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"O Allah! We seek goodness from Your Knowledge and with Your Power (and Might) We seek strength, and We ask from You Your Great Blessings, because You have the Power and We do not have the power. You Know everything and I do not know, and You have knowledge of the unseen. Oh Allah! If in Your Knowledge this action (We are about to take) is better for my religion and faith, for our life and end [death], for here [in this world] and the hereafter then make it destined for us and make it easy for us and then add blessings [baraka'] in it, for us. O Allah! In Your Knowledge if this action is bad for us, bad for our religion and faith, for our life and end [death], for here [in this world] and the hereafter then turn it away from us and turn us away from it and whatever is better for us, ordain [destine] that for us and then make us satisfied with it."


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Importance of a good shaykh by Shaykh Abd'al-Qadir al-Jilani Radi Allahu anhu

Al Ghawth al-Adham Shaykh Sayyad Abd'al-Qadir al-Jilani Radi 'Allahu anhu said: You must work hard to ensure that your hearts are not locked out of the door of His nearness. Be sensible! You are getting nowhere. You must seek the company of a Shaykh who is learned in the law [hukm] and knowledge ['ilm] of Allah (Almighty and Glorious is He), and who will show you the way toward Him. Without seeing the successful [muflih], one cannot succeed. If a person does not seek the company of scholars who put their knowledge into practice ['ulama 'ummal], he is a chicken from an egg abandoned by the rooster and the mother hen.

Seek the fellowship of those who enjoy fellowship with the Lord of Truth (Almighty and Glorious is He). What each of you should do, when the night has grown dark and people have gone to bed and their voices are silent, is get up, take an ablution [yatawadda'], perform two cycles of ritual prayer [yusalli rak'atain] and say: "O my Lord, guide me to one of Your righteous servants near to You, so that he may guide me toward You and make me familiar with Your path." The instrument [sabab] is necessary. Allah (Almighty and Glorious is He) was quite capable of guiding [His servants] to Him without the Prophets [anbiya']. Be sensible! You are getting nowhere. You must awaken from your heedless folly. As the Beloved Prophet Salla Allahu ta'ala 'alayhi wa Sallam has said: If someone relies entirely on his own subjective judgement, he will go astray. Try to find someone who will be a mirror for the face of your religion [din], just as you look in the mirror to check the appearance of your outer face, your turban and your hair. Be sensible! What is this crazy foolishness? You say, "I don't need anyone to teach me," and yet the Beloved Prophet Salla Allahu ta'ala 'alayhi wa Sallam has said: The believer is the believer's mirror [al-mu'minu mir'atu 'l-mu'min].

When the believer's faith is sound, he comes to be a mirror for all creatures. They behold their religious faces [wujuh adyanihim] reflected in the mirror of his speech, every time they see him and get close to him. What is this craziness? Not a moment goes by without your begging Allah (Almighty and Glorious is He) to provide you with more than you already have to eat, to drink, and to wear, with more sexual opportunities and more income. These are not things that could increase or decrease, even if you were to be joined in your plea by every supplicant whose prayers are answered [da 'in mujab].

Supplication [da 'wa] will neither increase one's sustenance by so much as an atom, nor reduce it by an atom. This is a foregone conclusion [mafrugh minhu]. You must devote your attention to doing what you have been commanded to do, and to avoiding what you have been forbidden to do. You should not worry about that which is bound to come your way, because He guarantees that it will come to you. Allotted shares [aqsam] arrive at their appointed times, whether they be sweet or bitter, whether you like them or dislike them.

The people [of the Way] attain to a condition in which they no longer have any prayer of supplication [du'a] or request [su'al] to make. They do not beg [in their prayers] to gain advantages, nor to get rid of disadvantages. Their supplication comes to be a matter concerning their hearts, sometimes for their own sake and sometimes for the sake of all creatures, so they utter the prayer of supplication without conscious premeditation [fi ghaiba].
"O '' Allah, endow us with good behaviour in Your company under all circumstances!
[When the believer's faith is sound], fasting [sawm], prayer [salat], remembrance [dhikr] and all acts of obedience [ta 'at] become second nature to him, mingled with his flesh and blood. Then he receives protection from Allah (Almighty and Glorious is He) under all circumstances. The restraint of the law [hukm] does not desert him, not for an instant, while he is on this course. The law comes to be like the vessel in which he sits, as he travels over the ocean of the power [qudra] of his Lord (Almighty and Glorious is He). He goes on traveling over it until he arrives at the shore of the hereafter, at the shore of the ocean of grace and the hand of nearness. Thus he is sometimes in the company of creatures and at certain times in the company of the Creator. His work and toil are with creatures, while his relaxation is with the Creator.
From Shaykh 'Abd al-Qadir al-Jilani, "The Sublime Revelation (Al-Fath ar-Rabbani)," translated by Muhtar Holland (Al-Baz Publishing, Houston, 1992), p. 426-8.
On the authority of Abu Hurayrah r.a., who said that Prophet Muhammad S.A.W. said: Allah SWT said:

Whosoever shows enmity to someone devoted to Me, I shall be at war with him. My servant draws not near to Me with anything more loved by Me than the religious duties I have enjoined upon him, and My servant continues to draw near to Me with supererogatory works so that I shall love him. When I love him I am his hearing with which he hears, his seeing with which he sees, his hand with which he strikes and his foot with which he walks. Were he to ask [something] of Me, I would surely give it to him, and were he to ask Me for refuge, I would surely grant him it. I do not hesitate about anything as much as I hesitate about [seizing] the soul of My faithful servant: he hates death and I hate hurting him. (It was related by al-Bukhari)

“Allah! There is no God save Him, the Alive, the Eternal. Neither slumber nor sleep overtaketh Him. Unto Him belongeth whatsoever is in the heavens and whatsoever is in the earth. Who is he that intercedeth with Him save by His leave? He knoweth that which is in front of them and that which is behind them, while they encompass nothing of His knowledge save what He will. His throne includeth the heavens and the earth, and He is never weary of preserving them. He is the Sublime, the Tremendous.”

Monday, February 9, 2009



The Association of Muslim Lawyers -

This essay provides a brief introduction to legal maxims, an evidently important chapter of the juristic literature of Islam, that is particularly useful in depicting a general picture of the nature, goals and objectives of the Shari‘ah. Yet, for reasons that will presently be explained, legal maxims represent a latent development in the history of Islamic legal thought. A brief explanation of the background history of legal maxims will be followed by a discussion of developments in three other related areas. We will discuss briefly the dawabit (lit. controlling rules), which are abstractions of the rules of fiqh (Islamic jurisprudence) on specific themes. We will then move onto a discussion of the nazariyyah al-fiqhiyyah, or the general theories of fiqh, which attempt to embrace a wider scope. The final area of interest in this connection is the furuq, or the distinctions and contrasts, which may be said to be a comparative study of the similarities and differences of the legal maxims and the substantive themes with which they are concerned. Legal maxims (qawa‘id al-kulliyah al-fiqhiyyah) are theoretical abstractions, usually in the form of short epithetical statements, that are expressive, often in a few words, of the goals and objectives of the Shari‘ah. This is so much so that many ‘ulama (scholars) have treated them as a branch of the maqasid (goals and objectives)
literature. The legal maxims of fiqh are statements of principles that are derived from the detailed reading of the rules of fiqh on various themes. The fiqh has generally been developed by individual jurists in relation to particular themes and issues in the course of history and differs, in this sense, from modern statutory rules which are concise and devoid of detail. The detailed expositions of fiqh enabled the jurists, at a later stage of development, to reduce them into abstract statements of principles. Legal maxims represent, in many ways, the apex of cumulative progress, which could not have been expected to take place at the formative stages of the development of fiqh. The actual wordings of the maxims are occasionally taken from the Qur’an or Ahadith but are more often the work of leading jurists and mujtahids that have subsequently been refined by others throughout the ages. It has often been a matter of currency and usage that the wordings of certain maxims are taken to greater refinement and perfection. The science of legal maxims is different from the science of usul al-fiqh (methodology in Islamic jurisprudence)
in that the maxims are based on the fiqh itself. Usul al-fiqh is concerned with the methodology of legal reasoning and the rules of interpretation, the meaning and implication of commands and prohibitions, and so forth. A maxim is defined as “a general rule which applies to all of its related particulars”.

1. A legal maxim is reflective of a consolidated reading of the fiqh and it is in this sense different from what is known as ad-dabitah (a controller) which is somewhat limited in scope and controls the particulars of a single theme or chapter of fiqh. Dabitah is thus confined to individual topics such as cleanliness (taharah), maintenance (nafaqh), paternity and fosterage (arridaa’), and as such does not apply to other subjects. An example of a dabitah is the statement: “Marriage does not carry suspension”; and with reference to cleanliness: “When the water reaches two feet, it does not carry

2. An example of a legal maxim is the statement: “The affairs of the imam concerning his people are judged by reference to maslahah” (Amr al-Imami fi shu’un ar-ra iyyati manutun bil-maslahah). The theme here is more general without any specification of the affairs of the people or the activities of the imam. Having drawn a distinction between dabitah and qa‘idah, we note, however, that legal maxims also vary concerning the level of abstraction and the scope that they cover. Some legal maxims are of general application, whereas others might apply to a particular area of fiqh, such as ‘ibadah (worship), mu‘amalah (transactions), contracts, litigation and court proceedings. Some of the more specific maxims may qualify as a dabitah rather than as a maxim proper, as the distinction between them is not always clear and regularly observed. Ibn Juzay al-Maliki’s, Al-Qawanin al-Fiqhiyyah has identified and discussed a large number of dawabit in relation to particular themes and chapters of fiqh.

The most comprehensive and broadly based of all maxims are known as “al-qawa‘id al-fiqhiyyah al-asliyyah”, or the normative legal maxims, and they apply to the entire range of fiqh without any specification. The madhahib are generally in agreement over them. Maxims such as “Harm must be eliminated” (Ad-dararu yuzal) and “Acts are judged by the intention behind them” (Al-umuru bi-maqasidiha) belong to this category of maxims.

The early ‘ulama have singled out about five of these to say that they grasp between them the essence of the Shari‘ah as a whole, and the rest are simply an elaboration of these. The other three of the normative legal maxims are:

- “Certainty is not overruled by doubt” (Al-yaqinu la yazulu bish-shakk).
- “Hardship begets facility” (Al-mashaqqatu tujlab at-taysir).
- “Custom is the basis of judgement” (Al-‘addatu muhakkamatun)

The first of these has been supplemented by a number of other maxims such as “The norm (of Shari‘ah) is that of non-liability” (Al-aslu baraa’ah ad-dhimmah). This is an equivalent to what is generally known as the presumption of innocence, although the maxim is perhaps more general. The primary expression implies that it
relates principally to criminal procedure, whereas the non-liability maxim extends to civil litigation and to religious matters generally. The normative state, or the state of certainty for that matter, is that people are not liable, unless it is proven that they are, and until this proof is forthcoming, to attribute guilt to anyone is treated as doubtful. Certainty can, in other words, only be overruled by certainty, not by doubt. Another supplementary maxim here is the norm that presumes the continued validity of the status quo ante, until we know there is a change. “The norm is that the status quo remains as it was before” (Al-aslu baqaa’u ma kaana ‘alama kaana) unless it is proven to have changed. An example of this is the wife’s right to maintenance that the Shari‘ah has determined; when she claims that her husband failed to maintain her, her claim will command credibility. For the norm here is her continued entitlement to maintenance for as long as she remains married to him. Similarly when one of the contracting parties claims that the contract was concluded under duress and the other denies this, this later claim will be upheld because the absence of duress is the normal state or status quo, which can only be rebutted by evidence.

3. According to yet another maxim, “The norm in regard to things is that of permissibility” (Al-aslu fil-ashyaa’ al-Ibahah). Permissibility in other words is the natural state and will therefore prevail until there is evidence to warrant a departure from that position. This maxim is based on a general reading of the relevant evidence in the Qur’an and Sunnah. Thus when we read in the Qur’an that God “has created all that is in the earth for your benefit” (2:29), and also the hadith that states: “whatever God has made halal is halal and whatever He has rendered as haram is haram, and all that over which He has remained silent is
forgiven”, the conclusion is drawn that we are allowed to utilise the resources of the earth for our benefit, and that unless something is specifically declared forbidden, it is presumed to be permissible. It is stated in the Mejelle that legal maxims are designed to facilitate a better understanding of the Shari‘ah and the judge may not base his judgement on them unless the maxim in question is derived from the Qur’an or Ahadith or supported by other evidence.

4. This is in contrast, however, with the view of Shihab al-Din al-Qarafi who held that a judicial decision is reversible if it violates a generally accepted maxim.

5. The ‘ulama have generally considered the maxims of fiqh to be significantly conducive to ijtihad, and they may naturally be utilised by the mujtahid and judge as persuasive evidence. It is just that they are broad guidelines, whereas judicial orders need to be founded in specific evidence that is directly relevant to the subject of adjudication. Since most of the legal maxims are expounded in the form of generalised statements, they hardly apply in an exclusive sense and often admit exceptions and particularisation. Instances of this had often been noted by the jurists, especially in cases when a particular legal maxim had failed to apply to a situation that evidently fell within its ambit. They then attempted to formulate a subsidiary maxim to cover that particular case. Legal maxims were developed gradually and the history of their development in a general sense is parallel with
that of the fiqh itself. More specifically, however, these were developed mainly during the era of imitation (taqlid), as they are in the nature of extraction (takhrij) of guidelines from the detailed literature of fiqh that were contributed during the first three centuries of Islamic scholarship, known as the era of ijtihad.

6. Some of the most important of the maxims are basically a reiteration of either the Qur’an or the Ahadith. One of the five maxims noted above has been derived from the hadith that “harm may neither be inflicted nor reciprocated in Islam” (la darara wa la dirara fil-Islam). Some of the variant renderings of the maxim Ad-araru yuzal read as follows: “Harm must be eliminated but not by means of another harm” (Ad-dararu yuzalu wa lakin la bi-darar); and “Harm is not eliminated by another harm” (Ad-dararu la yuzalu bid-darar). The hadith under discussion has provided the basis of numerous other maxims on the subject of darar, including for example, “A specific harm is tolerated in order to prevent a more general one” (Yutahammal ad-darar al-khaas li-daf’al-darar al ‘aam), “Harm is eliminated to the extent that is possible”(Ad-dararu yudfa‘u bi-qadr al-imkaan) and “A greater harm is eliminated by means of a lesser harm” (Yuzal ad-darar al-ashaddu bid-darar al-akhaff).

7. A practical manifestation of the maxim “Harm must be eliminated” is the validation of the option of defect (khiyar al-‘ayb) in Islamic law, which is designed to protect the buyer against harm. Thus when A buys a car and then discovers that it is substantially defective, he has the option to revoke the contract. For there is a legal presumption under the Shari‘ah that the buyer concluded the contract on condition that the object of sale was not defective.
The hadith under discussion has also been used as a basic authority for a number of legal maxims on the subject of necessity (darurah), and I refer here to only two. The first of these proclaims: “Necessity makes the unlawful lawful”(Ad-daruratu tubiyh al-mahzurah). It is on this basis that the jurists validate demolition of an intervening house to prevent the spread of fire to adjacent buildings, just as they validate dumping of the cargo of an overloaded ship to prevent the danger (or darar) to the life of its passengers. The second maxim on necessity declares: “Necessity is measured in accordance with its true proportions” (Ad-daruratu tuqdaru bi-qadriha). Thus, if the court orders the sale of assets of a negligent debtor to pay his creditors, it must begin with the sale of his movable goods if this would suffice to clear the debt, before selling his real property.

8. The maxim “Hardship begets facility” is, in turn, a rewording of the Qur’anic verses that state: “God intends for you ease and He does not intend to put you in hardship” (2:185), and “God does not intend to inflict hardship on you” (5:6), purporting to a theme that also occurs in a number of ahadith. The jurists have used this evidence in support of the many concessions that are granted to the disabled and the sick in the sphere of religious duties as well as civil transactions. With reference to the option of stipulation (khiyaar ash-shart), for example, there is a hadith that validates such an option for three days, that is, if the buyer wishes to reserve for himself this amount of time before ratifying a sale. The jurists have then reasoned that this period may be extended to weeks or even months depending on the type of goods that are bought and the need of the buyer who may need a longer
period for investigation. The maxim “Acts are judged by the intention behind them” is also a rephrasing of the renowned hadith that states: “Acts are valued in accordance with their underlying intention” (Innama al-a‘maalu bin-niyyah). This is a comprehensive maxim that has implications that the ‘ulama have discussed in various areas, including devotional matters, commercial transactions and crimes. The element of intent often plays a crucial role in differentiating, for example, a murder from erroneous killing, theft from inculpable appropriation of property, and the figurative words that a husband may utter to conclude the occurrence or otherwise of a divorce. The maxim “Custom is the basis of judgement” is again based on a statement of the Companion, Abdullah ibn Mas‘ud, that “what the Muslims deem to be good is good in the eyes of God”. The court is accordingly authorised to base its judgement on custom in matters that are not regulated by the text, provided that the custom at issue is current, predominant among people, and is not in conflict with the principles of the Shari‘ah. Several other subsidiary maxims have been derived from this, including the one that proclaims: “What is determined by custom is tantamount to a contractual stipulation” (Al-ma‘rufu ‘urfan kal-mashrutu shartan). Thus, when the contract does not regulate a matter that is otherwise regulated by custom, the customary rule would be presumed to apply. Similarly when someone rents a car, he should use it according to what is customary and familiar, a condition that is presumed to apply even if not stated in the contract. The maxim “Profit follows responsibility” (Al-kharaju bid-daman) is a direct rendering of a hadith in identical words. Thus, the yields of trees, animals, etc., belong to those who are responsible for their upkeep and maintenance. Suppose that A buys a machine which yields profit, where A then returns the machine to the seller, does A have to return the profit he made with that machine to the seller? By applying the legal maxim before us, we say that A may keep the profit as the machine was his responsibility during the interval just as he would have been responsible for its destruction and loss before returning it to the seller. The maxim “(A ruling of) Ijtihad is not reversed by its equivalent” (Al-ijtihadu la yunqadu bi-mithlih) has, in turn, been attributed to a statement of the Caliph ‘Umar ibn al-Khattab which is also upheld by the consensus of the Companions. Suppose that a judge has adjudicated a dispute on the basis of his own ijtihad, in the absence of a clear text to determine the issue, and then he retires. If another judge, whether of the same rank or at the appellate level, looks into the case and his ijtihad leads him to a different conclusion on the same issue, then provided that the initial decision does not violate any of the rules that govern the propriety of ijtihad, a mere difference of opinion on the part of the new judge, or a similar ijtihad that he might have attempted, does not affect the authority of the initial ijtihad. This is so because one ruling of ijtihad is not reversible by another ruling of ijtihad. Historically, the Hanafi jurists were the first to formulate legal maxims. An early Iraqi jurist, Sufyan ibn Tahir ad-Dabbas, collated the first seventeen maxims, and Abul Hassan al-Karkhi (d.340) increased this to thirty-nine. Some of the early maxims that were compiled include the following: “The norm is that the affairs of the Muslims are presumed to be upright and good unless the opposite emerges to be the case”. This means that acts, transactions and relations among people should not be given a negative interpretation that verges on suspicion and mistrust, unless there is evidence to suggest the opposite. Another maxim states: “Question and answer proceed on that which is widespread and common and not on what is unfamiliar and rare”. Again, if we were to interpret a speech and enquire into its implications, we should proceed on what would be commonly understood as opposed to what might be said to be a rare understanding and interpretation. We read in another maxim: “Prevention of evil takes priority over the attraction of benefit” (Dur’ al-masaalihi awla min jalb almanaafi‘). The earliest collections of maxims also included the five leading maxims that were discussed above.

9. One of the early collections was that of al-Karkhi, which was not very highly refined as it included statements that were expressive of an idea but not necessarily in the eloquent style that is typically associated with maxims.

10. Many scholars from various schools added to these over time and the total number of qawa‘id and dawabit eventually exceeded twelve hundred. After the Hanafis, the Shafi‘is, then the Hanbalis, and following them the Malikis - as az-Zarqa has noted - added their contributions to the literature on legal maxims. The leading Shafi‘i scholar, ‘Izz ad-Din ‘Abd as-Salam’s (d. 660H), Qawa‘id al-Ahkam fi Masalih al-Anam is noted as one of the salient contributions to this field, as is ‘Abd ar-Rahman ibn Rajab al-Hanbali’s (d.795) work Al-Qawa‘id. Both have been highly acclaimed. Yet in terms of conciseness and style, the Mejelle collection, written
in the 1870s, represents the most advanced stage in the compilation of legal maxims.

11. The development of this branch of fiqh is in many ways related to the general awareness of the ‘ulama that the fiqh literature is of a piecemeal and fragmented style, which, somewhat like Roman juristic writings, is on the whole issue-oriented and short of theoretical exposition of the governing principles. This is, in turn, attributed to the history of the development of fiqh, where private jurists made their contributions independent of any government and institutions that might have exerted an unifying influence. They often wrote in response to issues as and when encountered, and we consequently note that theoretical abstraction was not a well-developed feature of their work. The legal maxims filled that gap to some extent and provided a set of general guidelines for an otherwise diverse discipline that combined an impressive variety of schools and influences into its fold. Islamic jurisprudence is also textualist, in that it is guided by the textual injunctions of the Qur’an and Sunnah. In developing the law, the jurists have shown a tendency to confine the range of their expectations to the given terms of the text. Theoretical generalisations of ideas were viewed with caution vis-à-vis the overriding authority
of the text and attention was focused on the correct interpretation of the text rather than developing general theories.

Questions are being asked to this day whether Islamic law has a constitutional theory, a theory of contract, or a theory of ownership. It is only in recent times that Muslim scholars began to write concise and self-contained expositions of the law in these areas, as I shall presently explain. A genre of literature known as al-ashbah wan-naza’ir (similitude and resemblance), that was devoted to legal maxims, emerged in the writings of the ‘ulama well after the formation of the madhahib. The term evidently originated in the famous letter of the Caliph ‘Umar al-Khattab, addressed to a judge, Abu Musa al-Ash‘ari of Basrah, in which he was instructed to “ascertain similitudes and resemblances and adduce matters analogous in giving judgement”. Later, Taj ad-Din as-Subki, who wrote a most important work on legal maxims, chose the term ‘al-ashbah wan-naza’ir’ as the title of his book. Jalal ad-Din as-Suyuti (d.911) and Zayn al-‘Abidin Ibn Nujayam al-Hanafi (d.972) also wrote works that closely resemble one another, both bearing the title Al-Ashbah wan-Naza’ir. They relied mainly on as-Subki’s writings, with certain modifications that were reflective, perhaps, of their respective scholastic orientations. As-Suyuti often identified the source evidence from which maxims were derived and added illustrations and analysis. Some of the leading maxims that As-Suyuti recorded were:
“Private authority is stronger than public authority” (Al-wilayah al-khaasah aqwa min al-wilaayah al-‘aammah), which means that the authority, for example, of the parent and guardian over the child, is stronger than that of the ruler and the judge; “No speech is attributed to one who has remained silent” (La yunsabu lis-saakiti qawl); and “The attachment follows the principal” (At-taabi‘u taabi‘), which obviously means, in reference to, for example, contracts and transactions, that things that belong to one another may not be separated. Thus, for example, one should not sell a yet-to-be-born animal separately from it’s mother, or a living room separate from the house.

Ibn Nujaym divided the legal maxims into two normative categories: leading maxims and subsidiary maxims. He only placed six under the former and seventeen under the latter, but discussed a number of others in his detailed elaboration and analysis. The sixth leading maxim of Ibn Nujaym, that he added to the familiar five, as noted above, states: “No spiritual reward accrues without intention” (La thawaaba illa bin-niyyah), which is why the ritual prayer, and most other acts of devotion, are preceded by a statement of intention (niyyah). The twelfth century author, Abu Sa‘id al-Khadimi compiled 154 maxims in his work entitled Majma‘ al-Haqaa’iq.

12. Despite the general tendency in legal maxims to be inter-scholastic, jurists and schools are not unanimous on all of the maxims and there are some on which the madhahib have disagreed.

13 The difference between the schools in this area is, however, not very wide. The Ja‘fari School of the Shi‘ah have their own collections of legal maxims, but apart from some differences in style, the thematic arrangement in their collections closely
resembles those of their Sunni counterparts. The first Shi‘i work on maxims was that of ‘Allamah al-Hilli (d.726H) entitled Al-Qawa‘id, followed by ash-Shahid al-Awwal Jamal al-Din al-‘Amili's (d. 786) Al-Qawa‘id wal-Fawa’id that contained over three hundred maxims, and many more works that elaborated and enhanced the earlier ones. The more recent work of Muhammad al-Husayn Kashif al-Ghita’, bearing the title Tahrir al-Mujalla, is an abridgement and commentary of the first ninety-nine articles of the Ottoman Mejelle. He selected fortyfive as being the most important in the range, and the rest he found to be overlapping and convergent or obscure, but he added eighty-two others to make up a total of one hundred and twenty-seven maxims of current application and relevance, especially to transactions and contracts. However, al-Ghita’ went on to say that “if we were to recount all the maxims that are referred to in the various chapters of fiqh, we can add up to five hundred more”.

14. Two other related developments that are of interest have taken two different directions. One of these is the furuq literature, which as the word indicates, highlights differences between similar concepts or those that have an aspect in common. The attempt to highlight the differences also extended to the maxims themselves, in that the furuq literature specified the differences between some of the maxims that resembled one another but could be subtly distinguished in some respect. The Maliki jurist Shihab ad-Din al-Qarafi’s Kitab al-Furuq (in four volumes) discusses five hundred and forty-eight maxims, and two hundred and seventy-four distinctions and differences (furuq) between similar themes and ideas. Occasionally the word qa‘idah is used in reference to what is a dabitah or even a specific ruling of fiqh. Examples of the furuq include the distinctions between hire (ijara’) and sale, between custody (hadanah) and guardianship (wilayah), between testimony (shahadah) and narration (riwayah), and between verbal custom (al-‘urf al-qawali) and actual custom (al-‘urf al-fi‘li). These are often expressed in rule-like statements that generally resemble dabitah in their application to specific themes only, but are named al-furuq as they usually compare similar themes and highlight the differences between them. Al-Qarafi’s approach represented a new development in the qawa‘id literature. He also discussed legal maxims in his other works, narnely, Ad-Dhakhirah and (more specifically) Al-Ihkamu fi Tamyiz al-Fatawa ‘anil-Ahkam. The title itself is, it may be noted, a furuq oriented title referring to differences between fatawa and judicial decisions.15 Ibn ash-Shat Qasim bin ‘Abd Allah al-Ansari’s (d.723) work, Idrar ash-Shuruq ‘ala Anwar al-Furuq is also a work on furuq, and smaller works of a similar kind were also written by some Shafi‘i scholars.

16. The next development that may briefly be explained is relatively recent and appears in the modern writings of fiqh under the general designation of an-azariyyah al-fiqhiyyah, or legal theories of fiqh. Nazariyyah in this context implies a self-contained and comprehensive treatment of an important area of law, such as nazariyyah al-‘aqd (theory of contract), nazariyyah al-milkiyyah (theory of ownership), nazariyyah ad-darurah (theory of necessity) and so forth. This level of theoretical development marks a departure from the earlier style of juristic writing in fiqh literature where topics are poorly classified and themes pertaining to a particular area are scattered in different places. The nazariyyah literature seeks to overcome that and offers systematic treatment of its subject matter that aims to be self-contained and convenient to use.

The nazariyyah literature draws upon the combined resources of fiqh in all areas, including the qawa‘id, the dawabit and the furuq. Yet the nazariyyah are usually not expected to reproduce the detailed formulation of these related branches, as theory oriented works generally seek to be concise, clear of repetition and unnecessary detail. The nazariyyah also incorporate new methods of research and writing, which are more effective and less time-consuming.

The nazariyyah literature is not merely confined to improved methods and forms of writing but often seeks to advance some of the substantive aspects of the fiqh doctrines. With regard to the law of contract for example, ‘Abd ar-Razzaq as-Sanhuri has observed that the fiqh literature in this area is focused on the detailed exposition of a number of nominate contracts and treats each contract separately. The Hanafi jurist, al-Kasani, has thus dealt with nineteen nominate contracts, many of which have aspects in common and, of course, they also differ in other respects. A perusal of the relevant literature on fiqh contracts, As-Sanhuri notes, leaves the reader askance as to: (a) whether these could all be consolidated in order to highlight the features they all have in common; (b) whether the fiqh validates contracts other than these; and (c) whether the fiqh recognises the basic freedom of contract, merely on the basis of an agreement that does not violate morality and public interest?

17. Questions of this nature are likely to receive a better response from the nazariyyah literature, which is better consolidated and expressive of the common aspects of contracts. The nazariyyah literature is not entirely without precedent in the world of fiqh. With reference to the theory of contract, for example, we may note that significant progress had been made by the Hanbali ‘ulama, Ibn Taymiyyah (d.728H) and his disciple, Ibn al-Qayyim al-Jawziyyah, whose contributions are widely acknowledged. Ibn Taymiyyah effectively departed from the earlier strictures over the nominate contracts and advanced a convincing discourse, through his own reading of the source evidence, that contracts need not be confined to a particular prototype or number. The essence of all contracts is manifested in the agreement of the contracting parties, who may create new contracts, within or outside the ones that are already known, provided that they serve to realise a lawful benefit and do not violate public policy and morals. It may be noted, however, that Ibn Taymiyyah’s contribution to the theory of contract represented a rather latent development and a
departure in many ways from the majority position on this theme. This is why As-Sanhuri’s critique may still be considered relevant. Considerable progress has also been made, in the sphere of nazariyyah literature, not only in As-Sanhuri’s own writings, but by numerous other scholars, both Arab and non-Arab, who have written widely on contracts and other major themes of fiqh.

We also note in this context, the emergence of the encyclopaedias of fiqh in the latter part of the twentieth century. This marks a milestone of development and succeeds in producing consolidated and reliable works of reference on fiqh, and these efforts are still continuing. Yet, as a distinctive genre of fiqh literature, legal maxims are likely to remain an influential area of the legacy of fiqh. This is perhaps borne out by the fact that the Turkish ‘ulama who drafted the Ottoman Mejelle articles in 1850, decided to begin their impressive and, in many ways, original work on the Islamic law of transactions with a collection of the most important of these maxims.

Mohammad Hashim Kamali is Professor of Law at the International Islamic University, Malaysia. He is author of numerous articles published in learned journals and many works, including Principles of Islamic Jurisprudence, Punishment in Islamic Law and Freedom of Expression in Islam.


1 Cf. Mahmassani, Subhi, Falasafat at-Tashri‘ fil-Islam: The Philosophy of Jurisprudence in Islam, Eng. Trans. Farhat I. Ziadeh, E.J. Brill, Lieden 1961, p. 151; Az-Zarqa’, Shaykh Muhammad, Sharh al-Qawa‘id al-Fiqhiyyah, 3rd ed., Dar al-Qalam, Damascus 1414/1993, p. 33.

2 Cf. As-Sabuni, ‘Abd ar-Rahman, et al, Al-Madkhal al-Fiqhi wa Tarik at-Tashri’ al-Islami, Maktabah Wahbah, Cairo 1402/1982, p. 389.

3 Ibid., p. 407.

4 Cf. Mahmassani, ibid, p. 152; Az-Zarqa’, ibid, p. 34.

5 Al-Qarafi, Shihab ad-Din, Kitab al-Furuq, Matha’ah Dar al-Ihya al-Kutub al-‘Arabiyyah, Cairo 1346H, Vol. IV, p. 40; see also ‘Atiyyah, Jamal ad-Din, At-Tanzir al-Fiqhi, Doha 1407/1987, p. 208.

6 Cf. As-Sabuni, ibid., p. 398.

7 Ibid., p. 380.

8 Ibid., p. 400.

9 Cf. ‘Attiyah, ibid., p. 81; As-Sabuni, ibid., p. 387

10 See for details Az-Zarqa’, ibid., pp. 38-39.

11 Ibid., p. 43.

12 Cf. Az-Zarqa’, ibid., pp. 39-40.

13 Cf. Abu Sulayman, ‘Abd al-Wahhab, “An-Nazariyyah wal-Qawa‘id fil-Fiqh al-Islami” in Mujallah Jamai‘ah al-Malik ‘Abdal-‘Aziz, No.2, May 1978, p. 53.
The Association of Muslim Lawyers

14 Kashif al-Ghita’, Muhammad al-Hussain, Tahrir al-Mujallah, p. 63; ‘Attiyah, ibid., p. 75; As-Sabuni, ibid., p. 395.

15 Cf. Az-Zarqa’, ibid., pp. 42-43; As-Sabuni, ibid., p. 393.

16 See for further details ‘Attiyah, ibid., pp. 131-132.

17 As-Sanhuri, ‘Abd ar-Razzaq, Masadir al-Haqq fil-Fiqh al-Islami, Ma‘had al-Buhuth wad-Dirasah al-‘Arabivyah, Cairo 1967, Vol. I, p. 78; see also As-Sabuni, ibid., p. 380.

Sunday, February 1, 2009



Importance of a good shaykh by Shaykh Abd'al-Qadir al-Jilani Radi Allahu anhu

Al Ghawth al-Adham Shaykh Sayyad Abd'al-Qadir al-Jilani Radi 'Allahu anhu said: You must work hard to ensure that your hearts are not locked out of the door of His nearness. Be sensible! You are getting nowhere. You must seek the company of a Shaykh who is learned in the law [hukm] and knowledge ['ilm] of Allah (Almighty and Glorious is He), and who will show you the way toward Him. Without seeing the successful [muflih], one cannot succeed. If a person does not seek the company of scholars who put their knowledge into practice ['ulama 'ummal], he is a chicken from an egg abandoned by the rooster and the mother hen.

Seek the fellowship of those who enjoy fellowship with the Lord of Truth (Almighty and Glorious is He). What each of you should do, when the night has grown dark and people have gone to bed and their voices are silent, is get up, take an ablution [yatawadda'], perform two cycles of ritual prayer [yusalli rak'atain] and say: "O my Lord, guide me to one of Your righteous servants near to You, so that he may guide me toward You and make me familiar with Your path." The instrument [sabab] is necessary. Allah (Almighty and Glorious is He) was quite capable of guiding [His servants] to Him without the Prophets [anbiya']. Be sensible! You are getting nowhere. You must awaken from your heedless folly. As the Beloved Prophet Salla Allahu ta'ala 'alayhi wa Sallam has said: If someone relies entirely on his own subjective judgement, he will go astray. Try to find someone who will be a mirror for the face of your religion [din], just as you look in the mirror to check the appearance of your outer face, your turban and your hair. Be sensible! What is this crazy foolishness? You say, "I don't need anyone to teach me," and yet the Beloved Prophet Salla Allahu ta'ala 'alayhi wa Sallam has said: The believer is the believer's mirror [al-mu'minu mir'atu 'l-mu'min].

When the believer's faith is sound, he comes to be a mirror for all creatures. They behold their religious faces [wujuh adyanihim] reflected in the mirror of his speech, every time they see him and get close to him. What is this craziness? Not a moment goes by without your begging Allah (Almighty and Glorious is He) to provide you with more than you already have to eat, to drink, and to wear, with more sexual opportunities and more income. These are not things that could increase or decrease, even if you were to be joined in your plea by every supplicant whose prayers are answered [da 'in mujab].

Supplication [da 'wa] will neither increase one's sustenance by so much as an atom, nor reduce it by an atom. This is a foregone conclusion [mafrugh minhu]. You must devote your attention to doing what you have been commanded to do, and to avoiding what you have been forbidden to do. You should not worry about that which is bound to come your way, because He guarantees that it will come to you. Allotted shares [aqsam] arrive at their appointed times, whether they be sweet or bitter, whether you like them or dislike them.

The people [of the Way] attain to a condition in which they no longer have any prayer of supplication [du'a] or request [su'al] to make. They do not beg [in their prayers] to gain advantages, nor to get rid of disadvantages. Their supplication comes to be a matter concerning their hearts, sometimes for their own sake and sometimes for the sake of all creatures, so they utter the prayer of supplication without conscious premeditation [fi ghaiba].

'O '' Allah, endow us with good behaviour in Your company under all circumstances!

[When the believer's faith is sound], fasting [sawm], prayer [salat], remembrance [dhikr] and all acts of obedience [ta 'at] become second nature to him, mingled with his flesh and blood. Then he receives protection from Allah (Almighty and Glorious is He) under all circumstances. The restraint of the law [hukm] does not desert him, not for an instant, while he is on this course. The law comes to be like the vessel in which he sits, as he travels over the ocean of the power [qudra] of his Lord (Almighty and Glorious is He). He goes on traveling over it until he arrives at the shore of the hereafter, at the shore of the ocean of grace and the hand of nearness. Thus he is sometimes in the company of creatures and at certain times in the company of the Creator. His work and toil are with creatures, while his relaxation is with the Creator.

From Shaykh 'Abd al-Qadir al-Jilani, "The Sublime Revelation (Al-Fath ar-Rabbani)," translated by Muhtar Holland (Al-Baz Publishing, Houston, 1992), p. 426-8.

The Treaty of Hudaybiyah


Six years had passed since the emigration of the Prophet and his companions from Makkah to Madinah. During that time, they were constantly occupied with war and conflict, now with the Quraysh, now with the Jews. All along, Islam was gaining converts as well as power. From the first year of the Hijrah, Muhammad changed his orientation in prayer from al Aqsa Mosque to the Mosque of Makkah. The Muslims turned toward the house of God which Ibrahim had built in Makkah and which was renewed and reconstructed during Muhammad's youth. The reader will remember that it was Muhammad who lifted and placed the Black Stone in its position in the wall of that house, long before he could have ever thought that he was to become the recipient of a revelation from God on High.

Proscription of the Sanctuary to Muslim Entry

For hundreds of years, this Mosque had been the center toward which the Arabs turned in their worship and to which they went in pilgrimage during the holy month of every year. Everybody entering the area of the Mosque was to be safe and secure. The most hostile enemies met on its grounds without anyone ever drawing his sword or shedding the blood of his enemy. Ever since Muhammad had emigrated with the Muslims to Madinah, the Quraysh resolved to prevent them from entering the Mosque. This prohibition applied only to the Muslims among all the Arabs of the Peninsula. To this effect, God said in the Qur'anic verses revealed during the first year of the Hijrah

"They challenge you regarding the sacred month, that there should be no fighting whatsoever during its whole course. Answer, that fighting in the holy month is a great transgression. But to hinder men in their pursuit of God's path, to be blasphemous to Him and to the Holy Mosque, to force the worshippers out of the Mosque-all these are greater transgressions in the eye of God."[Qur'an, 2:217]

Likewise, the following verse was revealed after the Battle of Badr : "And why should they not be punished by God when they prevent men from entering the Holy Mosque for worship? Surely, they are not its guardians. The guardians of the Holy Mosque are only the pious and righteous. But most of them are utterly ignorant. As for their worship in the House of God, it is nothing but whistling and clapping and garbling. They should then be punished for their ungodliness. The unbelievers spend of their wealth for the purpose of hindering men from the path of God. Their expenditure is wasted and will bring about their own ruin. For it is to Hell that they shall finally be assigned [Qur'an, 8:34-36]. During these six years many other verses were revealed centering on the Mosque of Makkah which God had declared to be a place of repentance and of security for mankind. But the Quraysh never saw in Muhammad and his companions who turned their backs on the idols of that house-namely, Hubal, Isaf, Na'ilah and the others-anything but men who ought to be fought and combatted and denied the privilege of pilgrimage to the Ka'bah until they repented and returned to the gods of their ancestors.

Muslim Yearning for Makkah

During the whole time the Muslims were kept from fulfilling their religious duty, they suffered deeply. The Muhajirun especially felt this privation more strongly as it was combined with banishment from their own hometown and people. All the Muslims, however, were convinced that God would soon give victory to His Prophet and to them and would raise Islam high above all other religions. They firmly believed that the day would soon come when God would unlock for them the gates of Makkah that they might perform their pilgrimage to the ancient house and thus fulfill the duty which God had imposed upon all men. If so far the years had passed one after another with frequent campaigns and battles, beginning with Badr, Uhud, the Ditch and others, so too the day of victory which they believed to be necessary must soon come. How strong was their longing for this day! And how intensely did Muhammad himself share their very faith in the proximity of that day of victory!

The Arabs and the Ka'bah

The truth is that the Quraysh had done a great injustice to Muhammad and his companions by forbidding them to `visit the Ka'bah and to perform the duties of pilgrimage and 'umrah. [Pilgrimage to the Sanctuary of Makkah at a time other than that prescribed for it by custom and the Qur'an. -Tr.] The ancient sanctuary of Makkah was not a property of the Quraysh but of all the Arabs together. The Quraysh enjoyed only the services attached to the Ka'bah such as the sidanah, siqayah, and other functions pertinent to the sanctuary or to the care for its visitors. The fact that one tribe worshiped one idol rather than another never permitted the Quraysh to forbid any tribe from visiting the Ka'bah, from circumambulating it, or from filling any religious duties or acts of worship demanded by the tribe's loyalty to that god. If Muhammad came to call men to repudiate idol worship, to purify themselves from paganism and associationism, to raise themselves to the worship of God alone, devoid of associates, to conduct themselves for the sake of God in a manner free of all moral flaws, to elevate their spirit to consciousness of the unity of being and the unity of God, and if the new faith imposed on its adherents the duty of pilgrimage and 'umrah to the sanctuary of Makkah, it would be sheer aggression and injustice to prevent the followers of that faith from fulfilling their religious duty. The Quraysh, however, feared that were Muhammad and his Makkan companions to visit Makkah, they might persuade the majority to follow them, especially since they were related to the Makkans with bonds of blood and family and had been separated from them long enough to arouse in them the strongest longing. Such a development would start a civil war in Makkah which the Quraysh wanted to avoid. Moreover, Makkan leaders and noblemen had not forgotten that Muhammad and his companions had destroyed their faith, cut off their trade route to al Sham, and antagonized them so deeply that no common loyalty to the sanctuary and no common feeling that it belonged to God and to all the Arabs could compose their differences. The Quraysh could not be convinced that their relationship to the house was merely one of taking care of it and of its visitors.

The Muslims and the Ka'bah

Six whole years had passed since the Hijrah, during which the Muslims longed to visit the Ka'bah and perform the pilgrimage and `umrah. One day, while they congregated in the mosque in the morning, the Prophet informed them of a vision he had seen that they should enter the holy sanctuary of Makkah secure, shaven, and unarmed, and without fear for their safety. As soon as the Muslims heard of the news, they praised God for His grace and spread the tidings all over Madinah. No one, however, could imagine how this was going to be accomplished. Would they fight and enter Makkah after battle? Would they force the evacuation of Quraysh and pull down its guardianship of the Ka'bah? Or would Quraysh open the road to them in humiliation and acquiescence?

Muhammad's Proclamation Concerning Pilgrimage

No! There was to be neither war nor fighting. Muhammad proclaimed to the people that pilgrimage to Makkah would take place in the holy month of Dhu al Qi'dah. He had sent his messengers to the tribes, whether Muslim or otherwise, inviting them to participate with the Muslims in a visit to the sanctuary of God in security and peace. Apparently, he sought to make the group performing the pilgrimage the largest possible. His objective was to let the whole Peninsula know that this expedition of his during the holy month was intended purely for pilgrimage and not for conquest, as well as to proclaim the fact that Islam had imposed pilgrimage to Makkah just as preIslamic Arab religion had done and, finally, that he had actually invited even the Arabs who were not Muslims to join in the performance of this sacred duty. If, despite all this, the Quraysh insisted on fighting him during the holy month and preventing him from the performance of a duty commonly held by all Arabs regardless of their personal faith, the Quraysh would surely find themselves isolated and condemned by all. In that eventuality, the Quraysh would find the Arabs unwilling to help them in fighting the Muslims. In the eyes of all the tribes, the Quraysh would have indicted themselves. They would have to appear as stopping men from visiting the sanctuary, as combating the religion of Isma'il and of his father, Ibrahim. By this means, the Muslims would guarantee that the Arab tribes would not rally against them under Makkan leadership as they did hitherto in the campaign of the Ditch, and their religion would itself gain some credit among the tribes who had not yet been converted to it. What would the Quraysh say to a people who came to their doors armless except for their undrawn swords, and in a state of ritualistic purity, accompanied by the cattle which they planned to sacrifice near the Ka'bah and whose every care was simply to circumambulate the House, the duty common to all the tribes of the Peninsula?

Muhammad publicly proclaimed that the pilgrimage had started and asked the tribes, including the non-Muslim, to accompany him on that holy mission. Some of the tribes rejected his invitation and others accepted. His procession set forth on the first of Dhu al Qi'dah, one of the holy months; and it included al Muhajirun, al Ansar, and a number of other tribes. He led the procession riding on his she-camel, al Qaswa'. Their total number was about one thousand four hundred men. They took with them seventy camels and donned the garb demanded by the ritual of `umrah that the people might know that this was no military campaign but a pilgrimage to the holy sanctuary and a fulfillment of religious duty. When he reached Dhu al Hulayfah, the pilgrims shaved their heads, purified themselves as the ritual demanded, and isolated their sacrificial cattle by placing them to their left. The sacrificial cattle included the camels of Abu Jahl which were seized in the Battle of Badr. No man in the whole group carried any arms except the undrawn sword usually worn by all travelers. Umm Salamah, the wife of the Prophet, accompanied him on this trip.

Quraysh and Muslim Pilgrimage

When the Quraysh learned that Muhammad and his companions were approaching Makkah for purposes of pilgrimage, they were filled with fear and pondered whether or not Muhammad was now playing a war game against them in order to enter Makkah after they and their allies had failed to enter Madinah. Their fear was not dissipated when they learned that the pilgrims had actually donned the ritual garb demanded by 'umrah, nor by Muslim proclamation across the Peninsula that they were coming solely to fulfill a religious duty approved and accepted by all the Arabs. None of this prevented them from resolving to stop Muhammad from entering Makkah at whatever cost. Quickly, they mobilized an army, including a cavalry force of two hundred. They gave the command to Khalid ibn al Walid and 'Ikrimah ibn Abu Jahl. This army advanced to Dhu Tuwa and took up position to prevent the Muslims' religious march to Makkah.


Muhammad and the Muslims continued their march. At 'Usfan, they met a tribesman of Banu Ka'b whom the Prophet questioned regarding the Quraysh. The man answered: "They heard about your march; so they marched too. But they wore their tiger skins, their traditional war apparel, pledging that they will never let you enter Makkah. Their general, Khalid ibn al Walid, set up camp for his cavalry at Kara' al Ghamim." Upon learning this, Muhammad said: "Woe to Quraysh ! Their hostility is undoing them. Why should they object to letting me settle this affair with all the tribes without intervention? If the Arab tribes destroy me, that will be the realization of their objective. If, on the other hand, God gives me victory, then they can enter into Islam with dignity; and if they resist, they can then fight with good cause. What does the Quraysh think? By God, I shall continue to serve that for which God has commissioned me until the divine message has become supreme or I lose my neck in the process." Pondering over the issue, he thought that, whereas he did not come thither as a conquerer but as a Muslim pilgrim seeking the sanctuary as a religious duty, he might be compelled to fight and perhaps lose unless he should take the precaution of arming his people. Should he lose in such an engagement, the Quraysh would parade their victory throughout the Peninsula and thus deal a tragic blow to the Muslim position. Indeed, it is perhaps for that reason that the Quraysh delegated the command of their army to Khalid ibn al Walid and 'Ikrimah, their most illustrious generals, that they might attain this very objective, knowing that Muhammad was not prepared to fight on this occasion.

Muhammad's Caution to Safeguard the Peace

While Muhammad pondered these issues, Makkan cavalry was looming on the horizon. The presence of the enemy prepared for war showed the Muslims that it was impossible for them to reach their objective without going through these lines and engaging in a battle in which the Quraysh had come prepared to repulse the threat to their dignity, honor, and homeland. Such would have been a battle undesired and uncalled for by Muhammad and forced upon him. The Muslims were not afraid of battle. With the high morale they enjoyed, their swords alone would be sufficient to stop this new aggression of the Makkans. But if they did fight the Makkans, the peaceful purpose of the whole affair would not be realized. On the contrary, the Quraysh would use such fighting as proof of Muhammad's guilt before the tribes. Muhammad was too farsighted to allow such a course to be followed. He therefore asked his party to find someone who could show them a road to Makkah other than the main one which was blocked by the Quraysh. Apparently, he was still of the same mind as before he started out from Madinah. A man was found to lead the procession by a different route which was yet more desolate and full of hardships. That road led them to a valley at the end of which a turn by al Murar brought them to the locality of al Hudaybiyah, south of Makkah. When the Quraysh discovered the movement of Muhammad and his companions, they returned quickly to Makkah in order to defend it against what they thought to be a Muslim invasion from the south. Upon arrival at the plain of al Hudaybiyah, al Qaswa', she-camel of the Prophet, stopped. The Muslims thought the she-camel was exhausted; but the Prophet explained that it was stopped by the same power which stopped the elephant from entering Makkah. He continued, "If only the Quraysh would ask us for guarantees of Muslim intentions based upon our blood relationship to them, we should be happy to give them the same." He then called upon the Muslims to encamp. When they complained that the place was waterless, he sent a man with a stick to one of the wells of the area and asked him to verify the existence of water. When the man plunged his stick into the bottom of the well, water sprang up; the people felt reassured, and they put up camp.

Quraysh's Delegates to the Muslims

The Muslims encamped and the Quraysh observed their moves. The Makkans had resolved to prevent the Muslims by force from entering their city. To them, this was a clear and final commitment. The Muslims, on the other hand, did not know whether or not they were heading for an all-out war with the Quraysh which would decide the matter between them once and for all. Undoubtedly, some people on both sides preferred a settlement by the sword. The Muslims who approved of this course thought their victory would bring about a final destruction of the Quraysh. The Quraysh's reputation throughout the Peninsula as well as their sidanah and Siqayah functions in pilgrimage-indeed, their pride and religious distinction-would be eliminated. The two camps were poised seeking an answer. Muhammad did not change his original plan to perform the `umrah in peace and to avoid war unless attacked. In case of attack, there would be no escape from recourse to the sword. As for the Quraysh, while hesitant, they decided to send some delegates to the Muslim camp, partly to reconnoiter Muslim strength and partly to dissuade Muhammad from executing his plan. For this purpose, Budayl ibn Warqa' arrived at the Muslim camp, together with some tribesmen from Khuza`ah. Inquiry into Muhammad's objectives convinced them that he did not come to fight but to honor the sanctuary and pay to it the homage due. The delegation returned to the Quraysh and counseled that the Muslims be permitted to fulfill their religious wish. The Quraysh, however, remained unconvinced. Indeed, they accused their own delegates of conniving with Muhammad. They argued that even though Muhammad might not have come to make war, he should not be allowed to enter Makkah against their will and with such preponderant numbers. Otherwise, the Quraysh would become the mockery of Arabia. In order to make sure that their first delegates told them the truth, the Quraysh sent another delegation which returned with exactly the same reports, which the Quraysh now believed. The Quraysh were depending for their war against Muhammad upon their Ahabish allies. [A group of strong bowmen from Arabia-i.e. Abyssinians-so called for their dark complexion. Another possible explanation for their name is that it refers to Hubshi, a mountain south of Makkah.] They thought of sending the Ahabish leader to talk to Muhammad with the hope that the two leaders would misunderstand each other and the Quraysh ally would become increasingly committed to fight on Makkah's side against Muhammad. A1 Hulays, as the leader of the Ahabish was called, went to the Muslim camp to see for himself. When the Prophet saw him arriving, he ordered the sacrificial cattle paraded in front of him as material proof of Muslim intention to perform the pilgrimage and to honor the sanctuary. A1 Hulays saw the seventy sacrificial camels shaved and readied for sacrifice and was moved by the view of this display of Arab religiosity. He soon became convinced that the Quraysh were doing an injustice to those people who had come neither for war nor for hostility. Without bothering to meet Muhammad and converse with him, he returned to Makkah and told the Quraysh of his opinion. Full of resentment, the Quraysh slighted al Hulays as a Bedouin and neglected his advice as that of one uninstructed. Al Hulays was naturally angered, and he threatened them that he had not allied himself with them in order to stop pilgrims from performing their religious duties. He even threatened that unless they allowed Muhammad and his party into the sanctuary, he would remove himself and his tribe from Makkah. The Quraysh feared the consequences of such a move and begged him to give them time to reconsider.

The Delegation of `Urwah ibn Mas'ud al Thaqafi

The Quraysh then thought of sending somebody whom they could trust and whose judgment stood beyond suspicion. They approached `Urwah ibn Mas'ud al Thaqafi and apologized to him for having slighted the delegate whom they had sent before him to negotiate with Muhammad. When they assured him of their respect and pledged their compliance with his advice, he agreed to meet with Muhammad. He proposed to the latter that since Makkah was his own hometown whose honor it was his duty to safeguard, it would be opprobrious for him to prefer the commonplace people he brought with him to the noblemen of Quraysh who were none other than his own people. `Urwah stressed the point that such opprobrium would attach to Muhammad as well as to the Quraysh even though the two had been at war with each other. On hearing this, Abu Bakr objected loudly to `Urwah's request that the Prophet of God separate himself from the people. While talking to Muhammad, `Urwah touched Muhammad's beard in supplication, and al Mughirah ibn Shu'bah, standing on the side of the Prophet, struck the hand of `Urwah every time it was stretched toward Muhammad's beard despite the fact that `Urwah had ransomed al Mughirah by paying the bloodwit of the thirteen men whom all Mughirah had killed prior to his conversion to Islam. Accordingly, `Urwah returned to Makkah after convincing himself that Muhammad had not come to wage war but to honor the holy sanctuary in fulfillment of a divine imperative. Upon return to the Quraysh, he said to them: "O Men of Quraysh, I have visited Chosroes, Caesar, and the Negus in their respective courts. By God, I have never seen a king attaching himself to his people as Muhammad does. His companions love him and honor him and revere him so much that they carefully lift every hair that falls off his body, and they save the water with which he performs his ablutions. They will never allow any hand to fall on him. Judge then accordingly."

Muhammad's Delegation to Quraysh

In this way, negotiations between Muhammad and the Quraysh lasted a long time. Muhammad wondered whether or not the delegates of Quraysh had enough courage and initiative to convince the Quraysh with the facts which they had noted. He therefore sent a delegate from his own camp to inform the Quraysh of the Muslim view. The Makkans slew the camel of Muhammad's delegate and were about to kill him when the Ahabish intervened and let him go free. This conduct of the Makkans only confirmed their hostile spirit and, consequently, the Muslims began to lose patience and think of fighting their way through. While still considering what to do, some plebeians from Makkah went out under the cover of night to throw stones at the tents of the Muslims. The latter sent out forty or fifty men who encircled the attackers, captured them and brought them to the Prophet for judgment. To the surprise of everyone, Muhammad forgave the attackers and allowed them to go free in accordance with his general plan for peace and in deference to the holy month in which no blood was to be shed in al Hudaybiyah, an area falling within the holy ground of Makkah. The Quraysh for their part were stupefied by this conduct of Muhammad and lost every argument they had that Muhammad wanted war. It had become absolutely certain that any attack on the part of the Quraysh against Muhammad would be regarded by all Arabs as a sneaking, treacherous act of aggression which Muhammad would be perfectly entitled to repel with all power at his disposal.

The Prophet of God-May God's blessing be upon him-tested the patience of the Quraysh once more by sending a delegate from his camp to negotiate with them. He called 'Umar ibn al Khattab for the job of conveying his message to the noblemen of Quraysh. 'Umar, however, pleaded with the Prophet of God that since none of his people, the Banu 'Adiyy ibn Ka'b, were left in Quraysh, he would be unprotected prey for them to pounce upon in revenge for his many offenses against them. He counselled the Prophet to send another man, 'Uthman ibn 'Affan, who was far more protected among the Quraysh than he. The Prophet called 'Uthman ibn 'Affan, his son-in-law, and sent him to Abu Sufyan and the noblemen of Quraysh. 'Uthman proceeded to Makkah, and on its outskirts was met by Aban ibn Said who extended to him his protection for the duration of time that it would take him to convey his message. 'Uthman approached the noblemen of Quraysh and handed over the Prophet's message. They suggested to him that he might circumambulate the sanctuary if he wished. But he declined, saying, "I shall never do so until the Prophet of God had done so himself." He continued to insist that the Muslims had come to Makkah simply in order to visit the holy shrine and to glorify it and to perform the religious duty of pilgrimage. He pointed out that the Muslims had brought with them their sacrificial animals and pleaded that if they were allowed to sacrifice them, they would return in peace. The Quraysh pleaded that they had already sworn defiantly that Muhammad would not be allowed to enter Makkah this year. The negotiations lasted a long time during which 'Uthman was forced to stay in Makkah. Soon the Muslims began to suspect that he had been treacherously put to death. Perhaps during this time the noblemen of Quraysh were busy conversing with 'Uthman in an attempt to find a common form in which their pledge not to allow Muhammad to enter Makkah this year, and the Muslim's desire to visit the Holy House and to fulfill their religious duty, could be composed. Perhaps, too, they appreciated 'Uthman's frankness and sincerity and were seriously engaged in discussing with him how best to reorganize the relations with Muhammad in the future.

The Covenant of al Ridwan

Whatever the reason, 'Uthman's failure to return quickly caused the Muslims at Hudaybiyah no little anxiety. They began to give vent to their imagination by picturing the Quraysh treacherously attacking them in the holy month despite the sanctity of the occasion and of the purpose for which they came. They feared that the Quraysh would violate the religious conscience of all Arabia with impudence, even within the holy sanctuary or on the holy grounds of Makkah. With tension rising in the Muslim camp, and everybody reaching for his sword, Muhammad assured them that he would not allow them to return without challenging their enemies. He called his companions to him under a large tree in the middle of that valley, and there they covenanted with him to fight to the last man. Their faith was certain, their conviction was strong, and their will was determined to avenge the blood of `Uthman whom they thought the Quraysh had murdered in Makkah. This covenant was called the Covenant of al Ridwan ; and in its regard, the following verse was revealed: "God is pleased with the believers who have covenanted with you under the tree. God knows what is in their hearts and, therefore, He has granted them His peace and will soon give them great victory. [Qur'an, 48:18], When the Muslims concluded their covenant, Muhammad-May God's peace and blessing be upon him-pledged the same covenant on behalf of `Uthman, and the latter was regarded as if he were present. Thereupon, swords shook in their scabbards and the Muslims realized that war was now inevitable. Everybody looked forward to the day of victory or martyrdom with a mind convinced and satisfied, and a heart reassured and at peace. While in this state, the news reached them that `Uthman had not been murdered, and soon the man himself returned safe and sound. The Covenant of al Ridwan, however, like the great Covenant of al `Aqabah, remained a great landmark in Muslim history. Muhammad was particularly pleased with this covenant for the evidence it furnished of the strength of the bonds which tied him and his companions together, and for the readiness of the Muslims to face the greatest dangers without fear. For whoever is willing to face death will find that death itself shies away from him, life itself surrenders to him, and victory is always his own to reach.

The Quraysh's Response

Upon return, `Uthman conveyed to Muhammad the message of the Quraysh. They entertained no more doubt that the Muslims had come to Makkah for anything but the religious purpose of pilgrimage to the Holy House, and they realized that they had no right to prevent any Arab from performing his pilgrimage or `umrah during the holy month. Nonetheless, they had mobilized their army under the leadership of Khalid ibn al Walid to prevent Muhammad and his companions from entering Makkah, and some skirmishes had taken place between the two parties. After all this had happened, to let Muhammad enter Makkah would allow the tribes to conclude that the Quraysh had been defeated and, as a result, their position in the Peninsula would suffer greatly. Therefore, the Quraysh argued, they must insist on maintaining this decision of theirs in order to preserve their reputation and prestige. They invited Muhammad to think out with them both his and their position that together they might find an outlet from this difficulty. By themselves they saw no escape from a war which they would have to wage whether they wanted to or not. Rather, they wished they might not have to fight during the holy months because of their religious sanctity and out of fear that should those months be violated, then the tribes would never feel secure that they would not be violated again in the future. The result of a present conflict would be that the security of passage to Makkah and to its market, of the religious rites and of the prosperity of the Makkans and Arabs alike would all go aground.


Another round of negotiations between the two parties followed. The Quraysh sent Suhayl ibn `Amr to reconcile Muhammad and to ask him to return for the same purpose the following year. They argued that in such an arrangement the tribes would not claim that Muhammad had entered Makkah in defiance of the Quraysh. Suhayl began his negotiations with the Prophet, and these lasted a long time during which they were interrupted and resumed again by both parties, anxious as they were for the negotiations to succeed. In the Muslim camp the Muslims listened in on these negotiations and often lost patience at their involvement and length, the obstinacy with which Suhayl refused to make any concessions, and the leniency with which the Prophet made his. Were it not for the absolute conf dence the Muslims had in their Prophet, they would have never accepted the terms reached by those negotiations. They would have fought with the Makkans and either entered Makkah victorious or perished in the process. Even such a great man as `Umar ibn al Khattab lost patience and said to Abu Bakr, "O Abu Bakr, isn't Muhammad the Prophet of God and aren't we Muslims?" Abu Bakr answered in the affirmative. 'Umar then said, "Why then should we give in to the unbelievers in a matter vital to our faith?" Abu Bakr replied, "O 'Umar, do not trespass one inch where you ought not to go. Remember that I witness that our leader is the Prophet of God." Angrily, 'Umar acquiesced by replying: "I, too, witness that our leader is the Prophet of God."

Conclusion of the Treaty (March, 628 C.E.)

'Umar turned to Muhammad and complained to him with the same anger and resentment, but could not alter the Prophet's determination and patience. Their talk was concluded with the Prophet's statement that he was the servant of God and His Prophet and that he would not deviate from the divine commandment nor entertain any doubt of divine support. So patient was Muhammad in these negotiations that many Muslims remembered anecdotes which speak most eloquently to this effect. It is reported, for instance; that Muhammad called 'Ali ibn Abu Talib and said to him: "Write, 'In the name of God, the Merciful, the Compassionate.'" Suhayl, the non-Muslim delegate of Quraysh interrupted. "Stop," he said, "I do not know either 'the Merciful' or 'the Compassionate.' Write, 'In your name, 0 God.'" The Prophet of God instructed 'Ali to write accordingly and continued: "Write, 'Following is the text of a pact reached by Muhammad, the Prophet of God and Suhayl ibn 'Amr.' " Suhayl again interrupted. "Stop it. If I accepted you as a Prophet of God I would not have been hostile to you. You should write only your name and the name of your father." The Prophet of God instructed 'Ali to write accordingly, referring to himself as Muhammad ibn 'Abdullah. The text of the treaty was redacted and agreed upon. In the opinion of most biographers, the treaty specified that the peace was to last for ten years. According to al Waqidi, the peace was stipulated for only two years. The pact also specified that any person from Quraysh emigrating to Muhammad's camp without permission from his guardian would have to be returned to Makkah, whereas any Muslim emigrating from Muhammad's camp to Makkah would not have to be returned. It also specified that any tribe was free to ally itself to Muhammad without incurring any guilt or censure from Quraysh, and likewise, any tribe seeking an alliance with Quraysh could do so without let or hindrance from the Muslims. The pact stipulated that Muhammad and his companions would leave the area of Makkah that year without fulfilling their religious function but that they might return the next year, enter the city and stay therein three days for this purpose while carrying no more than swords in their scabbards.

Promulgation of the Treaty

As soon as this pact was solemnly concluded by the parties concerned, the tribe of Khuza`ah entered into an alliance with Muhammad and that of Band Bakr with Quraysh. Soon after, Abu Jandal ibn Suhayl ibn 'Amr left Makkah forever and came to the Muslim camp seeking to join the Muslims. When Suhayl, the delegate of Quraysh to the Muslim camp, saw his son change loyalties in his presence, he struck him in the face and pulled him by the hair to return to the Quraysh. Abu Jandal was calling upon the Muslims to save him from the fate of being returned to the unbelievers who would persecute him for his faith. This greatly increased the Muslims' resentment and their dissatisfaction with the pact the Prophet had just concluded with Suhayl. But Muhammad spoke to Abu Jandal. "0 Abu Jandal," he said, "have patience and be disciplined; for God will soon provide for you and your other persecuted colleagues a way out of your suffering. We have entered with the Quraysh into a treaty of peace and we have exchanged with them a solemn pledge that none will cheat the other." Abu Jandal returned to Quraysh in compliance with the demand of this treaty and Suhayl returned to Makkah. Muhammad, too, was disconcerted with the resentment and dissatisfaction of the Muslims around him. After reciting his prayers he felt reassured, sought his sacrificial animal, and slaughtered it. Then, he sat down and shaved his head, thus declaring the `umrah, or lesser pilgrimage, complete. His soul was satisfied and his heart full of contentment, as if the peace of God had come upon him. When the people saw what he did and observed the peace of soul shining through his face, they began to slaughter their animals and to shave off their hair. Some of them shaved off their hair completely and others only in part. Muhammad said, "God Bless those who shaved their heads." The people asked him about those who only cut their hair short, and Muhammad repeated his blessing for the benefit of those who shaved their heads. After the people asked him three times and he repeated the same blessing three times, he was asked: "Why, 0 Prophet of God, do you exclude those who cut off their hair short from your blessing?" He answered, "Because the shavers did not doubt, whereas the others did." [It was customary for the pilgrim in pre-Islamic Arabia to shave his head as evidence of desacralization after a complete performance of the religious function of pilgrimage. When the performance of the religious function had been interrupted or any one of its rituals for some reason missed, the pilgrim would only cut his hair short rather than shave it. He thereby gave evidence of his awareness that his religious function had not been completely fulfilled and of the need to repeat the same function in the following season. -Tr.]

The Treaty of Hudaybiyah: A Genuine Victor

Nothing remained for the Muslims to do except to return to Madinah and there await the arrival of the coming season for another trip to Makkah, Most of them accepted this idea grudgingly, and consoled themselves purely on the grounds that the unwelcome compliance therewith was only the command of the Prophet himself. They were not accustomed to acquiesce in a defeat or to surrender without a fight. Moreover, in their faith in God and in the timely assistance that God would grant to His Prophet, his religion and themselves, they could entertain no shadow of a doubt of their ability to storm Makkah if only Muhammad had commanded it. They stayed in al Hudaybiyah a few days questioning one another regarding the wisdom of this pact which the Prophet had concluded. Some of them were inclined to doubt its wisdom. But they bore in patience and then returned home. On their way home between Makkah and Madinah, the surah "al Fath" was revealed to the Prophet, and he recited it to his companions.

"We have granted to you a clear victory that God may forgive you your past and future shortcomings, grant you His blessings, and guide you to the straight path." [Qur'an, 48:1-30]

There was hence no reason to doubt that the Hudaybiyah Treaty was a victory for the Muslims. History has shown that this pact was the product of profound political wisdom and farsightedness and that it brought about consequences of great advantage to Islam and indeed to Arabia as a whole. It was the first time that Quraysh acknowledged that Muhammad was an equal rather than a mere rebel and runaway tribesman. It was the first time that Makkah acknowledged the Islamic state that was rising in Arabia. Makkan acquiescence in the right of the Muslims to visit the sanctuary and to perform the pilgrimage was equally a recognition on her part that Islam was an established and approved religion in the Peninsula. Furthermore, the peace of the following two or ten years gave the Muslims the peace and security they needed on their southern flank without fear of an invasion from Quraysh. The peace also contributed to the spread of Islam. Even Quraysh, the most determined enemy of Islam and its greatest antagonist, had by this pact come to recognize Islam and its community, and to acquiesce in that in which it had never acquiesced before. Indeed, Islam spread after this treaty more widely and quickly than it had ever spread before. While those who accompanied Muhammad to Hudaybiyah counted one thousand and four hundred, those who accompanied him on his conquest of Makkah two years later counted well over ten thousand. The greatest objection to those who doubted the wisdom of the Hudaybiyah pact was directed to the provision that any Quraysh member joining the Muslims without the permission of his guardian would have to be returned to Quraysh, and that any apostate from Islam would not have to be returned to Madinah. Muhammad's opinion in this matter centered on the consideration that the apostate from Islam who seeks the shelter of Quraysh is not really worthy of readmission to the Muslim community; that for the convert who wished to join that community but who was not allowed to at present, God would soon find an outlet. Events have confirmed this judgment of Muhammad far more quickly than his companions anticipated, and given evidence that Islam had actually drawn great advantages. Indeed, the treaty even made it possible two months later for Muhammad to begin to address himself to the kings and chiefs of foreign states and invite them to join Islam.

The Story of Abu Basir

Events succeeded one another very rapidly, all of which confirmed Muhammad's judgment and wisdom. Abu Basir became a Muslim and escaped from Makkah to Madinah. Obviously, the provisions of the Hudaybiyah Treaty applied to him and demanded his return to the Quraysh, for he had not obtained the permission of his master. Azhar ibn `Awf and al Akhnas ibn Shariq wrote to the Prophet to this effect and sent their letter with a tribesman of Banu `Amir and a slave of theirs. When the demand was made, the Prophet called Abu Basir and said to him: "We have covenanted with the Quraysh to honor the Treaty of Hudaybiyah which you well know. In our religion, we are not permitted to cheat. You should therefore return to your people. God will grant to you and to the other persecuted Muslims a means of emancipation in His good time." Abu Basir objected to the Prophet that the unbelievers would force him to apostatize. The Prophet, however, repeated the same judgment to him. Abu Basir had, therefore, to give himself up to the two messengers and accompany them back to Makkah. Once they arrived at Dhu al Hulayfah, Abu Basir asked the Banu `Amir tribesman to show him his sword, and as soon as he laid his hand upon it, he struck the tribesman with it and killed him. The Makkan slave ran toward Madinalf and into the Prophet's presence with obvious signs of fear and panic on his face. When interrogated, the slave told the Prophet that Abu Basir had killed his master. Soon, Abu Basir himself arrived brandishing his sword and addressing Muhammad: "0 Prophet of God, you have fulfilled your duty under the Treaty and God has relieved you of your obligation, for you have in fact surrendered me to my people as the treaty prescribed. But I was not willing to allow myself to be persecuted, enticed away, or forced to abjure my religion." The Prophet did not hide his admiration for him and wished that he had many companions. Later on, Abu Basir went to al `Is on the sea coast, on the road which the Quraysh followed to al Sham and which the Treaty of Hudaybiyah prescribed to keep open for Makkan trade. When his story and that of Muhammad's admiration of him reached Makkah, the Muslims still residing there were elated, and about seventy of them ran away to al `Is to follow him as their chief. Abu Basir and his companions began to cut off the trade route on their own initiative, killing any unbeliever they caught and seizing any camels belonging to Quraysh. Only then did it dawn on the Quraysh what a loss they had incurred by insisting as they did on keeping their Muslim members or slaves in forced residence in Makkah. They realized that the man who is truly committed to Islam was a greater handicap to them than the loss of him altogether to the Muslim camp. Such a man would escape at the first opportunity without entering into the camp of Muhammad and, hence, without becoming an outlaw under the prescriptions of the Hudaybiyah Treaty. He would then wage a terrible war against the Makkans in which the Makkans had everything to lose and nothing to gain. Remembering too well that Muhammad had cut off the caravan road after his emigration to Madinah, the Quraysh feared that Abu Basir would do likewise. They therefore wrote to the Prophet asking him, in violation of the Hudaybiyah Treaty, to accept their fugitives into his camp, in order to keep the caravan route open. In the consequent negotiation, the Quraysh relinquished the privilege emphasized by Suhayl ibn'Amr so strongly, namely, that the Muslims of Quraysh who escape therefrom without approval of their masters or guardians be returned to Quraysh. Thus, the concession criticized by 'Umar ibn al Khattab and for the sake of which he revolted against Abu Bakr was dropped by request of the Quraysh. Muhammad then invited all the Muslims to enter Madinah, and the caravan route to al Sham became once more secure.

Muslim Women Emigrants

As for the Muslim women of Quraysh who escaped to Madinah, Muhammad had a different opinion. Umm Kulthum, daughter of 'Uqbah ibn abu Mu'ayt, escaped from Makkah to Madinah after the Hudaybiyah Treaty, and her two brothers 'Umarah and al Walid came to the Prophet demanding her return under terms of the Treaty. The Prophet refused, judging that the treaty did not apply to women and that if women called for assistance and shelter, their request could not be turned down. Furthermore, when a woman becomes a Muslim, she is no more legally tied to her husband who is an unbeliever. Dissolution of the bond of marriage is then automatic. On this point, the revelation is clear: "O Men who believe, if the women believers come to you for shelter, examine them, remembering that God knows the nature of their faith better than anyone. If you find them to be true believers, do not return them to the polytheists to whom they are no longer legitimate. Return to them that which they have spent and marry them if you wish; for there is no blame upon you if you do so, provided you give them their dowries. Do not hold to your matrimonial ties with women unbelievers, but ask them to return what you have spent and return to them what they have spent and separate yourselves from each other. That is the judgment of God and He wishes to see it observed among you. God is All-Knowing and All-Wise." [Qur'an, 60:10] Thus events confirmed Muhammad's wisdom, foresight, and deep political insight. History has indeed proved that the Treaty of al Hudaybiyah actually laid down a very important foundation for Islam's political career as well as for its spread throughout the world. That is the meaning of the clear victory God had promised.

Relations between Quraysh and Muhammad became quite peaceful and settled after the Treaty of al Hudaybiyah. Both parties felt secure. The Quraysh embarked on enlarging trade, hoping to recapture the losses which had resulted from the war with the Muslims in which the road to al Sham was cut. As for Muhammad, he embarked on a wider policy of mission, seeking to bring his message to all men in all corners of the earth and to lay down the foundations for the happiness and success of the Muslims throughout the Peninsula now that their security was guaranteed. Both these considerations enabled him to send his messengers to the kings in the surrounding empires and, especially after the Battle of Khaybar, to expel the Jews from the Arabian Peninsula altogether.