Chapter Three. The Law. Fiqh, Shari'a. 4
4. "The Bidding Unto Good\" (al-amr Bi Al-ma'RUF)
The Law orders men to do good and reject what is reprehensible, and it is also obligatory for Muslims to enjoin right behavior on their fellows and deter them from wrong action. This aspect of Islamic ethics (the "isba") explains a degree of being one's brother's keeper in Islamic civilization that would probably have been regarded as officious
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in other societies. The following regulations are chosen almost at random.
Of "Dhaba", or ritual slaughter of animals for food: All animals killed for food except fish and locusts must be slain by "dhaba", but when slain by "dhaba" they are lawful, as by means of "dhaba" the unclean blood is separated from the clean flesh, whence it is that all animals not eatable (such as rats, dogs, and cats) are rendered clean by "dhaba" (for medicine, though not for food), except hogs and men....
It is one of the laws of "dhaba" that the person who performs it be either a Muslim or a Person of the Book. The "dhaba" of a Person of the Book is therefore lawful, (even) though he should not be a subject of a Muslim state, providing however that he has done it in the name of God, for in the Qur'n we find these words: "The victuals of the People of the Book are lawful for you."
The "dhaba" is lawful provided the slayer be acquainted with the form of "tasmya" or invocation of the name of God, and the method of cutting the veins of the animal, and it signifies not whether the person be a man or a woman, an infant or an idiot, a circumcised person or uncircumcised.
An animal slain by a Zoroastrian is unlawful, because the Prophet has said: "Ye may deal with them as well as with People of the Book, but ye must not marry their women or eat of animals slain by them," and also because a Zoroastrian is a polytheist and does not acknowledge the unity of God.
The "dhaba" of an idolator is unlawful, because he does not believe in the prophets....
If the slayer wilfully omit the invocation "in the name of God," the animal is carrion and must not be eaten. If however he omit the invocation through forgetfulness, it is lawful. Al-Shfi' is of the opinion that it is lawful in either case; Mlik, on the contrary, maintains that it is unlawful in both, and Muslims and People of the Book are the same with respect to omission of the invocation.... The opinion of al-Shfi' in this particular, is opposite to that of all our sages.... 18
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\"Sacrifice": It is the duty of every free Muslim (male) arrived at the age of maturity to offer a sacrifice on the "'Id al-Qurbn" (tenth of the month of Pilgrimage) if he possesses the requisite amount and is not a traveller... in the opinion of al-Shfi' sacrifice is not an indispensable duty but only laudable....
The sacrifice established for one person is a goat and that for seven a cow or camel....
It is lawful for a person who offers a sacrifice either to eat the flesh or to bestow it on whomever he pleases whether rich or poor, and he may also lay it up in store. It is most advisable that the third part of the flesh of a sacrifice be bestowed in charity. 19
\"Cultivation of Waste Lands": Whosoever cultivates waste lands with the permission of the "Imm" obtains a property in them; whereas if a person cultivates them without such permission he does not in that case become a proprietor, according to Ab anfa. The two disciples (of Ab anfa) maintain that in this case also the cultivator becomes proprietor, because of a saying of the Prophet, "Whoever cultivates waste lands does thereby acquire the property of them." 20
The "Mutasib": Growing out of the "isba" is the office of the "mutasib", who in premodern times, though scarcely anywhere today, was custodian of public morals and inspector of markets. The following excerpts are taken from a manual of instruction for "mutasibs" written by the Egyptian Shfi' lawyer Ibn al-Ukhwa (died A.h. 729/ A.d. 1329).
\"Market Regulations": The "mutasib" must order (transporters of goods) if they stay long in one place to unload the pack animals, for if the animals stand with loads, it will hurt them, and that is cruelty. The Messenger of God has forbidden cruelty to animals. The "mutasib" should order the
p. 128
people of the market to keep it clean of filth which collects in it and will hurt the people... and he should allow no one to spy on his neighbors from the roofs or through windows, or men to sit in the paths of women needlessly; whoever does something of this sort must be corrected by the "mutasib".... 21
\"Money Changers": Earning a living by changing money is a great danger to the religion of him who practices it; indeed there is no preserving his religion for him, except after knowledge of the Law so as to avoid falling into forbidden practices. It is incumbent on the "mutasib" to search out their market and to spy on them, and if he finds one of them practising usury or doing something illegal in his money-changing, to punish him... 22
\"Barber-Surgeons":... They must carry with them tools for circumcision, razor and scissors, for circumcision is a religious obligation for men and for women according to the generality of men of learning. Ab anfa says it is confirmed "sunna", but not obligatory.... Our guide is what is related of the Prophet--the blessing of God and peace be on him--when he said to a man who had become a Muslim, "Get rid of the long hair of paganism, and be circumcised," and because also cutting off a part of the body is a part of God's right on us... like the cutting off the hand of a thief. If this is established, then circumcision for a man consists of cutting off the foreskin, and for a woman in (clitoral excision: practiced chiefly by Shfi' school). So it is obligatory for men and women to do this for themselves and their children, and if they neglect it, the "Imm" may force them to do it for it is right and necessary... 23
\"Ship-Men": Owners of ships and boats shall be prevented from loading their vessels above the usual load, for fear of sinking. For the same reason the "mutasib" must forbid them to sail during windstorms. If they carry women on the same boat with men there must be a partition set between (men and women).
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\"Sellers of Earthenware and Pottery": The sellers of earthen-ware jars, pots and vessels shall not overlay any that are pierced or cracked with gypsum made into a paste with fat and white of egg and sell them as if they were sound. If vessels of such description are found with one of them, they shall be disciplined so as to deter others like them... 24
\"Punishments": Know that the first order of the "isba" is prohibition, the second admonition and the third deterring and restraining. Deterring is for the future, punishment for the past, and restraining for the present and current. It is not for one of the subjects [common people] to do anything more than restrain.... What goes beyond stopping illegal acts... pertains to the authorities.
Admonition is useless from one who does not admonish himself, and we say that one who knows his words will not be accepted, because the people know of his delinquency, should not undertake the "isba" by admonishing, since there is no good in his admonishment. How shall one who is not himself honest make others honest?...
The second stage is putting the fear of God (in the culprit) and threatening him with physical punishment until he is deterred from what he is doing....
The third is reviling him and upbraiding him with rough words, though not (libellously) but with words that do not count as moral excess, such as "Libertine! Stupid! Ignorant! Will you not fear God? Loose of morals!" and that sort of thing, for if he is a libertine he is stupid--if he were not, why would he offend God?.. 25
Footnotes
129:18 Al-Marghinn, "op. cit.", pp. 587-588.
129:19 \"Ibid"., pp. 592-594.
129:20 \"Ibid"., pp. 609-610.
129:21 Ibn al-Ukhwa, "Ma'alim al-Qurba", ed. by R. Levy. Arabic text with English abstract (Gibb Memorial Series; London, 1938), p. 79, Arabic text.
129:22 \"Ibid"., p. 143.
129:23 \"Ibid"., pp. 163, 164.
129:24 \"Ibid"., pp. 195, 196.
129:25 Al-Marghinn, "op. cit.", pp. 618-621.
The Law orders men to do good and reject what is reprehensible, and it is also obligatory for Muslims to enjoin right behavior on their fellows and deter them from wrong action. This aspect of Islamic ethics (the "isba") explains a degree of being one's brother's keeper in Islamic civilization that would probably have been regarded as officious
p. 126
in other societies. The following regulations are chosen almost at random.
Of "Dhaba", or ritual slaughter of animals for food: All animals killed for food except fish and locusts must be slain by "dhaba", but when slain by "dhaba" they are lawful, as by means of "dhaba" the unclean blood is separated from the clean flesh, whence it is that all animals not eatable (such as rats, dogs, and cats) are rendered clean by "dhaba" (for medicine, though not for food), except hogs and men....
It is one of the laws of "dhaba" that the person who performs it be either a Muslim or a Person of the Book. The "dhaba" of a Person of the Book is therefore lawful, (even) though he should not be a subject of a Muslim state, providing however that he has done it in the name of God, for in the Qur'n we find these words: "The victuals of the People of the Book are lawful for you."
The "dhaba" is lawful provided the slayer be acquainted with the form of "tasmya" or invocation of the name of God, and the method of cutting the veins of the animal, and it signifies not whether the person be a man or a woman, an infant or an idiot, a circumcised person or uncircumcised.
An animal slain by a Zoroastrian is unlawful, because the Prophet has said: "Ye may deal with them as well as with People of the Book, but ye must not marry their women or eat of animals slain by them," and also because a Zoroastrian is a polytheist and does not acknowledge the unity of God.
The "dhaba" of an idolator is unlawful, because he does not believe in the prophets....
If the slayer wilfully omit the invocation "in the name of God," the animal is carrion and must not be eaten. If however he omit the invocation through forgetfulness, it is lawful. Al-Shfi' is of the opinion that it is lawful in either case; Mlik, on the contrary, maintains that it is unlawful in both, and Muslims and People of the Book are the same with respect to omission of the invocation.... The opinion of al-Shfi' in this particular, is opposite to that of all our sages.... 18
p. 127
\"Sacrifice": It is the duty of every free Muslim (male) arrived at the age of maturity to offer a sacrifice on the "'Id al-Qurbn" (tenth of the month of Pilgrimage) if he possesses the requisite amount and is not a traveller... in the opinion of al-Shfi' sacrifice is not an indispensable duty but only laudable....
The sacrifice established for one person is a goat and that for seven a cow or camel....
It is lawful for a person who offers a sacrifice either to eat the flesh or to bestow it on whomever he pleases whether rich or poor, and he may also lay it up in store. It is most advisable that the third part of the flesh of a sacrifice be bestowed in charity. 19
\"Cultivation of Waste Lands": Whosoever cultivates waste lands with the permission of the "Imm" obtains a property in them; whereas if a person cultivates them without such permission he does not in that case become a proprietor, according to Ab anfa. The two disciples (of Ab anfa) maintain that in this case also the cultivator becomes proprietor, because of a saying of the Prophet, "Whoever cultivates waste lands does thereby acquire the property of them." 20
The "Mutasib": Growing out of the "isba" is the office of the "mutasib", who in premodern times, though scarcely anywhere today, was custodian of public morals and inspector of markets. The following excerpts are taken from a manual of instruction for "mutasibs" written by the Egyptian Shfi' lawyer Ibn al-Ukhwa (died A.h. 729/ A.d. 1329).
\"Market Regulations": The "mutasib" must order (transporters of goods) if they stay long in one place to unload the pack animals, for if the animals stand with loads, it will hurt them, and that is cruelty. The Messenger of God has forbidden cruelty to animals. The "mutasib" should order the
p. 128
people of the market to keep it clean of filth which collects in it and will hurt the people... and he should allow no one to spy on his neighbors from the roofs or through windows, or men to sit in the paths of women needlessly; whoever does something of this sort must be corrected by the "mutasib".... 21
\"Money Changers": Earning a living by changing money is a great danger to the religion of him who practices it; indeed there is no preserving his religion for him, except after knowledge of the Law so as to avoid falling into forbidden practices. It is incumbent on the "mutasib" to search out their market and to spy on them, and if he finds one of them practising usury or doing something illegal in his money-changing, to punish him... 22
\"Barber-Surgeons":... They must carry with them tools for circumcision, razor and scissors, for circumcision is a religious obligation for men and for women according to the generality of men of learning. Ab anfa says it is confirmed "sunna", but not obligatory.... Our guide is what is related of the Prophet--the blessing of God and peace be on him--when he said to a man who had become a Muslim, "Get rid of the long hair of paganism, and be circumcised," and because also cutting off a part of the body is a part of God's right on us... like the cutting off the hand of a thief. If this is established, then circumcision for a man consists of cutting off the foreskin, and for a woman in (clitoral excision: practiced chiefly by Shfi' school). So it is obligatory for men and women to do this for themselves and their children, and if they neglect it, the "Imm" may force them to do it for it is right and necessary... 23
\"Ship-Men": Owners of ships and boats shall be prevented from loading their vessels above the usual load, for fear of sinking. For the same reason the "mutasib" must forbid them to sail during windstorms. If they carry women on the same boat with men there must be a partition set between (men and women).
p. 129
\"Sellers of Earthenware and Pottery": The sellers of earthen-ware jars, pots and vessels shall not overlay any that are pierced or cracked with gypsum made into a paste with fat and white of egg and sell them as if they were sound. If vessels of such description are found with one of them, they shall be disciplined so as to deter others like them... 24
\"Punishments": Know that the first order of the "isba" is prohibition, the second admonition and the third deterring and restraining. Deterring is for the future, punishment for the past, and restraining for the present and current. It is not for one of the subjects [common people] to do anything more than restrain.... What goes beyond stopping illegal acts... pertains to the authorities.
Admonition is useless from one who does not admonish himself, and we say that one who knows his words will not be accepted, because the people know of his delinquency, should not undertake the "isba" by admonishing, since there is no good in his admonishment. How shall one who is not himself honest make others honest?...
The second stage is putting the fear of God (in the culprit) and threatening him with physical punishment until he is deterred from what he is doing....
The third is reviling him and upbraiding him with rough words, though not (libellously) but with words that do not count as moral excess, such as "Libertine! Stupid! Ignorant! Will you not fear God? Loose of morals!" and that sort of thing, for if he is a libertine he is stupid--if he were not, why would he offend God?.. 25
Footnotes
129:18 Al-Marghinn, "op. cit.", pp. 587-588.
129:19 \"Ibid"., pp. 592-594.
129:20 \"Ibid"., pp. 609-610.
129:21 Ibn al-Ukhwa, "Ma'alim al-Qurba", ed. by R. Levy. Arabic text with English abstract (Gibb Memorial Series; London, 1938), p. 79, Arabic text.
129:22 \"Ibid"., p. 143.
129:23 \"Ibid"., pp. 163, 164.
129:24 \"Ibid"., pp. 195, 196.
129:25 Al-Marghinn, "op. cit.", pp. 618-621.
