FARMING THE VIRGIN LAND OF RELEVANT JURISPRUDENCE
Along the more standard “all topics in one” plates for primary consumption, our classical jurists have bequeathed to us a rich box of juristic chocolates or trays of exotic cheeses with a more circumscribed thematic provenance, of different shapes and flavours, which relate to nearly all potential fields of beneficial inquiry.
This Aladdin’s cave of delicatessen for cultivated gourmets is expanding daily, as new confections are being transferred from manuscripts to prints and cyber pages.
The Mālikiyyah and the authors from the Islamic West were no exception to this overarching trend of Islamic scholarship.
Here we would like to present to you, as an appetizing morsel, an excerpt setting out the last, miscellaneous section from a book penned by an Algerian Mālikī on inter alia the contract of mughārasah.
That is the technical term indicating the lease of an orchard or any arboreal plot of land (capable as such of being leased, unlike money, due to its nature of a non-fungible asset) which stipulates that the lessee, the person who undertakes to cultivate the orchard, will receive a pre-determined fee for his services (ijārah), alternatively a reward which is disbursed to him by the other party as quid pro quo for such cultivation work upon its completion, without contractually setting in advance any expiry date for the finalization of the said work (ju`l), or will share in the profitable enterprise by becoming co-owner of a consensually demarcated share of the original capital, i.e. the tree-bearing land thus cultivated (mushārakah).
The last-mentioned form, a partnership in the cultivation of orchards and their like where the proprietary asset is provided by one party and work comes from the other party to the contract, whereupon the profits generated by the venture are allocated to both parties in accordance with a ratio specified a priori, is what is associated with mughārasah whenever the transaction is referred to in an unqualified sense:
Such composite contractual form would then resemble one of lease of services ((ijārah) in that a) it is “binding”, i.e. once it is concluded, neither party can withdraw from it at will prior to the commencement of the work, as with a sale but unlike a qirād or a ju`l, and b) the contracting parties are entitled to define a duration period for the work and thus a time for its consensual termination, contrary to the ju`l as adumbrated here above; and it shares features with a ju`l insofar as the cultivator cannot claim any reward unless and until he factually tends to the orchard by sowing seeds, planting trees, harvesting fruits etc, and unless and until the stipulated time for the dissolution of the partnership and the distribution of its profits, if any, has set in, which means that a cultivator who chooses to abandon the work half-way is entitled to receive no monetary consideration, although he is vested in the Law with the right to resume the unfinished cultivation of such arboreal tract of land one more time after its erstwhile interruption.
It is thus a partnership borrowing salient characteristics from other two contractual moulds, and its lawfulness, which is an analogical derivative of the permissibility of sharecropping or musāqāt (historically evidenced by what was done to the land-owners in Khaybar), is grounded on such all inclusive principles of beneficial human existence as we see laid down in Prophetic statements, including the following one narrated by Muslim in his Sahīh on the authority of the noble Companion Jābir b. ‘Abdillāh, may Allah be pleased with him: “No Muslim plants something but that whatever is partaken of it is counted on his behalf as sadaqah. It is likewise with anything which is stolen from its crops or fruits or which is eaten by either predatory beasts or birds. No one subtracts anything from its produce but that it is written in his favour as sadaqah.”
The text in question, authored by Abū Zayd ‘Abdur-Rahmān b. ‘Abdi’l-Qādir ar-Rāshidī al-Majjājī al-Jazā’irī (d. 1020 AH) is titled At-Ta`rīj wa at-Tabrīj fī Dhikr Ahkām al-Mughārasah wa at-Tasyīr wa at-Tawlīj
THE VIRTUES OF CULTIVATING ARBOREAL LAND AND DERIVATIVE ASPECTS PERTAINING TO EARNING ONE’S LIVELIHOOD
1 – [The meritorious virtue of cultivating arboreal land]
At the beginning of this book, we already mentioned what is generally associated with the virtuous merit of cultivating land, an expression which, within the compass of its legitimate meanings, includes farming activities as well. That is in fact so inasmuch as both the cultivation of arboreal land and the farming of crops fall under one and the same broad category, and are thus mutually akin in their semantic import.
The goal of either venture is essentially identical, namely, utilizing the intermediate causes Allah has set up in this finite existence while placing one’s reliance (tawakkul) on the Lord of all lords, the Supreme Lord, and leaning reposefully on the Ever-Gifting King.
Allah, may He be Exalted, said: «Any mercy Allah opens up to people, no one can withhold, and any He withholds, no one can afterwards release» (Sūrah Fātir: 2). He has likewise said the following, Exalted is He: «Then when the salāt is finished, spread through the earth and seek Allah’s bounty» (Sūrah al-Jum`ah: 10).
What we intend to do at this stage is to distil some verbal gems of the Imams which accords with the general premise we had set out at the commencement of this book, in order for this coda to be congruously attuned to its opening, and for this conclusion to be tightly interwoven with its inauguration.
Let us then say, and Allah is the One from whom help is sought and in whom trust is placed, there is no power and no strength save in and by Allah, the High, the Magnificent:
The teacher, the exemplary model, the hāfiz after whom other people pattern themselves, the reviver of the sunnah and the extinguisher of innovation in the Dīn, Abū ‘Abdillāh b. al-Hājj 1, said:
“Know, may Allah grant success to you and me, that while all occupations are assigned the legal value of a collective obligation (fard ‘alā al-kifāyah), the importance of some of them is stressed more emphatically than others.
Whenever the slave engages in any such occupation, his intention (niyyah) in carrying it out should be to engross himself in it both for his personal benefit and for the benefit of his fellow Muslims, as part and parcel of the intention to fulfill a collective duty enshrined by the Law and thereby discharge the other Muslims from the generalized imperative to fulfill it 2.
Once he does that, he will legitimately fall within the scope of his statement, may the prayer of blessing and the salutation of peace be upon him: “Allāh grants assistance to the slave so long as the latter assists his brother””.
In a later passage (of Al-Madkhal), Ibn al-Hājj had this to say:
“Farming is one of the most significant and lucrative means of earning one’s living, insofar as the good it occasions transcends the individual farmer to encompass the generality of his Muslim brothers, birds, quadrupeds and insects.
That is indeed so true that people have mentioned that if, at the time of planting the crops, the farmer had heard the voice of whoever said, ‘I am going to eat out of them’, he would never have sowed any seed, due to the multitude of those who would utter those words.
No other occupation can boast a blessing which exceeds the blessing of farming, and no one extends a greater benefit than the one it confers, so long as it is carried out properly.
Farming is one of the treasures hidden in the earth.
For it to be so, however, it necessarily has to rest on knowledge of the fiqh and proficiency in embarking upon such an activity, together with a totally pure purpose and sincerity in all its undertakings, for then its facets of good will manifest and its blessings will materialize 3.
The following reports have been handed down on this issue:
“If one cultivates a land, no human or beast ever eats from it but that it accrues to the cultivator thereof as sadaqah” 4; “The angels seek forgiveness on behalf of the farmer and the cultivator so long as his crops or plants are verdant” 5.
That being the case, whoever seeks revenues through this occupation must inescapably learn the legal judgments relating to it if he is a person capable of acquiring knowledge of them through study, failing which he should ask the knowledgeable people about whatever he needs to know.
It befits him, when he carries out such undertaking, to cleave to taqwā”.
[A telling anecdote]
The city of Fes once witnessed an event to the effect that a certain youth, who used to reside in one of its surrounding suburbs, was struck by leprosy.
His family took him to a renowned doctor. After he had visited the patient, the doctor commented: ‘No one can possibly cure him apart from one of the apostles of ‘Īsā (Jesus), peace upon him.’ Having thus been caused by the doctor to despair of ever finding a cure for their relative, his family members retraced their steps to their respective houses in a downcast mood. On the way back home, they passed by one of their acquaintances, who was busy planting some crops in his tract of land. Having noticed their state, he inquired from them as to where they had come from and what had befallen them.
When they recounted the story to him, he was incensed by the words the doctor had dismissed them by, and accordingly said: ‘Bring me your sick relative.’
They duly obliged, whereupon he wiped over his body and blew over it.
Lo and behold! He had been cured at once, and he stood up in a state of thorough wellbeing. The farmer then addressed them: ‘Go back to the doctor and say to him, ‘This is the deed of one of the apostles of Muhammad, Sallallāhu ‘alayhi wa-Sallam’.’
This was not a man renowned for his dīnī virtuousness. The only reason for such occurrence is that if the bread which is grown is pleasantly good, this and other similar feats will result from that fact.
Sidi Abū Muhammad – meaning Ibn Abī Jamrah 6, may Allah be pleased with him, used to say:
“Know that, nowadays, people’s yearnings are remiss when it comes to engagement in worship, so in this age you should occupy yourselves with farming. It does in fact yield huge revenues, whether the specific farmer desires them or not”.
What he has alleged is such a self-evident truth that people often say, with regard to any farmer who carries out the said pursuit with a clean intention, that he has found a treasure.
It is by virtue thereof that the Companions of the Messenger of Allah, Sallallāhu ‘alayhi wa-Sallam, might be grouped under two essential categories when it comes to their means of livelihood:
- One group comprises those among them who worked in fenced gardens and orchards;
- The others worked in the markets.
Either one of those two occupations is laudable. Farming, however, has the extra advantage of being worthier and conferring a more extensive value as regards those who are suited to undertake it, because of the reward it encloses and the fact that its profitable benefit transcends the mere person of the farmer, as underlined by us previously.
One of the teachers who used to levitate in the air, having once come across a brother in faith on the day of ‘Arafah, said to the latter: ‘Should you not join me if you want to stand by ‘Arafah?’. The brother in faith replied: ‘I shall not go with you, as I have set my resolve on farming this land today, and I cannot abandon that task.’
This master only gave preference to farming the said plot of land because of his undefiled intention in finalizing such undertaking.
Whenever farming takes on this character and is practiced in this fashion, it is fitting, nay, a mandatory duty, to learn what the Law teaches us about its pursuit, given that it is through the wholesomeness of one’s daily nourishment that the heart, too, turns wholesome and a person’s inward is cleansed.
The following has been transmitted: (…) “No one ever ate any food more lawful than what is earned through his manual work” 7; “Whoever falls asleep out of the sheer fatigue of seeking lawful provision will have his sins forgiven that night, and in the morning he will wake up while Allāh is pleased with him” 8”.
2 – [The rules governing the cultivation of arboreal land]
Elsewhere in his book, Ibn al-Hājj mentioned what follows:
“This farming we have been writing about is only engaged in by a person if he is safe in his dīn, dignity and wealth while he carries it out.
If the scenario is the opposite, and he is not safe in all of that while undertaking it, the person concerned must obligatorily forsake such activity in favour of a different one. In today’s time and age, indeed, the harms associated with it have grown exponentially. You see therefore the farmer deprived of any rest or peace of mind in the stranglehold of oppressively unjust people 9.
It is for this reason that while our teacher – in other words, Ibn Abī Jamrah – worked in our country as a farmer, when he relocated to the land of Egypt and was initially eager to farm there on behalf of his dependents, he gave up that pursuit as soon as he noticed the hardship heaped upon the peasants by iniquitous and ruthless wrongdoers among their fellow beings.
When even the other means of livelihood proved not to be viable options to him, he eventually busied himself solely with worship and dissemination of knowledge, and lifted his yearning to none but Allah the Exalted, whereupon Allah enriched him out of His gracious bounty”.
Ibn al-Hājj went on to say:
“The cultivation of orchards and their likes (ghirāsah) is lighter than farming properly so-called (zirā`ah), because such venture is usually accompanied by the freedom its practitioners enjoy from abasement and degradation.
Even then, it is incumbent on one practicing it to have knowledge of it (al-‘ilm bihā) and knowledge about it (al-‘ilm fīhā).
The former, “knowledge of it”, is to become profoundly acquainted with what makes it wholesome or corrupts it. As for the latter, “knowledge about it”, it consists in the attainment of firm understanding of the legal judgments connected with it”.
We have concluded our quotation from Ibn al-Hājj, may Allah the Exalted have mercy on him. We have reproduced it in full as it embeds a multiplicity of beneficial jewels which cannot possibly be dispensed with.
The teacher and hadīth master an-Nawawī said:
“A discrepancy of learned opinions exists on the identification of the most agreeable means of livelihood.
One view that has been propounded in this connection is the comparative superiority of trade, while others have lent greater weight to manual work and to farming respectively.
The last-mentioned view is the soundest of them all, provided that the individual in question personally attends to farming, for then it conjoins one’s own manual work, reliance on Allah, and the conferment of benefit upon fellow humans and beasts, apart from the additional merit that the farmer normally eats out of such activity without having to disburse any monetary consideration for that nutriment” 10.
As for the teacher and hadīth master Ibn Hajar (al-‘Asqalānī) 11, he pointed out the following at the time of providing an elucidating commentary on the hadīth which states that “[n]o person ever ate a better food than the one he partakes of thanks to his own manual work. Indeed, the Prophet of Allāh Dāwud used to eat out of his own manual work”:
“This hadīth is a ramification from His statement, Mighty and Majestic is He: «We gave Dāwud great favour from us: ‘O mountains and birds! Echo with him in his praise!’», until His words: «And We made iron malleable to him: ‘Make full-length coats of mail, measuring the links with care’» (Sūrah as-Saba’: 10-11). Dāwud, peace upon him, ordinarily manufactured the armours, i.e. coats of mail, the threads of which were fully joined one to the other (= interlaced), sold them in the market, and fed himself out of the proceeds of such sales, while giving out the rest in sadaqah” 12.
It has been narrated from Ibn ‘Abbās, through a weak transmission chain, that he said: “Ādam was a ploughman, Nūh was a carpenter, Idrīs was a tailor, and Mūsā was a shepherd”.
The reader can look at the rest of what was stated by Ibn Hajar and other savants in this regard under the commentary of the third hadīth in the Book of Sales (of al-Bukhārī’s Sahīh) which is found in the work we have been referring to more than once here (= Ibn Abī Jamrah’s Bahjah an-Nufūs).
In subsequent passages of his work (= Fath al-Bārī), Ibn Hajar stated what follows:
“What is loftier and worthier than all of that consists in the booty which is wrested from the properties of the kuffār by the process of jihād, which was the customary means of livelihood of the Prophet, Sallallāhu ‘alayhi wa-Sallam, and represents the noblest form of earning, since it entails making Allah’s Word the highest, Exalted is He, and simultaneously degrading the kuffār’s word”;
“The truth is that manual work differs in status depending on the different circumstances and individuals involved”. Allah knows best.
[The rules which govern the earning of one’s livelihood]
The under-stated has been averred by more than one recognized savant:
“The only time when the value of manual work exceeds the value of other forms of earning is if the person who carries it out deals with the Muslims honestly in the pursuit of such activity, which is thus devoid of fraud, ruses or swindling”.
Ibn Hajar said: “Yet another prerequisite for its superiority is that the artisan should not believe that his sustenance results from such means of livelihood as opposed to issuing forth from Allah via its intermediary.
One of the various merits of manual work is that a person thereby engrosses himself with what is permissible away from idleness and distraction, as well as the fact that it entails taming one’s self and exercising chaste self-restraint from the ignominy of begging and dependence on outsiders” [Fath al-Bārī].
As for Shaykh Zarrūq, he mentioned in his large-size Nasīhah 13 what is set out here below:
“It is incumbent on whoever earns his living that he should be firmly convinced of the truth that whatever entails the population of this earthly Abode does not cause any sustenance to be attained, since Allah, may He be Exalted, has guaranteed all the slaves’ lots of provision in His ancient knowledge, and He only legislated the slaves’ recourse to intermediate means due to wisdom (hikmah) on His part, glory to Him, and as a way of populating this Adobe where He has willed the testing of His slaves to unfold itself; whoever then tangibly realizes the perpetual truth of what we have just highlighted will not grieve over any earnings which might have eluded his person, due to the trust he has in his Master, just as He will not rejoice over anything He might have granted him, unless Allah has commanded him to manifest his joyance for it. Such a man will likewise envy no one and will banish from his being covetousness, showing-off and all the other vile traits of character”.
Later on in the same work, Shaykh Zarrūq additionally said:
“One of the detrimental harms which are associated with intermediate causes is to pursue them in a manner which conflicts with what the Law permits”.
As part of the examples he used to illustrate the said point by, Shaykh Zarrūq referred to alchemy and the search for buried treasures on account of the perils such undertakings pose to both the dīn and this world.
His words in that respect were the following:
“As regards this world, the inherent danger of those two pursuits is occasioned by the fact that one exposes his person thereby to accusations of deceitful forgery and its like. That would in turn lead to unfair people being put in charge over him and negative rumours about his person spreading far and wide, and possibly even to his murder. This world is too insignificant in the eyes of a discerning person for him to fritter his honour away in a quest for it, let alone to waste for it his own life and his dīn.
In terms of the dīn, the said danger is potentially brought about by a large number of circumstances, the most ominously burdensome of all of them being the fact that, when he transacts on the basis of alleged alchemy or a treasure he has chanced upon, he has to disclose to the other party the source of his acquisition. If he does so, his own destruction might ensue, and if he omits to do it, he would be devouring what is legally prohibited”.
The under-mentioned is what he wanted to state on this subject in his writing consecrated to the exposure of accretions in the dīn (bida`):
“When it comes to alchemy, we find that a group of spiritual devotees have become fondly enamoured with it and have claimed that engagement in it is something important, because of the possibility it offers to gain monetary benefits, establish centers focused on spiritual wayfaring (zawāyā), feed the needy and so on. The truth is that no one associates himself with such pursuit unless he is marked by the paucity of his dīn and by a dearth of intelligence and manhood, who is prey to vast delusion and far away from comprehension of truths”.
1 - [The ruling on women’s service to their husbands]
One of the means of earning which is deployed by people in these days, especially by the poor, the needy and the destitute, is to seek out livelihood and sustenance through the services rendered by women.
Because of that, we resolved on quoting here some of what the prominent savants have stated on this topic. Our purpose for doing so is to equip every individual involved in that scenario with an informed basis for all his acts and omissions in that respect. It is in fact impermissible to whoever has īmān in Allah or the Last Day to venture into any matter before he comes to know what Allah’s judgment in it might be, as stressed by more than one learned person, nay, in the view of some scholars, as being something established by the unanimous consensus of all the savants.
Let us therefore state what follows: You should know, reader, that a narration reported in the Sahīhayn (of al-Bukhārī and Muslim) has acquainted us with the fact that Fātimah, the Mistress of the women of all the worlds – may Allah be fully pleased with her – used to grind the flour on behalf of her husband ‘Alī – may Allah be totally satisfied with him. It has additionally been related that she also watered the land around their house.
It has further been reported in the Sahīhayn that it was the wont of Asmā’ bint Abī Bakr – may Allah be pleased with her – to serve her husband az-Zubayr – may Allah be thoroughly satisfied with him –, feed fodder to his mare and gather date pits in a locality outside the urban perimeter of al-Madīnah. Other narrations have evinced that the womenfolk of the Helpers – may Allah be pleased with them – were accustomed to serve their husbands.
Yet another circumstance which has been attested in the body of sound reports is that ‘Ā’ishah – may Allah be wholly satisfied with her – said: ‘I have personally cut the jugular veins of the Prophet’s sacrificial animals during the hajj, Sallallāhu ‘alayhi wa-Sallam’ 14. There are other similar statements as well.
“Among the scholars there are those who enjoined on wives the unqualified duty to serve their husbands indoors, whereas, on the other end of the spectrum, other learned persons exempted them from such duty in an identically unqualified fashion.
The view we firmly espouse is a particularization (tafsīl) of the ruling based on the prevailing custom. If the wife is a socially high-class woman, she should be exempted from heavy household duties, whereas she should discharge them it in the event that she heads from a nation who typically requires her to perform such service. As for that wife whose social status is unknown or in respect of whose nation the customary way of regulating that matter cannot be ascertained, the root-position is that she should attend to household chores until and unless proof of the exemption from it in respect of her likes has been adduced” 15.
If we shift our attention to al-Qādī ‘Iyād, we find that he asseverated what follows:
“No outdoor service is requested of a woman, although she is free to voluntarily render it so as to extend good support and cohabit with her husband in the best possible way. As for her indoor service, the one she carries out inside her house, such as grinding or cooking, it is determined by women’s respective social ranks. If she happens to be a high-class lady, then the reins of command and prohibition are entrusted to her hands. What we come across in the book authored by Muhammad (b. al-Mawwāz) 16 is instead the following: “If her husband is in straitened financial circumstances, any such high-class lady is obliged to serve in her home exactly as would be done by her low-class counterpart. A woman who is not high-class is generally bound to perform all the tasks of kneading, grinding and sweeping which are dictated to her like by custom”” 17.
By contrast, Ibn Hajar, who was one of the Shāfi`iyyah, said:
“The bulk of the jurists (from our school) have adopted the view that whatever report attests women’s service to their husbands has to be interpreted solely as the extension on her part of a voluntary favour, to be preferentially construed as grounded purely on people’s habitual modes of conduct as opposed to legal requirements” [Fath al-Bārī].
In his juristic replies, when he was solicited to express his view on the matter, Ibn Abī Zayd al-Qayrawānī mentioned the like of what we have laid out here above.
It should be clarified that no one of our predecessors whom we referred to here above ever informed his wife that it was not incumbent on her to provide such service. Rather, once she had provided it, her service would be accepted without instructing her to change her ways.
Here are the words used by Ibn Abī Zayd al-Qayrawānī:
“If she refrains from rendering such service and his affection for her is accordingly lessened by her said abstention, nothing can be held against him in that regard, so long as he does not fall short of fulfilling her basic rights and does not inflict any harm on her as a result of such abstention”. He later added: “She is not obliged to do any spinning or weaving work at all” 18.
What he meant is that no such obligation is imposed on her regardless of her social standing, and regardless of whether or not she is an affluent person on her own.
The following was further asserted by al-Qādī ‘Iyād:
“It has been related from Sahnūn that grinding flour is not incumbent on her, though she is free to volunteer such service, save in the event where her husband belongs to the class of destitute devotees of worship like the People of the Veranda, inasmuch as the wife of any such man would be duty-bound by circumstances to grind on someone else’s behalf in any event, even if she did not grind on his behalf. Ibn Nāfi` said: ‘She is however obliged to keep her house tidy and clean and maintain it in a good state'”.
Ibn Khuwayz Mindād added: “She must also prepare meals and water the land around her house whenever that is the prevailing custom in her country”.
What Ibn Khuwayz Mindād possibly intended by that statement is that she is requested to water it from the well attached to her home or lying in its vicinity, since fetching it would then be a light duty.
Let us now listen to al-Burzulī:
“Shaykh Abū Muhammad (al-Abharī) 19 – may Allah show mercy to him – used to relate from teachers he had personally met that once a woman from an urban settlement had come to him complaining about the pain in her hand as a result of constant kneading, whereupon he ordered her husband to purchase a male servant for her. On a different occasion, another woman, who was a desert dweller, had visited him and lamented to him the fact she used to grind flour, fetch water and firewood, etc, whereupon he ordered her to hold onto her husband and cohabit with him in that form, inasmuch as the wives of Bedouins had concluded their marriages on the basis of the aforesaid being the prevailing modus operandi”.
Al-Burzulī pointed out the following:
“If we are dealing with an uninterrupted custom to that effect, what we have mentioned might possibly entail a combination, in one and the same contract, of both marriage (nikāh) and the letting and hiring of human services (ijārah)” [which would be forbidden in the Law].
2 - [The ruling on a wife’s work on behalf of her husband]
The first such derivative ruling:
Al-Mashaddālī 20 was asked about a man who buys wool or fur and brings it to his wife, and she uses such raw material to make finished products out of it. This is a common phenomenon among Bedouins. After completing such work, the wife then wishes to debit such work against her husband.
Al-Mashaddālī’s reply to that scenario took the under-mentioned form:
“She can do that in her capacity as wife or for her own benefit. It is either one or the other of those two possibilities. If she carries out such work in the former capacity, she has no entitlement to charge her husband for it. By converse, in the event that it was undertaken by her in the latter capacity, she is a partner in whatever the venture generates to the extent of the monetary value of her work” 21.
The genesis of this juristic issue and the differentiation applicable thereto as per the foregoing is what Ibn Yūnus [= the great jurist who authored Al-Jāmi` wherein he elucidated the Mudawwanah] has related about it from Mālik. The wording of that root-judgment, based on what Abu’l-Hasan has quoted from Mālik in Al-Mukhtasar, relates to the situation where the weaving has been done by her while the wool which she used for her weaving is his property: The profits accruing to the weaving activity is apportioned between the two of them. One share goes to her commensurately with her work, while the other share is his commensurately with the value of his wool 22.
Shaykh Abū Muhammad Sālih said:
“If the service the woman renders in this scenario is premised on a contractual stipulation to that effect, then one would be facing an amalgam of marriage and sale. Given that such amalgam is vetoed by the Law, the said contractual compound is rescinded prior to the consummation of the marriage, which will instead subsist after its consummation. It would be preferable if the parties were to show no concern with this kind of terms and provisions at source”.
Shaykh Abu’l-Hasan retorted as follows:
“No legal effect of a kind envisaged by Shaykh Abū Muhammad Sālih can be postulated (= rescission prior to the nuptials having been consummated and subsistence of the arrangement in the post-consummation context). The husband, in fact, never stipulated that the wife would be under a duty to do weaving work on his behalf. The weaving on her part is merely one of her praiseworthy characteristics in the presence of which the quantum of the average dowry for her like is increased, without any such fact having a vitiating impact on the legal regularity of their marriage contract”. The reader should carefully pause to ponder Shaykh Abu’l-Hasan’s said rejoinder.
3 - [The ruling on a woman disposing of the wool for her private benefit]
The second such derivative ruling:
Al-‘Uqbānī (= the grandson, Muhammad b. Ahmad b. Qāsim b. Sa`īd, d. 871 AH, a famous jurist from Tlemcen in Algeria) was once asked concerning a woman who wishes to dispose of the wool for her private benefit, by washing it, combing it, spinning it and weaving it, whereas her husband wants to prevent her from that.
His reply was as follows:
“If his intention in seeking to interdict her from the aforesaid is to stop her from belittling her status thereby, together with the fact that his enjoyment of her person is not complete unless she gives up any such pursuit, then he will be entitled to forbid her. By contrast, if he is merely aiming to harm her and deprive her of the material benefit she might personally derive from such undertaking, he will have no right to try and debar her from it” 23.
The root-mas’alah in this context is set out by Ibn ‘Āt in his At-Turar 24. We find in it that its author stated what follows:
“In the event that the wife betakes herself to rivers and springs for her to wash the wool and the cotton therein, her husband is entitled to stop her from that. In the different scenario where she simply pays a hireling to attend to such task on her behalf, without carrying it out directly, he has no right to forbid her, unless he happens to be an affluent man and desires to draw maximum enjoyment from his wife in a way which is the finest and the most perfected. In that case, in fact, he would be legally entitled to prevent her from pursuing the said activity” 25.
4 - [The ruling on a husband’s contractual stipulation that his wife should comply with something impermissible]
The third such derivative ruling:
Many a man inserts a condition to the effect that his wife cannot dispose of anything which is found in the common house in the form of some negligible sadaqah or its like, or carry out what is universally recognized by people as a customary good, unless in return she releases him from the burden of making good the agreed portion of the dowry which he still owes her.
The interdiction of such a condition and the open ban on stipulating it, which is premised on the fact it is overtly forbidden, is something that is transparently plain in several respects, which are too self-evident as to call here for any further specification. Allah is the grantor of success.
All that is left at this final juncture would be for us to say something which is linked to this general theme, namely, the clarification of the juristic position which applies to earning one’s living through the monetary fees charged for a different class of censurable undertakings, which include the like of divination, magic, and making an outward show of wholesomeness while inwardly concealing a corrupt intent.
We have however elected to exclude mention thereof in the present work altogether, out of fear of engendering tedium and listlessness in our readership.
1 He is the luminous polymath from Fes in Morocco, Ibn al-Hājj al-‘Abdarī, whose strict approach to Sufism, as spread out in his celebrated masterwork Al-Madkhal (ilā Tanmiyah al-A`māl) [= “The Introduction to the method of making sound actions grow”] was described by Shaykh Zarrūq in Qawā`id at-Tasawwuf as being the one intrinsically suited to the jurists, being in fact thoroughly impregnated with the normative prescriptions of the Law.
2 This is Islam, and had always been viewed that way by its masterful tutors. It is clear that in this age of self-absorption, the wedding of personal purification with communal or societal purification, giving to oneself by giving to others, has become sorely lost.
3 It is self-evident from the foregoing, a standard reminder of what Islam demands of the slave, that the ummah in this age of hours is a fractured one contaminated by fisq, as it assigns no value or significance to the collective duty to establish pure human transactions and the peremptory corollary to become versed in the basis rulings governing them, unlike what every member thereof would inevitably do in respect of praying, fasting, slaughtering animals, adherence to the dress code and the like thereof.
4 The hadīth has been reported by Muslim in his Sahīh, Book of Sharecropping, Chapter on the virtue of planting trees and tending to crops, on the authority of Jābir b. ‘Abdillāh, may Allah be pleased with him.
5 It has been quoted by Ibn al-Hājj in Al-Madkhal.
6 He is the magisterial Andalusian master of the inward and the outward, the author of an unmatched explanation of selected portions of al-Bukhārī’s collection, Bahjah an-Nufūs (“The Splendor of Souls”), who relocated to Egypt. I had the fortune of visiting his modest-looking resting place by the Muqattam hill in Cairo, opposite the mosque-mausoleum of Ibn ‘Atā’illāh as-Sakandarī and beside the grave of the Shāfi`ī savant Ibn Daqīq al-‘Īd. What the author quotes from Ibn Abī Jamrah in this miscellaneous coda to his book is taken from Bahjah an-Nufūs.
7 Cf. Sahīh al-Bukhārī, Book of Sales, Chapter on a man’s earning and his manual work.
8 A variant of this report, with slightly different wording, is found in al-Bayhaqī’s Shu`ab al-Īmān (where the narration displays a full chain ultimately traced to the Prophet, Sallallāhu ‘alayhi wa-Sallam, through as-Sakan).
9 We see the same in our epoch, where land banks, mega-corporate dominion and the distortion of market prices converge to strangulate the devotees of healthy farming.
10 The reader is referred to an-Nawawī’s text on Shāfi`ī fiqh Al-Majmū`, where he ascribed the statement to the versatile master from al-Basrah al-Māwardī (who penned Al-Hāwī on the jurisprudence of the said methodological school).
11 This is a typical example of the extensive and regular cross-pollination between madhāhib of Ahl as-Sunnah, based on salutary reciprocal deference contrary to the distorted commonplace of madhabī enmity painted and marketed worldwide by the haplessly misguided “Salafis”.
12 Refer, for the full text of the quotation, to the published editions of Fath al-Bārī, which show some variance in wording compared to what the author sets out here.
13 The only work of his that has been published is An-Nasīhah al-Kāfiyah, which is devoid of any text as quoted here by the author. The reference here might be to An-Nush al-Anfa` wa al-Junnah li-Man i`tasama min al-Bida` bi as-Sunnah, which was one of his Zarrūq’s most renowned books in the past, and Allah knows best.
14 It has been reported by al-Bukhārī and by Muslim, each in his own Sahīh, Book of the Hajj. As for the reports about Asmā’, they are found in al-Bukhārī’s Sahīh, Book of Marriage, Chapter on jealousy, as well as in Muslim’s own Sahīh compilation, Book of Greeting, Chapter on the permissibility of letting a stranger woman sit at the back of one’s mount if she has strayed from the path.
15 Cf. Adh-Dhakhīrah by al-Qarāfī.
16 That is, Al-Mawwāziyyah, one of the “mother-books” (ummahāt) of Mālikī fiqh.
17 Cf. the two commentaries of Sahīh Muslim by al-Qādī ‘Iyād and al-Ubbī, i.e. Ikmāl al-Mu`lim bi-Fawā’id Muslim and Ikmāl al- Ikmāl respectively.
18 Cf. Fatāwā al-Burzulī (more specifically, the section thereof on the nawāzil pertaining to marriage)
19 Shaykh Abū Bakr al-Abharī al-Baghdādī (d. 214 AH) is one of the foremost exponents of the early ‘Irāqī school of the Mālikiyyah. His two commentaries (one large-scale, the other concise) of the Mukhtasar by the Egyptian jurist-cum-historian Ibn ‘Abdi’l-Hakam (which encompassed some 20 000 juristic issues or masā’il), whereby two of the three classical schools of the Mālikiyyah (the third one being based in al-Qayrawān) find a key confluence point, are justly famous. It is around such massive twin contributions, which enclose a vast number of juristic issues within their folds, that the fiqh of the Mālikī school of the ‘Irāq revolved. The general section from the large-size commentary, published by Dār al-Gharb al-Islāmī in Beirut in 2004 in the edition supervised by Prof. Hamīd Lahmar, is as well-known as Ibn Abī Zayd al-Qayrawānī’s miscellaneous text bearing the same title of Al-Jāmi`.
20 Abū Mūsā ‘Imrān al-Mashaddālī, sometimes pronounced and spelled with the dhāl as al-Mashadhdhālī (670-745 AH) was one of the accurate verifiers of the truth among the Mālikiyyah. He fled from the besieged Algerian centre of Bijāyah and settled in Tlemcen, where he was honoured by its ruler and where he taught hadīth, fiqh, the rules on the fixed shares of inheritance and other key sciences. A biographical sketch of his can be drawn from Abu’l-Qāsim al-Ghūl’s Ta`rīf al-Khalaf bi-Rijāl as-Salaf, jointly edited by Muhammad Abu’l-Ajfān and ‘Uthmān Battīkh, and jointly published in Beirut and Tunis respectively by Mu’assassah ar-Risālah and Al-Maktabah al-‘Atīqah (1982, 1st edition).
21 See the section on actionable harm and judicial claims in Ad-Durar al-Maknūnah fī Nawāzil Māzūnah by the Algerian savant Yahyā al-Maghīlī.
22 Cf. Ibn Rushd the grandfather’s Al-Bayān wa at-Tahsīl.
23 Cf. the section on the masā’il of marriage in Yahyā al-Maghīlī’s Ad-Durar al-Maknūnah fī Nawāzil Māzūnah.
24 It is one of the most valuable texts of classical Mālikī fiqh, which has never seen the light of publication. The author’s full name is Ahmad b. Abī Muhammad Hārūn b. Ahmad. He died in 906 AH in the course of a famous battle involving the Muwahhid an-Nāsir. He was strong in hadīth and its memorization.
25 Refer once more to the section on the masā’il of marriage in Ad-Durar al-Maknūnah fī Nawāzil Māzūnah.