for him)." (Reportedby Muslim). 2 2. Narrated Ibn Tmar Utlr- At Tmar AOrAt got some land in Khaybar and went to the j Prophet eL. A46 At m asking his commandregarding it and said, "0 Allah's Messenger,I have " acquireda land in Khaybar which is the most valuableproperty that I have ever acquired. He replied, "If you wish you may make the property an inalienablepossession and give its prsduceas . adaga." So "Umar k At gave it as cadaga that must not be sold, inherited, or given away, and he gave its ,) produce as fadaga to be devoted to the poor, relatives, the emancipation of slaves, Allah's cause, travellersand guests,no sin being committed by the one who administersit if he eats somethingfrom it
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type of property of al-Waqf that can be utilised for the benefit of people such as the the emancipation of slaves, Allah's cause, travellers and guests. poor, relatives, Furthermore, the Hadrth affirms the portion of benefit for the authority body that the land of al-Wagf. However, the authority body of al-Waqf has no right to manages andtransferthe land to other party. sale
The third3 Iladith underlines the movable property such as coats of mail, be dealt in the transaction of al-Wagf. For al-$anni, weaponsand animals that can the Hadith is a proof to rule the permissibility of material endowment of which for the payment of zakt or alms poor. It suggeststhat this ruling is formed valuable to give a chancefor a person who has no capability to give valuable property such as land and the like for the purposeof al-Wagf.
in a reasonable manneror gives somethingto a friend to eat, provided he does not store anything as (for himself).(Agreed upon; the version is of Muslim). goods A versionby al-Bukharihas: "He gaveit asSadaqathat must not be sold or gifted but its producemust " be spent(asSadaqa). 3 3. NarratedAbu Huraira Al "Allah's Messenger ] to sent 'Umar 41,4 t,, " collect Sadaqa. The narrator reported the Hadith and it contains:"As for Khlid, he has kept back his " andweaponsto usethem in Allah's cause. (Agreed upon). coatsof mail
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6.2.18 al-Hiba (Gifts), al-Ùrara (life-tenancies) and al-Rugba (giving property for the recipient's life time)
This sub topic consists of 11 alOdith within variation on numbers of the authentic Hadith as follows; $ahili (9 aliddith), Masan (1 Iladith) and Daif (1 Hadith). In terms of reference,this sub topic is referred to many authentic narrators such as Al mad (narrated 2 ahddith), Bukhri (narrated7 aliddith), Muslim (narrated 5 alidith), Ab Dwd (narrated 1 Uadith), al-Nas'i (narrated 1 Hadith), al-Tirmidhi (narrated 1 Hadith), Ibn Mjah (narrated 1 Hadith), Ibn IIibbn (narrated 2 alidith), al-Hkim (narrated 2 ahddith), Ab Yala (narrated 1 Uadl-th) and al-Bazzz (narrated 1 Hadith).
In thefigh' literature,the transaction al-Hiba, al-Umra and al-Ruqbaare of betweenthe giver and the recipient.For to individual transaction practicallyreferred
instance,the transactionof al-Hiba refers to the giver who gives something as a gift to
or someone recipientfor the sakeof Allah s.w.t. Both transaction al-Un: andalof ra
Ruqba practically refer to Jahilliya's era in which a house is given as a gift. However, the former deals with a life tenancy at the house whereas the latter deals with a
lifetime to live at the house.
In line with the transaction al-Hiba, thereareten al:di h that dealwith this of Only one Hadith dealswith the transactionof al-Ùrara and altype of transaction.
Ruqba.
1al-$anni, Subul, 3,p. 130. v.
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Thoseten aharth of al-Hiba mainly focus on the rulings of ethical manner of the giver and recipient who deal with this type of transaction. The first2 adTth is a
to rule the obligatory of equality for parents in giving a gift to their children. proof However, somejurists suggestthat in practice, it's difficult for parents to apply the in giving a gift to their children, thus, the rule is only equality of quality and quantity in this regard3. recommended
The secondand third Hadith emphasises the ruling of taking back the gift. on In general, the ruling of taking back the gift is unlawful as the second4Iiadith indicates in this respect.However, the exception is given to parentsas lawful to take back the gifts of their children for some reasons.This ruling has been highlighted in
that the thirds Haalithof this sub topic. It suggests the reasonof unlawful of taking back the gift is basedon unethicalmannerin doing so for the giver. Although the is seenin the caseof parentswho take back the gifts of of sense unethicalmanner that their childrenbut the Prophets.a.w rulesas lawful in this regard.It appears both
totally different in terms of relation between the giver and recipient. The casesare
has family relation, which is much more closed between secondcaseof parents
2 1. Narratedal-Numanb. Bashir Utk- Al His father brought him to Allah's Messenger A1,,L" j: AL* and said, "I have given this son of mine a slave,who was belongingto me." Allah's Messenger j 4- Al asked, "Have you given all your children the like of him?" He replied, "No. " Allah's 1L, Messenger e -j 4 -1Iul- then said, "Take him back then." A version has: My father went then to the Prophet eL. 4 Al Ll- to call him as witness to my sadaqa (i. e. gift) and he asked, "Have you done " the same with all your children? He replied, "No. " He 'said, "Fear Allah and treat your children " My father then returnedand took back that gift. (Agreed upon). equally. A version by Muslim has: He said, "Call someoneother than me as witness to this." lie then said, "Would you like them to showyou equalfilial piety." lie replied, "Yes." lie said, "Don't do it, then.: 3 al-$anni, Subul,v.3,p. 130-131. ' 2. Narrated Ibn 'Abbas Lem Al L,--j. The Prophet ej 46 Al Lrl- said, "The one who repossesses back a gift is like a dog which vomits and then returns to its vomit." (Agreed upon) A version by alback a gift is like a dog Bukhri has: "An evil example does not apply to us, one who repossesses which vomits andthen returns to its vomit." 3. Narrated Ibn 'Umar and Ibn 'Abbas t+lr- l w%.: The Prophet ""j AAaAl said, "It is not uLm lawful for a man (Muslim) to give a gift and then take it back, except a father regardingwhat he gives his child." (Reportedby Abmad and al-Arbaa.al-Tirmidhi, Ibn Ijibbtin and al-I;ikim gradedit $alsi s).
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Thus, the case of taking back of gift by parents is seen as parents and children. in a family. However, in the first case,the taking back of gift by common practice morally harmful effect to recipient. giver would
the In the fourth6 Haarth, the Prophet s.a.w demonstrates giving of something in return the gift from recipient as the proper way to expressthe appreciation of gift to For this prophetic principle, most jurists agree that it is recommended to do giver. However, it is obligatory for the giver to have good intention as well as mutual that. in the transaction of al-Hiba as the fifth? Haduh rules in this respect. This consent should be practiced by the giver that aims to avoid the element of corruption ruling in the transaction of al-Hiba. Moreover, a good intention in the which might exist bring the senseof caring and loving between giver and transaction of al-Hiba will
it would gently extract grudgeparticularly for recipient as recipientand meanwhile

)aif highlight on this aspect. in both alzchth the eighth8of Masan and the ninth9 of J, il:, In terms of social relation, in the tenth1Hadith ,Sal: the Prophet s.a.w encourages
to dealsin the transaction al-Hiba althoughin small quantityandquality of neighbour the this will strengthen sense caringbetween of members community. of as
6 4. NarratedA'isha to- 4 .j Allah's Messenger eLi 4l -+1 would accepta presentand give c in return for it. (Reportedby al-Bukhri). something 7 5. NarratedIbn 'Abbas Al A man gave away a she-camel Allah's Messenger 4 4+luLm to " So he gavehim somethingin return for it and asked,"Are you pleased? He replied, "No. " So he j. " him abundantlyand asked,"Are you pleased? He replied, "No. " Again he gifted him abundantly gifted " asked, "Are you pleased? He replied, "Yes." (Reported by Ahmad and Ibn Ilibbn graded it and J8. ahiz). Al The Prophet j'46 Al uL- said, "Give presentsto one another NarratedAb Huraira i: love one another. (al-Bukhri reported it in al Adib al-Mufrad; Abil Ya`la reported it " and you will with a good chainof narrators). 9 9. Narrated Ands'- 11 -: Allah's Messenger rLi 4 Al said, "Give presentsto one another, vI" for a presentgently extractsgrudge. (al-Bazzrreportedit through a weak chain of narrators). 1010. Narrated Ab Huraira Al vom-: Allah's Messenger s said, "0 Muslim women, wneighbour should not consider even a goat's trotter too insignificant a gift to give to her a woman " neighbour. (Agreedupon).
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The seventh" and eleventh12Uadi-th underline the right of giver in the transaction of al-Hiba. The seventhHadith underlines that the giver should not buy his gift if the gift is offered for the sale. Muslim jurists differ to determine whether forbidden or reprehensibleto buy this type of gift. As a solution, the giver should this is contrast with his first intention of al-Hiba to buy this type of gift because avoid for the sake of Allah s.w.t13.However, for some reasons,the giver of which seeking has the right to take back the gift particularly in the caseof no condition in returning the gift. This principle is ruled by the Prophet s.a.w in the eleventhHadith.
The transactionof al cUmra and al-Ruqba are highlighted in the sixth'4 JIadilh both transactionshave interrelated with the this sub topic. As previously discussed, of but slightly different in terms of gift in which is referred to the transaction of al-Hiba
is houseonly. The aim of both applicabletransactions to assistrecipient to have a

to live in within certain agreementof contract. This objective is clearly proper shelter
living in a proper shelter will in line with the conceptof public interestbecause
the life of family. preserve
117 Narrated 'Umar Alz At I provided a man with a horse to ride in Allah's cause,but as he did look after it well, I thought he would sell it at a cheapprice. I therefore askedAllah's Messenger not Lj 41r-At about that and he said, "Do not buy it even if he gives it to you for a Dirham." The (, reportedthe rest of the Ijad th. (Agreed upon). narrator 12 11. Narrated Ibn 'Umar U*- At Al The Prophet tLi A4L-- LL- said, "If anyonegives away a he has most right to it as long as he is given nothing in return for it. " (al-Ijakim reported and gift, it $'ahil: and it is established from Ibn Ùmar'sversion on the authority of 'Umar ' L,-:-j that graded this is Umar'ssaying). 13 v. al-$adani, Subul, 3,p. 136-137. la 6. NarratedJbir' At Allah's Messenger eLi 14r-At L L- said, "What is given in life-tenancy ,: belongsto the one to whom it is given." (Agreed upon). Muslim has: "Keep your propertiesfor yourselvesand do not squanderthem, for if anyonegives a lifetenancyit goes to the one to whom it is given, both during his life and after his death, and to his " descendants. A version has: "The life-tenancywhich Allah's Messenger eLi Ar-At (1L- allowed was only that in ' When he says,'It is yours as long as you live', it says,'It is for you and your descendants. which one returnsto its owner." Ab Dwd and al-Nas'i have: "Do not give property to go to the survivor and do not give lifetenancy,for if anyoneis given either,the property goesto his heirs."
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6.2.19Luga(a or Lost and found items
This sub topic of Lugata consistsof 6 alidith that are encompassed $alzilx and 1 5 Masan. In terms of narration, these aliddith have many authentic narrators such as Alhmad (narrated 1 Vadith), Bukhri (narrated 2 a1idith), Muslim (narrated 4 Abn Dwd (narrated 2 alidith), al-Nas'i (narrated 1 Hadith), Ibn Mjah altdith) (narrated 1 IHadith),Ibn al-Jrd (narrated 1 Hadith), Ibn Hibbn (narrated 1 Hadith) and Ibn Khuzaima (narrated 1 Vadi-th).
The transactionof lugatal or lost and found items is juristically divided into 3 i) invaluable items and edible, ii) invaluable items and inedible. It must be catagories; announcedto the public placesfor three days prior entitlement, iii) valuable items and
be announced the public placesfor oneyear.Shallno claim of ownership, to the must

items can be utilised.
In connectionwith those three categoriesof lugala, the first2 HaAh is a proof to rule the permissibility of keeping invaluable items if found. However, the Prophet
a.w as a personwho found thoseitems kept them as inedible althoughthoseitems s. edible. For $anni,the tladith is also a proof to encouragethe senseof were to carefulness eat uncertaintyof food3.At this stage,the Hadith indicatesthe second of category luqa(a.
1 al-$anni, Subul, 3,p. 140 v. 2 1. NarratedAns The Prophet Lu came upon a date on the road and said, -11 "Wereit not that I fear it may be part of the cadagaI would eat it. " (Agreed upon). . 3 Op.cit. Subul, 3,p.140. v.
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The second4and thirds Hadith of this sub topic are proofs to rule the keeping lugala items for the purpose of seeking the owner of those obligatory of is items. A proper announcement vital to do in order to seekthe real owner of lugala items. Furthermore,in the secondHadith, the Prophet s.a.w rules the permissibility to for seeking its owner. However, the astray goat has eat astray goat after one year in terms of its price. The finder must pay compensationto the owner of goat guarantee if the goat has been slaughtered.In the case of astray camels, the Prophet s.a.w rules that those camelsshould be freed to find their foods and water. It suggeststhat this is becausethose camelsare classified independentanimals of which they can survive to live comparedwith astraygoats.
The fourth6 Hadith underlines rule of obligatoryto seekreliable witnessin the transaction luga(aandin deliverythoseitemsto their owner.This provision is the of
to be applied that aims to achieve justice, right and transparency in the vital transaction of luga(a. The ignorance of this provision would bring harmful effects to the real owner of those items. particularly
4 2. Narrated Zayd b. Khlid al-Juhnik4$ uJ: A man came to the Prophet tl-+A, Al ul- and him about a find. He replied, "Note what it is containedin and what it is tied with and make the asked known for a year Then if its owner comesgive it to him, otherwise you can do what you like matter it. " He asked,"What about astraygoat?" He replied, "You, your brother, or the wolf may have it. " with " He asked,"What about astray camels? He replied, "What have you to do with them? They have their and their feet. They can go down to water and eat trees till their master finds them." (Agreed stomachs upon). 3 3. Narrated (Zayd b. Khlid) Al Al - said, "He who gives Allah's Messenger ] ul. refugeto a strayis a strayhimself as long ashe doesnot makeit known." (Reported by Muslim). 6 4. Narrated "Iyad b. Himar & Al Allah's Messenger ] ALj6Al said, "He who finds somethingshould call two trusty people as witnesses,keep in mind what it is contained in and what it is tied with, and not conceal it or cover it up; and if its owner comes he has then most right to it, it is Allah's property which He gives to whom He wishes. (Reported by A$mad and al" otherwise Arb'aexcludingTirmidhi. Ibn Khuzaima,Ibn al-Jrdand Ibn Hibbn gradedit $ahi/i).
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The fifth? and sixth8IHadith of this sub topic highlight an ethical manner to be in the transaction of lugala. For instance, the fifth Hadith rules the practiced of taking items that belong to pilgrims. It appearsthat the aim of this prohibition is to prevent the burden of pilgrims as they have spent a lot of money during ruling
their worshipping of pilgrimage. Furthermore, the sixth Hadith rules the prohibition
keeping the lugata property of disbelievers who have been preserved their equal of rights as Muslims in Islamic state except for juristic reasons.It suggeststhat this ruling aims to protect the rights of minority in Islamic state as part of main theme in the concept of public interest in Islam for which to protect the property and life of humanity regardless racesand religions.
7 5. Narrated Abd. al-Raman b. nhhmn al-Taymi V- +$ 46 A$ UL. -1 i: The Prophet L prohibitedtaking what a pilgrim has dropped.(Reportedby Muslim). 6. Narrated al-Migdmb. Madzkarib Al . j: Allah's Messenger (Lu 446 Al L. said, "A beast &, prey with a fang, a domestic ass, and a find from the property of a Kafir who has been given a of unlesshe dispenses with it, are not lawful. " (Reportedby Ab Dwd). covenant
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6.2.20Al-Far'id or Shares of inheritance
This sub topic consists of 13 aliddith within variation on numbers of the authentic
Iladth follows; $all: (11 ahdTth) and Hasan (2 altdith). In terms of reference, as
this sub topic is referred to many authentic narrators of the Hadith such as Abmad (narrated 5 aliddith), Bukhri (narrated 3 alzdith), Muslim (narrated 2 ali ith), Ab Dwd (narrated 5 alzd&th), al-Nas'i (narrated 8 altdith), al-Tirmldhi (narrated 2
Ibn Mjah (narrated 6 alzdith), Ibn IIibbn (narrated 3 alidith), a1"Hkim ahddith), (narrated 5 ahdith), AbU Zura al-Rzi (narrated 1 Hadith), al-Draquini (narrated 1 Hadith), Ibn al-Madini (narrated 1 Hadith), Abd al-Bir (narrated 1 Hadith) and alBayhgi (narrated 1 Hadith).
From.13 alictth of this subtopic, thereare two juristic themesthat relate to

the transaction of al-Far'i4. The first juristic theme refers to the principle of the that must be followed and practiced for the sake of justice transaction of al-Far'id in bestowing the shares of inheritance to those entitle individuals. The and right juristic theme refers to the fixed portions of the transaction of al-Far'ijl second those entitle individuals that are laid down by the Qur'an. to
In the first juristic theme, there are seven al0dith which highlight some
principles of the transaction of al-Far'icl, whereas six aliddith underline the second juristic themethat focuseson the fixed portions of individuals in the transaction of alFar'id.
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To begin with, the discussionwill examine on the first juristic theme that are encompassed seven alidith that relate to some principles of the transaction of alFard'id i. e. the first, second,fourth, tenth, eleventh,twelfth and thirteenth Hadith.
The first' Hadith rules the obligatory of giving the shares to those who are to the inheritance and the remaining sharesmust be given to the nearest male entitled heir. In line with this principle of transaction of al-Far'id, the verse 11 and 12 of Sura al-Nisa' laid down six fixed portion of sharesas follows; one-half, one-fourth, two-third, one-third and one-sixth. There are two types of entitled one-eight, individuals in bestowing six fixed portion of sharesof al-Fard'icl i. e. i) Dhu al- alFard'id, juristically refers to children, daughters,parents and husband or wives, ii) Àlaba, juristically refers to husbandor wives, brothers and sisters, uncles and unties,
fathersandgrandmothers, grandsonsand granddaughters. and grand nephew nieces,

In other words, those individuals are entitled in the transaction al-Far'icl becauseof It their lineage relation to the deceased. appearsthat in the concept of public interest,
the application the transaction and of al-Fard'icl aimsto preserve utilise the property
the deceasedby bestowing to his lineage and relatives. Furthermore, the first of Hadith rules that the remaining sharesmust be given to the nearestmale heir because
this is in line with the responsibilityof male to look after family comparedwith female.
The second2 and fourth3 IIadith underline the principle that Muslim does not inherit from disbeliever and vice versa. The objective of this principle vividly
' 1. Narrated Ibn AbbsL -+1 J: Allah's Messenger tLj Ar-Al said, "Give the sharesto LLthosewho are entitledto them, and what remainsgoesto the nearestmale heir." (Agreed upon). 2 2. Narrated Usamab. Zayd i-+k. Al The Prophet tl"j 41r-Al ul- said, "A Muslim does not j inherit from an infidel and an infidel from a Muslim." (Agreed upon).
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the interest of Muslim's property for the sakeof religion and life. The same preserves is applied to the case of murderer who is excluded from the entitled objective individual in the transactionof al-Far'id as the tenth4Hadith rules in this respect.
The eleventhsand twelfth6 Ijadith emphasison the principle of bestowing alfreed slave. The term al-Wald' is also referred to Far'id that belongs to a deceased freed slave.In this regard,both al:dith underline that a! the left property of deceased Wald' cannot be sold or given away becauseits belong to lineage of deceasedfreed In the caseof no lineageto be bestowed,the al-Wald' entitles to individual who slave. the moneyfor the freedom. pays
The thirteenth? Hadith of this sub topic endorsesZayd b. Thbit as one of
in the subjectof al-Far'id particularlyduringthe life of the Prophets.a.w. In experts

it can be learned that the transaction of al-Far'ici should be managed other words, consultedwith a knowledgeablepersonor expert in this subject. and
3 4. NarratedAbdullah b. Tmar 1-+Ir4-i: Allah's Messenger '+, -46 At said, "People of two " different religions do not inherit from one another. (Reported by Abmad and al-Arbaa except alTirmidhi; al-Hakim reported it with Usama'sversion; al-Nas'i reported Usma'sfladilh with the aforesaidversion). 4 10. Narrated Amr b. Shuaibon his father's authority from his grandfather At Allah's Messenger e1 {; 6 ', said, "One who kills a man cannot inherit anything from him." (Reported by al-Nas'iand al-Draqulni; Ibn Abd. al-Barr graded it strong; al-Nas'i declaredit to be defective, but the right opinion is that it is Mawquf at 'Amr b. al. A: At -'Aas s 11. Narrated'Umar b. al-Khaflb' At -j: I heard Allah's Messenger (+u 44- At as saying, "The property a parentor a child acquires,goes to his innatewhoever it may be." (If either dies leaving relative). (Reportedby Abis Dwtid, alNas'i and Ibn Mjah; Ibn al-Madini and Ibn Abd. al-Barr no it Sahib). graded At At - said, "The right to Allah's Messenger ]a 12. NarratedAbdullahb. 'Umar e: c, inheritancefrom a freed slaveis as of a kindred by lineage;it cannotbe sold or given away." (al-111kim reported it through al--Shfi's narration from Muhammadb. al-Hasanon the authority of Ab YasuP, Ibn I3ibbngradedit $alzih(sound),but al-Bayhgigradedit defective). At Allah's Messenger tUj A4r.At 13. Narrated Aba Qilba on the authority of Ands uL. .;: "The most versedin the rules of inheritanceamongyou is Zayd b. Thbit." (Abmad and al-Arba'a said, Ab Dwd reported it; al-Tirmidhi, Ibn IHibbnand al-Iikim graded it $4141s,but it was except for beingMursat). weakened
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The secondjuristic theme of this sub topic is the fixed portions of individuals There are six alidith in this subject. For instance, the of the transactionof al-Fard'id. Hadith of this sub topic indicatesthree fixed portions of individuals i. e. i) half third8 to the daughter,as one of Dhu alal-Fard'id, ii) one-sixth to the granddaughter (from father's side, as one of Àpba, iii) one-third to the sister, also one of Àfaba.
The fifth9 Uadith rules that Dhu alal-Far'icl includes daughters who got In this case,the deceasedonly left two-third and also a grandfatherwho got one-sixth. two daughtersand a grandfather as heirs. However, the grandfather entitles to get becausehe is also categorisedas Àsaba particularly in this case. another one-sixth The portion of one-sixth also entitles to a grandmotherin the caseof deceasedhas no to inherit before her as the sixth1Hadith rules in this respect. mother
The seventh" and eighth12 IIadith rule that a maternal uncle (mother's brother) has no right in the fixed portions of individuals of the transaction of alFar'fd particularly in the caseof nobody is entitled to inherit al-Far'iel. If this were
be bestowed the government public fund (Bait alto as the the case, propertywould
8 3. Narrated Ibn Mas%d AJ- 4-j the situation where there were a daughter, a son's concerning daughter and a sister: The Prophet f, 14- At ul- ruled, "The daughter gets half and the son's " daughtera sixth, makingtwo-thirds, andwhat remainsgoesto the sister. (Reportedby al-Bukhitri). 9 5. NarratedImrn b. Husayn L At 'j: A man cameto the Prophet Lu'46 At c1' and said, " "My son'sson has died, so what do I receivefrom his estate? He replied, "You receive a sixth;" then he turned away he calledhim and said, "You receiveanother sixth;" and when he turned away he when him and said, "The other sixth is an allowance(beyondwhat is due)." (Reported by Abmad and called it $alffli. It is from al-Hasanal-Ba$ri'sversion on the authority of Ìmran; al-Arbaa;al-Tirmidhi graded but it was saidthat al-Hasandid not hearthe Hadith from CImran). At l0 6. Narrated Ibn Burayda t At the authority of his father: The Prophet fL,, on uLa sixth to a grandmotherif no mother is left to inherit before her. (Reported by Abu Dawud appointed Ibn Khuzaimaand Ibn al-Jarudgradedit $ahih and Ibn'Adi gradedit strong). and al-Nasa'i; 117. Narrated al-Migdm b. Ma'dzkarib Jk. At h%tiL. said, "A Allah's Messenger (j j: is heir of him who has none. (Ahmad and al-Arba'a reported it excluding al-Tirmidhi; " uncle maternal Ab Zura al-Rzigradedit Fasan;al-Hkim and Ibn HibbAngradedit $ahih). 'UmarAlr- st 128. Narrated Ab Ummab. Sah! ( At At wrote to Aba Ùbayda 4-k- u: -j e): .)Messenger had said: "Allah and His that Allah's Messenger j A* At are the Patrons of him has none and a maternaluncle is the heir of him who has none." (Reported by Abmad and alwho Arba'aexceptAb Dwd; al-Tirmidhi gradedit Hasan; Ibn Hibbn gradedit $aji li).
259
Mal). Furthermore, the ninth13Hadith concludes this subject that a newborn baby entitles as heir of his parent and wheneverthe baby dies, the transaction of al-Fard'ic! must be applied to his relatives.
In the perspective of public interest, the transaction of al-Far'ici
and its
incorporated principles should be applied properly to the members of society. This provision aims to preserve the right of deceased's property of which it would be transferredequally to entitled relativesof deceased.
139. Narrated Jbir 4. Al Al The Prophet said, "When a new born has raised its ,jm (and then dies), it is treated as a heir." (Reported by Aba DAwild and authenticatedby Ibn voice Ilibbn).
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6.2.21al-Waft yd or Wills and testaments
This sub topic of al-Wasy consistsof 5 aliddith that are encompassed3 $alzilt, l Masan and 1 Dayf. In terms of narration, those al:dith have many authentic
as Ahmad (narrated2 aliddith), Bukhri (narrated 3 ahdith), Muslim narrators such (narrated 3 ahidith), Ab Dwd (narrated 1 Iladi-th), al-Tirmidhi (narrated 1 Hadith), Ibn Mjah (narrated 1 Hadith), Ibn al-Jrd (narrated 1 t! adith), al-
Draquuni (narrated 2 aliddith), Ibn Iiibbn (narrated 1 Hadith), Ibn Khuzaima (narrated 1 Hadith) and al-Bazzz(narrated 1 Hadith).
Those five aliddith of this sub topic underline some principles regarding the that should be practiced by Muslims. In the first' HadTt1:of transaction of a1-Wacy
for the Prophets.a.w rulesthat it is recommended a Muslim to deal in the al-Wacayi,

transaction of al-Wasy before his death. The Prophet s.a.w also emphasises on form of will in order to make it as confirmation and proof for the purpose of written
that the absence written form of will the transaction al-Wa,y. It suggests of of
normally leads harmful effects in the transaction of al-Wacy particularly in would the case of bestowing the property of deceased.Thus, Muslims jurists affirm that a
form of will can be consideredan official witness or an official proper written in thetransaction al-Wacay2. of statement
1 1. Narrated Ibn 'Umar 1-e: +1 Al Allah's Messenger e -. " said, "It is not prudcnt for a u1. Muslim person who has somethinghe wants to give as a bequest to have it for two nights without havinghis will written regardingit. " (Agreed upon). 2 al-$anni, Subul, 3,p. 161. v.
261
The second3Hadith of FaItTli and the fifth4 Hadith of I)aif rule that the
is one-third of the property of deceased.The reason behind the portion of al-Wajaya fixed portion of one-third of al-Wasy has been clarified by the Prophet s.a.w in the Iladith as to leave the heirs in adequatewealth is better than to leave them second and begging from people. In other word, the priority of family is given more poor important in bestowing property rather than others. This principle is in line with the interestthat aims to preservelineage in many ways of life such as in concept of public property transactionof al-Wasyd.
The thirds 1-Iadithis a proof to indicate that a cadaga or charity made by a son behalf of his mother who has died is accepted by Allah s.w.t as his mother's on This provision highlights the significance of property for the blessing of Fadaga. .
deceased throughthe form of gadaqa charity.At this stageit canbe learnedon how or
the property shouldbe managedin the proper way such in transaction of al-Wa,cyii.
The fourth6Hadith of this subtopic is a proof to indicatethat a will must not be bestowed an heir. Muslim jurists affirm that this principle aims to seekjustice to
3 2. Narrated Sadb. Abi Wagq4 k4 said, "0 Allah's Messenger,I have property and none ,yIShall I heirs from me but only one daughter of mine. " give two-thirds of my property as Sackrga? Ile " replied, "No." I said, "Shall I give half of it as Sadaqa? He replied, "No. " I said, "Shall I give a third of " it as Sadaqa? He replied, "You may give a third as Sadaqa, which is still a lot. To leave your heirs is better than to leavethem poor andbeggingfrom people. (Agreed upon). " rich 4 5. Narrated Muadh b. Jabal At The Prophet (-j -4- At said, "Allah gave a favour as .: Sadaqato you a third of your property, when you are about to die, as an addition to your good deeds. " (Reportedby al-Daraqutni).Alimad and al-Bazzr reported the aforesaidHadith from that of Aba al. At -%j); and all of them are weak, Darda'. Ibn Majah reported it from the Hadith of Ab Huraira ( L, but they may strengthen one another,andAllah knows best. 3 3. Narrated A'isha 41- At --x A man came to the Prophet e, 14- ' and said, "0 Allah's L,,: um Messenger, mother had died suddenly,and did not make a will. And I think, shc would have given my " out Sadaqaif shehad beenableto speak,so will sheget a reward if I gave out Sadaqa on her behalf? He replied,"Yes." (Agreed upon; the version is of Muslim). 6 4. Narrated Abu Umma al-Bhili4 At I heard Allah's Messenger (""J At L.. saying, 4, "Allah has appointedfor everyonewho has a right what is due to him, and no will must be made to an heir." (Reportedby Abmad and al-Arba'a except al-Nas'i; Abmad and al-Tinnidhi graded it 11asan; Ibn Khuzaimaand Ibn al-Jrdgraded it strong). Al-Draqulni reported the aforesaidHadith from the
262
heirs in terms of fixed portions of individuals in the transaction of al-Far j(J among . Shall any heir entitle a portion of will, the permission of other heirs is needed. This principle must be applied as the way to prevent injustice and harmful effects in the transaction of property as part of main theme in the concept of public interest in Islam.
of Ibn "Abbs (L-+: narration chainof narratorsis Hasan). I al-$an! Subul, 3,p. 168. ani, v.
j); and he added in its end: "unless the other heirs wish so." (its
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6.2.22al-Walla or Trust's property
This sub topic of al-Wadi a consistsof 1 Hadith I?ad which was narrated by Ibn if Majah asfollows; 1. Narrated Amru b. Shuaybon his father's authority from his grandfather. The Prophet (L+, A-6 l LL- said, "There is no guaranteeon him who is entrusted " something. (Ibn Mjah reported it, but its chain of narrators has a with weakness). In the analysis of the Hadith, al-Sancnidefines al-Wadi a as trust's property that is managedby trustee. In other words, al-Wadi a can also be seen a type of transaction which is based on the basis of trust. In the book of Subul alproperty highlights two rulings regarding the transaction al-Wadi a. The first Salm, a1-$anni is recommendedto deal in the transaction al-Wadi a as this is in line with the ruling 2 of Sara al-Ma'ida that insists believers in helping one another in virtue, verse The secondruling is obligatory to deal in the transaction of and piety. righteousness the way to managethe property from loss and damage'. al-Wadi a as
Furtheranalysis jurists on the aboveHadith states that thereis no condition of

Qamdn or guaranteein the transaction of al-Wadi a becauseits operates on the of basis of trust. Thus, no compensationtobe paid by the trustee for any cost of loss and damage on the property of al-Wadi a. However, the responsibility of trustee in
because will be countedand it the transaction al-Wadia is necessary of managing

by Allah s.w.t on the day of judgement. rewarded
In the perspective of public interest, the transaction of al-Wawa
is part of
and contribution because its normally deal with public trust of social obligation
I al-$anni, Subulv. 3,p. 171.
264
the endowmentand the like. The good management in the property suchas al-Wagf or transaction of al-Wadi a will benefit not only to the donor and trustee but also to the whole community. As a matter of fact, the principle of al-Wadi a has been applied to other transactionthat aims to assistMuslims community such as alms poor or vadaga and the like.
Lvi
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6.3 Summary
The analysis of the alidith of Kitb al-Buyuc within the juristic concept of alMaslaha wa al-Nag in this chapterverifies two fundamental points. The first point is in connection with Islamic the significant juristic concept of public interest, ma. ylalza legal texts of the Iladith. The connectionbetween the former and latter in this chapter forms three juristic methods i. e. firstly, the criteria of nall in determining the Within this chapter, 176 alidi-th of Kitb al-Buyii have been existence of ma. clalza. to identify their basic criteria that are employed to determine the principles examined Secondly,the interpretation of mallalta from aliaith. In connection with of maclaha. this method, 22 sub topics of Kitb al-Buyu" that are encompassed176 aljdith have been analysedand examinedwithin the framework of the juristic concept of maclalia. Thirdly, the implementation of ma. Flalia through al0dith of Kitb al-Buy .
highlightsthe dynamicprinciplesof ma. that havebeen Accordingly,this chapter Flalia

implemented particularly in the field of bussinesstransactionsthat commenced during the life of the Prophet s.a.w.
The secondfundamental that can be verified from this chapter is the point
juristic principles of maslalia in the altdith of Kitb al-Buy It has been found in .
the this chapter practicalprinciplesof maclahain most of alidth of Kitb al-Buyi

are also divided into 22 sub topics. To put it concisely, the juristic principles of which
in public interestupon which havebeenimplemented the areaof business maclaha,

transactionsaim to preservethe religion, life, intellect, lineage, honour and property humanity. The preservation on these six constituents of life of humanity is of by Muslim jurists as the principle of darra or necessity. To some extent, classified types of businesstransactionsand their juristic principle of public interest that many
266
have been examined and analysed in this chapter firmly establish the significant divine sourceof the Hadith of the Prophet s.a.w as an evolving and living law for the life of believersas well as humanity.
267
CONCLUSION OF THESIS
Conclusion
From six chapters that have been drawn up in this thesis, there are several points of conclusionwhich can be presentedhere as follows;
1. Within the framework of Islamic jurisprudence, the concept of al-Maclal: a wa a! Nall signifies three methodsof interaction and dealing betweenthe juristic concept of interest and the Divine commandmentsthrough the legal texts in the Qur iin public
) is termedas nall (sgl. or nuc.,(plr). The first methodis the the Sunna, and which
The second method is the in determining the existence of ma. Flalra. criteria of nall
interpretationof mallalsa from nu. f. The third method is the implementationof F. haveformedIslamic legal principleson Thesethreemethods mallalta throughnu. Fc. the basis of public interestthat always in accordance with the Divine legal texts
particularly the Qur'n and the Sunna.
2. From the historical point of view, the conceptof al-Mallalia wa al-Nal.n is well during the period of the legal Islamic principle that emerged accepted a valid and as Prophetand continuedduring the cra of his companions,particularly that of the khulafa' al-Rshidn Rightly GuidedCaliphs.In the periodof tbPnor followers, or therewas significantindicationof the further development the conceptn:a 1aiiain of during the rule of the caliph UrnarAbd Az? accordance with na. particularly cc, z. This growth continued and filtered into the four S'un, schools of law, who d contributedboth directly and indirectly to the developmentof the concept of al-
268
Maclaha wa al-Nall. Their contribution to this concept was subsequently well developedby the disciples andjurists from their own schoolsof thought.
3. From the perspectiveof theoretical development, the main finding to emerge from discussionof this theory is the effort of Muslim jurists to link the concept of public interest (Maslal:a) with the Divine legal texts (Naff) such as the Qur'an and the Hadith. Accordingly, some Muslim jurists have formed a legal principle of Ma.Flal, a that does not endorse with any textual evidence, dalil or nal.c. This form of legal is termed al-Maclalia al-Mursala, developedby Imam Mlik. Also Taff has principle drawn up as a hypothetical form the theory of the priority of ma. a over the clal, legitimacy of natl. Nevertheless,becauseof its controversial nature, many Muslim
in jurists haveexamined theoryfrom variousperspectives aspects the light of this and Importantly,despitethe multiplicity of critical views regarding Islamicjurisprudence. this theory, it can be statedthat at the very least Tll contributeda new theory in to juristic crisesof his age. response
4. The formationof the theory of the levels of Parfiriyy, lijryya,and Tal:sTiff)5 a, a to incorporate the basic areaof humanneeds,particularly the preservation of aims life, lineage,intellect,propertyandhonour.Of greatsignificancehere is the religion, priority of legal level in Islamic law; that is, in order to apply Islamic law to humanity,the priority levels of Jarriyya (lit. necessities), *w (lit. needs),and iIJT Tahsiniyya improvements) alwaysto be takeninto account. put it blatantly, (lit. To are Islamic law is prescribed law, but is nevertheless flexible in its application to humanity.
269
5. The study of the theory of Magdcid al-Shari a as it connectswith Nall emergesthe legal text from both the Qur'an and the Nachtb, and of significance of every single their ultimate objectives for humanity. This demonstratesthat Islamic law (as the Divine law given to humanity) is a civilised law that has at its heart sound objectives the human capacity for reason, as can be examined through the which accord with legal texts of the Qur'dn and the Hadith. To some extent, Islamic law is an evolving living law, its purposeto protect humanity through its Divine rules. and
6. Furtherjuristic discussionon the significance of the processof TdlTl a! Al: kn: for the concept of al Mallalta wa al-Nall, highlights Islamic law as a dynamic law for
humanity.AlthoughMuslim jurists differ on the acceptance Ta1T1A1:kiim as a of a! it appearsto be a significant method in justifying valid processof ratiocination, and the wisdom of Islamic law. Through the effective causes, ultimate objectives T flil alAlikm, every single injunction of Islamic law deriving from the process of Therefore,Islamic law Qur'an and the Hadith has rational and reasonable sense. decrees only correct modesof worship, but also providesthe basis of human not fulfillment in daily life.
7. In orderto demonstrate systematic the of natureof Islamic law throughthe process
Nall Ta`1Tl Ahkmto theNall, the &dith hasbeenchosen particular as applying al

To be more spcciric, the conceptof al-Ma, and its connection with 7laliawa al-Nall. the book Bulgh al-Marm, as one of the authenticbooks of the luclith has bccn juristically referred as special referencein the application of the concept of al.
Mallalta wa al-Nall.
270
8. The examination of Bulgh al-Marm highlights its juristic features as a concise book of Hadith that authentically consistsof 77.6% $alsi1i,16.08% Masanand 6.29% . Daif. Thesefigures of percentage-wiseprove the quality and significance of Bul:igh al-Mardm as the importance reference source for Islamic legal texts of the Hacrilh. The examination of compilation methodology of Bulfigh al-Marm academically verifies a defining approach within three main elements i. e. numbers of jaditl, arrangement of chapters and sub-topics and specific terms of cross-referencing.
has Moreover,this patternof compilationmethodology beenfollowed by many later

jurists as a benchmarkapproachto compile the legal texts of ! ad th.
9. In order to apply the juristic concept of al-Ma.clalra wa al-Naff to the ali5c i1h in
the bookBulghalMarm, Kitb al-Bu}ni hasbeenchosen a focusof study.Kitb as 176 transactionencompasses al,dith within 22 sub on business al-Buyuf or chapter topics.It hasbeenfound in this thesisthe practicalprinciplesof mallalia in most of altdith of Kitib al-Buyif that aim to preservethe religion, life, intellect, lineage, honourandpropertyof humanity.This type of preservation juristically classifiedby is Muslim jurists as the principle of clarra or necessitywhich is a main principle of ma. clalia.
10. Further details on the analysis of the alulith in KItcib al"Bup
within
the
frameworkof thejuristic conceptof al-Maliara wa al-Null verify a new approach to the analysis the aldiclithof the Prophets.a.w of
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Suggestions
Following the above conclusion, this thesis offers a few suggestionsin relation to this study as follows;
1. The juristic concept of al-Maclal: a wa al-Nall
should be applied to the
analysis of the verses of the Qur'an and the al,ditl: of the Prophet s.a.w in
themes.This effort should be undertakenby Muslim various subjectsand in order to highlight the significance of Islamic legal texts as a scholars dynamiclaw that aim to protectandguidehumanitythroughthe Divine rules.
2. In practicalterms,the juristic conceptof al-Ma. Flaliawa al-Nall should be introduced learnedparticularlyat universitylevel in the subjectof Tafsrr and Shari.:al-JIadith (Analysis of the Ijaditlr) and (Quranicexegesis), al-Qur'n
U l al-Figh (Islamic jurisprudence).
further study (K1tib 3. Apart from the topic on business transactions al-l3uyii, topics in the book Bulfigh al-Mariann shouldbe continuedwithin the on other frameworkof thejuristic conceptof al-Mallal, a iva al-Ncsf.
272
GLOSSARY OF ARABIC TERMS
A ìyya; legal indicants adilla shar of al; deeds

ahdd; solitary reports altknm; rulings ahl al-ra y; rationalist
amdrah al-hukm; the sign of the law amr/nahy; commands and prohibitions imperative amr;
a. yl0b al-Hadith; traditionalist asbilb al-nuzl; the particular and general circumstancesin which the text was revealed aqwal; sayings `riya; the loan 'criyamadmna;guarantees simple loan of `riya mu'adda; a trust of borrowed object àrya; refers to the exchangecommodities that have samemeasurementin terms of quantity and quality `dil; the most trustworthy narrators
instantaneously ala al-fawr; to be performed àla al-tarakhi; to an unspecified time in the future àmm;general term àql; reason àgli; intellectual àglan; rationally 'awmir;commandments
B bayn; explanation bib; sub-topic
bicfa; religiousinnovation buyff; business transactions
D dbi(;themostaccurate greatest and powers memory of weak elaìf;

dalil; a textualindicantor proof or evidence dallt; indicationsandsigns
dami n; surety elarri; necessary
elarri al-ukhrwi; the Muslim submitsby carryingout statedobligationsand avoidingunlawful actions darri al-dunywi; the basisof daily life suchas food,drinks, clothes, marriage, , houseandthe like
jarriyya; necessities
273
E
expostfacto; the founder F fadl al-mal; surplus of property far'icl; the sharesof inheritance fagih; jurists fasid; invalid fasid bi-itlaq; absolutely invalid faskh; to cancel a contract of sale fatwas; legal opinions J1; a deed a fortiori argument; non-analogical argument
G ghalabatal-zann;borderon certainty gharib; irrelevant
deceit, cheating, danger,peril and risk that might lead to destruction and loss gharar; gharr; deceiving ghalb; usurpation deception ghushsh; ghish; cheating
H futurityanduncertainty delivery thecontract lhabl theabsolute of of al-liabla; ltadd;definition, penalty the

liadith; reportsor verbaltransmission the which conveyed contents Sunna of hajiyya; needs
ltajr; seizure
judge liakam;arbitration ltal; circumstance i agiqa;a real one liaram; the prohibited à; hardship 1araj im; extreme ltact;pebblethrowingtrade Fasan;fairness liawla; the transferof debt hiba; refersto the giver who givessomething a gift to someone recipientfor or as the sakeof Allah s.w.t
leilf, a sworn testimony "
lzikma;the rationale,divine wisdom 1uya1; Legalstratagems ltudiad; law prescribed liusnal-10l; the goodcondition
l: ukm al-ashyu' fi al-all; the rule pertaining to things in their original state hukm al-taklifi; defining law
274
I
ihtikr; storing goodsfor future profit ilryd' al-mawat; developing the barren lands jra; the wagesof gold and silver as the payment of cultivating the rental land yma`; consensus Ijtihad al-ra y; the intellectual activity or the reasoningof the legal scholar whose sourcesof knowledge are materials endowed with religious (or quasi-religious) authority. ikhtilaf,"juristic disagreement imdd'; to ratify a contract of sale igrar; confession iqtida; a requirementto commit or omit an act isnad; the chain of transmission istithn'; exception istihsan;juristic preference istigr' bi al-nalf; the induction to legal texts istishab; the principle of the presumption of continuity istislah; public welfare and interest istiqama; straightness Cilia; ratio legis or the effective causein Islamic jurisprudence ìlia; defects dilm al-kalam; theological enquiries dilm muktasab;acquiredknowledge
J
jadal al-hasan; good dialectic al jahl; ignorance jali; perspicuous jm(; harmonization
jadal al-ftghi; the art of juridical disputation al
K kayl;measurement kaffara; penance
khalif elbil;lessaccuracy powerof memory and khass/'amm; and general specific khamr;alcohol khabaral-khassa khabaral-wahid; solitarytraditions or khidci; deception khiyr; optionsof transaction khiyr al-majlis; option of contractual session khiyi,r al-shari; option of conditionor stipulation khiyr al-'aib; option of defect
khiyr al-ru yat; option of inspection khiyr al-ta`yTn;option of determination khilafiyyat, ikhtilaf; juristic disagreement kinaya; an indirect declaration of intent kitb; chapter
kulli; universal
275
kulliyt al-istigr'iyyt; universal rules known inductively
L
Iuga(a; lost and found items
M
madarra; somethingharmful madhhab;the legal school and its authoritative, standarddoctrine majhum; linguistic implication majaz; metaphorical makruh; the repugnantor reprehensible Jamal; practice mamnu`,Karam; forbidden mandub; recommended manl al-liukm; the causeof the ruling manfaca;somethinguseful the ultimate objective of Islamic law maqasidal-sharfa; magsud;aims mashhur; well known or widespread hardship mashaqqa; masalih; good things interest ma. Flalia; public meansany particular common good in the light of a definitive ma. Flalia al-gatìyya; legal text, therefore no interpretation or ta'wil can be made of it. For instance,the existence of al-Ma.Flal,a al. Qaf yya on the subject of the pilgrimage which is obligatory for those who
capable performingit. of are by any means particularcommongoodachieved non-definitive mallalta al-Zanniyya; of nalf andthroughthe process legal reasoning the basisof on assumption,aniiyya. ;
main; text
linkageof isnd maw. connected Fl; m(yr; criterionor standard in the validity andrecognisedma. thereis textualevidence its since muCtabara; F1alia favour,particularlyin the Qur'7 : andthe Iladitlr of the Prophets.a.w.
in it hasno textualevidence its favour. therecognised Flalsa mursala; although ma.

linkageof isnd mursal;non-continuous muyarrt;animalswhoseuddershavebeentied
mulgha; unrecognized,nullified and discredited mai1a1w. mukhlafa mu:a`riela; variance and in contradiction manf; an impediment
minhaj; methodological path mufassar; clear
mubah; the permissible or what is permitted mubayyan;lucidity
276
mufassal;unrestricted jurisconsult mufti; muliaddithin; scholarsof liadith multagala; refers to the barter sale of dried dates for fresh dateswhich are still on the tree mukallaf, legally capacitatedperson to a lease contract of agricultural land where the lesseecultivates mukhbara;refers the crops for himself and for the lessor the transaction in which the purchasercannot be guaranteedby the seller mukhdara; the quantity of the goodsbecausethe contract is agreedprior to the time of consumption of the goods
muktasab; acquired
mujmal; ambiguousor obscurity the creativejurists or leadingjurists mujtahids; mula'im; relevant mula'ama; relevance mundsaba;suitability munbadha;the transaction that refers to the act of throwing something mulmasa;the transactionthat refers to the act of touching the object of sale followers or imitators muqallidun;pl. of mugallid; is known as al-muzdraCa referred to the transaction of cultivating musdgdt; also the land and sharing its profit with the owner of the land takes bribe murtashi; one who mut"a; temporarymarriage mutakallimun; scholastictheologians mutagaddimun;the early religious scholars mutashabih; ambiguous
reports mutawdtir;multiply transmitted language or word or statement unrestricted mutlaq;unrestricted to the bartersaleof harvestedcropswith cropswhich arestill on refers muzdbana; the tree matnawi;thematic
N
Prophet nabi;
the to auctionor biddingthat purely aimsto increase valueof price of najsh;similar the goodsandnot genuinely sell them to nahy;prohibitiveor prohibition nagl; transmitted nasikhwa rnansukh; and abrogating abrogated verses naskh;abrogation
nas. (sgl.) nay. (plr. ); legal text, script, provision, proof or evidence F F nutq; the meaning of the language
gab41; certainty of delivery of good of purchase qasama; compurgation gasd al-Shari`; the intention of the Lawgiver
277
qarina pl. gara'in; contextual evidence interestfree loan or gratuitous loan garcd; qarina gatfa; conclusive evidence gati; certain qawl; pronouncement qawl wahid; a unity of opinion qibla; the direction of prayer be defined as al-mudraba of which frequently refers to an equity gird; can sharingbetweenbank or investor and client or entrepreneur qiyas; analogical deduction cilia; causativeinference qiyas
R hardship raf al-haraj; alleviating rahn; pledgeor pawn

rdshi; one who bribes rasul; Messenger y; opinion ra
is ùnjustifiedincrease capital for which no compensation give' of rib; usuryor any

fall; refers to the exchangecontracts that applies to six items rib al-buy or rib al i. e. gold, silver, date, raisin, wheat and barley and the like of them
to the contractof loan in which the additionalamountis added rib al-nasia;refers to the premiumof the loan because the late time of payment of in the transaction which a houseis givenasa gift for lifetime ruqba; refersto
S and elimination classification successive al-sabrwal-taqsim; yadiq;truthful

. adaga; alms poor or charity jal: T:; authentic,validity salb; negation
is for in which payment madein advance the goods which arc salm; a contract later date delivered a concurred at fashioning modeof conductasan examplefor othersto follow a sanna;settingof sarih; a directstatement
shakk; doubt
shaìral-?ahira; externalrituals shart; provisoor a condition shirka; partnership in shirka al-abdn;partnership non-business activities shufaca; refersto the conditionof pre-emption option to buy immovable and propertythat particularlybelongsto neighbour shura; consensus mutualconsultation and irregularities shudhdh;
sifa; quality
sira; the prophet'sbiographyandthe eventsin which he wasinvolved ùmuni; a singlelinguistic formulation sight al betweentwo partiesof contractwho weredisagreement jul/i; reconciliation on
278
particular terms sunna; an exemplary mode of conduct sunanal-mu'akkada; commendableactions sunnatAllah; the convention of God
T tabbudiyya; worshippingor strict obedience taclltiyya; sacrificingthe animals

taf is; bankruptcy talirim; impermissibility talisin, tawsi'a; improvement tahsiniyya; improvements
taligiq al-manl; the processof individuating casesand realizing them in the external the ìlia world or ascertaining tajzi'at al-Utihd; permitting a jurist to practice Utihad takfu' al-adilla; principle of Equivalence of Proofs takhayyur; an amalgamatedselection lakhrij al-man!/al-ytihd al-giysi; investigating the texts in order to extract what is ratio legis otherwisean unspecified takhyi4al-ìlla; the limitation of the ratio legis takh. particularization 1cic; takhIi.i al Camm; specifying the general
tajdid, renewal
takh.i4 alìlia; the limitation of the ratio legis taklif m la yutaq; legal obligationwould be intolerable between the tagyidal-mutlaq;considering differences events ;slab al-ìln:; travelin search knowledge of
talab; request tamiTk;conveyancing tanassuk;piety and devotion
tangih al-mandl; the identification of the ratio legis insofar as it is isolated from thatareconjoinedwith it in the texts. attributes tagyid; thequalification taruel; conflict of evidence lard waàks; co-presence co-absence and juridical licenses tarakhkhus; larjih; solution al-(aria al-wasal;a middle-of-the-road position lariq wasal;a middle course
tajawwr; a conception
tashahhi; personaldesires
ta'thir; efficacy
tawfiq; reconciliation lawagqif, suspended ta'wil; reinterpretation al-tawiltur al-laf; i; the concurrent verbal reports tawtur maCndwi;recurrent thematic reports
taCli!al-alskdni al-shariyya; thejuristic process ratiocinationof Islamic law or the of determination the cause Divine commandments by of of logical andlinguistic analysis
279
tadiya; extendibility
it is unknown thunya;the saleof goodswith the exempted part of
U ùmrarrefersto the transaction which a houseis givenasa gift for life tenancy in Usulal-Fiqh; Islamicjurisprudence
legal theorists usulists; ùsr; unduedifficulty ùrf," customarypractices
w a; trust's property that is managedby trustee wadi

imaginary wahmi; wjib; obligatory waknla; agency àdamant the continued concomitance wajudan wa to the donated property that aims to benefit the " wagf, endowmentwhich refers public interest walyd ; the wills and testaments description wagf'al-mundlib; compatible waf'dhti; identical attribute wain; weight wujb; affirmation
Y yaqin, qaf; certainty yatama;orphans ease yusr; extreme
Z or assumption probability Zanniyya; the of zakat; payment alms-tax
280
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The Concept of Al-Maslaha Wa Al-Nass With Special Reference To Kitab Al-Buyu' in The Book of Bulugh Al-Maram

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THE CONCEPT OF AL MA$LAHA WA AL NASS WITH SPECIAL REFERENCE TO KIMB ALBUYII' IN TIDE BOOK OF BULIIGHAL MA&4M

University of Wales, Lampeter 2005

Signed .................................... ............... '... Date.......... .

5; " Signed4:: S :... g.:.. os.......... Date......

Signed ......... T'.. Date.......

in their valuablesuggestions comments assisting correcting jargonsof my and and

of Wales, Lampeter,University of Wales, Aberystwyth,the British Library, the

I am indebtedmost of all to my beloved and dedicatedwife, Noorizah Ghazali

my belovedandcaredmother,Ramlahbinti Ludin, my parents-in-law all family and

Again, to all of them; JazakumuLlahKhayr al Jaz'.

TABLE OF CONTENTS Abstract Declaration/Statements Acknowledgement

PART A: THE CONCEPT OF Al MAFLAHA IN ISLAMIC JURISPRUDENCE Introduction to Part A

CHAPTER 2: THE THEORETICAL DEVELOPMENT OF THE CONCEPT OF AL-MASLAHA WA AL-NA$, F

3.1Definition of Talil alAhkdm 3.2Theviewsof Muslimjurists On Talil alAlikm al-Syar`ia

3.4.1The process TaC1T1 of al-alikmfrom theNaql of the Qur'n or theIladith

PART B: THE AUTHENTICITY

OF THE HADITH AND INTRODUCTION 102

TO THE BOOK OF BULOGHAL-MARAM Introduction to Part B

SOURCES FOR THE BOOKS

5.4.3 The specific terms 5.4.3.1al-Sabra 5.4.3.2al-Sitta

159 160 161

5.4.3.4al Arba"a 5.4.3.5'al-Thaltha 5.4.3.6al-Muttafaq calayh

163 163 164

PART C: ANALYSIS OF TIDE AHDITH Introduction to Part C Methodology of analysis

WA AL-NA$$ TO TIDE AHDITH

170 170 173 175 197 200

238 242 246

6.2.18 al-Hiba (Gifts), al cUmra (life-tenancy), and al-Ruqba (giving property

for the recipient's life time)

CONCLUSION OF THESIS Conclusion Suggestion

267 267 271

GLOSSARY OF ARABIC TERMS

(fa') (af) (kf)

is represented an, in, un respectively. by

AbU Dawd, Sunan

Ab Zahra, Uszl Ab Zahra,Ab Iianifa

AbU Zahra, al-Shdf(i Abn Zahra,Ibn Ilanbal

Abti Zahw, al-Iladith

Ahmadb. IHanbal, Musnad

Sayf al-Din All b. Muhammad,Ghyah al-Amidi, al-Marmji`ilm al-Kalm

al-Bji, al-Muntaqa Bakar, Conflict of Law

al-Bazdwi, Usl Brockelmann,History

al-Bnti, - Muhammad Said Ramadan, Dawdbit alMaslalia ft al-Shari ah al-Islmryyah

Buang, The Prohibition

Calder,Studies Cobuild, Learner Coulson,A History Coulson, Conflicts

Shah Waliyullah b. Abd al-Rahim, al-Dahlawi, Huf atullahal-Bligha

Tadhkira al-Hufz al-Dhahabi,

Muhammad Fatlhi, Khasd'is al-Tashri alal-Durayni, Islmi fi al-Siyasahwa al-Hukm

Dutton, The Origins Ell,

EI? English Translation

SecondEncyclopaediaof Islam English Translation ofBulgh al-Marm

al-Hkim, al-Mustadrak Hallaq, A History

Hilali, The Translation

Ibn al-Athir, al-Nihiiya

Ibn al-Athir, al-Nihya Gharibal-Hadith ft

al- Tamhrd lima fi al-Muwatt' min al-Ma'dn Masnid

Ibn Abd al-Barr, al-Intig'

Ibn Abd al-Barr, Jam(

Ibn Abd al-Barr, Ab 'Umar Yusuf al-Qurtubi,

Ibn Asht r, Mag. al-Shari a al-Islamiyya yid

Ibn Hajar, Tagrib

Ibn Hajar, al-Majma`