Navigation – Plan du site

AccueilNuméros38Éditions & traductionsAl-Muḫtaṣar of al-Ḫiraqī (d. 334/...

Éditions & traductions

Al-Muḫtaṣar of al-Ḫiraqī (d. 334/945–946)

Introduction and Translation
Christopher Melchert
p. 107-268

Résumés

Abū al-Qāsim al-Ḫiraqī (m. à Damas en 334/945-946) est un jurisconsulte de Bagdad, dont le compendium al-Muḫtaṣar pose les règles de base de l’école hanbalite, de la pureté rituelle à l’affranchissement des esclaves. Des compendiums similaires avaient déjà vu le jour dans les écoles malékite, shaféite et hanafite. Celui d’al-Ḫiraqī semble tout particulièrement suivre le schéma du compendium d’al-Muzanī. Cependant, alors qu’al-Muzanī commente systématiquement les règles édictées par son maître al-Šāfiʿī, al-Ḫiraqī s’efface, à l’instar des auteurs ultérieurs de compendiums. Son Muḫtaṣar a fait l’objet de commentaires durant tout le Moyen Âge. Quelle que soit la règle qu’il édicte, elle peut toujours être considérée comme étant une version de l’opinion de Aḥmad ibn Ḥanbal. Cependant, les commentaires indiquent que plusieurs versions données sont en lien avec beaucoup plus de questions que celles citées. Ceci veut dire que ce compendium ne donne pas une représentation complète des opinions de cette école ancienne.

Haut de page

Plan

Haut de page

Texte intégral

  • 1 The principal biography is al-Ḫaṭīb al-Baġdādī, Tārīḫ, vol. 13, pp. 87–88, to be supplemented as to (...)
  • 2 Here and in the text to come, page numbers in roman indicate the Egyptian edition, in italics the Š (...)

1Abū al-Qāsim ʿUmar ibn al-Ḥusayn ibn ʿAbd Allāh al-Ḫiraqī (d. Damascus, 334/945–946) was a Baghdadi jurisprudent of the nascent Hanbali school.1 He is said to have learnt Hanbali law from his father, whom he occasionally quotes in the Muḫtaṣar (e.g., pp. 146 213 311).2 His father was in turn a disciple to Abū Bakr al-Marrūḏī (d. Baghdad, 275/888), said to have been nominated by Aḥmad ibn Ḥanbal (d. Baghdad, 241/855) himself as his successor when it came to answering juridical questions. He is said to have written a number of books, but only the Muḫtaṣar (epitome) has survived, since the house burned down in which he had left the rest of his manuscripts when he transferred from Baghdad to Damascus.

  • 3 Al-Ḫaṭīb al-Baġdādī, Tārīḫ, vol. 13, p. 87.
  • 4 Ibn al-Ǧawzī, Muntaẓam, vol. 13, pp. 316–317, vol. 14, pp. 5, 27. On Ḥanbali-Shiʿi strife, see for (...)
  • 5 Ibn Qudāma, Muġnī, vol. 1, p. 7.

2The Muḫtaṣar probably alludes to the removal of the Black Stone from one corner of the Kaʿba (pp. 57 72 159), indicating that it was written after 317/930, when Qarmati raiders carried the Stone to Bahrein. “He left Baghdad when insulting the Companions became manifest.”3 This must be an allusion to Shiʿism, which from the Sunni point of view rested on insulting the Companions, since they had endorsed three other successors to the Prophet before the Shiʿi candidate, ʿAlī. Baghdad was taken over by the armies of the Shiʿi Buyads in 334/945, the last year of al-Ḫiraqī’s life. In Baghdad, however, there had been rioting over the cursing of Muʿāwiya from the mimbar already in 321/933, in association with which the activist Hanbali leader al-Barbahārī went into hiding for the first time to escape arrest. The Shiʿi Friday mosque of al-Barāā was restored with the caliph’s blessing in 329/941, the same year as al-Barbahārī’s death, once again in hiding. A great number of Baghdadi traders are said to have left with the pilgrims in 331/943 in order to transfer to Syria or Egypt and escape continual civil strife and the depredations of the ruler (sulṭān).4 Therefore, al-Ḫiraqī may have been living in Damascus for some time, even ten years or more, before he died there. Ibn Qudāma mentions a report that he died of a beating for having forbidden some wrong, alluding to the Muslim’s duty of al-amr bi-l-maʿrūf wa-l-nahy ʿan al-munkar, upholding right public behaviour by verbal injunction or active physical intervention.5

The Muḫtaṣar and the Hanbali tradition

  • 6 Makdisi, “Ṭabaqāt-Biography”.
  • 7 Brunschvig, “Polémiques médiévales”, esp. pp. 379–387; Schacht, Origins, esp. pt 2, chap. 3, “The c (...)

3George Makdisi identified three stages in the evolution of the familiar Sunni schools of law: a regional stage, when rival doctrines were associated especially with different metropoleis (in the first place Kufa, Basra, Medina, and Mecca, secondarily Syria and Egypt), a personal stage, when jurisprudents identified their doctrines with outstanding teachers of the past, and a guild stage, when the personal schools became institutions for certifying qualified jurisprudents.6 The regional stage was largely preliterary, but regional patterns of agreement and disagreement are evident in sources from the period of transition into personal schools.7

  • 8 See Brockopp, Early Mālikī Law, pp. 50–54.
  • 9 See Schacht, “The schools of law”, esp. pp. 63, 67; Schacht, “Sur quelques manuscrits”, esp. p. 274
  • 10 On al-Buwayṭī’s Muḫtaṣar, see El Shamsy, “The first Shāfiʿī”. The question mark after his date of d (...)
  • 11 Actually the shorter version of two, the long one no longer extant, for which see Ibn al-Nadīm, Fih (...)
  • 12 On al-Ṭaḥāwī’s Muḫtaṣar, see Tsafrir, “Abū Jaʿfar al-Ṭaḥāwī”. According to the editor, the one that (...)
  • 13 Ḥabašī, Ǧāmiʿ al-šurūḥ, vol. 3, pp. 1590–1542 (Ḫiraqī), pp. 1633–1638 (Muzanī), pp. 1621–1622 (Ṭaḥā (...)
  • 14 ʿAbd al-Qādir ibn Badrān, Madḫal, p. 221 = ed. al-Turkī, pp. 434–435.

4The characteristic literature of the personal school was the collection of authoritative opinions on all the main points of Islamic law as identified by the eponym. The earliest epitomes of Maliki opinions were short, medium, and long muḫtaṣars by Ibn ʿAbd al-Ḥakam (d. Old Cairo, 214/829), of which surviving manuscripts apparently preserve the small with additions and most but not all of the large.8 Historically more important was the muḫtaṣar of Abū Muṣʿab al-Zuhrī (d. Medina, 242/857?).9 The ninth-century Shafiʿi school was served by muḫtaṣars from al-Buwayṭī (d. Baghdad, 231/846?)10 and al-Muzanī (d. Old Cairo, 264/877?).11 The latter was subject to a long series of commentaries. The earliest Hanafi muḫtaṣar was the work of al-Ḫiraqī’s Egyptian contemporary al-Ṭaḥāwī (d. Old Cairo, 321/933), although two works attributed to al-Šaybānī (d. Ranbuyah, 189/804–805), al-Ǧāmiʿ al-kabīr and al-Ǧāmiʿ al-ṣaġīr, were the concise presentations of Hanafi doctrine that attracted the most commentaries.12 Al-Ḫiraqī’s was the first muḫtaṣar devoted to Hanbali opinions. Al-Ḥabašī found references to forty-two commentaries (or commentaries on commentaries) in various primary sources, against twenty for the Muḫtaṣar of al-Muzanī, eleven for that of al-Ṭaḥāwī.13 Writing in the early twentieth century, Ibn Badrān stated that the most important works of the Hanbali school had been three: al-Ḫiraqī, al-Muḫtaṣar; ʿAlāʾ al-Dīn al-Mardāwī (d. Damascus, 885/1480), al-Tanqīḥ al-mušbiʿ; and al-Futūḥī (d. Cairo, 972/1564–1565), Muntahā al-irādāt.14

  • 15 Al-Fayyūmī (d. after 770/1367), al-Miṣbāḥ al-munīr, trans. Lane, Lexicon, s.n. kh -  - r.

5What makes it a muḫtaṣar is mainly its condensed character. (A lexicographer defines iḫtaṣara as taqlīl al-lafẓ dūna al-maʿnā, “making the words fewer, but preserving the entire meaning”.15) Like the muḫtaṣars of al-Buwayṭī, Abū Muṣʿab al-Zuhrī, and al-Ṭaḥāwī, it eschews express refutations of opposing positions. Relatedly, unlike long expositions such as the Umm of al-Šāfiʿī and the Aṣl of al-Šaybānī, it mostly eschews documentation, seldom citing the quranic verses and especially hadith reports that support the rules it lays down. Indeed, at about 32,000 words (my estimate) it seems to be the shortest of the early muḫtaṣars.

Image

  • 16 Ṣaymarī, Aḫbār Abī Ḥanīfa, p. 168.

6Al-Ṭaḥāwī is said to have ordered his muḫtaṣar after that of al-Muzanī, under whom he studied for a time.16 The resemblance extends also to the attention al-Ṭaḥāwī pays to alternative versions of Abū Yūsuf’s opinions and sometimes even Abū Ḥanīfa’s, as al-Muzanī continually mentions different positions taken by al-Šāfiʿī. Moreover, al-Muzanī and al-Ṭaḥāwī continually identify their own preferences, although al-Muzanī usually justifies his choice by calling it the aqyas, the ašbah, or something else (usually meaning the most consistent), whereas al-Ṭaḥāwī does not explain himself.

  • 17 Against Hurvitz, “Mukhtaṣar”, p. 8. I see no reason to doubt that there was a personal Hanbali scho (...)

7Al-Ḫiraqī plainly wrote for students training to become muftis, not directly to inform laymen. For example, labelling different challenges in dividing an estate the akdariyya problem, the ḫarqāʾ, and so on (pp. 88‒91 119‒123 211‒217), must betray an academic setting. His epitome thus bespeaks the formation of a school (although his reference at the start to the maḏhab of Aḥmad ibn Ḥanbal is probably to his doctrine rather than his school in the later sense17). Terms sometimes go unexplained. For example, al-Ḫiraqī remarks in passing, “The witr prayer is one bowing in which one says the qunūt separated from what has come before” (pp. 29 30 111) without ever explaining what either witr or qunūt refers to. His readers (or more precisely, in the first instance, hearers, as students took down his text by dictation) had probably been practising the witr prayer with qunūt for years before this. If they had questions, they could ask the teacher. Despite traditionalist mistrust of “asking about what has not been”, some problems seem clearly more hypothetical than practical, to get students to work out the logic of the law (and to admire their forebears’ shrewdness). For example, al-Ḫiraqī sets forth what happens if the owner of two slaves and nothing else dies leaving two sons, one of whom recalls that his father freed a particular one, the other of whom recalls that his father freed one but isn’t sure which, and how, whichever son’s word is accepted, both slaves end up becoming one-third free (pp. 162 247 337).

  • 18 Abū Dāwūd, Masāʾil; Ibn Hāniʾ, Masāʾil; ʿAbd Allāh ibn Aḥmad, Masāʾil; Ṣāliḥ ibn Aḥmad, Masāʾil; Ka (...)
  • 19 Melchert, “The relation of Ibn Taymiyya and Ibn Qayyim al-Jawziyya”, pp. 157–158.
  • 20 This particular position is identified as a peculiarity of al-Ḫiraqī’s by Ibn Qudāma, Muġnī, vol. 5 (...)

8Some collections of Aḥmad ibn Ḥanbal’s juristic opinions have come down to us as compiled by direct disciples.18 Abū Bakr al-Ḫallāl (d. Baghdad, 311/923) collected most of his opinions from direct disciples and arranged them, but only fragments of his final collection are extant. Al-Ḫiraqī does not appear to have depended on it. Disagreement among schools is a famous feature of Sunni law, but disagreement within schools also is extensive. The Hanbali school seems to have been especially prone to disagreement over the position of its eponymous imam. An encyclopaedia of disagreement within the school by ʿAlāʾ al-Dīn al-Mardāwī, al-Inṣāf, reports multiple versions of Aḥmad’s position concerning a third of the questions on which any position of his is reported.19 Usually, whatever al-Ḫiraqī asserts as a rule represents a reported position of Aḥmad ibn Ḥanbal’s. Rarely does he assert his own opinion, without known precedent; for example, against kissing any but two corners of the Kaʿba (pp. 58 73 160).20 He sometimes remarks multiple, discrepant reports of Aḥmad ibn Ḥanbal’s own position; for example, whether a pronouncement of divorce takes effect if the man who makes it is drunk (pp. 110 153 245).

  • 21 Zarkašī, Šarḥ, vol. 5, p. 11; Mardāwī, Inṣāf, vol. 8, p. 66.
  • 22 This offers some support to al-Turkī’s assertion that the first opinion given is al-Ḫiraqī’s identi (...)
  • 23 Spectorsky, “Aḥmad ibn Ḥanbal’s fiqh”, p. 461.

9However, the commentaries remark many more questions concerning which al-Ḫiraqī offers a rule in agreement with one known opinion without mentioning discrepant reports; for example, whether a marriage can be valid without the participation of a guardian—al-Ḫiraqī says no (pp. 99 134 230), but both affirmative and negative answers are elsewhere reported of Aḥmad.21 In a randomly chosen sample of 100 questions in Ibn Qudāma’s commentary on the Muḫtaṣar, I found 25 to involve multiple versions of Aḥmad’s position, only two of them remarked by al-Ḫiraqī. Moreover, al-Ḫiraqī never presents two versions of Aḥmad’s position, then tells us which he prefers. (Al-Mardāwī, writing after centuries of work to narrow down the preferred view of the school, its maḏhab, usually ignores al-Ḫiraqī’s presentation of multiple versions but does occasionally say that he chose the first.22) This reluctance to identify a personal preference echoes a notable tendency of Aḥmad’s, to answer a juridical question by quoting multiple contradictory hadith reports without presuming to choose among them.23

  • 24 Ḫiraqī, Muḫtaṣar, pp. 48 57 144–145; Hurvitz, “Mukhtaṣar”, p. 13; Ibn Qudāma, Muġnī, vol. 4, p. 313 (...)
  • 25 Ibn Qudāma, Muġnī, vol. 2, p. 258.
  • 26 Ibn al-Bannā, Muqniʿ, vol. 1, p. 365; Zarkašī, Šarḥ, vol. 1, pp. 595–596.

10I have not come across any clear instance of al-Ḫiraqī’s giving a rule contrary to Aḥmad’s known opinion. Nimrod Hurvitz has alleged that al-Ḫiraqī boldly asserts his own position against Aḥmad’s as to whether the owners of a jointly-owned slave must each pay one ṣāʿ for the alms tax of the end of Ramadan or must collectively pay, each contributing in proportion to his share, a total of one ṣāʿ. However, he had apparently misread Ibn Qudāma’s commentary, which presents these as alternative reports of Aḥmad’s position.24 The closest I have come to contradiction between al-Ḫiraqī’s prescription and Aḥmad’s has to do with the way a woman is to sit at the end of the ritual prayer. According to al-Ḫiraqī, “the woman is to gather herself together in the bowing and prostration and sit with legs folded or else let down her legs and put them on her right side” (pp. 24 23 104). Ibn Qudāma reports that Aḥmad preferred sadl, letting down her legs.25 The point is evidently not prominent, though, for the commentator Ibn al-Bannā (d. Baghdad, 471/1079) mentions nothing of Aḥmad’s position at this point, while the commentator al-Zarkašī (d. Cairo, 772/1370–1371) just names one Companion in favour of tarabbuʿ (legs folded), one in favour of sadl.26

  • 27 Zarkašī, Šarḥ, vol. 7, p. 473.
  • 28 The most famous example is Ibn Rušd (d. Marrakech, 595/1198), The Distinguished Jurist’s Primer.

11The consequence for someone interpreting the Muḫtaṣar of al-Ḫiraqī is that whatever rule he gives may be presumed to have significant support within the Hanbali school. However, it requires further checking in longer accounts of Hanbali rules to see whether it is the unanimous opinion of the school. Many cases will turn out to be disputed. For example, al-Ḫiraqī says two opinions are reported of Aḥmad as to whether a slaveowner may retract a declaration of manumission when he dies (tadbīr). Al-Zarkašī indicates that there are actually three versions of Aḥmad’s opinion (according to one of his disciples, he refused to take a position) and that the first, that such a declaration may not be retracted, is the preferred opinion of the school.27 This is, by the way, the besetting weakness of literature on iḫtilāf, synthetic comparison of disagreements among the schools: a tendency to overlook disagreement within schools.28

  • 29 Calder, Studies, p. 246.
  • 30 Māwardī, Ḥāwī.

12Al-Ḫiraqī’s refusal to identify his personal preferences may even mark his muḫtaṣar as a turning point in the history of Islamic juridical literature. Norman Calder has identified the recession of the authorial voice as a major distinguishing mark of the classical muḫtaṣar, a collection of opinions presenting itself as the voice of a school, not a discerning individual. Al-Ḫiraqī’s self-effacement strongly contrasts with al-Muzanī’s willingness to identify his preferences among the different positions espoused by al-Šāfiʿī and al-Ṭaḥāwī’s among the different positions espoused by Abū Ḥanīfa, Abū Yūsuf, and al-Šaybānī. It presages al-Qudūrī’s self-effacement in his Hanafi Muḫtaṣar. Calder stresses the Hanafi Muḫtaṣar of Abū al-Faḍl Muḥammad ibn Muḥammad al-Marwazī (d. 334/945), on which the Mabsūṭ of al-Saraḫsī (d. 483/1090–1091) is formally a commentary.29 However, the Muḫtaṣar of al-Marwazī does not survive except as quoted by al-Saraḫsī. From the same century as al-Saraḫsī’s commentary, al-Māwardī’s quotations of the Muḫtaṣar of al-Muzanī in his massive commentary regularly extend only to the reported words of al-Šāfiʿī, omitting comments from al-Muzanī himself.30 We have no independent transmission to rule out al-Saraḫsī’s doing the same with the Muḫtaṣar of al-Marwazī. Thus, al-Ḫiraqī’s epitome may be the earliest work to fit Calder’s definition of the classical muḫtaṣar.

Principles of translation

13Most terms will be translated; e.g., ṣalāt as “ritual prayer”, tašahhud as “witnessing”. Only a few terms will not be translated; e.g., iqāma, a shortened form of the call to prayer pronounced by the prayer leader, and ʿaṣaba, residual heirs after the close relations expressly named in the Quran. My preference for translation is partly from respect for my teacher George Makdisi’s stricture, “If you can’t translate a term, you don’t know what it means.” It is also from a preference for encouraging comparison, which refusing to translate discourages. At the same time, it is not an object of my translation to domesticate tenth-century Islamic law; hence, for example, “wergild” for Arabic diya because it does strike me as a distinctively premodern concept.

  • 31 Ibn al-Mibrad, Durr, vol. 1, pp. 49–50.

14Some terms are left untranslated because it is impossible to say exactly what they mean, notably weights and measures. Ibn al-Mibrad (d. [Damascus] 909/1503), al-Durr al-naqī, is a useful linguistic commentary on the Muḫtaṣar. In expounding the rules of ritual ablution, al-Ḫiraqī says, “When the water is two qullas, meaning five qirab, and some pollutant falls into it ...” (pp. 11 4 78). Naturally, one wonders what these amounts are. Ibn al-Mibrad says, “There are different versions from Aḥmad as to how many qirab make a qulla—three of them: one that it is five qirab, the second four, the third four and a third qirab. A qirba is a hundred arṭāl.” Next he explains the proportionate difference between Iraqi and Damascene arṭāl.31 Muslims who wish to do their duties will understand that this translation was not prepared as a guide for them.

15From time to time, as remarked before, al-Ḫiraqī relates contradictory accounts of Aḥmad ibn Ḥanbal’s position. These are referred to in the Hanbali tradition as “narrations” (riwāyāt) from Abū ʿAbd Allāh. I shall usually translate “versions”. Apart from Arabic terms, round brackets are for words implicit in the text it seemed necessary to add for the sake of intelligibility; e.g., “If he performs the ritual prayer (well and good); otherwise he is to be killed” (pp. 35 41 124). Transliteration follows the MIDÉO standard except that case endings, elisions, and so on are expressly noted where al-Ḫiraqī calls for some Arabic phrase to be recited.

16Al-Ḫiraqī continually prescribes duties using the third-person masculine singular indicative. I usually begin with “one” rather than “he”, but soon enough go over to “he”, “himself”, and so on, normally with the understanding, traditional in English and Arabic, that the masculine does not exclude reference to women. It seems to me a distortion to use completely gender-neutral English, as if al-Ḫiraqī had qualms about “exclusive language”.

17Changes over time sometimes throw up difficulties to translation. Ṣadaqa and zakāt were used interchangeably for alms in the early centuries, then differentiated as respectively voluntary and obligatory; conversely, ṣadāq and mahr seem to have remained interchangeable terms for an obligatory payment from husband to wife at the start of a marriage, qawad and qiṣāṣ for retaliation offered to a physically injured party, diya and ʿaql for a payment to such an injured party. (Such pairs raise the question, of course, whether different terms indicated different practices in the seventh century, to be assimilated across the eighth—possibly unanswerable, given our dependence on literary sources of the late eighth century and later.)

  • 32 Lane, Lexicon, s.v. “ṣ-w-b”, citing al-Fayyūmī.

18Squeamishness about sex is a feature of both medieval Arabic usage and modern English but with different effects. The terms al-Ḫiraqī usually uses are daḫala, “to go in” (with good biblical parallels; e.g., Sarai to Abram, Gen. 16:2, “I pray thee, go in unto my maid; it may be that I obtain children by her”), aṣāba, literally “hit the mark” (by extension, “he obtained his desired enjoyment of his wife”32), and waṭiʾa, literally “to tread on”. “Consummate” in my translation usually stands for daḫala in connection with marriage, “begin to have sex” for aṣāba.

19The Muḫtaṣar of al-Ḫiraqī was first published in Damascus, edited by Zuhayr al-Šāwīš, on the basis of a privately held manuscript said to have been completed in Ǧumādā I 970/December 1562–January 1563 (p. d, 250). It was next published in Tanta, Egypt, little more than retyped from al-Šāwīš’s edition. Another edition then appeared in Damascus from Dār al-Nawādir. This house has usefully published many doctoral dissertations but this one seems to have been produced in a more traditional context, with notices at the beginning of its having been read back for approval to various Hanbali shaykhs by its editor, Muḥammad Nāṣir al-ʿAǧmī (pp. 9‒10). This version of the text is fully vowelled, which is usually helpful. The introduction describes a basis of five manuscripts (pp. 57‒59). Al-ʿAǧmī says in the introduction that he found a thousand occasions to correct al-Šāwīš’s version of the text. Regrettably, he seldom remarks manuscript variants in the notes, only somewhat more often discrepancies with the text as given in the commentary of Ibn Qudāma (d. Damascus, 620/1223), al-Muġnī. Still, I have used his edition as my base text. The only regular discrepancy between it and the text as transcribed by al-Šāwīš is the phrase “God knows better (Allāhu aʿlam)” at the end of many books. It is plainly a scribal insertion, not an idiosyncrasy of al-Ḫiraqī’s. I have not departed from al-ʿAǧmī’s text except occasionally as to the vowels and twice as to an extra word (pp. 147 213 312; 155 228 328).

20In trying to interpret al-Ḫiraqī, I have continually resorted to the commentary of Ibn Qudāma, also the more concise commentaries of Abū Yaʿlā ibn al-Farrāʾ (d. Baghdad, 458/1065), Šarḥ Muḫtaṣar al-Ḫiraqī (of which the surviving manuscripts cover about 60 percent of al-Ḫiraqī’s text), Ibn al-Bannā, al-Muqniʿ, and Šams al-Dīn al-Zarkašī, al-Šarḥ. I have only occasionally consulted Nūr al-Dīn Abū Ṭālib (d. Baghdad, 684/1285), al-Wāḍiḥ, seldom more than an abridgement of Ibn Qudāma. (Ibn al-Bannā seems to be similarly dependent on Abū Yaʿlā, but that makes his witness especially valuable for the sections we miss from Abū Yaʿlā’s commentary.) Ibn al-Mibrad’s review of al-Ḫiraqī’s vocabulary, quoted earlier, has often been useful. Unsurprisingly, much that has puzzled me as a beginner seemed self-evident to them after many years of training as Hanbali jurisprudents, so their way of breaking the text into segments has been almost as helpful as their paraphrases and expansions.

  • 33 Khalid, “The ʻMukhtasar’”, pp. 37, 74.

21Of English translations, I have read through a previous, unpublished translation of al-Ḫiraqī with extensive endnotes by Anas Khalid, his 1992 doctoral dissertation at New York University. I inherited a bound copy from my predecessor at Oxford, Alan Jones, one source of the idea that I should try to translate al-Ḫiraqī myself. His translation is limited, of course, by its sources: the one edition of al-Šāwīš and the one commentary by Ibn Qudāma. This means, for example, that he has al-Ḫiraqī require not only the blind man but also the layman (ʿāmmī—Khalid has “an ordinary person”) to depend on someone else’s calculation of the direction of prayer (pp. 21 19 100) and disallow payment of the alms tax in advance (pp. 43 50 135), contrary to the ʿAǧmī edition.33 I have caught mistakes of my own by comparison with his translation, but he did not have the benefit of such careful checking.

  • 34 Khalid, “The ʻMukhtasar’”, p. 23; Ḫiraqī, Muḫtaṣar, pp. 13 7 82.

22I often tell students that what is idiomatic in Arabic should sound idiomatic in English. I therefore will not complain of Khalid’s departing more freely than I from the Arabic word order, although my translation should be a little easier for the intermediate student who wishes to compare the Arabic text. Khalid sometimes does go to puzzling lengths; for example, kamā amara Allāh, straightforwardly “as God commanded”, he represents by “in accordance with the injunction of Allah”.34 He goes further than I to soften and domesticate al-Ḫiraqī, as by continually resorting to the passive voice in order to avoid masculine pronouns.

  • 35 Khalid, “The ʻMukhtasar’”, p. 193; Ḫiraqī, Muḫtaṣar, pp. 111 154 250.

23Conversely, his choice of “Allah”, as in the previous example, instead of “God”, is a hardening. Christians used to write in English “Muslims worship Allah” with the suggestion that they worshipped an ill-understood, inferior deity compared with the sublime “God” of Christians and Jews. Similarly, Muslims will often write “Allah” in English rather than translate to suggest that it is the Christians and Jews who worship an ill-understood, inferior deity whereas Muslims know by the true creator by his proper name. It is awkward for the case that Arabophone Christians have never used another word than Allāh, also that the Quran assumes that the pagans need no explanation of who Allāh is—it does not purport to introduce a new, correct name. Muslims as Muslims may prefer to stress incomparability, but scholars, I believe, should presumptively choose universalist terminology. Similarly, Khalid, like many Muslims today, writes “disbeliever” for kāfir. I prefer “unbeliever” because unbelief, like kufr, is a strictly theological offence, which disbelief is not; also because “disbelief” makes a good translation of another word, takḏīb. Khalid leaves many more terms untranslated, but I prefer more precise translation of some technical terms, notably aǧzāhu or aǧzaʾahu, “it discharges his duty”, where Khalid prefers “it is accepted”. He apparently misses the possible performative sense (inšāʾ) of the Arabic perfect tense; for example, “I have divorced you” for ṭallaqtuki where I prefer “I hereby divorce you”.35

24My translation will be compared with some others as well. I have often consulted the excellent translation of another collection of rules, al-Qudūrī, The Mukhtaṣar, by Ṭāhir Maḥmood Kiānī. Less often, I have also consulted Mālik (d. Medina, 179/795), al-Muwaṭṭaʾ, as translated by Mohammad Fadel and Connell Monette, and Ibn al-Naqīb (d. Cairo, 769/1368), ʿUmdat al-sālik, as translated by Noah Ha Mim Keller. These three are all admirable for their readability and accuracy. Of course, they present parallel texts, not dealing with all the same problems, let alone prescribing the same rules. They also, like Khalid, have ambitions to guide Muslims today, whereas my ambitions are limited to historical understanding. Fadel and Monette sometimes go too far for my taste to domesticate medieval terms and concepts, while Keller, although more tough-minded about potential offence to modern, liberal Western sensibilities, simply omits sections about slavery and the war on infidels that he considers irrelevant to the needs of present-day Muslims. Still, I have taken over technical terminology from all three. For terminology, I have also drawn heavily on the second half of Joseph Schacht, An Introduction to Islamic Law.

25When al-Ḫiraqī refers directly to a hadith report, I have indicated in the notes at least one collection that includes it in a form traceable across editions of the Six Books, otherwise in standard editions. I have not indicated the masāʾil collections where one may find the cited versions of Aḥmad ibn Ḥanbal’s opinion, but the notes to Ibn al-Bannā, al-Muqniʿ, are a good starting point for anyone who wishes to trace them. (They seldom show verbal dependence on the extant collections.) Quran translations are those of Alan Jones.

Translation

The Translation

26[pp. 10 2 77] I have compressed this book after the doctrine of the imam Abū ʿAbd Allāh Aḥmad ibn Muḥammad ibn Ḥanbal (God be pleased with him) to make it more accessible to the one who learns it, hoping for a reward from God (mighty and glorious is He). From Him I hope for all things to work together for good. [pp. 11 4 78]

1. The book of ritual purity (ṭahāra)

a) The chapter of what accomplishes ritual purity by way of water

27Ritual purity is accomplished by simple, pure water, to which no other name is attached; for example, bean water, chickpea water, rosewater, saffron water, and the like of these. (The second element) may not do away at once with the name of “water”. There must not have fallen into it either what we have mentioned or other things. As for that of which there is only a little in it, such that it imparts no flavour, colour, or much smell such that the water is identified with it, that may be used for the minor ritual ablution. There is no minor ritual ablution with water that has already been used for this.

28When the water is two qullas, meaning five qirab, and some pollutant (najāsa) falls into it but [p. 79] there is no taste, smell, or colour, then it is pure, unless the pollutant is urine or human excrement in a soft state, which do render impure. An exception is when the water is like the [p. 5] artificial wells (maṣāniʿ) on the way to Mecca and what resembles them, where the water is plentiful and it is not possible to drain them. For that reason, nothing pollutes them. If something dies in a small body of water, what hasn’t any flowing circulatory system like flies, scorpions, dung beetles, and the like, they do not pollute it. [p. 12]

29There is no ritual ablution in the water left over from drinking by every beast whose flesh is not eaten, except for the cat and what is smaller than it. Every container in which there is pollution from the saliva of a dog, urine, or anything else, is to be washed seven times, including once with earth. If one has along on a journey two containers, one pure and the other polluted, and he gets them confused, he is to pour them both out and perform the minor ritual ablution with earth. [p. 80]

b) The chapter of containers

30The skin of everything found dead (not slaughtered), tanned or otherwise, is polluting, likewise a container made from the bones of something found dead. It is discouraged to perform the minor ritual ablution from containers of gold or silver. If one does that, it discharges his duty. The wool and hair of something found dead are pure. [pp. 6 81]

c) The chapter of the toothcomb (siwāk) and the normative precedent concerning the minor ritual ablution

31The toothcomb is a custom recommended at every ritual prayer unless one is fasting, in which case one refrains from the time of the noon prayer until the sun sets. One is to wash the two hands when getting up from sleep at night before putting them in the container three times. One is to pronounce the name (i.e., “in the name of God”) at the minor ritual ablution. One goes to an extreme in taking water into the mouth and nostrils except when one is fasting. One runs the fingers through the beard. One takes fresh water for the ears, the outside and inside. One interlocks the fingers to wash the sides. One washes the right of everything before the left. [pp. 13 82]

d) The chapter of the obligation of ritual purity (ṭahāra)

32What is obligatory of ritual purity is pure water, removal of impurity (ḥadat), intention to restore ritual purity, and washing the face from where the hair of the head sprouts to the cheeks and chin, up to the roots of the ears. One is to pay close attention to the jaw, which is between the cheek and the ear, the mouth and the nose of the face, also washing the hands to the elbows. The elbows are included in the washing. (It includes) wiping the head and washing the feet to the ankles, meaning the two [p. 7] protruding bones. One is to bring about ritual purity member after member, as God (mighty and glorious is He) commanded. The minor ritual ablution performed twice discharges one’s duty, but three times is better. If one performs the minor ritual ablution for the sake of a supererogatory prayer, one may pray a required one by it also.

33Someone in a state of major ritual impurity, a menstruating woman, and a woman in parturition are not to recite the Quran. No one is to touch a written copy of the Quran except in a state of ritual purity. [p. 83]

e) The chapter of seeking purity and what nullifies it

34Cleaning oneself (istinǧāʾ) is not obligatory for someone who has slept or from whom an odour has been emitted. Cleaning oneself is for what comes out of the two pathways. If one does not go beyond these places of emission, three stones suffice to discharge one’s duty if he cleans himself with them. If one can be cleaned with fewer, it does not discharge his duty until he completes the number. If one has not become clean with three, he is to add more until he is clean. Wood, rags, and everything by which one cleans oneself is like stones except for dung, bones, and food. A large stone with three projections may take the place of three stones. Beyond the place of emission, nothing discharges one’s duty except water. [pp. 14 8 84]

f) The chapter of what contradicts ritual purity

35That which contradicts ritual purity is what comes out of the front or back, also the coming out of excrement or urine from elsewhere, and losing consciousness by sleep or an illness except for a little sleep, sitting or standing. It is the meeting of the two places of circumcision, apostasy from Islam, rubbing the genitals, gross vomiting, gross bleeding, or a large worm coming out of a wound. It is eating the flesh of swine, washing a dead body, and a man’s meeting a woman’s body in lust. If a man is fairly certain of purity but suspects impurity, or is fairly certain of impurity [p. 85] but suspects purity, his state is whatever he is (more) certain of. [p. 86]

g) The chapter of what requires the major ritual ablution (ġusl)

36What requires the major ritual ablution is the coming out of semen, the meeting of the two places of circumcision, apostasy from Islam, and an unbeliever’s conversion to Islam. (It is required by) the ending of menses and childbirth. The menstruating woman, the person in a state of major ritual impurity, and the polytheist, if they immerse their hands in the water, it is [p. 9] pure. A man may not perform the minor ritual ablution with water left over from a woman’s ablutions if she has done them by herself. [p. 87]

h) The chapter of washing from major ritual impurity

37When a man becomes majorly ritually impure, he washes off whatever he has of filth (aḏā), then performs the minor ritual ablution as for the ritual prayer. Then he pours it out on his head three times. It is related (of Aḥmad) that he goes to the roots of his hair. Then he pours water over the rest of [p. 15] his body. If he washes his head and body once with water, without having performed the minor ritual ablution, it discharges his duty after he has taken water into his mouth and nostrils, intending by it the major and minor ritual ablutions, although this is not to do what is best. One performs the minor ritual ablution with a mudd, which is a riṭl and a third. One performs the major ritual ablution with a ṣāʿ, which is four amdād. If he gets water all over his body with less than that, it discharges his duty. A woman is to let down her hair to wash it after menstruation. She need not let it down on account of major ritual impurity (from other causes) if she gets water down to the roots. [pp. 10 88]

i) The chapter of the minor ritual ablution with earth (al-tayammum)

38One is to perform the minor ritual ablution with earth in the course of a short trip or a long when one enters the time of the ritual prayer, seeks water, and finds it unavailable. It is preferable to put off the minor ritual ablution with earth till the end of the time (for the given ritual prayer). If one performs the minor ritual ablution with earth at the beginning of the time (for the given ritual prayer) and performs the ritual prayer, it discharges his duty even if he comes across water (later) in the time (for that ritual prayer).

39The minor ritual ablution with earth involves striking once: striking once with the two hands on clean earth, mainly dirt, intending the required prayer. One wipes with it his face and palms. If what he has struck with his hands is not clean, then it is not permissible for him. If he has a sore or a frightening disease that has made him ritually impure but he fears for himself to be touched by water, then he is to wash the sound part of his body but perform the minor ritual ablution with earth for the part that water did not touch.

40If one performs the minor ritual ablution with earth, he prays the ritual prayer whose time has come. Next he may make up missed prayer, if he has some to perform, and supererogatory until the time of another prayer comes. [p. 11] If he fears thirst, he may keep aside water and perform the minor ritual with earth, not being obliged to repeat [p. 89] (the ritual ablution later). If he forgets that he is majorly ritually impure and performs the minor ritual ablution with earth on account of something that makes one minorly ritually impure, it does not discharge his duty. [p. 16]

41If someone who has performed the minor ritual ablution with earth finds water while he is in the midst of the ritual prayer, he is to leave it and perform the minor ritual ablution (with water) or wash if he was majorly ritually impure. He begins the prayer over again. If splints have been secured around a broken bone when (that area) was pure and the place of the break is still so, then one is to wipe it whenever ritual purity is violated until they are taken off. [p. 90]

j) The chapter on wiping the leathern socks (ḫuffayn)

42Whoever wears leathern socks and is fully ritually pure, then does something to render himself ritually impure, is to wipe them for a day and a night if settled, three days and two nights if travelling. If he puts them off before that, then he is to repeat the minor ritual ablution. If he does something to render himself ritually impure when he is settled but does not wipe till he is travelling, he is to finish (his prayer) as does a traveller from the time of his rendering himself ritually impure. If he does something to render himself ritually impure when he is settled, then wipes being still settled, then travels, he is to finish (his prayer) on the wiping of one settled, then take them off. If he wipes as a traveller for less than a day and a night, then settles down or arrives (home), he is to complete the wiping of someone settled, then take them off. If he wipes as someone travelling for a day and a night or more, then settles down or arrives (home), he takes them off. [p. 12]

43One does not wipe anything except the leathern socks or their equivalent by way of what is tailored and the like, passing beyond the ankles, they being the two protruding bones. [p. 91] Likewise, thick socks (ǧawrab) that do not fall down when one walks: as long as they stay with sandals, they are to be wiped, but when the sandals are taken off, then ritual purity is nullified. If there is a tear in the leathern sock such that some of the foot appears through it, then it is not permissible to wipe them. [p. 17] One wipes the top of the foot. If one wipes the lowest part but not the upper, that does not discharge one’s duty. Men and women are alike in this. [p. 92]

k) The chapter of menstruation (ḥayḍ)

44Menstruation is minimally a day and a night. It is maximally fifteen days. Whosever bleeding lasts beyond normal menstruation (man aṭbaqa al-dam), having the power of discrimination, knows its onset by its being black, thick, and smelly. At its passing it is light and red. She is to leave off the ritual prayer at its onset. When it passes, she is to perform the major ritual ablution. Then she performs the minor ritual ablution for each ritual prayer.

45If her bleeding is not distinct but there are days of the month that she recognizes, [p. 13] she is to refrain from the ritual prayer during them and perform the major ritual ablution when she has passed them. If she has days that she has been made to forget, she is to wait for six or seven days in every month. When bleeding begins, she plays it safe and sits for a day and a night. She is to perform the major ritual ablution, then the minor ritual ablution for each ritual prayer. If the bleeding stops in fifteen days, she is to perform the major ritual ablution at its stopping. She does that again in the second and third instances. If it is all the same, she performs her ritual actions on that basis, repeating invalid fast days, if [p. 93] she happened to perform the required fast during these three trials. If the bleeding continues and she cannot distinguish (menstrual from other bleeding), then she is to refrain (from the ritual prayer) for six or seven days of every month, since women usually menstruate for this long.

46What is yellowish or murky in the days of menstruation is considered part of menstruation. The menstruating woman may be enjoyed apart from the genitals. If her bleeding ceases, there is no sexual intercourse until she performs the major ritual ablution. There is no sexual intercourse either with a woman who has non-menstrual bleeding unless he fears to be unchaste. [p. 18] One who suffers inability to restrain his urination or excess emission of pre-ejaculate, such that it does not cease, is like a woman with non-menstrual bleeding. He is to perform the minor ritual ablution for every ritual prayer after washing his genitals.

47Parturition is maximally forty days. It has no lower limit. Whenever she sees her purity, she performs the major ritual ablution and is ritually pure. [p. 14] It is preferable for her husband not to have contact with her by the vagina until the forty days are complete. Whoever used to have (regular) days of menstruation, then goes beyond the accustomed days (without bleeding), no attention is paid to the extra time until it is seen to recur three times. Then she knows that her menstruation has shifted for her to go by it (the new pattern) and to leave the old. If she has fasted during these three trials, she should repeat them if it was a required fast. When she sees blood before its customary days, she should pay no attention to it until it has proven a regular pattern three times. When she is certain of menstruation and believes herself over it [p. 94] before then, she is pure. She performs the major ritual ablution and the ritual prayer. If bleeding recurs, she pays no attention to it until her (accustomed) days return.

48The pregnant woman, when she sees blood, is to pay no attention to it, since a pregnant woman cannot menstruate, unless she sees it before giving birth by two or three days, in which case it is the blood of parturition. When she sees blood at the age of fifty, she is not to leave off the ritual prayer and fasting but may substitute fast days at a later date out of precaution. When she sees it after sixty, there is no doubt and she is certain that it is not menstruation. Therefore, she is to fast and perform the ritual prayer without substituting later days. The woman with non-menstrual bleeding is to perform the major ritual ablution for every ritual prayer. This is the strictest of what is said concerning it. If she performs the minor ritual ablution for every ritual prayer, that discharges her duty. [pp. 19 15 95]

2. The book of the ritual prayer (ṣalāt)

a) The chapter of the times

49When the sun begins to decline, the noon prayer becomes obligatory. When the shadow of everything becomes its like (in length), then it is the last of the time (for the noon prayer). When it goes at all beyond that, the mid-afternoon prayer becomes obligatory. When the shadow of everything becomes twice its like (in length), the preferable time goes away. What remains is the time of necessity until the sun sets. Whoever makes it by one bowing before the setting of the sun has made it, when necessary. When the sun disappears, the sunset prayer becomes obligatory. It is not recommended to put it off until the afterglow is gone.

50When the afterglow is gone, meaning the redness when one is travelling and the whiteness when one is settled, since when one is settled, the redness may be settled but be obscured by walls, so that it is thought to be gone—when the whiteness is gone, then one is certain and the evening prayer [p.  16] becomes obligatory up to a third of the night. When a third of the night has gone, the preferable time goes away and the time of necessity remains till the breaking of the second dawn, which is the whiteness that appears in the direction of where the sun rises, which spreads, there being no darkness after it. [p. 96] When the second dawn has broken, the dawn prayer becomes obligatory. The time remains until just before the sun rises. Whoever makes one bowing of it before the sun rises has made it by necessity.

51It is better to perform the ritual prayer at the earliest time except for the evening prayer and the noon prayer when it is hottest. If a menstruating woman becomes pure, an unbeliever converts to Islam, or a boy reaches maturity before the sun [p. 20] sets, they pray the noon and mid-afternoon prayers. If a boy reaches maturity, an unbeliever converts to Islam, or a menstruating woman becomes pure before the breaking of dawn, they pray the sunset and evening prayers. Someone who has lost consciousness makes up all the prayers that were incumbent on him during the time of his unconsciousness. [pp. 17 97]

b) The chapter of the call to prayer (aḏān)

52Abū ʿAbd Allāh (God have mercy on him) went for the call to prayer of Bilāl:

“‘Allāhu akbar (God is greater);

Allāhu akbar (God is greater);

Allāhu akbar (God is greater);

Allāhu akbar (God is greater);

ašhadu allā ilāha illa Llāh (I testify that there is no god but God);

ašhadu allā ilāha illa Llāh (I testify that there is no god but God);

ašhadu anna Muḥammadar rasūlu Llāh (I testify that Muḥammad is the Messenger of God);

ašhadu anna Muḥammadar rasūlu Llāh (I testify that Muḥammad is the Messenger of God);

ḥayya ʿala ṣ-ṣalāh (come to the ritual prayer);

ḥayya ʿala ṣ-ṣalāh (come to the ritual prayer);

ḥayya ʿala l-falāḥ (come to prosperity);

ḥayya ʿala l-falāḥ (come to prosperity);

Allāhu akbar (God is greater);

Allāhu akbar (God is greater);

lā ilāha illa Llāh (there is no god but God).’”

53The iqāma (words said quietly by the caller to prayer before the prayer itself) is this:

“‘Allāhu akbar (God is greater);

Allāhu akbar (God is greater);

ašhadu allā ilāha illa Llāh (I testify that there is no god but God);

ašhadu anna Muḥammadar rasūlu Llāh (I testify that Muḥammad is the Messenger of God);

ḥayya ʿala ṣ-ṣalāh (come to the ritual prayer);

ḥayya ʿala l-falāḥ (come to prosperity);

qad qāmati ṣ-ṣalāh (the ritual prayer is being conducted);

Allāhu akbar (God is greater);

Allāhu akbar (God is greater);

lā ilāha illa Llāh (there is no god but God).’”

54One goes slowly for the call to prayer but quickly for the iqāma. One says twice in the dawn call to prayer, aṣ-ṣalātu ḫayrum mina n-nawm (“The ritual prayer is better than sleep”). [pp. 18 98]

55If one makes the call to other than the dawn prayer before the appropriate time, one repeats it when the time begins. Abū ʿAbd Allāh did not recommend that one make the call to prayer except in a state of ritual purity. If one makes the call to prayer in a state of major ritual impurity, he repeats it. Whoever performs a ritual prayer without either a call to prayer or iqāma, we dislike that on his part but he need not repeat it.

56One puts his fingers pressed together over his ears. He turns his head to his right when he says, “Come to the ritual prayer”, and to his left when he says, “Come to prosperity”. [p. 21] He does not move his feet. It is recommended for one who hears the muezzin to say as he says. [p. 99]

c) The chapter of facing the direction of Mecca (al-qibla)

57When one is very afraid, being pursued, one begins the ritual prayer facing the direction of Mecca but then prays facing elsewhere, whether on foot or riding. One gestures as one is able. One makes his prostration less than his bowing, whether he is being pursued or in pursuit, fearing that the enemy should escape. (It is also related) from Abū ʿAbd Allāh [p. 19] that if one is in pursuit, it does not discharge his duty to perform the ritual prayer otherwise than as someone prays who is safe. One who is travelling may perform a supererogatory prayer in the saddle as we have described the fear prayer. One does not pray in any other condition, a required prayer or a supererogatory, save facing the Kaʿba.

  • 36 The Šāwīš and Tanta editions here add “and the layman”, not supported by the ʿAǧmī edition or Ibn Q (...)

58If one can see it for oneself, then one orients oneself correctly. If one is away (from the Kaʿba), then by exertion (iǧtihād) one orients oneself in the correct direction. [p. 100] If two men reason differently, one of them does not follow the other. The blind man follows whomever he finds he trusts more.36 If someone prays in a certain direction according to his reasoning, then learns that he mistook the direction of Mecca, he need not repeat. If a sighted person performs the ritual prayer in the presence (of the Kaʿba) but makes a mistake, or the blind man (prays) without any guidance, he repeats. One never follows the guidance of a polytheist: this is because the report of an unbeliever is not accepted, nor what he relates, nor his testimony, since he is not presumed to be trustworthy. [pp. 22 22 101]

d) The chapter of the description of the ritual prayer

59When one undertakes the ritual prayer, one says, “Allāhu akbar (God is greater)”, thereby intending the required prayer, mainly by saying this. We know of no disagreement within the nation concerning the requirement of intention for the ritual prayer and that the prayer is not valid save with it. If the intention precedes saying “God is greater” and after the beginning of the time (for it), so long as one does not annul it, it discharges his duty.

60One raises his hands to the lobes of his ears or level with his shoulders. Then he puts his right hand over his left wrist and puts them below his navel. Then he says, “subḥānaka Llāhumma wa-bi-ḥamdika wa-tabāraka smuka wa-taʿālā ǧadduka wa-lā ilāha ġayruk (exalted be You, O God, by Your praise, blessed be Your name and exalted Your dominion; there is no god other than You)”. Then he takes refuge (recites Q. al-Falaq 113‒Q. al-Nās 114) and recites “al-ḥamdu li-Llāhi rabbī l-ʿālamīn” (Q. al-Fātiḥa 1), beginning with “bismi Llāhi r-raḥmāni r-raḥīm (in the name of God, the Merciful, the Compassionate)”, not reciting it aloud. When he (the leader) says “wa-lā ḍ-ḍāllīn”, he says “āmīn”. Then he recites a chapter of the Quran, beginning with “bismi Llāhi r-raḥmāni r-raḥīm”, not reciting it aloud.

61When he has finished, he recites a chapter of the Quran for the bowing (rukūʿ). He raises his hands as at the first raising, then he puts his hands on his [p. 102] knees, separating his fingers, stretching his back, neither raising his head nor pulling it in. He says in his bowing, “subḥāna rabbī al-ʿaẓīm (exalted be my Lord [p. 21] the Great)” three times, which is the closest to perfection, although if he says it once that discharges his duty. Then he raises his head.

62Then he says, “samiʿa Llāhu li-man ḥamidah (may God hear him who praises him)”. He raises his hands as at the first raising. Then he says, “rabbanā wa-laka l-ḥamdu milʾu s-samāʾi wa-milʾu l-arḍi wa-milʾu mā šiʾta min šayʾin baʿd (O Lord of us, to You being praise, filling heaven, filling the earth, and filling whatever You will of what is after that)”. If he is being led (in the prayer), he replies by saying, “rabbanā wa-laka l-ḥamd”, then he says “Allāhu akbar” for the prostration without raising his hands. The first that should go to the ground is his knees, then his hands, then his forehead and nose. [p. 23] In his prostration he should be straight. His forearms should be separated from his sides, his belly from his thighs, and his thighs from his lower legs. He should be on the tips of his toes. He says in his prostration “subḥāna rabbī al-aʿlā (exalted be my Lord the Highest)” three times, but if he says it once, that discharges his duty.

63Then he raises his head saying “Allāhu akbar”. When he sits up and straightens himself, he should be sitting on his left leg, raising his right leg. He says, “rabbi ġfir lī (O my Lord, forgive me)” three times; but if he says it once, that discharges his duty. Then he says “Allāhu akbar” and falls down prostrate. Then he raises his head with another saying of “Allāhu akbar” and stands on the balls of his feet, leaning on his knees, unless that is difficult for him, in which case he leans on the ground. In the second (prostration), he acts as in the first.

  • 37 See for example Buḫārī, Kitāb al-aḏān 148, bāb al-tašahhud fī al-āḫira, no. 831.

64When he sits in it for the witnessing (tašahhud), it is as he sits between the two prostrations. Then he extends his left palm [p. 22] on [p. 103] his left thigh and his right palm on his right thigh, making circles with his thumb and middle fingers. He points at the saying of “bismi Llāh (in the name of God)” and performs the witnessing thus: “at-taḥiyyātu li-Llāhi wa-s-ṣalawātu wa-ṭ-ṭayyibāt; as-salāmu ʿalayka ayyuhā n-nabiyyu wa-raḥmatu Llāhi wa-barakātuh; as-salāmu ʿalaynā wa-ʿalā ʿibādi Llāhi ṣ-ṣāliḥīn; ašhadu allā ilāha illa Llāhu wa-ašhadu anna Muḥammadan ʿabduhū wa-rasūluh (Greetings be to God and blessings and good things; peace be upon you, O you the Prophet, and the mercy of God and His blessings; peace be upon us and on God’s upright servants; I testify that there is no god but God and I testify that Muḥammad is His servant and His messenger)”. This is the witnessing that the Prophet … taught ʿAbd Allāh ibn Masʿūd (may God be pleased with him).37

65Then he raises himself as he raised himself from the prostration. When he sits up for the last witnessing, he leans on his side. Then he raises his right leg and puts the inside of his left leg under his right thigh. He puts his buttock on the ground. He does not lean on his side except in a ritual prayer that includes two witnessings, in the latter of them. In the first, he performs the witnessing. He blesses the Prophet …, saying, “Allāhumma ṣalli ʿalā Muḥammadin wa-ʿalā āli Muḥammadin kamā ṣallayta ʿalā Ibrāhīma [p. 24] wa-ʿalā āli Ibrāhīm; innaka ḥamīdum majīd; wa-bārik ʿalā Muḥammadin wa-ʿalā āli Muḥammadin kamā bārakta ʿalā Ibrāhīma wa-ʿalā āli Ibrāhīm; innaka ḥamīdum majīd (O God, bless Muḥammad and the family of Muḥammad as You blessed Ibrāhīm and the family of Ibrāhīm; You are praiseworthy and mighty; and bless Muḥammad and the family of Muḥammad as you blessed Ibrāhīm and the family of Ibrāhīm; you are praiseworthy and mighty) [p. 23].”

66It is recommended that one take refuge from four, saying, “aʿūdu bi-Llāhi min ʿaḏābi Ǧahannama wa-aʿūdu bi-Llāhi min ʿaḏābi l-qabri wa-aʿūdu bi-Llāhi min fitnati l-masīḥi d-daǧǧāli [p. 104] wa-aʿūḏu bi-Llāhi min fitnati l-maḥyā wa-l-mamāt (I take refuge in God from the torment of Ǧahannam; I take refuge in God from the torment of the tomb; I take refuge in God from the trial of the Antichrist the Daǧǧāl; I take refuge in God from the trial of the time of making alive and the time of making dead).” If one supplicates in the course of the witnessing, using what has been mentioned in transmitted reports, there is no harm in that. One salutes to one’s right, saying, “as-salāmu ʿalaykum wa-raḥmatu Llāh (peace be upon you and the mercy of God)”, and to one’s left likewise.

  • 38 See for example Abū Dāwūd, Kitāb al-ṣalāt 136, man raʾā al-qirāʾa iḏā lam yaǧhar, no. 827.

67Men and women are alike in this except that the woman is to gather herself together in the bowing and prostration and sit with legs folded or else let down her legs and put them on her right side. The one led, when he hears the recitation of the leader (imām), does not recite al-Ḥamd (Q. 1) nor anything else. This is on account of his saying (be he exalted), “When the Recitation is recited, listen to it and be silent, so that you may receive mercy” (Q. al-Aʿrāf 7:204). This is also on account of what Abū Hurayra (God be pleased with him) related of the Prophet …, that he said, “Why should I struggle over the Quran?” and forbade the people to recite where the Prophet … recited aloud.38 It is recommended that one recite at the points where the leader is silent and where he does not recite aloud. If one does not do it, his prayer is complete, since whoever has a leader, the leader’s recitation is his.

68One recites the Quran to oneself in the noon and afternoon prayers. One recites the Quran aloud in the first two bowings of the [p. 105] sunset and evening prayers and all the bowings of the dawn prayer. [p. 24] One recites at the dawn prayer long chapters of the mufaṣṣal (Q. Qāf 50 to the end), in the noon prayer in the first bowing about thirty verses, in the second something less than that, and in the afternoon prayer half of [p. 25] that. In the sunset prayer (one recites) chapters at the end of the mufaṣṣal, in the evening prayer Wa-l-šams wa-ḍuḥāhā (Q. al-Šams 91) and the like of that. Whatever one recites after the Mother of the Book (Q. 1) in all of that, it discharges his duty. One does not go beyond reciting the Mother of the Book in the last two bowings of the noon, afternoon, and evening prayers, nor in the last bowing of the sunset prayer.

69Whatever man is wearing enough to screen what is between his navel and his knees, that discharges his duty, so long as he has something on his shoulder by way of clothing. Whoever has on him one garment, some of it on his shoulder, that discharges his duty. Whoever cannot screen his private parts performs the ritual prayer sitting up and gesturing. If a group performs the ritual prayer naked, the leader is with them in the row, in the middle, gesturing. Their prostration is lighter than their bowing. It is also related [p. 25] from Abū ʿAbd Allāh otherwise: that they prostrate themselves to the ground, while one who is in water and mud gestures.

70When there is exposed anything of a free woman besides her face, she repeats the ritual prayer. It is permissible for a slave woman to perform the ritual prayer with her head uncovered. It is recommended for umm al-walad (a concubine who is the acknowledged mother of her master’s child) to cover her head in the ritual prayer. [p. 106]

71Whoever recalls that he is obliged to perform some ritual prayer while he is performing another finishes it, then performs the missed one. One repeats the prayer that he was in the midst of if time remains for it. If one is afraid that the time will pass, he performs the (required) prayer and it discharges his duty. Then he makes up what he must (the missed prayer). A boy is made, on pain of chastisement, to restore his ritual purity and perform the ritual prayer when he has completed ten years.

72There are fourteen places for the prostration of the Quran. Two of them are in al-Ḥaǧǧ (Q. 22). [p. 26] One does not prostrate oneself (at hearing one of these verses) except [p. 26] in a state of ritual purity. One says “Allāhu akbar” at prostrating oneself and salutes on rising. One does not prostrate oneself at the times when it is not permissible to perform supererogatory ritual prayers. Whoever prostrates himself, well and good. Whoever omits it is under no obligation (to make it up). Whoever shows up for the ritual prayer at the time of the evening prayer begins with the evening prayer. When one shows up for the ritual prayer but needs to use the latrine, he begins with the latrine. [p. 107]

e) The chapter of what nullifies the ritual prayer: when one omits something deliberately or forgetfully

73Whoever omits the saying of “Allāhu akbar” for the purpose of sacralization, or reciting al-Ḥamd (Q. 1), whether leading the prayer or by himself, or a bowing, or standing upright after bowing, or prostration, or standing upright after the prostration, or the last witnessing, or the salutation, his ritual prayer is nullified whether that happened deliberately or forgetfully. Whoever omits anything of saying “Allāhu akbar” for the purpose of sacralization or saying “subḥāna Llāh” in the bowing or prostration or saying “samiʿa Llāhu li-man ḥamidah” or saying [p. 27] rabbanā laka l-ḥamd” or “rabbi ġfir lī rabbi ġfir lī” or the first witnessing or the blessing invoked on the Prophet … in the last witnessing deliberately, his ritual prayer is nullified. Whoever omits anything of it neglectfully prays two prostrations of neglect (al-sahw). [p. 108]

f) The chapter of the two prostrations of neglect (al-sahw)

  • 39 For the report from Abū Hurayra, at the end of which he asks for clarification from ʿImrān ibn Ḥuṣa (...)
  • 40 See for example Buḫārī, Kitāb al-ṣalāt 31, bāb al-tawaǧǧuh naḥwa al-qibla, no. 401.

74Whoever salutes when there remains something of his ritual prayer (undone), performs what remains for him to do of his ritual prayer and salutes. Then he makes the two prostrations of neglect, then the witnessing, and [p. 27] salutes. This is as was related by Abū Hurayra and ʿImrān ibn Ḥuṣayn of the Prophet …, that he did that.39 Whoever is leading a ritual prayer and doubts, not knowing how many he has prayed, he ponders what he should do and resumes (banā ʿalā) wherever he thinks it most likely. Then he prostrates himself after the salutation, as ʿAbd Allāh ibn Masʿūd related of the Prophet …40

75Whatever there is besides this of neglect, the prostration for it comes before the salutation. For example, there is someone praying alone when he [p. 28] has doubts about his ritual prayer, not knowing how many he has prayed. He resumes from wherever he is certain. Or if someone stands where he should sit, or sits where he should stand, or recites aloud where he should be quiet, or [p. 109] is quiet where he should recite aloud, or prays five times, or anything else of neglect—for all of this, he prostrates himself before the salutation.

  • 41 See for example Muslim, Kitāb al-masāǧid 19, bāb al-sahw fī al-ṣalāt wa-l-suǧūd lahu, no. 389.

76If one forgets that one is obliged to perform the prostration of neglect and salute, one says “Allāhu akbar” and makes the two prostrations of neglect, performs the witnessing, and salutes so long as one is in the mosque, even if one has spoken (in the meantime). This is because the Prophet … prostrated himself after the salutation and talking.41 If one forgets to make four prostrations from four bowings and remembers when one is performing the witnessing, one prostrates oneself once. Then he has one sound bowing to his credit. He performs three bowings and the prostration of neglect according to one of two versions (from Aḥmad). It is also related of Abū ʿAbd Allāh (God have mercy on him) that he said, “One begins the ritual prayer from its beginning, since this one was playing”. The person led must perform the prostration of neglect unless the leader is neglectful and performs the salutation. Someone who speaks either deliberately or neglectfully, his prayer is nullified, except for the leader in particular. When he speaks in the interest of the ritual prayer, his prayer is not nullified. [pp. 29 110]

g) The chapter of the ritual prayer with pollution and other things

77If one’s clothing is not clean but the place of his ritual prayer is clean, he repeats; likewise if he performs the ritual prayer [p. 28] in a cemetery, a garden, a bath, or where camels are stood, he repeats. If he performs the ritual prayer when there is some filth (naǧāsa) on his clothing, even if it is a little, he repeats, unless that is a little blood or pus such that it does not seem to his mind indecent. If the place of the filth on his clothing is hidden, he should try to expose it in order to be sure that the washing has reached that filth.

78Whatever comes out of a human or a beast whose flesh is not eaten, by way of urine and anything else, is polluting (naǧis). An exception is the urine of a child who does not eat food, on which water is poured. Semen is ritually pure. From Abū ʿAbd Allāh (God have mercy on him) there is also another version, that it is like blood. Some urine on the face of the earth is purified by a bucket of water. When one forgets and (leads) them in the ritual prayer while ritually impure, he repeats alone. [pp. 30 111]

h) The chapter of the times when the ritual prayer is forbidden to be performed

79(Even at forbidden times) one makes up missed required prayers. One bows for the circumambulation. One performs the ritual prayer at funerals. One performs the ritual prayer when one is in the mosque and the prayer is conducted, even if one has already prayed. (One does not perform the ritual prayer) at every time in which the ritual prayer is forbidden: after (the time for) the afternoon prayer until the sun sets and after the breaking of dawn until the sun has risen. Neither does one begin a supererogatory ritual prayer during these times.

80Supererogatory ritual prayer is by twos. If one performs a supererogatory prayer by day comprising four (sets of bowings), there is no harm in that. It is indifferent if one performs a supererogatory ritual prayer sitting, so that one has the legs folded at the times when one would normally be standing. One folds his legs in the bowing and prostration. The ill person, when the standing increases his illness, performs the ritual prayer sitting; if he cannot bear it sitting, then lying down. [p. 29] The witr prayer is one bowing in which one says the qunūt separated from what has come before. A vigil in Ramadan is twenty bowings.

[pp. 31 112]

i) The chapter of leading (imāma)

81There leads them in the ritual prayer whoever can recite the most Quran. If they are equal (in that), then the one of them who knows the most of the law (leads them). If they are equal (in that), then the oldest of them (leads them). If they are equal (in that), then the most noble of them (leads them). If they are equal (in that), then whichever of them was earliest in settling down (leads them). Anyone who performs the ritual prayer behind someone who openly advocates a heresy or becomes drunk repeats (his prayer). The leadership of a slave and a blind man is permissible. If someone who knows no Quran leads someone else who knows no Quran and someone who does, the one who can recite (some of) the Quran alone repeats the ritual prayer. If someone performs the ritual prayer behind a polytheist, a woman, or an ambiguous hermaphrodite, he repeats the ritual prayer.

82When a woman leads women in the ritual prayer, she stands with them in the middle of the row. The master of the house has the first claim to the leadership unless one of them (in the group) has governing authority. One follows the leader in the furthest part of the mosque and outside the mosque when the rows are contiguous. The leader is not to be higher than the one led. [p. 32] Whoever performs the ritual prayer behind the row alone or stands beside the leader on his left repeats the ritual prayer. When the local leader (imām al-ḥayy) performs the ritual prayer sitting, they pray behind him sitting. If he begins to lead them in the ritual prayer standing, then weakens and sits, they finish behind him standing. [p. 113]

  • 42 See for example Abū Dāwūd, Kitāb al-ṣalāt 101, bāb al-raǧul yarkaʿu dūna al-ṣaff, nos 683–684.
  • 43 The screen (sutra) referred to is something one puts in front of one’s place of prostration to mark (...)

83Whoever comes upon the leader bowing and bows short of the row, then walks until he joins the row, not knowing what the Prophet … said to Abū Bakra, “May God increase you in zeal but do not repeat this”, is to be told, “Do not repeat this.”42 His ritual prayer has discharged his duty. If he repeats this after being rebuked, then it does not discharge his duty. [p. 30] The screen in front of the leader serves as a screen also for whoever is behind him.43 Whoever passes before the one performing the ritual prayer, let him repulse him. Nothing cuts short the ritual prayer (by passing too close) except for a wild black dog. [p. 114]

j) The chapter of the ritual prayer of the traveller

84When the distance of one’s travel is sixteen farsaḫs or forty-eight Hāšimī miles, he may shorten (the ritual prayer) when he passes beyond the houses of his village, whether his travel is obligatory or indifferent. [p. 33] Whoever does not intend to shorten the ritual prayer at the time of his entering into (the time of that) ritual prayer is not to shorten the ritual prayer. The dawn and sunset prayers are not to be shortened. The traveller may complete and shorten, as he may fast and not fast. Shortening and not fasting are more pleasing to Abū ʿAbd Allāh (God have mercy on him). He said that when the time for the noon prayer comes on the traveller and he wishes to go on, he is to perform the noon prayer and go on. When he enters the time for the afternoon prayer, he performs it, likewise the sunset and evening prayers. If he is moving and wishes to put off the first in order to perform it in the time of the second, this is permissible.

85If one forgets a ritual prayer of the time when he is settled, then remembers it while travelling, or a prayer of the time when he is travelling that he remembers while he is [p. 115] settled, he performs the ritual prayer in both cases in the form for when he is settled. If the time comes when he is travelling but with him is someone settled, he performs the complete prayer. When a traveller and a settled person perform the ritual prayer behind a traveller, the settled person performs a complete prayer when the leader salutes. When the traveller intends to reside in a place for more than twenty-one ritual prayers, then he performs the complete version. If he says, “Today I shall go out” or “Tomorrow I shall go out”, he shortens the ritual prayer, even if he (actually) stays for a month. [pp. 31 34 116]

k) The chapter of the ritual prayer of Friday

86When the sun begins to decline on Friday, the leader ascends the mimbar. When he is facing the people, he salutes them. They salute him in return. Then he sits and the muezzins call to prayer. This is the call to prayer that stops buying and selling and makes it obligatory to hurry, except for someone whose residence is at a distance such that he is obliged to start at the time that will allow him to reach the Friday prayer. When they have finished with the call to prayer, (the leader) addresses them standing. He praises God and lauds him, blesses the Prophet …, recites something of the Quran, preaches, then sits.

  • 44 This must allude to a prayer for the ruler, historically an important indication of who seemed to b (...)

87He stands up and brings forth again praise of God and laudation and blessing the Prophet … He recites the Quran and preaches. If he wishes to supplicate for some person, he may supplicate for him.44 Then the ritual prayer is conducted. He descends and leads them in the Friday prayer of two bowings. In each bowing, he recites al-Ḥamd (Q. 1) and a chapter. He recites aloud.

88Whoever comes up when one bowing with two prostrations has taken place adds to it one more, and it counts in his favour as a Friday prayer. Whoever comes up with less than that resumes where he is as for the noon prayer, [p. 35] if he has come with the intention (of performing) the noon prayer. When the time for the afternoon prayer comes and they have performed one bowing, they perform another bowing and it discharges their duty of the Friday prayer. [p. 117] Whoever comes in while the leader is giving the sermon does not sit until he has performed two succinct bowings.

89If there are not forty rational men in a village, the Friday prayer is not obligatory for them. If they perform the (Friday) ritual prayer, they repeat it as a noon prayer. If the city is large and needs multiple Friday mosques, the Friday prayer is permissible in all of them. The Friday prayer is not obligatory for one travelling, a slave, or a woman. If they do attend it, it discharges their duty. [p. 32] From Abū ʿAbd Allāh concerning the slave there are two versions. One of them is that the Friday prayer is obligatory for him. The other is that it is not obligatory for him.

90Whoever performs the noon prayer on Friday, being obliged to attend the prayer in assembly, before the leader’s ritual prayer, is to repeat it after his noon prayer. It is recommended for whoever comes to the Friday prayer to perform the major ritual ablution, wear two clean garments, and perfume himself. If they perform the Friday prayer before the declining of the sun in the sixth hour, that discharges their duty. The Friday prayer is obligatory for anyone who is within a farsaḫ of the Friday mosque. [pp. 36 118]

l) The chapter of the ritual prayer of the two festivals

91They are to say “Allāhu akbar” openly in the nights of the two festivals, with special emphasis on the breaking of the fast. This is on account of the saying of God (mighty and glorious is He) “and [He desires] you to complete the period and to magnify God for having guided you and to be thankful” (Q. al-Baqara 2:185). When it is morning, they are to make themselves ritually pure. They eat if it is the breaking of the fast. Then they go to the place of prayer openly saying “Allāhu akbar”.

92When the ritual prayer takes place, the leader is to come first and lead them in the prayer, two bowings without any call or iqāma. In each bowing, he is to recite al-Ḥamdu li-Llāh (Q. 1) and a chapter, reciting aloud. In the first, he says “Allāhu akbar” seven times, including the opening saying of “Allāhu akbar”. He raises his hands with every saying of “Allāhu akbar”. He opens the first of them with praising God and lauding him. He blesses the Prophet … between every two sayings of “Allāhu akbar”. If he wishes, he says “Allāhu akbaru kabīra wa-l-ḥamdu li-Llāhi katīra wa-subḥāna Llāhi bukratan wa-aṣīla wa-ṣalawātu Llāhi ʿalā sayyidinā Muḥammadin nabiyyi l-ummī wa-ʿalā ālihi wa-sallama taslīman katīra (“God is greater, great; much praise be to God; God be exalted morning and evening; the blessings of God be on our master Muḥammad the gentile prophet and on his family; may He grant him much peace”). If he wishes, he says something else. [pp. 33 37 119] In the second (bowing), he says “Allāhu akbar” five times, not counting the saying of “Allāhu akbar” by which he rises from prostration. He is to raise his hands with every saying of “Allāhu akbar”. When he gives the sermon—two sermons, between which he sits. If it is the breaking of the fast, he is to urge them to give alms, making it clear to them what they are to bring forth. If it is the sacrifice, he is to make them desire the sacrifices and make clear how they are to sacrifice.

93One does not perform any supererogatory ritual prayer before the prayer of the two festivals or after them. When one goes by one way, one returns by another. Whoever misses the ritual prayer of the festival performs a ritual prayer of four bowings, like a voluntary ritual prayer, saluting at the end of it. If he prefers, he may separate each two bowings by a salutation. The saying of “Allāhu akbar” begins on the day of ʿArafa at the dawn prayer. Then the saying of “Allāhu akbar” continues at the end of every required ritual prayer that one prays in the assembly. There is another version from Abū ʿAbd Allāh (God have mercy on him): that one says “Allāhu akbar” in the required prayer, even if one is alone, until one says “Allāhu akbar” at the afternoon prayer at the end of the days of al-Tašrīq (13 Ḏū al-Ḥiǧǧa). Then one stops. [pp. 38 120]

m) The chapter of the ritual prayer of fear

94The ritual prayer of fear is this: when one is facing the enemy, travelling, someone is to lead one group in the ritual prayer for one bowing, remaining standing, while they finish another (bowing) with al-Ḥamdu li-Llāh (Q. 1) and a chapter. Then they go to stand guard while another group, (which has been) facing the enemy, comes and prays with him one bowing, which they finish for themselves with al-Ḥamdu li-Llāh and a chapter. (The leader) is to prolong the witnessing until they all finish the witnessing and he leads them in the salutation. [p. 34] When it is the sunset prayer, one is to lead the first group in the first of the two bowings, then they are to finish a bowing for themselves, reciting in it al-Ḥamdu li-Llāh. Then one leads the other group in the ritual prayer, one bowing, while they finish for themselves two bowings, reciting in each one al-Ḥamdu li-Llāh and a chapter. If one is afraid while settled, someone is to lead each group in the ritual prayer for two bowings. The first group finishes with al-Ḥamdu li-Llāh in each bowing and the second group finishes with al-Ḥamdu li-Llāh in each bowing.

95If it is the evening prayer, someone is to lead the other group in one bowing and they are to finish two bowings for themselves, reciting in it al-Ḥamdu lillāh. Then someone is to lead the other group in the ritual prayer, one bowing, while they are to finish for themselves two bowings, reciting in each one al-Ḥamdu lillāh and a chapter. [p. 39] If fear is severe, they being at swords drawn, then men on foot and mounted [p. 121] are to perform the ritual prayer toward Mecca or another direction by gesture. They begin with the saying of “Allāhu akbar” that sacralizes toward Mecca if they are able, otherwise in another direction. Whoever feels safe when in the ritual prayer is to finish the prayer as one who is safe. Likewise, if he feels safe but becomes fearful, he is to finish it as the ritual prayer of someone who fears. [p. 122]

n) The chapter of the eclipse prayer

96If the sun or moon is eclipsed, the people are to go fearfully to the ritual prayer. If they like, they do it in a group; if they like, individually. (It is performed) without call to prayer or iqāma. In the first (bowing), the Mother of the Quran (Q. 1) is recited with a long chapter. The recitation is aloud. Then one is to bow, prolonging the bowing. Then one raises oneself and recites, prolonging the standing, although less than the first standing. Then one bows for less than the first bowing. Then one raises oneself, then prostrates oneself twice and for long. When one stands, one does again the like [p. 35] of that. It comes to four bowings and four prostrations. Then one performs the witnessing and salutes. [p. 40] If the eclipse happens at other than the time for a ritual prayer, one is to put in place of the prayer saying “subhḥāna Llāh”. [p. 123]

o) The chapter of the ritual prayer of asking for rain (al-istisqāʾ)

  • 45 See for example Tirmiḏī, abwāb al-ṣalāt 278, bāb mā ǧāʾa fī ṣalāt al-istisqāʾ, nos 556–559, with th (...)

97When the earth is afflicted by drought and water is withheld, the people go out with the leader. In going out, they are as in what is related of the Prophet …, that when he wanted to pray for rain, he went out humble, expending himself, abasing himself, pleading. He would lead them in the ritual prayer for two bowings. Then he would preach a sermon, facing the direction of the Kaʿba. He would turn around his cloak, putting the right on the left and the left on the right. The people would do likewise. He would supplicate, they would supplicate, in their supplication asking at length for forgiveness.45 If they receive rain (well and good); otherwise they return on the second day and the third. If there go out with them protected subject people (ahl al-ḏimma), they are not to be prevented, although they are ordered to keep apart from the Muslims. [pp. 41 124]

p) The chapter of the category of him who omits the ritual prayer

  • 46 “Whether rejecting it or not (ǧāḥidan laḥā aw ġayr ǧāḥid)” refers to denial that one is obliged to (...)

98Whoever omits the ritual prayer who is mature and rational, whether rejecting it or not, is to be bidden to perform it at the time of each ritual prayer for three days.46 If he performs the ritual prayer (well and good); otherwise he is to be killed. [pp. 36 125]

3. The book of funerals (ǧanāʾiz)

99When it becomes certain that someone has died, he is made to face in the direction of Mecca, his eyes are closed, and his jaws are tied so that they do not gape. A mirror or something else is placed on his belly to keep it from rising. When he is washed, the area from his navel to his knees is screened. It is preferable that he not be washed under the sky; that no one be present but who is responsible for the matter so long as the washing lasts. One should loosen his joints if that is easy, otherwise leave that. One should wrap his hands with a cloth and cleanse him of any pollution. One should gently press on his belly, then perform the minor ritual ablution on him as though to prepare him for the ritual prayer. The water should not go into his mouth or nose. If there is any filth in them, he removes it with a cloth. One pours water on him, starting with the right side of everything. One turns him [42] on his side in order that the water go over the rest of his body.

100There should be a little of sidr (Christ’s thorn) in all the water. The sidr should be pounded so that his head and beard may be washed with its foam (raġwa). The whole operation should be conducted gently. Hot water, potash, [p. 126] and vinegar should be used if needed. The third time, he should be washed with water containing a little camphor and sidr. There should not be in it any true sidr. If anything comes out of him, it should be washed up to five times, if more than that seven times, if yet more then it should be stuffed with cotton; if it still does not cease, then with fresh clay. One dries him with a garment. His shroud is to be fumigated and he is shrouded with three white garments. They are to be interleaved with perfume (ḥanūṭ). [p. 37]

101If he is shrouded in his wrap, gown, and loincloth, the loincloth is put next to his skin. The gown is not buttoned. Ground incense is to be put on his joints. Perfume (darīra) is put on the points of prostration and the places where his body folds (al-maġābin—eyes, mouth, nose, ears, and armpits). He is treated like a bride. No camphor is put in his eyes. If his family wish to see him, they are not kept away. [p. 43] If some small thing comes out of him when he has been shrouded, the washing is not repeated and he is borne away. [p. 127] A woman is shrouded in five things: a gown, a loincloth, a wrap, a veil, and a fifth (cloth) with which her thighs are bound. Her hair is to be braided into three strands hanging down her back.

102Walking with the funeral procession is to be fast. Walking ahead is preferable. The bier is to be carried with one’s right shoulder to the foot, then (shifting positions) with one’s left shoulder to the foot. The person with the best claim to lead the funeral prayer is the one named by the (dead person), then the prince, then the father, even if higher (i.e., extending to the grandfather), then the son, even if lower (i.e., extending to the grandson), then the nearest of the ʿaṣaba (agnates). As for the prayer over him, one says “Allāhu akbar” the first time and recites al-Ḥamdu li-Llāh (Q. 1); then one says “Allāhu akbar” the second time and blesses the Prophet … as one blesses him in the witnessing; then one says “Allāhu akbar” a third time and supplicates for himself, his parents, and the Muslims. Then he supplicates for the dead person.

103If he wishes, he says, “Allāhumma ġfir li-ḥayyinā wa-mayyitinā wa-šāhidinā wa-ġāʾibinā wa-ṣaġīrinā wa-kabīrinā wa-ḏakarinā wa-unṯānā; innaka taʿlamu munqalabanā wa-maṯwānā; innaka ʿalā kulli šayʾin qadīr; Allāhumma man aḥyaytahū minnā fa-aḥyihī ʿala l-islām; wa-man tawaffaytahū minnā fa-tawaffahū ʿala l-īmān; Allāhumma innahū [p. 38] ʿabduka bnu amatika nazala bika [p. 44] wa-anta ḫayru manzūlim bihī wa-lā naʿlamu ḫayra; Allāhumma in kāna muḥsinan fa-ǧāzihī fī iḥsānih; wa-in kāna musīʾan fa-taǧāwaz ʿanh; Allāhumma lā taḥrimnā aǧrahū wa-lā taftinnā baʿdah (O God, forgive our living, our dead, the one of us present, the one of us absent, the children of us, the adults of us, the male of us, and the female of us; you know where we shall be overthrown and requited; you have power over everything; O God, whomever of us you make alive, make him alive as a Muslim; whomever you claim, claim him as one faithful; [p. 128] O God, he is your servant, the son of your servant woman, who has alighted by you, you being the best to alight by and we knowing nothing better; O God, if he was a doer of good, reward him for his good; if he was a doer of evil, overlook it; O God, do not bereave us of his reward or try us after him)”.

104Then he is to say “Allāhu akbar” for the fourth time and pause a little. He is to raise his hands with every saying of “Allāhu akbar”. He is to salute once to his right. If someone misses anything of the saying of “Allāhu akbar”, he is to make it up right away. If he salutes with the leader without making up (the missing saying of “Allāhu akbar”), there is no harm in it. (The dead person) is placed in his grave feet first if that is easier for them. A woman’s grave is to be veiled by a piece of cloth. A near male relation is to put her into it: if there is none (available), the women; if not them, then old men. The shroud is not to be split in the grave. The knot is to be undone. No fired brick, wood, or anything touched by fire is to be put in the grave.

105Whoever has missed the funeral prayer is to perform the prayer over the grave. If the leader should say “Allāhu akbar” five times, one says it with him. [p. 45] The leader is to stand at the chest of a man and the waist of a woman. There is no praying at the grave after a month. [p. 129] When the heirs dispute over the shroud, it is reckoned thirty dirhams; if he was rich, fifty dirhams. An aborted foetus, if born after more than four months, is to be washed and prayed over. If it is not clear whether it is [p. 39] male or female, it is to be given a name that serves for both male and female. A woman is to wash her husband. If necessity calls for a man to wash his wife, there is no harm in it. A martyr who dies on the spot is not to be washed or prayed over. He is to be buried in his clothes. If he has any leather or arms on him, they are to be removed from him. If he is carried away wounded but alive, he is to be washed and prayed over.

106Someone in a sacralized state (for the pilgrimage) is washed with water and sidr but no perfume is to be brought near him. He is to be shrouded in his two garments. Neither his head nor his legs are to be covered. If something falls from the dead person, it is to be washed and put with him in his shroud. If his moustaches are long, they are to be trimmed and (the hair) put with him. It is recommended to console the family of the dead person. Weeping is not discouraged if there is with it no demonstrative bewailing the dead one’s virtues (nadb) or scratching faces and tearing clothes (niyāḥa). There is no harm in preparing food for the family of the dead person, to be sent to them. They are not to prepare food to feed the people. [pp. 46 130]

107When a woman dies with a child moving in her womb, her belly is not to be split open. Midwives are to insert their hands and bring it out. When the funeral procession comes at the time of the dawn prayer, one is to begin with the funeral. When it comes at the time of the sunset prayer, one is to begin with the sunset prayer. [p. 40] The leader is not to pray over someone who stole from booty (before its division) or a suicide. If there comes the funeral of a man, a woman, and a child, the man is to be put next to the leader, the woman behind him, and the child behind the two of them. If they are buried in one grave, the man is nearest the direction of Mecca, the woman behind him, and the child behind the two of them. Between every two of them is put a barrier of earth. If a Christian woman dies when she is pregnant by a Muslim, she is to be buried between the cemetery of the Muslims and the cemetery of the Christians. One is to remove one’s sandals on entering the cemetery. There is no harm in men’s visiting cemeteries. It is discouraged for women. [pp. 41 47 131]

4. The book of the alms tax (zakāt)

108There is no alms due on fewer than five free-grazing camels. If one owns five camels and lets them wander to graze for most of a year, there is due on them a sheep or goat. For ten is due two sheep, for fifteen three sheep, for twenty-four sheep. When they become twenty-five, there is due a year-old she-camel (bint maḵaḍ) up to thirty-five. If there is not among them a year-old she-camel, then a male two year-old (ibn labūn). When they reach thirty-six, there is due on them female two-year-old she-camel up to forty-five. When they reach forty-six, there is due on them a female three-year-old (ḥiqqa), ready to be mounted, up to sixty. When they reach sixty-one, there is due on them a female four-year-old (ǧaḏʿa) up to seventy-five. When they reach seventy-six, there are due on them two two-year-old females up to ninety. When they reach ninety-one, there are due on them two three-year-old females, ready to be mounted, up to one-hundred-twenty. [p. 132] If they are more than one-hundred-twenty, for every forty there is due a female two-year-old, for every fifty [p. 48] a three-year-old female. Whoever is obliged to pay a female two-year-old but has none while having a female three-year-old, it is taken from him along with two sheep or goats or twenty dirhams. If he is obliged to pay a female two-year-old but has none while having a female three-year-old, it is taken from him and he is given, to make up the difference, two sheep or goats or twenty dirhams. [pp. 42 133]

a) The chapter of the alms on cattle (bovines)

109There is no alms due on fewer than thirty free-grazing cattle (bovines). If one owns thirty cattle and lets them wander to graze for most of a year, there is due on them a male or female one-year-old (tabīʿ) up to thirty-nine. When they reach forty, there is due on them a female two-year-old (musinna) up to fifty-nine. When they reach sixty, there are due on them two one-year-olds up to sixty-nine. When they reach seventy, there are due on them a one-year-old and a two-year-old. When they are more, then for every thirty is due a one-year-old for every forty a two-year-old. Buffalo (ǧawāmīs) are like other bovine cattle. [pp. 49 134]

b) The chapter of the alms on sheep and goats

110There is no alms due on fewer than forty free-grazing sheep. If one owns sheep and lets them wander to graze for most of a year, there is due on them a sheep up to one-hundred-twenty. If it is more by one, there are due two sheep, up to two-hundred. If it is more by one, there are due three sheep, up to three-hundred. If it is more then for every one-hundred sheep there is due a sheep. A billy goat, an animal decrepit with age, an animal with a defect, one that has just given birth (rubbā), one that is nursing, and one not left to wander (akūla) are not to be taken for alms. They are included in calculating the number on which alms are due. [p. 43] They are not taken from.

111Of goats, there is to be taken what is one year old (ṯanī). Of sheep there is taken young ones six months old. If they are twenty sheep and twenty goats, there is taken one of them, so long as its value is half of that of a sheep and half a goat. [p. 135] If a number have a mixed flock, with five camels or thirty bovine cattle or forty sheep or goats and they are in the same pasture, field, stable, milking place, and foaling place, alms are taken from them. They consult with one another to determine shares. If they are mixed otherwise than this, there is taken from each of them [p. 50] individually what is peculiar to him, when alms tax is due on it (that is, on his property).

112Alms are incumbent only on free Muslims. The young and insane are to be paid for by their guardians. A master is to pay alms for what his slave possesses, since it is his property. No alms tax is incumbent on a slave with whom there is a contract of manumission (mukātab). If he is unable to keep up his payments (ʿaǧaza), his master is to keep by what he possesses by way of wealth for the period of the alms tax (ḥawl, technically one year) and pay the tax on it if it constitutes the minimum amount. If he (the mukātab) pays and there remains in his possession the minimum amount, he is to hold onto it for the period of the alms tax. There is no alms tax on wealth until the period of the tax has passed.

113It is permissible to pay the tax in advance. Whoever pays the tax on his wealth in advance, giving it to those who have a claim on it, then the recipient dies [p. 136] before the period of the tax has passed or just as it is reached, having no need of it or of anything else, it discharges his duty. One’s duty of paying the alms tax is not discharged except by intention unless the leader takes it by force.

  • 47 With allusion to Q. al-Tawba 9:60, “The alms are for the poor and the destitute, for those who work (...)

114The required alms are not to be given to one’s parents or ancestors, however many generations removed, nor to one’s children or descendants, however many generations removed, [p. 44] nor to a husband or wife, nor to an unbeliever. They are not to be given to slaves unless they are among the collectors, in which case they are given by the right of their labour. They are not given [p. 51] to Hashimids or their clients or any rich person, being defined as someone who owns fifty dirhams or its value in gold. It is not paid except on the eight categories that God (mighty and glorious is He) named in the Quran, unless a man takes over its expenditure for himself, in which case the tax collector (ʿāmil) has no claim on it.47 If he gives all of it to one category, that discharges his duty, so long as it does not turn someone into a rich man. No alms are to be transported from one town to another far enough away for the ritual prayer to be shortened when one travels between them.

115When one trades an animal of the flock before the period of the tax for the like of it, one pays the alms tax on it, if the period is complete from the time of his coming into the possession of the first. Likewise, when one trades two-hundred dirhams for twenty dinars or twenty dinars for two-hundred dirhams, the alms tax on them is not nullified by their conversion (intiqāl). Whoever has an animal of the flock who trades it before [p. 137] the passing of the period of the alms tax for dirhams, seeking to escape the alms tax, it is not nullified on account of its transfer.

116The alms tax is obligatory as concerns an individual’s responsibility (ḏimma) by the passing of the period of the tax, whether the wealth has perished by one’s negligence or otherwise. [p. 52] Whoever has pledged beasts and the period of the tax passes pays from them if he hasn’t other wealth from which to pay. The rest (remains) a pledge. [p. 138]

c) The chapter of the alms tax of fruits

117Everything that God (mighty and glorious is He) brings out of the earth that can be dried and remains and can be weighed and saved up, reaching five awsuq or more, a tenth of it is due if it is watered from the heavens or channels. [p. 45] If it is watered with a waterwheel and beasts and what takes effort, then half of a tenth (is due). A wasq is sixty āṣuʿ, a ṣāʿ five arṭāl and a third by the Iraqi measure.

118There are two kinds of land, what has been taken over by treaty and what has been taken over by force. For what has been taken by treaty is due alms. For what was taken by force, the ḫarāǧ tax is paid on it. The alms tax is due on what remains if it is five awsuq and belongs to a Muslim. Wheat is combined with barley and has the alms tax due on it if it is five awsuq, likewise [p. 53] legumes. Gold and silver are also thus. [p. 139] Another version from Abū ʿAbd Allāh (God have mercy on him) is that it is not included, so that every sort is (considered) alone if it is subject to the alms tax. [p. 140]

d) The chapter on the alms tax of gold and silver

119No alms tax is due on less than two-hundred dirhams unless one has in his possession gold or goods for trade, which make up the amount. [p. 46] It is the same for less than twenty mitqāls: if they are made up (by the addition of trading capital), then there is due on them a quarter of a tenth and on their increase, however little. No alms tax is due on a woman’s jewellery if they are what she wears or lends out. There is no alms tax on a man’s jewelled sword, its belt, or its ring. Whoever uses gold and silver vessels is sinning, but there is alms tax due on them.

120Whatever there is of found treasure, having been buried in the Ǧāhiliyya, whether much or little, a fifth is due to the people of alms and the rest belongs to him (who finds it). Whatever is brought out of mines by way of gold (twenty miṯqāls), silver (two-hundred dirhams), or the equivalent value [p. 54] of lead, mercury, copper, or other things that are brought out of the earth, alms tax is due on it immediately. [p. 141]

e) The chapter of the alms tax of trade

121Goods for trade are to be evaluated when the period of the alms tax has passed on them. Then one pays the alms tax on them. Whoever has commodities for trade and owns nothing else, if their value is less than two-hundred dirhams, no alms tax is incumbent on him until the period of the alms tax has passed from the day that they equalled two-hundred dirhams. Commodities for trade are to be evaluated when the period of the alms tax has passed on them according to what is best for the poor, whether gold or silver money. One does not consider what can be bought with it when one buys it for trade, then intends it for consumption, then intends it for trade. No alms tax is due on it until one sells it and retains its price for the period of the alms tax. When the minimum amount on which the alms tax is due is in one’s possession, then one trades with it and it grows, one is to give the tax due on the original amount along with the increase when the period of the alms tax has passed. [pp. 47 55 142]

f) The chapter of the alms tax of debts and alms

122When one has two-hundred dirhams and owes a debt, no alms tax is incumbent on him. When one is owed a debt to be paid at a certain time, no alms tax is incumbent until he receives it, when he pays for what is past. When one’s property has been usurped, he is to pay alms tax on it when he gets it back for what is past, according to one of two versions from Abū ʿAbd Allāh (God have mercy on him). According to the other version, he said, “It is not like a debt for which he pays the alms tax when he receives it for what is past. If he does pay the alms tax on it, I prefer that”.

123When found property becomes like other wealth, after the period of the alms tax, one is to retain it for one period of the alms tax, then pay the tax on it. If its owner appears, he is to pay the alms tax on it for the period when the finder might not. When a woman receives her bride price, she is to pay alms tax on it for what is past. [p. 143] When flocks are sold at option, the option not terminating until they are returned, the seller retains them for a period of the alms tax whether the option belongs to the seller or the buyer, since it represents new wealth. [pp. 56 144]

g) The chapter of the alms tax of the breaking of the fast (zakāt al-fiṭr)

124The alms tax of the breaking of the fast is obligatory for every Muslim, whether free or slave, male or female: a ṣāʿ after the ṣāʿ of the Prophet …, that being five arṭāl and a third of every grain or fruit that is harvested for eating. If a desert person give a ṣāʿ of cheese curd (aqiṭ), that discharges his duty if that is their food. [p. 48] Abū ʿAbd Allāh’s preference is to pay in dates. Whoever is capable of paying in dates, barley, wheat, raisins, or cheese curd but pays in something else, he has not discharged his duty. Whoever gives the (equivalent) value has not discharged his duty. He is to pay it when he goes out to the place of prayer. If he puts it forward, paying before that by a day or two, it discharges his duty.

125One must pay on behalf of oneself, also on behalf of his dependants if he has on hand more food than suffices for a day and a night. [p. 57] He need not pay the alms tax on behalf of his slave who has a contract of manumission. The slave with a contract is obliged to pay for himself the alms tax of the breaking of the fast. If a group owns a slave, each of them pays a ṣāʿ. [p. 145] There is a version from Abū ʿAbd Allāh (God have mercy on him) by which a ṣāʿ is paid for all of them.

  • 48 See Ibn Abī Šayba, Muṣannaf, vol. 3, p. 219, vol. 4, p. 355.

126The alms tax of the breaking of the fast is given to whomever it is permissible to give the alms tax on wealth. It is permissible for a group to pay what is incumbent on an individual and for an individual to pay what is incumbent on a group. Whoever pays on behalf of the foetus, good. ʿUṯmān ibn ʿAffān (may God be pleased with him) used to pay on behalf of the foetus.48 Whoever possesses enough to the pay the alms tax of the breaking of the fast but owes a debt the like of it must pay (the alms tax) unless he is asked for it (by his creditor), in which case he must pay off his debt and owes no alms tax. [pp. 49 58 146]

5. The book of the fast (ṣiyām)

127When twenty-nine days of Šaʿbān have passed, they look for the new moon. If the sky is clear, they do not fast that day. If it becomes cloudy or dusty before the sight of the new moon, it is obligatory to fast (that day). If it is part of the month of Ramadan, it discharges one’s duty. It is not permissible to observe a required fast until one intends it at some point in the night. Whoever intends at night (to fast), then loses consciousness before the breaking of dawn and does not recover until the sun has set, he has not discharged his duty to fast that day. Whoever intends a voluntary fast in the daytime, not having eaten (since dawn), that discharges his duty. When one travels such a distance as calls for shortening the ritual prayer, one does not break the fast until one leaves the houses behind his back.

128Whoever eats, drinks, is cupped, introduces medicine into his nose, or introduces anything into his interior from anywhere, or kisses such that he ejaculates or releases pre-ejaculate (maḏy), or repeatedly looks until he ejaculates—anything he does of this deliberately while remembering his fasting, he must [p. 59] make it up although without an act of penance (kaffāra). If it is an obligatory fast and he did any of this forgetfully, then he has not infringed his fast and he need not make it up. Whoever induces vomiting must make it up. Whoever is overcome by his vomit need not do anything. [p. 147] Whoever apostatizes from Islam has broken his fast. Whoever intends to break the fast has broken the fast. [p. 50]

129Whoever has coitus in the vagina, whether he ejaculates or not, or without the vagina such that he ejaculates, whether deliberately or negligently, must make it up with an act of penance if it is in the month of Ramadan. The penance is to free a believing slave. If that is not possible for him, then it is fasting two months in a row. If that is not possible for him, then it is feeding sixty poor persons, for each poor person a mudd of wheat or half a ṣāʿ of dates or barley. When someone has coitus but does not make penance until he has coitus a second time, it is one penance (that he must make). If he makes penance, then has coitus for a second time, it is a second penance (that he must make). If one eats thinking that the dawn has not broken when it has broken, or breaks the fast thinking the sun has set when it has not set, he must make it up. [p. 60]

130It is indifferent for one to have coitus by night not to perform the major ritual ablution until the breaking of dawn when he is fasting. It is the same for a woman if her menstrual period ceases before dawn and she is fasting if she intends to fast before the breaking of dawn and performs the major ritual ablution when it is morning. When the pregnant woman fears for her foetus or the nursing woman for her child, they are to break the fast and make it up. They feed for every day a poor person. If an old man is unable to fast on account of his age, he is to break the fast and feed a poor person for every day (missed).

131When a woman is menstruating or in parturition, she is to break the fast and make it up. If she fasts, it does not discharge her obligation. If it is possible for her to make it up but she does not until she dies, for every day, a poor person is fed on her behalf. If the woman fasting has not died before another month of Ramadan has come upon her, she is to fast it (that Ramadan), then make up what she is obliged to, feeding a poor person for every day. [p. 148] The same rule applies to the ill person and the traveller in death and life when they put off making up (missed days). The ill person may break the fast if fasting would worsen his illness. If he endures and fasts, [p. 51] that is discouraged for him but discharges his duty; likewise for the traveller.

132Making up the month of Ramadan with interruptions discharges one’s duty but consecutive days are better. Whoever enters on a voluntary fast, then leaves it, need not make it up. If he does make it up, that is better. [p. 61] When a boy is ten years old and able to fast, he is held to it. When an unbeliever converts to Islam in the month of Ramadan, he is to fast what remains of the month. Whoever sees the new moon of Ramadan by himself is to fast. If he is an upright man, the people are to fast on his say-so. There is no breaking the fast save by the testimony of two upright men. One is not to break the fast when one sees it by himself. When the months become uncertain to the prisoner and he fasts a month, meaning it to be Ramadan, and it coincides with it or what is after it, that discharges his duty. If it coincides with what is before it, that does not discharge his duty.

133One is not to fast the days of the two festivals or the three days after the Feast of the Sacrifice, either by obligation or voluntarily. If one determines to fast them, one is a sinner. It does not discharge any duty. Concerning the days of the three days after the Feast of the Sacrifice, there is another version from Abū ʿAbd Allāh (God have mercy on him) by which one may fast them for the sake of an obligatory (fast). When one sees the new moon by day before the zenith or after it, it is the next night. The better course is to put off the nighttime meal and to speed up the breaking of the fast. [pp. 62 149]

  • 49 See Nasāʾī, Muǧtabā, Kitāb al-ṣiyām 83, kayfa yaṣūmu ṯalāṯat ayyām min kull šahr, no. 2420.

134Whoever fasts Ramadan and follows it with six from Šawwāl, even if he breaks them up, it is as if he fasted perpetually. Fasting on the Day of Atonement (10 Muḥarram) is penance for a year. Fasting on the Day of ʿArafa (9 Ḏū al-Ḥiǧǧa) is penance for two years. It is discouraged for someone at ʿArafa to fast in order for his supplicating to be strengthened. [p. 52] The days of the white ones (al-ayyām al-bīḍ) that the Messenger of God … urged one to fast are the thirteenth, fourteenth, and fifteenth.49 [p. 150]

a) The chapter of seclusion in the mosque (iʿtikāf)

135Seclusion in the mosque is highly recommended (sunna) unless it is for a vow, in which case one must perform it. It is permissible without fasting unless one says in one’s vow “along with fasting”. Seclusion in the mosque is not permissible save in a mosque where the Friday prayer is conducted. One is not to leave it except for a human need or for the Friday prayer. One is not to pay a visit to someone ill or attend a funeral unless that was stipulated. Whoever has coitus has spoilt seclusion in the mosque. He need not make it up unless it was an obligatory fast.

136If there is civil strife that makes one fearful, one is to leave seclusion in the mosque. When one feels safe, one resumes from the point where one left off. If it was a vow for particular days, one is to make up what one left. Its penance is the penance for an oath. [p. 63] It is the same for the call to arms if one is needed. The one secluded in the mosque is not to trade or practise a trade. There is no harm to marrying in the mosque or witnessing a marriage. A woman whose husband dies while she is secluded in the mosque is to leave it to discharge her waiting period (ʿidda). She acts as one does who has gone out on account of civil strife. [p. 151] A woman secluded in the mosque who begins to menstruate is to leave the mosque. She secludes herself in the forecourt (raḥba; just without the mosque). Whoever vows to live in the mosque for a particular month enters the mosque before sunset. [pp. 53 64 152]

6. The book of the pilgrimage

137Whoever possesses food and a mount (rāḥila) and is rational and mature, the greater and lesser pilgrimages (ḥaǧǧ and ʿumra, respectively) are required of him. If one is ill, with no hope of recovery, or an old man incapable of holding onto the mount, he is to get someone else to make the greater and lesser pilgrimages in his place. This discharges his duty, even if he should recover. The rule is the same for a woman when she has a close male relative (to accompany her). Whoever puts it off until he dies, payment is to be made for him from all of his wealth for someone else to make the pilgrimage on his behalf. Whoever makes the pilgrimage on behalf of someone else who has not made the pilgrimage on his own behalf, whatever he has taken is to be returned and the pilgrimage is on his own behalf.

138Whoever makes the pilgrimage before maturity, then becomes mature, or as a slave and then becomes free, the pilgrimage is (still) incumbent on him. Whoever is taken along on the pilgrimage as a child, there is avoided for him whatever is avoided for a mature person, and whatever of the pilgrimage he is unable to do, someone does for him. Whoever is carried for the circumambulation, the circumambulation counts for him, not the one who has carried him. [pp. 65 153]

a) The book of mentioning the places (where sacralization is to begin)

  • 50 That is, from al-ḥill as opposed to al-ḥaram.

139The place (where sacralization is to begin) for the people of Medina is Ḏū l-Ḥulayfa. For the people of Syria, Egypt, and the West it is al-Ǧuḥfa. For the people of Yemen it is Yalamlam. For the people of al-Ṭāʾif and the Naǧd it is from Qarn. For the people of the East it is Ḏāt ʿIrq. As for the people of Mecca, if they intend the minor pilgrimage, then (they are sacralized) from without the sacred zone.50 If they intend the major pilgrimage, then it is from Mecca. If someone’s residence is closer (to the Kaʿba) than the place (where sacralization begins), his place is where he is.

140Whosever way is not a place (where sacralization is to begin), when he is opposite the nearest place he is sacralized. These places (where sacralization is to begin) are for their people and for whoever else passes over them who wishes to make a major or [p. 54] a minor pilgrimage. It is preferable that one not become sacralized before one’s place (where sacralization is to begin). If he does it, he is sacralized. Whoever wishes to be sacralized but goes beyond the place (where sacralization is to begin) is to go back and be sacralized [p. 66] from the place (where sacralization is to begin). If he makes the sacralization on the spot, he must make a blood sacrifice, even if he returns sacralized to the place (where he should have become sacralized). Whoever goes beyond the place (where sacralization is to begin) without being sacralized but fears to return to that place lest he miss the major pilgrimage, he is to become sacralized on the spot but then must make a blood sacrifice. [p. 154]

b) The chapter of mentioning sacralization

141Whoever wishes to make the major pilgrimage when the months of the major pilgrimage have come, when he reaches the place (where sacralization is to begin), it is preferable for him to perform the major ritual ablution, put on two clean garments, and perfume himself. When the time of the required ritual prayer comes (he is two perform it); otherwise he performs the ritual prayer with two bowings.

142If one prefers to perform the minor ritual pilgrimage during the season for the major ritual pilgrimage, performing the major the next year, which is the preference of Abū ʿAbd Allāh, he says, “O God, I wish to perform the minor pilgrimage”. He makes a condition, saying, “If anything prevents me from doing this, I shall be desacralized wherever you detain me.” Then if he is detained, he is desacralized from the place where he was detained and has no further obligation. [p. 67] If he wishes to perform only the major pilgrimage, he says, “O God, I wish to make the major pilgrimage” and names conditions. If he wishes to pair the two pilgrimages, he says, “O God, I wish to make the minor and the major pilgrimages” and names conditions.

143When one is sitting upright on his mount, he says the talbiya, which is this: “Labbayka Llāhumma labbayk; labbayka lā šarīka laka labbayk; inna l-ḥamda wa-n-niʿmata laka [p. 55] wa-l-mulk; lā šarīka lak (at your service, O God, at your service; at your service—You have no sharer—at your service; praise and blessing are yours, with possession; You have no sharer)”. Then he keeps on saying the talbiya whether ascending to high ground or descending into a valley, when he encounters [p. 155] riders, when he forgetfully covers his head, and at the end of each of the required ritual prayers.

  • 51 See for example Muslim, kitāb al-ḥaǧǧ 19, bāb ḥiǧǧat al-nabī, no. 1218.

144It is recommended for a woman also to perform the major ritual ablution at the sacralization, even if she is menstruating or in parturition, for the Prophet … ordered Asmāʾ bint ʿUmays when she was in parturition to perform the major ritual ablution.51 Whoever is sacralized wearing a gown (qamīṣ) is to take it off without tearing it. The months of the major pilgrimage are Šawwāl, Ḏū l-Qaʿda, and ten days of Ḏū al-Ḥiǧǧa. [pp. 68 156]

c) The chapter of what the sacralized person should beware of and what is indifferent

  • 52 With allusion to Q. al-Baqara 2:197, translated by Jones as “let there be no sexual intercourse or (...)
  • 53 Šurayḥ ibn al-Ḥāriṯ (d. 78/697–698?), long-time Kufan qadi; his appearance on sacralizing is report (...)

145The sacralized person in his sacralization should beware of what God (mighty and glorious is He) has forbidden by way of obscenity (rafat), which is coitus, corruption (fusūq), which is reviling, and disputation (ǧidāl), which is hypocrisy.52 It is recommended for him to speak very little except for what is beneficial. It is related of Šurayḥ (may God be pleased with him) that when he was sacralized, he was like a deaf snake.53

146The sacralized person is not to delouse or kill lice. He rubs his head and body finely. He is not to wear a gown, trousers, a burnous, or a turban. If he does not find a loincloth, he is to wear trousers. If he does not find sandals, he is to wear leathern socks. He is not to cut them. He owes no penance. He is to wear a drawstring (himyān). He intertwines the ties without knotting them. [p. 69] One is permitted to be cupped. One is not to cut his hair. One may put on a sword if necessary. [p. 157]

147If one throws over one’s shoulders the outer garment (qabāʾ) and the dūwāǧ, he does not put his arms through the sleeves. One is not to shade his head when riding on the litter (maḥmil). If one does so, a blood sacrifice becomes incumbent on him. One does not kill in hunting. One does not [p. 56] hunt anything or point it out. One does not guide to it, whether it is licit or forbidden (to eat). One does not eat it if someone in a non-sacralized state hunts it for him.

148The sacralized pilgrim is not to put on perfume. He is not to wear a garment that has been touched by wars (a yellow dye), saffron, or perfume. There is no harm in what has been dyed with safflower (ʿuṣfur). One is not to cut a hair of his head or body. One is not to cut the fingernails unless one is broken. One is not to look in a mirror save to set something right. One is not to eat anything with saffron so long as its smell is detectable. One is not to anoint oneself with anything perfumed or that has perfume in it. One is not to deliberately smell any perfume or to cover anything of one’s head, the ears being counted part of the head. [p. 70]

149A woman’s sacralization concerns her face. If she needs to, she lets down (a covering) over her face. She is not to apply black kuḥl. She is to avoid everything that a man in the sacralized state avoids except for clothing and shading the litter when riding. She is not to wear gloves, anklets, or anything resembling them. A woman is not to raise her voice in saying the talbiya save to the degree that her companion hears it.

150Someone in a sacralized state is not to marry or give in marriage. If one does so, the marriage is null. If someone in the sacralized state has coitus in the vagina, whether or not he ejaculates, the pilgrimage of both of them is spoilt. He owes a camel (badana) if he forced her. If she went along willingly, then each of them owes a camel. If he has sex with her without the vagina and does not ejaculate, he must perform a blood sacrifice. If he ejaculates, he must perform a blood sacrifice and his pilgrimage is spoilt. If he kisses without ejaculating, he must perform a blood sacrifice. If he ejaculates, then he owes a camel. Another version is related of Abū [p. 158] ʿAbd Allāh (God have mercy on him), that if he ejaculates, his pilgrimage is spoilt; that if he looks, then looks away and produces pre-ejaculate, he must perform a blood sacrifice; that if he repeatedly looks until he produces pre-ejaculate, then he owes a camel. [p. 57]

151The pilgrim in a sacralized state may trade and practise trades. He may recall his singly-divorced wife. Another version is related of Abū ʿAbd Allāh as to recalling a singly-divorced wife, namely that he is not to do so. He may kill [p. 71] a kite, a crow, a scorpion, a mouse, a vicious dog, and anything that attacks or annoys him without owing any penance. Hunting in the sacred district is forbidden to someone out of a sacralized state and in. It is likewise for trees and plants there except for the Iḏḫar (a shrub sometimes burnt) and whatever has been planted by humans.

152If someone is beleaguered by an enemy, he is to sacrifice what he has by way of the hady sacrifice, then become desacralized. If he has no hady (sacrificial animal) with him and cannot obtain one, he is to fast for ten days, then become desacralized. If one is prevented from getting to the House by illness or lack of provision, he may send on a hady sacrifice, if he has one, to be slaughtered in Mecca. He remains in a sacralized state until he is able to reach the House. If he did not specify a condition, saying, “I refuse my sacralization and become desacralized”, then he may put on a sewn garment and slaughter what he hunts, doing whatever someone does who has become desacralized. For every action of his he owes a blood sacrifice, when he was in a sacralized state. If he had coitus, then on account of the coitus he owes a camel along with whatever he owes of blood sacrifices. He carries out the spoilt pilgrimage and makes the pilgrimage in the next season. [pp. 72 159]

d) The chapter of mentioning the pilgrimage and entering Mecca

153When one enters the Sacred Mosque, it is encouraged that one enter it by the gate of Banī Šayba. When one sees the House, one is to raise his hands and say “Allāhu akbar”. Then one comes to the Black Stone, if it is there, rubs it with one’s hand (istalamahu) if one is able, and kisses it. If one is not able to, one is to stand opposite it, raise his hands, and say “Allāhu akbar ʿazza wa-ǧall (God is greater; mighty and glorious is He)” and “lā ilāha illa Llāh (there is no god but God)”. One is to put the middle of his cloak under the right shoulder and the two ends over the left shoulder so that the right shoulder is exposed. One is to trot (yarmulu) for three circuits and walk for four. All of this is from [p. 58] the Black Stone to the Black Stone. One is not to trot in all of one’s circumambulation except for this. No trotting is obligatory for the people of Mecca. Whoever forgets the trotting, no repetition is incumbent on him.

  • 54 The ḥiǧr, also called the ḥaṭīm, is a low semi-circular wall of white marble on the northwestern si (...)

154One is to be ritually pure in [p. 160] pure clothing. One is not to rub or kiss any of [p. 73] the corners except for the Black and the Yemeni. The ḥiǧr is within the circumambulation, since the ḥiǧr is part of the House.54 One is to perform the ritual prayer with two bowings behind the Place of Standing (al-maqām). One is to go out to al-Ṣafā from its gate. Then one is to stop there and say, “Allāhu akbar (mighty and glorious is He)”, “lā ilāha illa Llāh”, and “al-ḥamdu li-Llāh. One is to bless the Prophet … and ask God (mighty and glorious is He) what he wishes.

155Then one is to descend from al-Ṣafā, walking until one comes to the sign (al-ʿalam) in the middle of the valley. Then one is to hurry from sign to sign. Then he is to walk until he comes to al-Marwa, where he stands. One is to say what one did at al-Ṣafā. Whatever prayer one uses there discharges his duty. Then one is to go down walking to the sign. Then one hurries until he reaches the sign. One is to do that seven times. One is to reckon a going as one trotting and a return as one trotting. One begins at al-Ṣafā and finishes at al-Marwa. If one forgets trotting in part of his course, there is no (penance) due. When one is finished with the course (between al-Ṣafā and al-Marwa), if he was performing the two pilgrimages with separate sacralizations (mutamattiʿ), he cuts his hair and is desacralized.

156Women’s circumambulation and going between al-Ṣafā and al-Marwa is all walking. [p. 74] Whoever goes between al-Ṣafā and al-Marwa in a state of ritual impurity, we consider that discouraged for him but it discharges his duty. When the ritual prayer is conducted or a funeral comes up while someone is circumambulating or going between al-Ṣafā and al-Marwa, if he performs the ritual prayer, he starts wherever he left off. If one becomes ritually impure partway through one’s circumambulation, one restores his ritual purity and begins (over) if it was a required (circumambulation). Whoever circumambulates and goes between al-Ṣafā and al-Marwa carried on account of an illness, it discharges his duty. Whoever is making the greater pilgrimage alone (mufridan) or the combined lesser and greater (qārinan), we prefer for him to void it when he circumambulates and goes between al-Ṣafā and al-Marwa [p. 161] and to make it into a lesser pilgrimage, unless he has driven with him a hady sacrifice, hence maintaining his sacralized state. Whoever is performing the two pilgrimages with separate sacralizations (mutamattiʿ) is to cut short the talbiya when he reaches the House. [pp. 59 162]

e) The chapter of mentioning the greater pilgrimage

  • 55 See for example Muslim, Kitāb al-ḥaǧǧ 19, bāb ḥiǧǧat al-nabī, no. 1218.

157When it is the day of al-Tarwiya (8 Ḏū al-Ḥiǧǧa), one embarks on the greater pilgrimage. One is to pass to Minā. One is to perform there the noon and afternoon prayers if possible, since it is related of the Prophet … that he performed five ritual prayers at Minā.55

158When the sun rises, one is to push on to ʿArafa and stand there until he performs with [p. 75] the leader the noon and afternoon prayers. There is an iqāma with each prayer. If he makes the call to prayer, there is no harm in it. If one misses the prayer with the leader, he may perform the prayer where he has stopped ( raḥlih). Then one is to proceed to the place of standing of ʿArafa by the mountain. All of ʿArafa is the place of standing. One should not be at the foot of ʿArafa, for standing there does not discharge his duty. One is to say “Allāhu akbar” and “lā ilāha illa Llāh” and to exert oneself in supplication until the setting of the sun.

159When the leader pushes on, one is to push on with him to Muzdalifa. On the way, one is to say the talbiya and Allāhu akbar and to recollect God (mighty and glorious is He). Then one is to perform the sunset and evening prayers with the leader. There is an iqāma with each prayer. If he joins them together with one iqāma, there is no harm in it. If one misses the prayer with the leader, one performs the prayer by himself. [p. 163]

160When one performs the dawn prayer, one stands with the leader at al-Mašʿar al-Ḥarām and supplicates. Then one is to push on before the rising of the sun. When one reaches (the valley) Muḥassir, he is to hurry. He is not to stop in it until he comes to Minā, all the while saying “labbayk”. He takes up the stones of the pillars (ǧimār) on his way or from Muzdalifa. [p. 76] It is preferable for him to wash them. When one reaches Minā, one is to pelt the pillar of al-ʿAqaba with seven stones, saying “Allāhu akbar” after each stone, without pause. One ceases to say the talbiya at the beginning of the stoning. One is to slaughter if one has a hady sacrifice. One is to shave’s one’s head or shorten one’s hair. Now, everything becomes licit except women. [p. 60] A woman is to shorten her hair the extent of her fingertips.

161Next, one is to visit the House, circumambulating seven times. This is the obligatory circumambulation by which the greater pilgrimage is completed. Then one is to perform a ritual prayer of two bowings whether one is performing only one of the pilgrimages or combining them. At this point, everything becomes licit.

162If one is performing the major pilgrimage with a separate sacralization, he is to circumambulate the House seven times, at al-Ṣafā and al-Marwa seven times, as he did for the lesser pilgrimage. Then he is to return and circumambulate the House once, intending by it a visit. This is according to his saying (mighty and glorious is He), “and go round the Ancient House” (Q. al-Ḥaǧǧ 22:29). Then one is to return to Minā, not staying in Mecca for the nights of Minā. On the next day, when the sun has declined, one is to throw seven stones at the first pillar, saying “Allāhu akbar” with [p. 77] each stone. One stops to supplicate. Then one throws seven stones at the middle pillar, likewise saying Allāhu akbar and supplicating. Then one throws seven stones at the ʿAqaba pillar, not stopping there. One acts on the second day as one had on the day before.

163If one wishes to hurry over [p. 164] the two days, one goes out before sunset. When the sun has set and one is there, one is not to go out until he has thrown the next day after the zenith, as he threw the day before. It is recommended that one not omit the ritual prayer in the mosque of Minā with the leader. One says “Allāhu akbar” at the end of every ritual prayer from the noon prayer on the day of the slaughter to the end of the days of al-Tašrīq (11‒13 Ḏū al-Ḥiǧǧa).

164When one comes to Mecca, one is not to leave again until one says farewell to the House, circumambulating it seven times. One performs a ritual prayer of two bowings when one is finished with all one’s affairs, so that the last of one’s engagement is at the House. If one says farewell, then occupies oneself with trade, one returns to say farewell to the House, then leaves. [p. 61] If one leaves before saying farewell, one is to return if it is near. If it is far, one sends a blood sacrifice. [p. 78]

165If a woman begins to menstruate before saying farewell, she is to leave. She is not obliged to say farewell to it or to offer penance. Whoever leaves before the circumambulation of visiting must return from his country in a sacralized state in order to circumambulate the House. If he has made the circumambulation to say farewell, that does not discharge his duty to make the circumambulation of visiting.

166No more is required of someone combining the minor and major pilgrimages than of someone making only the major except that a blood sacrifice is incumbent on him. If he cannot do this, he is to fast for three days, the last of them the day of ʿArafa, then seven days when he returns (home).

167Whoever performs the lesser pilgrimage in the months of the greater pilgrimage is to circumambulate, make the course (saʿā, between al-Ṣafā and al-Marwā), and become desacralized, then become sacralized for the greater pilgrimage in that year. He is not to have gone out of Mecca so far as to shorten his ritual prayer. In this case, he is performing the two pilgrimages with separate sacralizations and owes a blood sacrifice. If one does not fast before the day of the sacrifice (10 Ḏū al-Ḥiǧǧa), one fasts for the days of Minā according to one of two versions [p. 165] from Abū ʿAbd Allāh (God have mercy on him). The other version is that one does not fast the days of Minā but rather after ten days, a blood sacrifice being incumbent on him.

168Whoever begins to fast, then becomes capable of offering a hady sacrifice, need not go out of the fast to make the hady sacrifice unless he wishes to. When a woman enters Mecca combining the two pilgrimages with separate sacralizations (mutamattiʿatan), and begins to menstruate, hence fearing that she should miss the greater pilgrimage, [p. 79] she completes the greater pilgrimage (ahallat bi-l-ḥaǧǧ) to become one who combines the two pilgrimages on a single sacralization (qārina). She need not make up the circumambulation of arriving.

  • 56 Tanʿīm is a place two farsaḫs or about four miles from Mecca.

169Whoever has coitus before throwing stones at the pillar of al-ʿAqaba, the two of them have their pilgrimage nullified. He is obliged to offer a camel if he forced her, while she need not offer any blood sacrifice. Whoever has coitus after throwing stones at the pillar of al-ʿAqaba is obliged to offer a blood sacrifice. He passes to al-Tanʿīm to be sacralized in order to circumambulate in a sacral state.56 It is the same for the woman. Water-carriers and herders may throw stones at night. It is also permitted for herders to put off throwing stones and make it the next day. [pp. 62 166]

f) The chapter of redemption and the recompense for hunting

170Whoever shaves four or more hairs, whether deliberately or by mistake, is obliged to do (one of three things): fast for three days, distribute three āṣuʿ of dates or barley among six poor persons, or slaughter a sheep. Any of these that he does will discharge his duty. For each of the three hairs, (he owes) a mudd of food; likewise for fingernails. If the sacralized person deliberately puts on perfume, he is to wash off the perfume and a blood sacrifice is incumbent on him. Likewise if he deliberately wears something sewn or a leathern sock, although sandals are available: he is to take them off and a blood sacrifice becomes incumbent on him. [p. 80] If he perfumes himself or wears (a forbidden garment) from forgetting, then no penance is incumbent on him. He is to put off the garment or wash off the perfume and resort to saying “labbayk”. If he stops at ʿArafa by day and pushes on before the imam, a blood sacrifice is incumbent on him. Whoever pushes on from Muzdalifa before midnight, except for a shepherd or water-carrier for the pilgrims, a blood sacrifice is incumbent on him.

171Whoever kills prey of the land in a sacral state, whether deliberately or by mistake, must make penance of a like beast if he has killed a walking animal; or, if it is a bird, he makes penance by its value on [p. 167] the spot. However, if he has killed an ostrich, he owes a camel. If it is a dove or its like, then for each one (he owes) a sheep. He has the choice: if he wishes, he makes his penance its like or he is assessed its value in dirhams. He is to investigate how much food can be got with it, then feed each poor person a mudd. Or he is to fast a day for each mudd, whether he be wealthy or straitened. Each time he kills some prey, he is penalized. If a group shares in killing some prey, incumbent on them is one act of penance.

172Whoever has not stopped at ʿArafa until sunrise on the day of the sacrifice is desacralized as having finished a minor pilgrimage and sacrifices, if he has a hady with him. Then he performs the pilgrimage the next year and makes a blood sacrifice. If he is [p. 81] a slave then he may not sacrifice. He must fast a day for every mudd of the value of a sheep. [p. 63] When a woman undergoes sacralization for an obligatory (pilgrimage), her husband may not forbid her.

173Whoever drives a hady animal for the obligatory (pilgrimage) that perishes short of the place of its slaughter may do what he likes with it. One must find a substitute. If one has driven it for a voluntary (pilgrimage) and it perishes short of its place of slaughter, he is to slaughter it on the spot. One is to leave it for the poor without having eaten any of it, likewise everyone accompanying him. One is not obliged to find a substitute for it. One does not eat of any obligatory (sacrifice) except for the hady of a mutamattiʿ (someone combining the major and minor pilgrimages with separate sacralizations).

  • 57 As al-Ḫiraqī will explain in the book of sacrificial victims, Ibn Qudāma defines the ṯanī as a goat (...)

174Every hady and feeding is for the poor of the sacred district (al-Ḥaram, in Mecca) if one is able to convey it to them, except for someone afflicted with an injury to his head. He distributes it to the poor in the place where he shaved. As for fasting, that discharges one’s duty anywhere. [p. 168] Whoever is obliged (to sacrifice) a camel and sacrifices (instead) seven sheep or goats, that discharges his duty. Whatever is obligatory by way of sacrifice, what discharges his duty is only a sheep at least six months old or a ṯanī of other species.57 [pp. 64 82 169]

7. The Book of transactions (buyūʿ)

a) The chapter of the option of the transactors

  • 58 The exception covers such choice as is stipulated at the time of purchase or when someone finally s (...)

175The buyer and seller are each of them at option (ḫiyār) so long as they have not parted with their bodies. If the commodity is destroyed or it is a slave whom the buyer has set free or who has died, option is nullified. When they have parted without annulment, neither of them may refuse it save for a defect or by choice (ḫiyār).58 Choice is permissible for more than three (days). [p. 170]

b) The chapter of unjust increase, money exchange, and so on

  • 59 That is, with both buyer and seller present.

176Everything else measured or weighed, no excess of it is permissible when it is of one species. What is of two species, excess of it is permissible, hand to hand.59 Delay (nasīʾa; of payment or delivery) is not permissible. Excess is permissible for that which is not measured or weighed, exchanged hand to hand, but delay (of payment or delivery) is not permissible.

177Nothing is sold fresh in exchange for dry of the same species except for ʿarāyā (exchanging dates still on the tree for a certain weight of dry). Neither is anything normally measured to be exchanged for something of the same species by weight, or anything normally [p. 83] weighed (for something of the same species) by measure. All dates are of a single species, even if they are of different varieties. Wheat and barley are two species.

  • 60 “Piece by piece (ʿaynan bi-ʿayn)” is explained by the commentaries as saying “I hereby sell you the (...)

178Meats are one species. It is not permissible to trade them for a portion of the same when fresh. It is permissible when it is completely dry (to trade) like for like. It is not permissible to trade meat for an animal. If one trades gold for silver [p. 65], piece by piece, and finds a defect in one of them he has traded, he has a choice between returning it or accepting when it has been at the current exchange rate and the fault is not something foreign to it; not of its species.60 [p. 171] One accepts whatever lack the defect entails. If the two of them exchanged that other than piece for piece, then one of them finds a defect in what he has bought, he may exchange it if the defect is not something foreign to it, not of its species; for example, a white spot on gold or a black on silver. As for when a defect is something foreign to it, exchange becomes invalid. When two exchangers leave before each has taken possession, there is no transaction between them. [p. 84]

179The ʿarāyā that were permitted by the Messenger of God … were that a man would be given of a date palm what was less than five awsuq. He would sell them for an estimated equivalent in dates to the one who would eat them fresh. If the buyer leaves them till they are mature, the transaction is null. [p. 172]

c) The chapter of selling productive entities (uṣūl) and fruits

  • 61 Qiṯṯāʾ and ḫiyār are varieties of cucumbers, the former mentioned in the Quran (Q. al-Baqara 2:61), (...)

180Whoever sells a pollinated date palm, one that has begun to flower, its fruit belongs to the seller, left in the tree until cut, unless the buyer has stipulated (that he should receive) it. It is likewise when one sells a tree whose fruit is showing. If one buys the fruit without the tree, its soundness not having appeared and being left (on the tree) till it is cut down (harvested), that is not permissible. If one buys it on condition of being cut down (harvested), that is permissible. If the buyer leaves it until its soundness is evident, the sale is nullified. If one buys it after its soundness has become evident on condition of its being left till it is cut (harvested), that is permissible. If it is the fruit of a date palm, it is void. Its soundness is the appearance in it of red [p. 85] or yellow. If the fruit is grapes, then its soundness is its becoming juicy. The soundness of other (fruits) than dates and grapes is that there appear in it ripeness. It is not permissible to sell qiṯṯāʾ, ḫiyār, aubergines, and [p. 66] the like except having been picked.61 [p. 173]

181It is likewise for all vegetables to be picked fresh. Harvesting is incumbent on the buyer. If he makes it a condition for the seller, the contract is nullified. If one sells a garden and excepts from it a ṣāʿ, that is not permissible. If one excepts from it a date palm or a particular tree, that is permissible. If one buys the fruit without the tree and some disaster from Heaven overtakes it, he may apply to the seller for a refund.

  • 62 Al-Ḫiraqī’s expression might be interpreted to mean that he was going against Aḥmad’s opinion here. (...)

182If there befalls a sale of something measured, weighed, or counted, then it perishes before possession has been taken, (the loss) comes from the property of the seller. Other than that, which does not require taking possession, if it perishes, (the loss) comes from the property of the buyer. Whoever buys what requires taking possession, the sale is not effected until possession is taken. Partnership in (a commodity), resale (tawliya), and transfer of debt (ḥawāla) are like selling, but reversal of a sale (iqāla) is not, since it is an annulment (fasḫ). (However, it is also related) from Abū ʿAbd Allāh (God have mercy on him) that reversal is a sale.62

183Whoever buys [p. 86] a pile (ṣubra) of food has not (effectively) bought it until he transports it. Whoever knows the amount of something is not to sell it as a pile. If one buys a pile on condition that everything in it that can be measured comes to a known (amount), that is permissible. [p. 174]

d) The chapter of selling a muṣarrāt and other things

  • 63 The buyer owes compensation for the milk he has extracted.

184Whoever buys a muṣarrāt (a milking animal that has not been recently milked, to make it appear to give more than it normally does) without knowing, he has a choice between accepting it and returning it along with a ṣāʿ of dates; if he hasn’t dates, then its value. (This applies) alike whether the purchase is a she-camel, a cow, or a ewe.63 [p. 67]

185If one buys a non-virgin slave woman and goes into her or uses her for service, then comes across a defect, he has a choice between returning her and taking the full price, since profit follows responsibility, and taking the difference between (the price for) soundness and the (the price for one with this) defect. If she is a virgin and he wants to return her, he is liable for her diminution (in value) unless the seller concealed the defect, in which case he must return the whole price. It is likewise for other purchases. If the buyer has sold part of her, then comes across a defect, he has a choice between returning [p. 87] his share of her for that proportion of the price and taking an indemnity for the fault in proportion to his share of her. If he comes across a defect after manumitting her, or her death in his possession, then he should receive an indemnity. If he comes across a fault that may have occurred after the purchase or before, the buyer swears an oath, then may either return her or take an indemnity. [p. 175]

186If someone buys something of which the edible part is within it and so breaks it open, then discovers a defect—if it has no value once broken, as with a chicken egg, he returns it and the seller is liable for its the value. If the thing broken has value, like a coconut, then he may return it and take the price, with some indemnity for the breaking, or he takes the difference between the (value of) the sound item and the defective. Whoever sells a slave who owns some property, whether little or much, his property belongs to the seller unless the buyer stipulates (that it belongs to himself or the slave), his (presumed) intent being the slave, not the property.

  • 64 This disallows simultaneous contracts as a means of effectively borrowing at interest.
  • 65 In practice, murābaḥa was evidently about supplying a merchant with trade goods, for which the retu (...)

187Whoever sells an animal or anything else asserting that he is under no obligation as to defects, he does not escape obligation, whether the buyer knew of that (defect) or not. Whoever sells a commodity with delay (of payment or delivery), it is not permissible for him to buy it for less than he sold it for.64 If he sells something by murābaḥa (resale with a stated surcharge), then learns that he (the seller) has increased his capital, it returns to him with the increase taken from the profit. If he informs of the reduction in his capital, it is incumbent on the buyer to return it (the commodity) or give him the amount of his mistake. He may ask him to swear that, at the time when he sold it, he did not know that it was being bought for more than that.65 [p. 68]

188If someone sells something and they disagree over its price, they swear oaths. If the buyer wishes to take it after that for (the price) the buyer named (well and good). Otherwise, the sale between them is rescinded. The first to swear is the seller. If the commodity has perished, they both swear and revert [p. 176] to the value of its like, unless the buyer wishes to give the price he named to the seller. If they have disagreed over its description, the saying of the buyer prevails, along with his oath as to the description.

  • 66 See for example Muslim, Kitāb al-buyūʿ 6, bāb taḥrīm bayʿ al-ḥāḍir li-l-bādī, no. 1522.
  • 67 See for example Buḫārī, Kitāb al-buyūʿ 68, bāb hal yabīʿu ḥāḍir li-bādin bi-ġayri aǧr, no. 2158.

189It is not permissible to sell a runaway, a bird before it has been caught, fish in ponds, and what is similar. The agent (wakīl), if he differs (not acting as instructed), is responsible unless the principal (āmir) agrees so that it attaches to him. Mulāmasa and munābaḏa (aleatory transactions, depending on chance) are impermissible; likewise selling an unborn animal without its mother and milk in the udder. Taking a stud fee (ʿasb al-faḥl) is impermissible. Naǧaš is forbidden, meaning to raise (by bidding) the price of a commodity when one is not going to buy it. If a city person (ḥāḍir) sells for a country person (bādin), the sale is null: this is for a settled person to go to a country person who has transported some commodity, tell him its price, and say, “I’ll sell for you.” The Prophet forbade that, saying, “Leave people for God to prosper them one from another.”66 The Prophet forbade meeting riders or to buy from them (before they have reached a marketplace).67 They have a choice when [pp. 89 177] they enter the market and learn that they have been defrauded: if they wish to rescind the sale, they do so. Selling juice to someone who will make wine of it is null. A sale is nullified when it involves two conditions, whereas one condition does not nullify it. [p. 69] If someone says, “I will sell you at such a price on condition that I take from you each dinar at such-and-such a rate”, the sale is not effected; likewise if he sells it for gold on condition that he take from him dirhams at a given rate of exchange.

190The guardian (waṣī) may trade with the property of an orphan, without being liable for it. All of the profit goes to the orphan. If he gives it to someone who trades with it for him, the active partner gets whatever profit the guardian has agreed to. Whatever debt a slave contracts, it is on his neck (i.e., his responsibility). His owner may redeem him or surrender him. If he has contracted debts beyond his value, his owner is not liable for more than his value unless he was permitted to trade on his behalf (maʾḏūn lahu), in which case his master is liable for all of whatever debt he contracted.

191The sale of a dog is null, even if it is trained. Whoever kills it when it is trained has done ill but he is not mulcted. Selling a trained cheetah or falcon is permissible; likewise selling a cat and everything that has value. [p. 178]

e) The chapter of selling with delayed delivery (salam)

192Everything exactly describable may be sold with delayed delivery: everything whose measure is known, whose weight is known, or whose number is known, for a term known by the new moon (the first, the middle of the month, and so on), available in its (proper) place, with the full price taken at the time of the contract before separating. When any of these characters is missing, it is null. Selling with delayed delivery from the seller or anyone else before possession has been taken is invalid; likewise partnership in it, resale at the original cost (tawliya), and transfer of debt (ḥawāla), whether it be food or anything else. If two species have been contracted for delayed delivery for a single price but different times for taking possession, with known proportions, that is permissible. When the delayed delivery is for something like iron or lead that does not go bad and with which there is no difference between new and old, it is unnecessary to have taken possession of it before it perishes. It is not permissible to take a pledge or a surety from the one who has promised delayed delivery. [pp. 70 91 179]

8. The book of pledges

193A pledge (rahn) is not sound unless it is validly taken up. Taking it has two aspects. If it is something transportable, then it constitutes taking possession for the pledgee (creditor) to transport it from (the possession of) the pledgor (debtor). If it is something not transportable, like houses or lands, then it constitutes taking possession for the pledgor to release it to the pledgee with nothing between them. If there takes possession of the pledge someone whom the two have agreed on, his taking it in hand constitutes taking possession.

  • 68 Such a slave, becoming umm walad, is no longer permitted to be sold.

194Property is not to be pledged by someone who has been appointed by a testament to take care of it except for someone trustworthy. If part of (the debt) is paid, the rest is to be taken from the pledge. If the pledgor sets free his pledged slave, he become free. If he has any (other) wealth, the value of the freedman becomes a pledge. If he has a slave girl who bears a child to the pledgor, she ceases to constitute any part of the pledge and (the pledgee) takes her value from the pledgor as a pledge.68 [p. 92]

  • 69 Redemption here refers to paying the appropriate compensation for the slave’s offence.

195If the pledged slave commits an offence, the one offended against has a greater claim on him than the pledgee until his claim is fulfilled. If his master chooses to redeem him and does so, he becomes a pledge again.69 If the slave is injured or killed, the opponent concerned (at court) is his master. Whatever (recompense) is taken on account of that becomes a pledge. [p. 180]

196If one buys a commodity from him on condition that he make a pledge of something agreed on from his wealth in exchange for it, whether on being described or actually seen, or that he give its price to someone they agree on to bear, that sale is permissible. If he refuses to turn over the pledge, or the (agreed-on) bearer refuses to take it up, the seller has the choice of rescinding the sale or maintaining it without either pledge or bearer.

197The pledgee may not benefit in any way from the pledge except [p. 71] for what may be ridden or milked, which he may ride and milk, to the extent of the fodder (he is providing it). The rent of a house, service of a slave, offspring of a ewe and other (animals), and the fruit of a pledged tree are part of the pledge. The supply of the pledge is incumbent on the pledgor. If it is a slave and he dies, he is liable for his shroud. If it is something to be stored, he is liable for renting its storage place. If the pledge perishes through no fault of the pledgee, the pledgee gets back his claim at the point of perishing, the affliction being from the pledgor. But if the pledgee has been at fault or did not safeguard it, he is liable. [p. 93]

198If they disagree on the value (of the pledge), what the pledgee says prevails when accompanied by his oath. If they disagree over the amount of the claim, what the pledgor says prevails when accompanied by his oath. This is if neither of them has proof of what he says (two witnesses to it). The pledgee has a greater claim to the pledge than all (other) creditors until he realizes his claim, whether the pledgor is alive or dead. [pp. 72 181]

9. The book of bankruptcy (taflīs)

  • 70 That is, it is not simply returned to him but rather when the bankrupt’s property is divided, he li (...)

199When a judge pronounces a man bankrupt, then one of his creditors comes across a specific piece of his property, he has the greatest claim to it unless he wishes to leave it, in which case he is like other creditors. If part of the commodity has perished, whether it has increased but such that the increase is inseparable, or it has lost value, the one who sells it is like other creditors.70

200If the bankrupt has a debt with a fixed term, it is not dissolved with the declaration of bankruptcy. It is the same for a debt owed by someone dead when the heirs recognize it. Everything the bankrupt did with his property before the judge suspended him (qabla an yūqifahu; limited his competence to make contracts), that is permissible. [p. 94] If some claim of his becomes effective by means of a witness but he does not swear, the creditors may not swear with him to establish their claims. Maintenance is paid for the bankrupt and those who are customarily supplied from his property until its division among his creditors. His house is not to be sold if he has nowhere else to live. [p. 182]

201Whoever has a claim against him but says he is straitened is to be imprisoned until he brings proof (two witnesses) to testify to his straitened condition. If he dies and it appears that he was bankrupt, none of his creditors may take a particular piece of his property (to the prejudice of other creditors). Whoever wishes to travel when there is a claim against him from before his travel, the claimant may forbid him. [pp. 73 95 183]

10. The book of interdiction (ḥaǧr)

202When one is perceived to have good sense (rušd), his property is rendered to him when he has reached physical maturity—the same for a girl, even if unmarried. Good sense is right handling of property. If one is habitually foolish, he is to be interdicted. Anyone who treats with him after that is destroying his (own) property. If the person under interdiction acknowledges something that necessitates a quranic punishment (ḥadd) or retaliation (qiṣāṣ) or divorces his wife, that is binding on him. If he acknowledges a debt, that is not binding on him during his interdiction. [p. 184]

11. The book of amicable settlement (ṣulḥ)

203The permissible amicable settlement is that a claimant have a claim on someone that the defendant is unaware of, so they agree on part of it. If he was aware of his obligation but rejects it, the amicable settlement is null. [p. 96] Whoever acknowledges a claim and compounds for part of it, that is not an amicable settlement because it destroys someone’s right. If two persons each claim a common wall attached to their buildings, they swear and it is between them; likewise if it is separable from their buildings. If it is attached to the building of just one of them, it belongs to him on his swearing. [p. 185]

a) The chapter of transfer of debts (ḥawāla) and liability (ḍamān)

204Whosever claim on someone is transferred to a similar claim on someone else and he is satisfied, the one transferring the debt is under no obligation forever after. [p. 74] Whosever claim has been transferred to someone capable of paying it (malīʾ), it is incumbent on him to accept it.

  • 71 The claimant may seek his claim from either the guarantor or the one guaranteed.
  • 72 That is, he must appear in court in his stead.

205Whoever has someone else assume liability for a claim on him after it has become incumbent upon him, or whoever says “Whatever you give him, it is my obligation”, he is bound to it provided it is true that he have given it to him. The one for whom liability has been assumed (al-maḍmūn) is not free of obligation until the one liable (al-ḍāmin) has performed (the contract).71 When the one who has assumed liability performs (the contract), he may claim it back from him. This is so whether he told him “Assume liability for me” or did not. Whoever makes himself a guarantor for someone (kafala bi-nafs) becomes bound by his obligations if he does not surrender himself.72 If he dies, the guarantor has no more obligation. [pp. 97 186]

b) The chapter of partnership (šarika)

  • 73 “Bodies” here indicates a commitment of labour as opposed to property.

206Bodily partnership is permissible, even if the two bodies are sharing in the property of only one of them; also two bodies with the property of someone else, a body and property, two properties and the body of only one of their owners, two bodies with the property of both, whether the properties are equal or different—all of that is permissible.73 Profit goes according to mutual agreement between them.

  • 74 That is, profits are to be divided by agreed proportion, not absolute number.

207Resale with a rebate on the original stated cost (waḍīʿa) is proportionate to the property. It is not permissible for an excess of dirhams to be assigned to one of the partners.74 If the active partner sells for delayed delivery without being told, he is liable according to one of two versions from Abū ʿAbd Allāh (God have mercy on him). The other is that he is not liable.

208If one acts as active partner (yuḍāribu) for someone, it is not permissible for him to recruit someone else as an active partner if it might harm the first (silent) partner. If he does so and makes a profit, he is to return it to his first partner. The active partner is to make no profit until he pays back all of the capital. If he buys two commodities and makes a profit off one of them, a loss off [p. 75] the other, he is to make up the resale at a rebate (waḍīʿa) from the profit. [p. 98] When the active partner perceives that he has an excess in hand, he may not take anything from it save with the permission of the owner of the capital. [p. 187]

209If the owner of the capital and the active partner agree that profit is (to be divided equally) between them, any resale at a rebate is a cost to the capital. It is not permissible to tell a debtor, “Find an active partner to trade with the property you owe.” If he has a deposit (waḍīʿa) in his hand, it is permissible to tell him, “Find an active partner to trade with it”. [p. 188]

12. The book of agency (wakāla)

210It is permissible to commission an agent for buying and selling, pursuing claims, manumission, and divorce, whether the one commissioning is present or absent. It is not permissible for an agent (wakīl) to commission an agent for whatever he was commissioned to undertake, unless that be part of his commission. When an agent sells something, then asserts that the price perished through no fault of his, he is not liable for it. If he is suspected, he is to swear. If someone orders his agent to render some property to a man and he says he rendered it to him, his word is not accepted against the commissioner except with proof (two witnesses). [p. 99]

211An agent is not permitted to buy from himself, likewise an executor (waṣī). A man may buy for himself from the wealth of his infant child. Likewise, he may purchase something from himself for (the child). Whatever an agent does after the commissioner has rescinded (his agency) or died is null. When he has commissioned him an agent concerning divorce from his wife, it is in his hand until he rescinds or has sex (with her). Whoever is commissioned to buy something, then buys something else, the commissioner has a choice as to accepting the purchase. If he does not accept it, it stays with the agent unless he bought it with a specified piece of property, in which case the sale is null. [pp. 76 189]

13. The book of acknowledging claims (al-iqrār bi-l-ḥuqūq)

212Whoever acknowledges something with the exception of something unrelated, his exception is null, unless he excepts gold from silver money, or silver from gold. Whoever has some claim raised against him and says, “I owe him that but I have discharged it”, that is not an acknowledgement. Whoever acknowledges (a debt of) ten dirhams, then falls silent for a period in which he might have spoken, then says, “counterfeit”, “small”, or “(due) in a month”, then ten good, complete (dirhams) are due. Whoever acknowledges something and excepts from it much—that is, more than half—is [p. 100] made responsible for the whole, his exception being null.

  • 75 e.g., if he inherits a third of his father’s property, he also inherits a third of the acknowledged (...)

213If one says “I have ten dirhams of his”, then says, “as a deposit”, his word prevails. If he says, “I owe him”, then says, “as a deposit”, his word is not accepted. If he says, “I have a pledge of his”, then tells the owner, “as a deposit”, the word of the owner prevails. If he dies, leaving two children, and one of them acknowledges a brother or sister, he is bound to give the excess in his hands to whomever he acknowledged. Likewise, if he acknowledges a debt owed by his father [p. 190], he is bound by the debt in proportion to his inheritance.75 Of whomever I have said, “His word prevails”, his opponent (in court) may ask him to swear. Acknowledging a debt in one’s death illness is like an acknowledgement in health if it is to other than an heir. If he acknowledges a debt to an heir, the rest of the heirs are not bound by his word unless supported by testimony (two witnesses). One is liable for an ʿāriyya (loan of usufruct), even if the borrower has not been at fault. [pp. 77 101 191]

14. The book of usurpation (ġaṣb)

214Whoever usurps land and plants it is held responsible for pulling up what he has planted and its rental to the time of its surrender; also the extent of its diminution (in value), if the planting has diminished it. If he cultivates it and its owner retrieves it when the crop is standing, the cultivation belongs to the owner of the land. Maintaining it is at his expense. If the right is reclaimed after the usurper has harvested what he has cultivated, he is bound to pay rent for the land.

  • 76 The acknowledged children of a free father and a slave mother are free from birth, but here the unw (...)

215Whoever usurps a slave or a slave woman whose value is a hundred, which increases by physical growth or from learning a trade so that his value becomes two-hundred, then decreases in value physically or from forgetting what he had been taught so that his value becomes one-hundred, his master takes him (the slave) and takes from the usurper a hundred. If he usurps a slave girl and has sex with her so that she has a child by him, he must suffer the quranicic punishment (ḥadd) and the master takes her, her children, and the bride price (mahr) suitable to one of her sort. If the usurper sells her and the buyer has sex with her and children, not knowing (that she had been usurped), the slave girl is returned to her master and he (the buyer) ransoms his children (from the rightful owner), trading like for like, they being free.76 All of this he (the mistaken buyer) charges the usurper.

216Whoever usurps something and is not able to return it, the usurper is obliged (to pay) its value. If [p. 102] he (then becomes) able, he returns it and takes back the value. If he usurps her when pregnant and she gives birth while in his possession, then the child dies, her master takes her and the value of her child, as much as its value reached. If [p. 192] the usurped (slave) has been paid a wage, the usurper must return him along with the wage of his like for the length of his residence in his hand.

217Whoever destroys a protected non-Muslim’s wine or swine pays no penalty. But they are not to be interfered with concerning what they are prohibited to show openly. [p. 193]

15. The book of pre-emption (šufʿa)

  • 77 That is, there is no pre-emption for co-owners whose shares are separated by fixed boundaries and s (...)

218Pre-emption is not obligatory except for the co-owner (al-šarīk al-muqāsim). If there are fixed boundaries and set paths, there is no pre-emption.77 Whoever does not demand pre-emption at the time he learns of the sale, he has no (right of) pre-emption. Whoever was absent (at the time a property was offered for sale) and learns of the sale at the time of his coming, he has a right of pre-emption. If he was absent for a long time, or learnt of it while travelling, and has no witnesses to his demand of (pre-emption), he has no right of pre-emption. If he does not learn until that (property) has been sold three times or more, he may still demand pre-emption in relation to any of them he wishes. If he demands it of the first, then the second gets back the price that was taken from him and the third from the second. [p. 103]

219A minor may demand a right of pre-emption when he reaches majority. If the buyer has built on it, the pre-emptor is to give him the value of his building unless the buyer prefers to take his building, which he may do if there is harm done by his taking it. If the purchase involved gold or silver, the pre-emptor gives him the like of that. If it was by non-monetary trade (ʿarḍan), he gives him its value. If they disagree over the amount of the price, the word of the buyer prevails along with his oath unless the pre-emptor has proof (two witnesses). If a house is owned by three, one of them having half of it, another a third of it, another [p. 194] a sixth, then one of them sells, the right of pre-emption is shared between the two in proportion to their shares. If one of them leaves his right of pre-emption, the other must either take all (of the share sold) or renounce (his right of pre-emption).

220The buyer is responsible to the pre-emptor (if discovery of a fault requires rescission of the transaction), the seller to the buyer. The right of pre-emption is not heritable unless the dead person demanded it. If a partner permits a sale, then demands the right of pre-emption after the sale has taken place, he has that right. There is no pre-emption in favour of an unbeliever against a Muslim. [pp. 79 104 195]

16. The book of sharecropping by irrigation (musāqāt)

  • 78 That is, the cultivator’s share may not be a portion of the yield and a set sum of money beyond tha (...)

221Sharecropping is permitted for date palms, trees, and grape vines for a known (named-in-advance) consideration rendered to the operator from the fruit. It is not permitted to render to him something from the excess of dirhams.78

  • 79 To be avoided is that the crop should be no more than the seed provided by the landowner, in which (...)

222Sharecropping by cultivation is permissible in exchange for part of the yield of the earth so long as the seed comes from the landowner. It is not permissible for them to agree that the landowner take the like of his seed, then they divide what remains. The cultivator has a claim to his hire.79 Likewise, it is invalid for the cultivator to provide the seed, with the crop going to the cultivator and he owing the hire of the land. [p. 196]

17. The book of renting (iǧārāt)

223When a lease takes effect for a known time and a known hire, the lessee enjoys the benefits whereas the whole hire is certainly due from him at the time of the contract, except as a delay is stipulated for it. If a lease takes effect for each [p. 105] month for something known, neither of them has a right of rescission except at the expiration of each month. Whoever rents real estate for a specified period, then changes his mind before its expiration, is still bound (to pay) the rent. The owner of the land may not dispose of it save at the expiration of the period. If the owner moves him (the lessee) before the expiration of the period, he gets no rent for the time it was inhabited. If something arises that ineluctably prevents the lessee from taking any benefit from the subject of his contract, he is bound (to pay) the hire for whatever proportion of the period he did benefit from it.

224If someone was hired to perform a particular work, then fell ill, someone else is hired to perform it, the hire charged to the ill person. If the one hiring and the one hired dies, or one of them, the contract immediately expires. [p. 80] Whoever rents some real estate may let someone else live there, taking his place. It is permissible to hire someone for his food and clothing, likewise a wet-nurse. [p. 197] It is recommended that at weaning she be given a slave or slave girl, as the report says, if the one seeking a wet-nurse is wealthy.

225Whoever hires a riding animal to go to a certain place, then goes beyond it, must pay the agreed hire and a like amount for however much he went beyond. If it perishes, then there is also incumbent on him its value. Likewise [p. 106], if he hires the carriage of something, then increases it (he must pay an addition). It is not permissible to hire (an animal) for the period of one’s raiding. If one names something known for each day, that is permissible. If one hires transport to Mecca but the provider of the camels has not seen the two riders, saddles, cloths to go under and over, and all that is needed, the hiring is not permissible. If he has seen the two riders, or they have been described to him, and he has specified the rest by known weights, then (the hiring) is permissible.

226Whatever happens to a commodity in the hands of an artisan, he is liable. If it disappears from a protected zone (ḥirz), he is not liable for it, nor is there any wage to him for what he did with it. There is no liability for a cupper, a circumciser, or a physician who are known to be skilful when they have done nothing wrong. There is no liability for a shepherd when he has not been at fault. [p. 198]

18. The book of bringing lands into cultivation (iḥyāʾ al-mawāt)

  • 80 Middle Eastern gardens are presumptively walled, but the definition given also fits penning in live (...)
  • 81 The reference to ʿĀdd apparently comprehends Antiquity generally.

227Whoever gives life to land that was not owned, it belongs to him, unless it is a salt waste or has water useful to the Muslims, so that it is not permissible for an individual to own it. Giving life to land means building a wall around it or digging [p. 107] a well in it.80 Then one owns the twenty-five cubits around it. If there was a previous well from the time of ʿĀdd, its protected zone (ḥarīm) is fifty cubits.81 This applies to whatever one has given life to or got to before others, whether he has previously obtained permission from the ruler (imām) or without his permission. [pp. 81 199]

19. The book of pious foundations (wuqūf) and gifts (ʿaṭāyā)

228Whoever establishes a pious foundation (waqf) in health of mind and body for the benefit of some persons and their offspring and descendants, then at the last of the poor, his ownership of it ceases. It is not permissible for any benefit of it to return to him unless he stipulates that he may eat from it, which belongs to him to the extent that he stipulates. The rest goes to whomever the foundation has been made for the benefit of. His male and female children and grandchildren are equal unless the establisher of the foundation prefers some of them. If none of them remains, it goes to the poor. If he does not designate it at the last for the poor, and there remains no one whom it was originally established to benefit, it returns to the heirs of the establisher according to one of the two versions. The other version is that it becomes a foundation for the benefit of the closest male heirs to the establisher.

229If one establishes the foundation in one’s death illness or says, “It is a pious foundation [p. 108] after my death”, it does not extend beyond the third (that one may dispose of by testament). It is established (such as to comprehend) up to the third unless the (designated) heirs permit. If the pious foundation goes to ruin, yielding nothing, it is sold and there is bought with the price what is rendered to the people of the pious foundation, made a pious foundation like the first. It is likewise for a horse dedicated to the holy war: if it is not suited to raiding, it is to be sold and there be bought with its price what does suit the holy war. [p. 200]

230If any of the beneficiaries of a pious foundation receives five awsuq, the alms tax is incumbent on him. If the pious foundation goes to the poor, there is no alms tax on it. Whatever yields no benefit except by being consumed, such as gold, silver, foodstuffs, and drinks is not permitted to be established as a pious foundation. Pious foundations consisting of other things are permissible. It is permissible to make a shared property into a pious foundation. If the pious foundation is not founded on what is good and pious, it is null. [pp. 82 109]

  • 82 See for example Buḫārī, Kitab al-hiba 12, bāb al-hiba li-l-walad, no. 2586, and Kitāb al-hiba 13, b (...)
  • 83 The ruqbā donation renders the property permanently to the survivor, whichever he be.

231It does not become sound to give gifts or alms of what is measured or weighed save with taking possession. It is sound for other things without any taking of possession, as it is sound for sales. A father takes possession for a minor or an executor (waṣī) after him or a judge (ḥākim) or his lieutenant. If someone shows preference among his children in gift-giving, he is commanded to return it, as the Prophet … commanded.82 If he dies without having given it back, it is confirmed as belonging to whoever was given to, if that was in his good health. It is not licit for a giver to go back on his gift (hiba), nor for a donor to go back on his donation (hadiyya), even if it is not reciprocated (in lam yuṯab ʿalayhā). If someone says, “My house is yours as a life loan (ʿumrā)” or “It is yours for your lifetime”, it belongs to him and his heirs after him. If he says, “You may live in it for your lifetime”, then he may take it back any time he likes, since a promise of living (suknā) is not like the ʿumrā and ruqbā donations.83 [pp. 110 201]

20. The book of found property (luqṭa)

232Whoever finds some property (of unknown ownership), he is to advertise it for a year in the markets and on the doors of the mosques. If its owner comes (he is to give it to him); otherwise, it is like the rest of his property. He is to preserve its drawstring (wikāʾ) and purse (ʿifāṣ), its number and character. If its owner comes and describes it, it is to be turned over to him without proof (two witnesses) or else [p. 83] its like if it has been consumed. If the one finding has died, the owner becomes a creditor. If its owner has offered to pay something known to whoever finds it, he may take it if he has found it after hearing of the reward. If he has found it before that and returns it for the sake of the reward, it is not permissible for him to take it. If the one finding it is a fool or a minor, his guardian should advertise it. If a year has gone by, it becomes part of the property of its finder. If one finds a sheep in a city or place of slaughter, it is found property. There is no interfering with a camel or what has the power to defend itself. [p. 202]

21. The book of foundlings (laqīṭ)

233A foundling is free. He is to be maintained by the fisc if nothing is found with him by which to maintain him. His clientship goes to the rest of the Muslims. If the person finding the foundling is not trustworthy, he may not travel with him. When someone is claimed by both a Muslim and an unbeliever, physiognomists (qāfa) are given to look at him. To whichever of them they attach him, he is attached. [p. 203]

22. The book of bequests (waṣāyā)

  • 84 “Heir” refers here to someone who is assigned a share on the basis of kinship according to Q. al-Ni (...)
  • 85 The commentaries envisage, for example, a bequest in favour of a brother from someone who has no ch (...)

234There is no bequest in favour of an heir unless the heirs permit that.84 Whoever makes a bequest to other than an heir of more than a third and the heirs permit that after the death of the bequeather, that is permissible. If they do not permit it, it is returned (reduced) to the third. Whoever has had a bequest made in his favour, although apparently an heir, but the bequeather does not die until the one bequeathed to has ceased to be an heir, the bequest is effective, since a bequest is considered at the point of death.85 If the one bequeathed to dies before the bequeather, the bequest to him becomes null. [p. 112] If the one bequeathed to refuses the bequest after the death of the bequeather, the bequest becomes null. If he dies before accepting or refusing, [p. 84] his heir takes his place in that concern, if his death comes after the death of the bequeather.

235If one bequeaths “a share” of his property to someone, he is given a sixth. Another version has been related of Abū ʿAbd Allāh (God have mercy on him): that he is given a share like one of the shares by right. If the bequest is for the like of the share of one of the heirs without (the heir’s) being named, his share is like that of the least of them. (For example) if there has been bequeathed to him a share like that of one of his heirs, they being a son and four wives, there would normally be thirty-two shares, the four wives getting an eighth [p. 204] and what remains going to the son. Then add to the fixed shares the like of one of his wives’ shares, being one share, so that there become thirty-three fixed shares, so that the beneficiary by bequest gets one, each wife one, and what remains goes to the son. If he has left three sons and bequeathed to this other the share of one of them, then the beneficiary by bequest gets a fourth. [p. 113]

236If someone bequeaths to ʿAmr a fourth of his property and half to Zayd, if the heirs disapprove then the third (of the estate open to disposal by bequest) is (divided) between them in thirds, to ʿAmr one and to Zayd two. If someone bequeaths something to so-and-so’s children (walad), it goes to the male and female on a basis of equality. If he says, “to his sons (banīh)”, it is for the males, not the females. A bequest of someone or something unborn or to someone unborn is permissible if it is born in less then six months since he had talked of a bequest. If someone bequeaths a slave woman to Bišr, then bequeaths her to Bakr, she is (to be shared) between them. If one says, “What I have bequeathed to Bišr is for Bakr”, she is for Bakr. Whoever writes a bequest without witnesses to it, it is executed so long as it is not known that he went back on it.

237Whatever one gives in his death illness is from the third (of the estate open to disposal by bequest); likewise the pregnant woman if she is six months gone. Whoever is beyond ten years, his bequest is permissible if it agrees with the truth. Whoever bequeaths (something) to the people of a village, none of it is given to the unbelievers in it unless he has mentioned them. [pp. 85 114] Whoever bequeaths all of his property, having no male relatives or patron, that is permissible. There is another version from Abū ʿAbd Allāh (God have mercy on him): that is not permissible except for the third (of the estate open to disposal by bequest). [p. 205]

238If someone bequeaths a third of his property to his slave, if the slave comes from the third, he is freed. If there is anything left over of the third after his manumission, it belongs to him. If the slave does not come out of the third, he is partly freed in proportion to the third. If someone says, “One of my two slaves is free”, lots are cast between them. On whomever falls the lot, he is free if he comes out of the third. If someone wills that the slave of Zayd be bought for 500 in order to be freed, then his master refuses to sell him, the 500 goes to the heirs. If they buy him for less than 500, then the excess goes to the heirs. If someone bequeaths a slave to a man when he owns no other, his value being 100, and to another man a third of his property, his property other than the slave being two-hundred dirhams, if the heirs permit that, then the one to whom he bequeathed a third gets a third of two-hundred and a quarter of the slave, while the one to whom he bequeathed the slave gets three-quarters of him. If the heirs do not permit that, then the one to whom he bequeathed a third gets a sixth of the slave, since that was a bequest concerning the whole. The one to whom he bequeathed the slave gets half of him, since his bequest concerned the slave.

  • 86 “Four fathers” indicates the outer limits of his relatives. The reference to the Hashimids has to d (...)
  • 87 Min qibal abīhi wa-ummih, explained by the commentators as indicating his relatives (qarāba), which (...)

239Whoever bequeaths (something) to his relatives (qarāba), the male and female among them are equal. However, that does not extend [p. 115] beyond four fathers, since the Prophet … did not go beyond the Hashimids in (distributing) the share of relatives (ḏawī al-qurbā).86 If one says, “To the people of my house”, it is given starting from his father and mother.87 If one bequeaths five-hundred for someone to make the pilgrimage in his place, whatever is left over stays for the pilgrimage. If he says, “a pilgrimage for five-hundred”, then whatever is left over goes to the one who makes the pilgrimage. If he says, “Make a pilgrimage in my place”, what is left over is rendered to the heirs. [p. 206]

240Whoever bequeaths a third of his property to a man and then is killed, whether deliberately or by mistake, the wergild being taken for him, the beneficiary gets a third of the wergild according to one of the two versions. According to the other version, the one to whom a third was bequeathed gets nothing of the wergild. If someone bequeaths (something) to a man and after him to another, they are both beneficiaries unless he says, [p. 86] “I hereby remove the first”. If an executor (waṣī) is dishonest (ḫāʾin), a trustworthy one is appointed with him. If there are two beneficiaries and one of them dies, there takes the place of the dead one someone trustworthy.

241Whoever sets free two slaves in his death illness or after his death when he owns nothing else and the value of one is two-hundred, the other three-hundred, and the heirs do not give permission, lots are cast for them. If freedom falls to the one worth two-hundred, then five-sixths of him is set free, a third of the whole. If it falls on the other, five-ninths of him is set free, since the whole property of the deceased is five-hundred dirhams, being the value of the two slaves. [p. 116] One multiplies by three and subtracts a third of five-hundred. When the lot falls on the one whose value is two-hundred, we likewise multiply it by three, which becomes six-hundred. Therefore, emancipation for him comes to five-sixths. One does the same for the other if the lot falls on him. For everything that comes under this category the procedure is to multiply by three so that it comes out without any remainder.

  • 88 This rule has consequences if something changes in value, which might affect whether it is worth mo (...)

242If someone bequeaths one of his slaves to a man without naming the slave, one of them goes to him by lot if it comes out of the third (of the estate open to disposal by bequest). Otherwise, he comes to own a part of him in proportion to the third. If someone bequeaths something exactly specified, then that thing perishes after his death, the one bequeathed to gets nothing. [p. 207] If all the property perishes except what was bequeathed to this one, it goes to him. Anyone to whom something has been bequeathed but does not take possession of it for some time, it is assessed as at the time of death, not the time of taking possession.88 If someone makes bequests that include manumission, then the third does not suffice for everything, they take their shares from the third. The shortfall is charged against every one in proportion to his property in the bequest. If someone bequeaths a horse in the path of God and a thousand dirhams for its maintenance, then the horse dies, the thousand goes to the heirs. Likewise, if only part of it is spent (on maintenance), the rest is rendered to the heirs. [pp. 86 117 208]

23. The book of inheritance shares (farāʾiḍ)

  • 89 The ʿaṣaba comprise residuaries with claims to whatever is left over of an estate, if anything, aft (...)

243A brother does not inherit, nor a sister, whether by father and mother or father (alone), along with (i.e., when there exists) a son or a grandson (or any other descendant), however [p. 87] removed, or with a father. A half-brother or sister by the mother do not inherit along with a child, male or female, or with a grandchild. (Neither do they inherit) along with a father or a grandfather. Sisters along with daughters constitute an ʿaṣaba:89 to them goes what is left over. They have no defined share when there are no daughters. A son’s daughters have the same status as daughters if there are no daughters. If there are both daughters and a son’s daughters, then the daughters get two-thirds. A son’s daughters get nothing unless there is a male along with them, in which case he renders them part of the ʿaṣaba as to what remains, a male (among them) getting the share of two females.

244If there are a single daughter and a son’s daughters, the direct daughter gets half, while the son’s daughter gets one share or more of a sixth, making up the two-thirds, unless they are along with a male. In that case, he renders them part of the ʿaṣaba as to what remains, a male (among them) getting the share of two females. [p. 209] Half-sisters from the father have the same status as sisters from the father and mother. If there are no sisters from the father and mother, if there are sisters to the father and mother and sisters from the father (alone), then the sisters from the father and mother get two-thirds. There is nothing for the half-sisters from [p. 118] the father unless along with them is some male, in which case he renders them part of the ʿaṣaba as to what remains, a male (among them) getting the share of two females. If there are just one sister from the father and mother and half-sisters from the father, the sister from the father and mother gets half while the half-sisters from the father get one or more share from the sixth, making up the two-thirds. But if there is some male along with them, he renders them part of the ʿaṣaba as to what remains, a male (among them) getting the share of two females.

245A mother, if there is only one brother or sister and no child or grand-child, gets one-third. If he has a child, grandchildren, two brothers, or two sisters, then she gets only a sixth. A father along with a male child or a son’s grandchild gets only a sixth. If they (the deceased one’s offspring) are daughters, then he gets whatever is left over (after the fixed share of a sixth). A wife get half if there are no children. If she has a child, then he gets a fourth. A wife gets a fourth whether she is one or (one of) four if there is no child. If she has a child, she gets an eighth. [p. 88]

  • 90 Ibn al-Bannā quotes al-Ḫiraqī as calling this problem the muštaraka (Muqniʿ, vol. 2, p. 817), al-Za (...)

246The son of a full brother by father and mother comes before the son of a half-brother by the father. The son of a half-brother by the father comes before the grandson of a full brother by the father and mother. A descendant of a half-brother by the father, however far removed, comes before a paternal uncle. The son of an uncle by mother and father comes before the son of an uncle by the father alone. The son of an uncle by the father comes before the grandson of an uncle by the father and mother. A paternal uncle’s descendant, however far removed, comes before a father’s paternal uncle. [p. 210] If there are a husband (i.e., widower) and two parents, the husband is given half and the mother gets a third of what remains. Then whatever is left over goes to the father. [p. 119] If there are a wife (i.e., widow) and two parents, the wife is given a fourth and the mother gets a third of what remains. Then whatever is left over goes to the father. If there are a husband (i.e., widower), a mother, half-brothers by the mother, and brothers by the father and mother, then the father gets half, the mother a sixth, and the half-brothers by the mother a third. The brothers by the father and mother fall (i.e., have no claim).90

  • 91 The shares here add up to ten-sixths, to be resolved by increasing the denominator, the ʿawl proced (...)

247If there are a husband (i.e., widower), a mother, half-brothers and sisters by the mother, a sister by the father and mother, and half-sisters by the father, then the husband gets half, the mother a sixth, the half-brothers and sisters by the mother a third (divided equally amongst them), the sister by the father and mother half, and the half-sisters from the father a sixth.91 If there are two paternal cousins, one of the a half-brother by the mother, the half-brother by the mother gets a sixth and what is left is divided in half between them. [p. 211]

a) The chapter of the principles of fixed inheritance shares to be adjusted

248When there is a half and a sixth, or half and a third, or half and two-thirds, its lowest common denominator (aṣl) is six, which is adjusted to become seven eight, nine, or ten. They are not adjusted to more than that. [pp. 89 120] When there is a fourth and a sixth, a fourth and a third, or a fourth and two-thirds, (the lowest common denominator) is twelve. They are adjusted to fifteen or seventeen. They are not adjusted to more than that. When there is an eighth and a sixth, an eighth and two sixths, or an eighth and two thirds, (the lowest common denominator) is twenty-four. They are adjusted to twenty-seven. They are not adjusted to more than that.

  • 92 This is the doctrine of radd: if the fixed quranic shares do not exhaust the estate and there are n (...)

249Those entitled to fixed shares may have some leftover amount added to them in proportion to their inheritances except for a husband and wife.92 If there are a sister by the father and mother, a half-brother by the father, and a half-sister by the mother: the half-sister by the father and the mother get half, the half-sister by the father gets a sixth, the half-sister by the mother gets a sixth, and what remains is rendered to them in proportion to their shares. [p. 212] The property (divided) among them comes to five shares for the sister by the father and mother, three-fifths of the property. The half-sister by the father gets a fifth and the half-sister by the mother a fifth. [p. 213]

b) The chapter of grandmothers

  • 93 That is, she is not excluded by an uncle.

250The grandmother, if there is no mother, gets a sixth; likewise if there are more—they do not get more than a sixth as fixed shares. If some are closer than others, the inheritance is to the closest of them. [p. 121] A grandmother inherits even if her son is alive.93 Grandmothers of the same rank, whether the mother of a mother of a mother, the mother of a mother of a father, or the mother of a father of a father—however many they are, they have the same status. [p. 214]

c) The chapter of heirs by way of men and women

251Among men, there are ten who inherit:

a son, a grandson, however many generations removed, and a father,

  • 94 “Grandfather” translates Arabic ǧadd, but it must be understood here and elsewhere as including anc (...)

then a grandfather, however many generations removed,94 and a brother,

then a fraternal nephew and a fraternal uncle,

then the son of a paternal uncle, a husband, and a patron.

Among women, there are seven:

a daughter, a son’s daughter and a mother,

then a grandmother, a sister, a wife, and a patroness. [pp. 90 215]

d) The chapter of the inheritance of grandfathers

252The doctrine of Abū ʿAbd Allāh (God have mercy on him) concerning grandfathers is the position of Zayd ibn Ṯābit (may God be pleased with him). If there are brothers and sisters and a grandfather, the grandfather shares with them at the same level as a brother unless a third is better for him. If a third is better for him, he is given a third of all the property. [p. 122] If alongside the father and brothers and sisters are people with fixed shares, the people with fixed shares are given their shares, then it is seen what remains. If division is better for the grandfather than either a third of what is left or a sixth of all the property, he is granted division. If a third of what is left is better for him than either division or a sixth of all the property, he is given a third of what is left. If a sixth of all the property gives him a better share than either division or a third of what is left, he is given a sixth of all the property. The father never gets less than a sixth of all the property or its equivalent if the shares exceed (a whole, in which case they will be adjusted by ʿawl).

253If there are a brother by the father and mother, a half-brother by the father, and a grandfather, the grandfather, the brother by the father and mother, and the half-brother by the father divide (the property) into three (equal) shares. Then the brother by the father and mother gets back what is in the hand of the half-brother by the father, taking it. [p. 216] If there are a brother and sister by the father and mother or the father (alone) and a grandfather, the property is divided among the grandfather, brother, and sister into five shares. The grandfather gets two, the brother two, and the sister one.

254If there are a sister by the father and mother, a half-sister by the father, and a grandfather, the fixed proportion between the grandfather and the two sisters is a matter of four shares. The grandfather gets two shares and each sister one, then the sister by the father and mother gets back and takes from what [p. 123] is in her sister’s hand to make up the half. If along with the (half-sister) by the father there is her brother, the property (is divided) among the grandfather, the brother, [p. 91] and the two sisters into six shares. The grandfather gets two, the brother two, and each sister one. Then the sister by the father and mother gets back and takes from what is in the hands of her half-brother and half-sister by the father to make up the half. The fixed shares come out right as eighteen: to the grandfather six shares, to the sister by the father and mother nine shares, to the half-brother two shares, and to the half-sister one share.

255If there are a husband, a mother, a sister, and a grandfather, the husband gets half, the mother a third, the sister half, and the grandfather a sixth. Then the grandfather’s sixth and the sister’s half are divided between them into three shares, the grandfather getting two and the sister one. The fixed shares come out right as twenty-seven shares: to the husband nine shares, the mother six, the grandfather eight, and the sister four. This case is called the akdariyya. The grandfather gets no fixed share [p. 217] alongside sisters in any other case. If there are a mother, a sister, and a grandfather, the mother gets a third. What remains is (divided) between the grandfather and the sister into three shares. The grandfather gets two shares and the sister one share. This (case) is called the ḫarqāʾ. If there are a daughter, a sister, and a grandfather, the daughter gets half. What remains is (divided) between the grandfather and the sister into three shares. The grandfather gets two shares and the sister one share. [pp. 124 218]

e) The chapter of uterine relations (ḏawū al-arḥām)95

  • 95 More precisely, persons who may inherit without being either quranic heirs assigned fixed shares no (...)

256Uterine relations are given to inherit. Whoever is not assigned a fixed share has the status of someone who is, from among those who are similar. The sororal aunt has the status of a mother, the paternal aunt the status of a father. There is another version from Abū ʿAbd Allāh (God have mercy on him): that he assigned her the status of a paternal uncle. The daughter of a brother has the status of a brother. Every uterine relation who has been assigned no fixed share is similar. If there is an heir besides the husband and wife, among those assigned a fixed share, or [p. 92] a patron, he has a greater claim to the property than the uterine relations. Male and female uterine relations are given to inherit equally if they have the same father and the same mother, except for the sororal uncle and aunt: the sororal uncle gets two-thirds and the sororal aunt one-third.

257If there are a nephew by a sister and a niece by another sister, the nephew gets his mother’s share, half, and the niece her mother’s share, half. If there are a son, the daughter of a sister, and the daughter of another sister, the son and the daughter of the sister (each) get half, making two halves between them, and the daughter of the other sister gets half. If there are three daughters of three sisters variously related, the daughter of a sister by (both) father [pp. 125 219] and mother gets three-fifths of the property, the daughter of a half-sister by the father a fifth, and the daughter of a half-sister by the mother a fifth, they being put in the places of their mothers. Likewise if there are three paternal aunts variously related: if there are three daughters of three brothers variously related, the daughter of the brother by the mother gets a sixth, while the rest goes to the daughter of the brother by (both) father and mother. If there are three daughters of paternal uncles variously related, the inheritance goes to the daughter of the paternal uncle by (both) father and mother. The rest are excluded, since they are put in the place of their fathers.

258If there are three maternal aunts variously related, and three paternal aunts variously related, a third is divided among the three maternal aunts in five shares, two-thirds among the paternal aunts in five shares. It works out with fifteen shares. The maternal aunt by (both) father and mother gets three shares, the maternal aunt by the father (alone) gets one share, the maternal aunt by the mother (alone) gets one share, the paternal aunt by (both) father and mother gets six shares, the paternal aunt by the father (alone) gets two shares, and the paternal aunt by the mother (alone) gets two shares. [pp. 126 220]

f) The chapter of various questions concerning fixed shares

259The ambiguous hermaphrodite inherits half the inheritance of a male and half the inheritance of a female. If he urinates and the urine emerges first from where males urinate, then it he not ambiguous. His category [p. 93] when it comes to inheritance and other things is the category of a man. If he urinates and the urine emerges first from where a woman urinates, then his category is that of a woman. The heirs of a son of a woman divorced by reciprocal cursing (mulāʿana or mulāʿina) are his mother and her ʿaṣaba. If he leaves his mother and a maternal aunt, the mother gets a third and what remains goes to the maternal aunt. A slave goes not inherit, having no property that might be inherited. Someone who is part free does inherit, is inherited from, and cuts off other potential heirs in proportion to his freedom. If he dies and leaves two sons, one of whom acknowledges a brother, the one acknowledged gets a third of what has gone to the acknowledger. If he acknowledges a sister, she gets a fifth of what has gone to him.

  • 96 That is, for example, whereas among survivors a son normally excludes a brother from inheriting, an (...)

260A killer does not inherit from the one killed, whether the killing was deliberate or by mistake. A Muslim does not inherit from an unbeliever, nor an unbeliever from a Muslim, unless he be a manumitter, in which case he takes his property by patronage (walāʾ). An apostate does not inherit from anyone unless he reverts before the inheritance has been divided. [p. 127] Likewise, [p. 221] anyone qualified to receive some inheritance who converts to Islam before it has been divided, he is included in the division. Whenever an apostate is killed in a state of apostasy, his property is booty. If two heirs are drowned or crushed so that it is not known which of them died first, they inherit from each other. Someone who may not inherit does not exclude (others).96 [p. 222]

24. The book of patronage (walāʾ)

  • 97 That is, the manumitter may expressly renounce any assumption of patronage.
  • 98 That is, his wealth is applied to freeing other slaves.
  • 99 “Close relative” represents ḏū raḥim muḥarram, interpreted by the commentators as a person one is f (...)
  • 100 The situation foreseen is of a slave girl who is set free, then marries a slave. Her children by hi (...)

261Patronage belongs to whoever manumits, even if they (manumitter and freedman) are of different religions. Whoever manumits sāʾibatan has no patronage.97 If he takes anything from what he (the freedman) leaves, he renders it to his like.98 Whoever acquires a close relative, he becomes free at his expense and he gets his patronage.99 The patronage of a mudabbar (a slave promised manumission on the master’s death) and a mukātab (a slave with a contract of manumission; that is, gradually buying his freedom), when they are set free, goes to their master. [p. 94] The patronage of umm al-walad (a concubine who is the acknowledged mother of her master’s child, who must be freed on his death) goes to her master if she dies. Whoever manumits a slave of his on behalf of a live man without having been commanded, or on behalf of a dead person, his patronage goes to the one who manumitted him. If he manumits him on his behalf by his command, his patronage goes to the one on behalf of whom and by whose command he was set free. Whoever says, [p. 128] “Manumit your slave on my behalf, at my expense”, and he does it, he (the slave) becomes free and he (the one calling for manumission) is liable for the expense, the patronage going to the one on whose behalf he was manumitted. If he says, “Manumit him at my expense”, he is liable for the expense but the patronage goes to the manumitter. Whoever manumits a slave of his who has children by someone else’s slave, the manumitter of the slave exercises the patronage of his children.100 [p. 223]

a) The chapter of inheriting patronage

  • 101 See for example Aḥmad ibn Ḥanbal, Musnad, vol. 6, p. 405, vol. 45, pp. 257‒259.

262Women inherit nothing by means of patronage except for where they have manumitted, where those they have manumitted have themselves manumitted, where they have written contracts of manumission, or where those with whom they have written contracts of manumission have themselves written contracts of manumission. Another version has been related of Abū ʿAbd Allāh (God have mercy on him), concerning the manumitter’s daughter in particular, on account of what is related of the Prophet …, that he made the daughter of Ḥamza inherit from someone Ḥamza had manumitted.101

263Patronage goes to the nearest of the manumitter’s ʿaṣaba. If a freedman dies and leaves his manumitter’s son and father, his manumitter’s father gets a sixth and what remains goes to the son. If he leaves his manumitter’s brother and grandfather, his patronage is split in two halves between them. If a man perishes leaving two sons and a client, then one of the sons dies leaving [p. 129] a son, then the client freedman dies, his property goes to the son of his manumitter, since patronage goes by seniority. If two sons perish after him and before his patron, and one of the sons leaves a son, the other [p. 224] nine, then the client freedman dies, the patronage (is divided) among them according to their number, each of them getting a tenth. Whoever manumits a slave, his patronage goes to his son and liability for his wergild to his ʿaṣaba. [pp. 95 225]

25. The book of deposits (wadīʿa)

  • 102 Al-Ḫiraqī refers to ṣiḥāḥ and ġalla, which seem to have puzzled the commentators. I follow the bold (...)

264The holder of a deposit has no liability (ḍamān) if he has done no wrong. If he mixes it with his own property when it is distinct, does not preserve it as he preserves his own property, or deposits it with someone else, then he is liable. If it is silver ingots and he mixes it with coins, or he mixes coins with silver ingots, he has no liability.102 If he commands that it be put in his house but he brings it out of the house on account of the outbreak of fire, flood, or something else that commonly destroys property, he has no liability. If he deposits something with someone, then asks him to return it at a time when it is possible for him to do so but he does not until it has perished, then he is liable. [p. 130] If someone dies while holding a deposit that cannot be distinguished from his property, its owner thereby becomes a creditor for its value.

265If he seeks the deposit but he says, “You did not deposit anything with me”, then says “It has been lost from a protected zone (ḥirz)”, he is liable, since he has lost a presumption of trustworthiness. If he says, “I have nothing of yours”, then says, “It has been lost from a protected zone”, his word prevails and he has no liability. [p. 226] If there is in his possession a deposit that two persons claim and he says, “One of them deposited it with me but I do not know which”, lots are case between them. On whomever the lot falls, he swears that it is his and it is given him. If something is deposited with someone, then he takes part of it, then he returns it or its like, then the whole perishes, he is responsible in proportion to what he took. [pp. 131 227]

26. The book of dividing spoils, booty, and alms

  • 103 Ibn Qudāma explains the collocation, “This means (God knows better) that the properties of the Musl (...)
  • 104 That is, Hashimids and Muttalibids by descent, excluding clients.

266There are three kinds of property: spoils (fayʾ), booty (ġanīma), and alms (ṣadaqa).103 [p. 96] “Spoils” constitutes what has been taken from the property of associators without attacking them with camels and riders. “Booty” is what has depended on attacking. A fifth of spoils and booty is divided into five shares. One share, for the Messenger of God …, is to be expended on horses, arms, and the interests of the Muslims. One-fifth is divided among the true Hashimids and Muttalibids,104 wherever they are, the male getting the share of two females. A third fifth goes to orphans, the fourth fifth to the poor (fuqarāʾ), and the fifth fifth to wayfarers. [p. 228] Four-fifths of spoils are for all the Muslims equally, the rich among them and the poor, except for slaves. Four-fifths of booty is for those who witnessed the battle. A foot soldier gets a share, a mounted soldier three shares, unless the mounted soldier is on a non-Arabian horse, in which case he gets two shares: a share for him and a share for his non-Arabian horse. [p. 132]

  • 105 “The alms are for the poor and the destitute, for those who work to collect them and those whose he (...)

267Alms (ṣadaqa) does not go beyond the eight types that God (be He exalted) named:105 [p. 97]

  • 106 That is, they are comparable to those manumitted sāʾibatan. The alternative version prevents a mukā (...)


the poor (fuqarāʾ), who are the chronically ill and the blind who have no trade, which is to say craft, nor own fifty dirhams or their value in gold;
the destitute (masākīn), who may or may not be beggars, are those who have do have some trade but do not own fifty dirhams or their value in gold;
those who administer it, being its collectors and keepers;
those whose hearts are to be reconciled, who are those associators to be reconciled to Islam;
and for slaves, being those who have made contracts of manumission; concerning whom another version has been related of Abū ʿAbd Allāh [p. 229] (God have mercy on him), that they are to be manumitted from it, with whatever pertains to patronage being rejected for such like;106
debtors, being those with debts they are unable to repay;
in the path of God, being raiders who are to be given the means to buy mounts, weapons, and what protects against the enemy, even if they are rich; it may also be given for the pilgrimage, which also counts as the path of God (be he exalted); [p. 133]
and wayfarers, being those stranded, although having wealth in their countries, so that they are to be given of alms that which will enable them to reach them.

268It is not required for him (a distributor of alms) to give to all of these sorts, even if they are all present. It is required only that he not go beyond them. The Hashimids are not to be given alms (ṣadaqa), nor their clients. Parents (also grandparents) are not to be given, however far removed, nor children (and grandchildren), however far removed, nor a husband or wife, nor someone one is obliged to support. No unbeliever (is to receive alms), nor any slave except those [p. 98] charged with administering it, who are to be given it by virtue of their administering. (Alms are not to be given) to anyone rich, meaning someone who owns 50 dirhams or its value in gold. If someone takes charge of distributing his own alms-tax (zakāt), administrators have no claim. [pp. 99 134 230]

27. The book of marriage (nikāḥ)

  • 107 Sulṭān means literally “power”. Ḥanbali jurisprudents expect marriages to be carried out, if no rel (...)

269A marriage is not contracted without a guardian and two Muslim witnesses. The person with the greatest claim to marry a free woman is her father; then his father (her grandfather), however far removed; then her son, however far removed; then her brother by (both) father and mother, although her half-brother by the father is similar; then their children, however far removed; then the uncles; then their children, however far removed; then the father’s uncles; then a manumitting patron; then the nearest of his ʿaṣaba; then the ruler (sulṭān).107

  • 108 That is, a woman may not act as guardian to marry her own slave to someone.
  • 109 The difference between fāsid and bāṭil is significant when it comes to marriage. “If a fāsid marria (...)

270An agent of any of these may perform his function, even if he (the one represented) is present. If the closest member of her ʿaṣaba is a child, a slave, or an unbeliever, then the furthest member of her ʿaṣaba marries her. It is with her permission that one marries a woman’s slave girl.108 Whoever marries her slave girl also marries her client. Whoever wishes to marry to himself a woman of whom he is the guardian, he turns over her affair to a man who marries her to him by her permission. An unbeliever may never marry a Muslim woman, nor a Muslim an unbelieving woman, unless the Muslim be a ruler or the master of a slave girl. If someone marries her when someone else has priority [p. 135] but he is present and does not object, the marriage is defective (fāsid). If her guardian is absent in some place where a letter cannot reach him, or it reaches him but he does not answer, someone else further than he of her ʿaṣaba may marry her; if there is no one, then the ruler (sulṭān). If she is married to someone not her [p. 231] social equal (kufʾ), the marriage is null (bāṭil).109 A social equal has religion and status (equal to hers).

  • 110 “Bride price” is the anthropological term for a payment from the man, which describes the mahr of I (...)

271If a man marries his virgin daughter with proper regard to social equality, the marriage is effective, even if she dislikes it, whether she be old or young. This is for no one to do but the father. If he asks the mature virgin her permission, that is good. If he marries his non-virgin daughter without her permission, the marriage is null, even if she later consents. Permission from a non-virgin is (known by) speech, whereas permission from a virgin is (known by) silence. If he marries his [p. 100] daughter without the nuptial gift (ṣadāq) of her like, the marriage is effective on the basis of the agreed (amount). If someone other than the father does this, the marriage is effective and she gets the bride price of her like.110

272Whoever marries a boy who has not reached maturity or is feeble-minded, it is not permissible except by his father or a supervisor designated for the purpose of marriage. If he marries his slave girl without her permission, she is bound by the marriage even if she dislikes it, be she old or young. If he marries his male slave despite his disliking it, it is not permissible unless he is young. If two patrons marry (a female client), [p. 136] the marriage of the first of them (is legitimate). If the second goes into her, not knowing that she (already) has a husband, they are to be separated and she gets from him the bride price of her like. Her (true) husband does not begin sexual relations with her until she has menstruated three times after the last time her second (husband) put her under. If it is unknown which of the two marriages was the first, the two marriages are rescinded.

  • 111 See ʿAbd al-Razzāq, Muṣannaf, vol. 7, pp. 243‒244; Ibn Abī Šayba, Muṣannaf, vol. 4/2, pp. 259‒260, (...)

273If a slave marries without the permission of his master, his marriage is null. If he has consummated the marriage, his master is bound (to pay) two-fifths of the bride price, as said ʿUṯmān ibn ʿAffān (may God be pleased with him).111 If the two-fifths exceeds his value, the master is not bound (to pay) more than his value or to turn him over (give away the slave as the bride price). If someone marries a slave girl thinking her free and begins to have sex with her so that she gives birth, the children are free but he must ransom them and pay the agreed price. He is to claim all that back from the one who deceived him. [p. 232] They are separated if he is not one of those permitted to marry slave girls. If he is one of those who are permitted and he consents, then any children born after his consent are slaves (to his wife’s master). If the one deceived is a slave, then his children are free and he is to ransom them when he becomes free. That also he is to claim back from the one who deceived him.

  • 112 That is, having been made free, she may not be returned to slavery; therefore, as if she had been f (...)

274If someone says, “I hereby make my slave girl’s manumission her nuptial gift” in the presence of two witnesses, manumission and marriage are both effected, whether his word about manumission came first [p. 137] or last, so long as there was no separation between them. If he divorces her before going into her, he returns to her half her value.112 If the proposer says to the guardian, “Do you marry her?” and he says, “Yes”, and he says to the one marrying, “Do you accept?” and he says, “Yes”, then the marriage is effective if it was in the presence of two witnesses. A free man may not be married to more than four women simultaneously. A slave may be married to only two simultaneously. He may take a concubine with the permission of [p. 101] his master.

  • 113 See for example Buḫārī, Kitāb al-nikāḥ 52, bāb al-šurūṭ fī al-nikāḥ, no. 5151.

275Whenever a free man or slave pronounces a divorce, whether or not he has the power to revoke it, he may not marry her sister until her waiting period (ʿidda) is completed. Likewise if he divorces one of four: he may not marry (another) until her waiting period is completed. It is likewise for a slave who divorces one of his two wives. Whoever proposes to a woman, then is married to another, the marriage is not effective. If he marries her on condition of not taking her out of her house or her city, that condition is hers (to enforce) on account of what was related from the Prophet …, that he said, “What most needs fulfilling of your conditions is that by which you have made licit [p. 233] genitals”.113 If he marries her on condition that he marry no one else in addition to her, she may separate from him if he does marry another.

276If one wishes to marry a woman, he may look at her without being alone with her. [p. 138] If someone marries his slave girl (to someone) and stipulates that she be with them by day, he sending her to him (her husband) by night, the contract and the condition are permissible. Maintenance (of his wife) is incumbent on the husband for the period of her residing with him. [p. 234]

a) The chapter of what is forbidden by way of marrying, combining, and other things

  • 114 “Nursing mothers” refers to women who have nursed someone a minimum number of times (five) and “mil (...)

277Those who are forbidden on account of consanguinity are mothers, daughters, sisters, paternal aunts, maternal aunts, fraternal nieces, and sororal nieces. Those who are forbidden for reasons are mothers by nursing, milk sisters,114 the mothers of women (with whom one has consummated a marriage), sons’s wives, a father’s wives, and two sisters at once. Forbidden by nursing is anyone forbidden by consanguinity. Other descendants of the husband of a mother by nursing are forbidden, likewise being simultaneously married to a woman and her paternal aunt or a woman and her maternal aunt. If one has contracted (marriage) with a woman, even if one has not consummated the marriage, she becomes forbidden to his father and son. A grandfather, however far removed, has the same status with regard to what I have said as the father, while a grandson, however far [p. 102] removed, has the same status as a son. [p. 139]

  • 115 Hence, for example, a man may not marry his natural daughter.

278Everyone we have mentioned as forbidden by consanguinity or nursing, their daughters are like them in being forbidden except for the daughters of paternal and maternal aunts and the daughters of those whom fathers and sons have married, for they are licit. Likewise (licit) are the daughters of a wife with whom one has not consummated a marriage. Illicit sex creates marriage barriers, just as does licit and ambiguous.115 [p. 235]

279If someone marries two sisters by consanguinity or nursing in a single contract, the marriage is defective. If he marries them in two contracts, the first is his wife. What goes for them is what goes for a woman and her paternal uncle or a woman and her maternal uncle. If he marries his milk sister and an unrelated woman in a single contract, the marriage with the unrelated woman is effective. If one buys two sisters and has sex with one of them, he may not have sex with the other until the first has become forbidden to him by sale, marriage, giving away, or something like that, its being known that she is not pregnant. If she returns to his possession, he may not have sex with either of them until the other is made forbidden. A slave girl’s maternal aunt is like her sister in that. There is no harm in simultaneously marrying a woman who was formerly the wife of a man and that man’s daughter by another woman.

  • 116 “The People of the Book (Ahl al-Kitāb)” include Jews, Christians, and possibly Magians. A Kitābī (“ (...)

280Free women of the People of the Book and their slaughters are licit for Muslims.116 If one of the parents of an unbelieving woman is a Kitābī and the other an idolator, a Muslim may not marry her. If he marries a Kitābī woman, then she converts to another religion of unbelief other than [p. 140] the religion of the People of the Book, Islam is forced on her. If she has not converted to Islam before her waiting period is completed, her marriage is rescinded. One’s Kitābī slave girl is licit for him but not his Magian slave girl.

281A Muslim, even a slave, may not marry a Kitābī woman, since God said, “of the believing young women” (Q. al-Nisāʾ 4:25). A free Muslim may marry a Muslim slave girl lest he not find the means to marry a free woman and fears unchastity. Whenever he makes a contract for her, it is with two conditions: lack [p. 103] of means and fear of unchastity. If his circumstances later become easy, [p. 236] his marriage to her is not rescinded. One may marry up to four slave girls so long as the two conditions obtain.

282If a man proposes marriage to a woman but does not accept him, then someone else may propose marriage to her. If he makes an offer to a woman while she is in her waiting period, saying “I want someone like you” or “As soon as something is finished it will be” or similar talk indicating his desire for her, there is no harm in his not being explicit. [p. 237]

b) The chapter of marrying the people of association and other things

283If an idolator converts to Islam, having married four idolatresses but not consummated those marriages, they are separated from him. Each one of the gets half of what was stipulated if it is licit or half the nuptial gift of her like if what was stipulated was forbidden. [p. 141] If the women convert before he does and before consummation, they are here also separated from him. He owes nothing to any of them. If his and their conversion to Islam was before consummation and simultaneous, then they are wives. If he has consummated his marriage with them, then converted, whoever of them has not converted before the conclusion of her waiting period is forbidden to him from the time that their religions differed. If he was married to more than four, whether by a single contract or separate ones, then he began to have sex with them, then he converted, then each of them converted in their waiting periods, he may hold on to four of them while separating from all others, whether the one he holds on to was the first to be contracted or the last.

284If he converts while he has two sisters under him (i.e., as wives), he chooses one of them. If they are a mother and a daughter and he and they convert to Islam together before consummation, the marriage with the mother becomes defective. If he has consummated his marriage with the mother, then both marriages have become defective. [p. 238] If a slave converts to Islam while he has two wives under him, with both of whom he has consummated his marriage, and who convert during their waiting period, they are his wives. If they are more, then he chooses two of them.

  • 117 Half is required if he divorces her before consummation.

285If someone marries (someone), they both being Kitābīs, then he converts to Islam, whether before or after consummation, she is his wife. If she was a Muslim before him and before consummation, the marriage is rescinded. She gets no bride price. Whatever was stipulated for her when they were both unbelievers and she has taken, she gets nothing else, even if it was forbidden. [p. 104] If she has not taken it and it is forbidden, then she may claim from him the bride price of her like or [p. 142] half the bride price of her like if that is required.117 If he marries her when they are both Muslims, then she apostatizes before consummation, the marriage is rescinded and she gets no bride price. If he has turned apostate before her it is likewise, except that incumbent on him is half the bride price. If her apostasy was after consummation, she gets no maintenance. If she does not convert to Islam during her waiting period, the marriage is rescinded. If he turned apostate after consummation, then does not return to Islam until the conclusion of her waiting period, the marriage is rescinded from the time that their religions came to differ.

286If someone marries his ward to someone on condition that the other marry his ward to him, there is marriage for neither of them, even if they have stipulated some additional nuptial gift. Marriage for an agreed term (mutʿa) is forbidden. If someone marries a woman on condition that he divorce her at a specified time, the contract is invalid. It is likewise if he stipulates that he make her licit for a previous husband (who had triply divorced her). If someone in a sacralized state contracts a marriage for himself or someone else or someone contracts a marriage for a man or a woman in a sacralized state, the marriage is invalid.

  • 118 Whiteness is said to be a sign of the former, loss of hair of the latter.
  • 119 The four faults peculiar to women are that she be ratqāʾ, qarnāʾ, ʿaflāʾ, or fatqāʾ. There is disag (...)

287Whichever of two spouses detects insanity, leprosy (ǧuḏām or baraṣ118) in the other, or if the woman’s vagina is sealed or obstructed by something hard or soft, or if her perineum is pierced,119 or if [p. 143] the man [p. 239] is found to be without his penis, then whichever of them detects that in the other may choose to rescind the marriage. If he rescinds before touching, there is no bride price. If it is after that and he says he did not know and swears to it, he may rescind with the bride price incumbent on him. He may reclaim it from the one who deceived him. He need not provide her with housing or maintenance, since housing and maintenance are for someone whose husband may reclaim her.

288If a female slave is set free while her husband is a slave, she may choose to rescind the marriage. If he is freed before she has chosen or he has had sex with her, her (right) to choose is nullified, whether or not she knew she had a choice. If she belonged [p. 105] to two and one of them frees (his share of her), she has no choice. If the manumitter is straitened, then if she chooses to stay with him, before or after his going into her, the bride price goes to the master. If she chooses rescission before consummation, there is no bride price. If she chooses it after consummation, the bride price goes to the master. [pp. 144 240]

c) The chapter of the term of a man who is impotent or castrated but still has his penis

289If a woman claims that her husband is impotent and cannot have coitus with her, he is given a year from when he is taken to court. If he has not had sex with her in it, she has a choice between staying with him and separation. If she chooses separation, that is a rescission without a divorce. If he says, “She knew I was impotent before I married her”, then she confirms it or it is established by proof (two witnesses), then he is not given a term and she is his wife. If she knew that he was impotent after consummation but stayed quiet about her demand, then later demands (rescission), she may do that. He is given a year from the day he is taken to court. If she says, “At one time I was satisfied with him, although impotent”, she may not later demand (rescission). If she confesses that he once did have coitus with her, he cannot be impotent. If he asserts that he did have coitus with her and she says she is a virgin, she is shown to trustworthy women. If they testify to what she says, he is given a year. If he loses his penis before the term, she is immediately given a choice. If she is not a virgin and he claims that he did have coitus with her, he is put away in private with her and told, “Bring out your semen onto something.” If she claims that it is not semen, it is placed over fire. If it liquefies, it is semen and her [pp. 145 241] assertion is refuted. Another version is related from Abū ʿAbd Allāh (may God be pleased with him): that his word prevails with his oath.

290If an ambiguous hermaphrodite says, “I am a man”, he is not forbidden to marry women. He may not later marry other than that. It is likewise if he had earlier said, “I am a woman”: then he may not be married except to a man. [p. 106] If a man has sex or a woman submits to it, being free and mature, by means of a sound marriage, neither of them having lost his mind, they are stoned if they commit adultery. Free unbelievers and Muslims are equal with regard to what I have described. [p. 242]

28. The book of nuptial gifts (ṣadāq)

  • 120 So, for example, a promise to teach her some verses of the Quran, as in a famous hadith report, is (...)

291If a woman is mature and rational or young and her father contracts (a marriage for her), whatever nuptial gift is stipulated is permissible. If it is something that can be divided in half, it serves.120 If he gives her a particular slave, then she finds some flaw in him and returns him, then he owes her his value. It is likewise if he turns out [p. 146] to be free or claimed (by someone else), whether he has delivered him to her or not. If he marries her on condition that he buy for her a particular slave, then he is not sold, more is asked for him than his value, or (for some other reason) he is unable (to obtain him), she gets his value. If he marries her for wine or what is like it in being forbidden and they are both Muslims, the marriage is effective and she gets the bride price of her like or half of it if he divorces her before consummation. If he marries her for a thousand for her and a thousand for her father, that is permissible. If he divorces her before consummation, he gets from her half of the two-thousand but her father is under no obligation as to anything he has taken. If he makes a nuptial gift to her of an immature slave and he grows up, then he divorces her before consummation, if she wishes she pays him half his value on the day the contract was made or she pays him something more than half that. However, it may be that he is suitable for something when young for which he is not suitable when mature, [p. 243], in which case she owes him half his value on the day the contract was made. However, if he wishes, he takes half of what she expended on him out of his half.

292If they disagree over the nuptial gift after the contract (has been concluded) as to its amount, and there is no proof (oaths by two witnesses) of its amount, her word prevails so long as it does not go beyond the bride price of her like. If he denies owing her any nuptial gift, [p. 107] her word again prevails, whether before consummation or after it, so long as she claims the bride price of her like, unless he brings proof (two witnesses) that he has no such obligation. [p. 147] If he married her without any nuptial gift, he owes her nothing if he divorces her before consummation. However, he should give her some good, the wealthy in proportion to his ability and the poor in proportion to his. The maximum is a servant, the minimum a garment in which she may pray, unless he wishes to give her more or she wishes to take less from him. If she asks him before consummation to give her her portion, he is compelled to do so. If he gives her the bride price of her like, she gets nothing else. It is likewise if he provides her with less than that and she has approved of it. If one of them dies before they have started to have sex, or before provision (of the bride price), the spouse inherits it. She gets the bride price of her women (i.e., female relatives).

293If he is alone with her after the contract (has been concluded) and says, “I did not have sex with her” and she says he has told the truth, no attention is paid to what they say. They are classed as having consummated (the marriage) with regard to all their affairs except when it comes to remarriage to a husband after he has triply divorced her or to adultery, for then they are flogged, not stoned. This obtains whether he was alone with her when they were sacralized or fasting, or she was menstruating, or they were none of these things.

294The husband is the one with power over the contract of marriage. If he divorces before consummation, whichever of them excuses the other from what he must pay by way of the bride price, being free to dispose of his property, [p. 244] the other is without any obligation. He need not maintain his wife if her like does not admit sex or if he is denied access to her for no good reason. If lack of access is his doing, then he is bound to maintain her. [p. 148] If he marries her on condition of two nuptial gifts, one secret and one public, he is held to account for the public one, even if the marriage took place with the secret.

295If he gives her a nuptial gift of particular animals, which reproduce, then he divorces her before consummation, the offspring are hers. He may ask her for half the mothers unless she lost by their giving birth. In that case, he has a choice between taking half the value at the point when he made the gift and taking the diminished half. If he gives her land and builds a house on it, or a garment that she then dyes, then he divorces her before consummation, he may ask her for half the value at the point when he made the gift. However, he may wish to give her half the value [p. 108] of the building or the dyeing, in which case he gets half. She may wish to give him more than half, in which case he gets nothing else. [p. 245]

29. The book of wedding feasts (walīma)

296It is encouraged for anyone marrying to put on a wedding feast, even if (slaughtering a single) sheep. Whoever is invited is to attend. If one prefers not to eat, he supplicates and leaves. Invitation to a circumcision was unknown to the earliest (Muslims). Someone who is invited to that is not obliged to accept. The sunna concerns only accepting when one is invited to a wedding party. [p. 149] Strewing gifts (nitār) is discouraged on account of its resemblance to seizing booty (nuhba). Someone may take it to whom the strewer prefers someone else. If it is divided among those present, there is no harm in taking it. Thus it was related of Abū ʿAbd Allāh (God have mercy on him), that one of his children learnt the whole Quran, so he distributed nuts among the boys. [p. 246]

30. The book of living with women and separation by ḫulʿ

297The man must treat his wives equally as to the division (of his time). The basis of division is the night. If he has sex with one wife but not another, he has not done wrong. If he gives a night to his wife the slave woman, the free one gets two, even if she is a Kitābiyya. If his wife travels without his permission, he owes her no maintenance or share (of his time). If he has sent her, then she has a right to do that. If he wishes to travel, he is not to take any of his wives with him except on drawing lots. When he returns, he commences to divide (his time) among them. If he marries a virgin, he is to stay with her for a week, then circulate. He does not count against her [p. 150] the time he spent with her. [p. 109] If she is not a virgin, he is to stay with her for three nights, then circulate. He does not count against her either the time he spent with her. If she manifests what makes one fear contumacy, he is to warn her. If she manifests contumacy, he is to avoid her. If this corrects her (well and good); otherwise, he may beat her, not severely.

298If enmity occurs between two spouses, such as it is feared may lead them to wrongdoing, the judge (ḥākim) sends an arbitrator of his family and another of hers, both of them trustworthy and with the approval and commissioning of the spouses. They are commissioned to unite them if they think that best or to separate them. Whatever they do of that, they (the spouses) are bound by it. [p. 247] If the wife despises her husband but will not deny him what it would be wrong to deny him, there is no harm in her ransoming herself from him. It is [p. 151] discouraged for him to take more than he gave her. If she resorts to dissolving the marriage by ḫulʿ for other than what we have mentioned, that is disliked for her to do but the ḫulʿ does take place. Ḫulʿ is a rescission according to one of two versions. The other version is that it is an irrevocable divorce.

299A woman separated by ḫulʿ is not affected by divorce during her waiting period, even if he declares it to her. If she says, “Separate me by ḫulʿ for the dirhams in my hand”, and he does so but there is nothing in her hand, she must pay him three dirhams. If he separates her by ḫulʿ without recompense, he gets nothing. If he separates her by ḫulʿ for a garment and it turns out to be flawed, he has the choice between taking a penalty for the flaw or the value of the garment, which he returns. If he separates her by ḫulʿ for a slave and he turns out to be free or claimed (by someone else), she owes him his value.

  • 121 Ibn Qudāma and Nūr al-Dīn Abū Ṭālib quote rather “if he separates her by ḫulʿ”, but this is apparen (...)

300If she says to him, “Triply divorce me for a thousand”, then he divorces her singly, he gets nothing but she is bound by one divorce. If he separates a slave girl by ḫulʿ without her master’s permission in exchange for some particular thing, the ḫulʿ separation is effective. He may then go after her if she is freed and demand the like of it (whatever particular thing she promised for separation by ḫulʿ, not owning anything as a slave) if there is a like, otherwise its value. Whatever [p. 110] a slave takes in exchange for separating his wife by ḫulʿ, that is permissible, it belonging to his master. If a woman asks to be separated by ḫulʿ during her death illness for more than what he would inherit from her, the ḫulʿ separation is effective but the heirs may demand he give them the excess. If he divorces her in his [p. 152] death illness, leaving her by will more than what she would have inherited, the heirs may refuse to give her more than that inheritance.121 If she asks to be separated by ḫulʿ in exchange for something forbidden, they being both unbelievers, and he takes possession of it, then one or both of them convert to Islam, he can claim no more of her. [p. 248]

31. The book of divorce (ṭalāq)

301Proper divorce (ṭalāq al-sunna) is that he divorce her in a state of ritual purity, without coitus, singly, leaving her until her waiting period has concluded. If he triply divorces her between two menstrual periods, during which time he does not have sex with her, that also agrees with the sunna. He forfeits choice. If he tells her, “You are divorced according to the sunna” when she is pregnant or ritually pure but he has not had coitus with her (since her last period), the divorce is effective. If she is menstruating, she is bound by the divorce when she becomes pure. If she is pure and there has been coitus with her, then when she recovers from her next menstrual period she is bound by the divorce. If he tells her, “You are divorced improperly (li-l-bidʿa)” when she is between periods and he has not had sex with her in that interval, the divorce does not become effective until he has sex with her or she menstruates. [p. 153] If he tells her when she is menstruating and he has not consummated the marriage with her, “You are divorced according to the sunna”, she is divorced immediately, since neither sunna nor bidʿa applies to this.

302The divorce of someone who has lost his mind without being drunk is not effective. There are different versions from Abū ʿAbd Allāh (God be pleased with him) as to the divorce of someone drunk. One is that the divorce does not oblige him, another is that it does, and another is refusal to pronounce, for he said, “The Companions of the Messenger of God … disagreed on this.” [p. 249] If a boy understands what divorce is and pronounces a divorce, he is bound by it. Whoever is forced to divorce is not bound by it. He is not considered forced until he has been subjected to some form [p. 111] of torment, such as beating, choking, pressure on his thigh, or something similar. Threats do not constitute forcing. [p. 250]

a) The chapter of expressions of divorce and other things

  • 122 There is some ambiguity in the Arabic here: ṭallaqtuhā means both “I have divorced her” (the intend (...)

303If he tells her, “I hereby divorce you”, “I hereby separate from you”, or “I hereby release you”, he is bound by the divorce. [p. 154] If he tells her in a moment of anger, “You are free”, or he slaps her and says, “This is your divorce”, he is bound by the divorce. Abū ʿAbd Allāh (may God be pleased with him) said, “If he tells her ‘You are stripped off (ḫaliyya)’, ‘You are free (barīʾa)’, ‘You are separated (bāʾin)’, ‘The reins are in your hand (ḥabluki ʿalā ġāribik)’, or ‘Go back to your family (ilḥaqī bi-ahlik)’, in my view that is three (divorces), but I dislike to give a formal opinion on it. This goes whether he has consummated the marriage or not.” If one comes out with an expression of divorce, he is bound by it, having intended it or not. If one is asked, “Have you a wife?” and he says, “No”, intending by that to lie, he is under no obligation. But if he says “I have divorced her”, intending by that to lie, then he is bound by the divorce.122

304If he gives his wife to her family, if they accept her, that constitutes a single (divorce). He may take her back if he has consummated his marriage with her. If they do not accept her, it is nothing. If he tells her, “Your affair is [p. 251] in your hand”, it is in her hand. If a long time passes and it is not rescinded or he has sex with her, then if she says, “I have chosen myself”, then it is a single (divorce). He may take her back. If she pronounces herself triply divorced and he says, “I gave her only one”, no attention is paid to what he says. The decision is what she has made. The rule is the same if he has put her in someone else’s hand. If he gives her a choice and she chooses immediate separation (it is effective); otherwise (if she delays) she has no choice. She may not choose more than one (divorce) unless he has given her more than that. [p. 155]

  • 123 Hanbali jurisprudents evidently consider the form of words crucial: with anti ṭāliq anti ṭāliq, the (...)

305If he divorces her with his tongue but with a reservation in mind, the divorce is effective. The reservation does him no good. If he tells her, “You are divorced as of such-and-such a month”, she is not divorced until the sun has gone down on the day next to the stipulated month. If he tells her, “If I divorce you, you are divorced”, then he divorces her, [p. 112] he is bound by two (divorces). However, if his marriage with her has not been consummated, he is bound by just one. If he says to her, “If I don’t divorce you you are divorced” without intending any time, without divorcing her before he or she has died, the divorce is effective at the last possible time. If he says, “Whenever I have not divorced you, you are divorced”, she is bound by three (divorces) if the marriage with her has not been consummated. If he says to her, “You are divorced if so-and-so comes” and he comes by compulsion or dead, she is not divorced. If he says to one with whom he has consummated his marriage, “You are divorced; you are divorced”, she is bound by two divorces unless he intended by the second making her understand that the first had befallen, in which case she is bound by a single divorce. If her marriage has not been consummated, she is separated by the first and not bound by what came after, since it is the beginning of speech. If he says to someone with whom he has not consummated his marriage, “You are divorced, divorced, divorced”, she is bound by the three since they constitute a sequence.123 This is like his saying “You are triply divorced.” If he divorces triply intending one, it is triple. If he divorces once intending three, it is single. [pp. 156 252]

b) The chapter of divorce with reckoning

306If he tells her, “Half of you is divorced”, “your hand”, “a limb of your body is divorced”, or tells her, “You are divorced half a divorce” or “a quarter of a divorce”, one (divorce) is effective. If he tells her, “Your hair” or “Your nails are divorced”, the divorce is not binding on her, since hair and nails may go away and other (hair and nails) come out. If he doesn’t know whether he has divorced or not, the certainty of the marriage is not done away with by the doubt of the divorce. If he divorces without knowing it, whether singly or triply, he withdraws from her. He must maintain her as long as she is in her waiting period. If he wishes her back during her waiting period, he must maintain her. He is not to have sex with her until he is certain how many times he divorced her, since he is certain of what is forbidden but doubtful of what is licit.

  • 124 That is, his former pronouncement of divorce still affects how many more times he may divorce her b (...)

307If he tells his wives, “One of you is divorced” without intending any particular one, he is to draw lots among them. The one of them on whom the lot falls is divorced. It is the same if he divorces one of [p. 253] his wives, then is made to forget which one: [p. 113] she is dismissed by lot. If he dies before that, the heirs draw lots and the inheritance goes to those of them who remain. [p. 157] If he divorces his wife fewer than three times and she completes her waiting period, then she marries another and he has sex with her, then he divorces her or dies and she completes her waiting period, then the first one marries her, her standing with him is whatever remains of the three.124

308If the one divorcing is a slave, he has two divorces (on the second of which) his wife becomes illicit for him until she has married a husband other than him, whether this wife is free or a slave, since divorce attaches to men and the waiting period to women. If one says to his wife, “You are divorced three kinds of two divorces”, she is triply divorced. [p. 254]

c) The chapter of taking back a wife (raǧʿa)

309A wife, if her marriage has not been consummated, is separated by a single divorce and becomes forbidden by three divorces to a free man, by two to a slave. If a free man divorces his wife after consummation less than triply, he may take her back so long as she is in her waiting period. A slave has the same options after one as a free man before three. [p. 158] If she is pregnant with twins and gives birth to one, he may take her back before she has given birth to the second.

310Taking back is for him to say to two Muslim men, “I testify that I hereby take back my wife.” There is no need for a guardian to attend or for the nuptial gift to be increased. Another version has been related of Abū ʿAbd Allāh (God be pleased with him) indicating that taking back is permissible without witnesses. If he says, “I hereby take you back” and she says, “My waiting period was concluded before your taking me back”, her word prevails with her oath so long as that is possible.

311If he divorces her once and her waiting period is not completed until he divorces her a second time, she is separated from him for whatever has passed [p. 114] of her waiting period. If he divorces her, then has his taking her back witnessed such that she does not know, so she completes her waiting period, then marries someone who has sex with her, she is returned to him. He is not to have sex with her until [p. 255] her waiting period is concluded according to one of the two versions from Abū ʿAbd Allāh (God have mercy on him). The other version is that she is the wife of the second. If he divorces her and her waiting period for him is concluded, then she comes to him (the first husband) and mentions that she married the one (the second husband) who had sex with her, then divorced or widowed her, and that her waiting period has concluded, that being possible—he may marry her (resume conjugal relations) if he knows her to be truthful and upright. If he does not so regard her, he is not to marry her until he is sure that what she says is sound. [pp. 159 256]

32. The book of divorce by oath of abstinence (īlāʾ)

  • 125 That is, he may call her back.

312A mūlī is someone who swears by God (mighty and glorious is He) not to have coitus with his wife for more than four months. When the four months have passed and she brings him to court, he is enjoined with fayʾa. Fayʾa means coitus. If he has an excuse by way of illness, sacralization, or something else that prevents coitus, so that he says, “When I am able, I shall have coitus with her”, that is called fayʾa with an excuse. If he is able but does not act, he is commanded to divorce. If he will not divorce, the judge divorces in his place (ṭallaqa al-ḥākim ʿalayh). If he pronounces a triple divorce, it is triple. If he pronounces a single divorce, then he proposes to take her back, there remaining more than four months since the period of abstention, the ruling is what we ruled concerning the first.125

313If we examine him after four months and he says, “I have had sex with her”, then if she is not a virgin, his word prevails. If he pronounces an oath of abstinence to separate from her, then does not have sex with her until he has divorced her and her waiting period has concluded, then he (resumes) conjugal relations with her, there remaining more than four months from the period of abstention, he is examined, as I have described. If he pronounced an oath of abstinence to separate from her and they disagree as to the passage of four months, his word prevails that they have not passed, along with his oath. [pp. 115 160 257]

33. The book of divorce by comparison to one’s mother’s back (ẓihār)

  • 126 With allusion to Q. al-Muǧādala 58:3‒4: “Those who make their wives like their mothers’ backs and t (...)

314If one says to his wife, “You are to me as my mother’s back” or the back of an unrelated woman, or “You are forbidden to me”, or he pronounces forbidden some member of hers, then he may not have sex with her until he makes penance. If he or she dies or he divorces her, he is not bound to make penance. If he marries her, he does not have sex with her until he has made penance, since the vow is broken by repetition, which is sex. This is because God (mighty and glorious is He) made penance obligatory for one who divorces by comparison to his mother’s back before the breaking of the vow.126

315If he says to an unrelated woman, “You are to me as my mother’s back”, he is not to have sex with her if he marries her until he has made penance for this comparison. If he tells her, “You are forbidden to me”, meaning in that state, he owes nothing if he marries her, since he was telling the truth. If he meant in every state, he is not to have sex with her, if he marries her, until he has made penance. If he divorces his wife by telling her, “You are to me as my mother’s back” and she is a slave, then he need not make penance until he comes to own her. Then the marriage is rescinded and he may not have sex with her until he has made penance.

316If he divorces four wives by telling them all once, “You are to me as my mother’s back”, no more is incumbent on him than one act of penance. [p. 161] The act of penance is setting free a believing slave, free of defects that hinder labour. If he does not find this (has no such slave and is unable to buy one) then he fasts for two months in a row. If he breaks his fast during them for a good reason, he resumes (fasting) where he left off. If [p. 258] he breaks his fast without a good reason, he resumes (fasting) from the start. If he has sex with her during the time of fasting, he nullifies his previous fasting and begins the two months over again. If he is unable, he is to feed sixty poor, free Muslims, for each poor person a mudd of wheat or flour or half a ṣāʿ of dates or barley.

317Whoever begins to fast (in penance) for divorcing by comparison to his mother’s back on the first of Šaʿbān breaks the fast for the day of breaking the fast (after Ramadan) and resumes from there. Likewise if someone begins on the first of Ḏū al-Ḥiǧǧa, he breaks his fast for the day of the sacrifice (10 Ḏū al-Ḥiǧǧa) and the days of al-Tašrīq (11‒13 Ḏū al-Ḥiǧǧa), resuming where he had [p. 116] left off fasting before. If the one who has divorced by comparison to his mother’s back is a slave, he does not make penance except by fasting. When he fasts, nothing discharges his duty but (fasting) two months in a row.

318Whoever has sex before making penance is doing wrong. Incumbent on him is the abovementioned penance. A woman who tells her husband, “You are to me like my father’s back” or “You are [p. 162] forbidden to me” is not divorcing by comparison to her father’s back but she must make the penance of divorcing by comparison to one’s mother’s back, for she has enounced something hateful to say and untruthful. If someone repeatedly divorces his wife by comparison to his mother’s back, without making (multiple) penances, he must make one. [p. 259]

34. The book of separation by reciprocal cursing (liʿān)

319If a man accuses his free, mature, Muslim wife of adultery, saying to her, “You have committed adultery”, “O adulteress”, or “I have seen you committing adultery” without bringing proof (four witnesses), he is bound to suffer the quranic punishment (for unsupported accusation of adultery) unless he resorts to reciprocal cursing, whether he is a Muslim or an unbeliever, free or slave. He is not in danger unless his wife brings him to court. When they curse each other, the judge (ḥākim) separates them. They may never reunite. If he says that he was lying, she may have him suffer the quranic punishment. If he accuses her of adultery and denies her child, then when their separation by reciprocal cursing has been completed by the judge’s decree of separation, the child is considered not to be his if he mentioned it in his cursing. If he says that he was lying, the child is attached to him. If he denies the foetus in his cursing, it is not disowned until he denies it at its birth and curses. If his wife bears a child and he says, “She has not committed adultery but this child is not mine”, the child is his in law and she may not have him suffer the quranic punishment. [p. 163]

320The reciprocal cursing that spares one the quranic punishment (for unsupported accusation of adultery) is that the husband say in the presence of the judge, “I testify by God that she has committed adultery”, pointing to her. If she is not present, he gives her name and her father’s. He does that four times, then he is stopped at the fifth. He is told, “Fear God: [p. 117] this will have consequences, and the torment of this world is lighter than the torment of the Afterworld.” [p. 260] If he refuses to do anything but complete (the procedure), then let him call down God’s anger on him if he is a liar as to his accusing her of adultery. She is to say, “I testify by God that he has lied” four times, then she is stopped at the fifth. She is warned as the man was warned. If she refuses to do anything but complete (the procedure), then let her call down God’s anger on her “if he is truthful in his accusing me of adultery.” Then the judge says, “I hereby separate you.” If there is a child between them, the child is mentioned. If he says, “I testify by God that she has committed adultery and this child is not my child”, then she is to say, “I testify by God that he has lied and this child is his child”. If he curses but she does not, she suffers no quranic punishment and the marriage stands. It is likewise if she confesses fewer than four times. [pp. 164 261]

35. The book of waiting periods (ʿidad)

321When a man divorces his wife, having been alone with her, her waiting period (ʿidda) is three menstrual periods apart from the period in which he has divorced her. When she performs the major ritual ablution following the third menstrual period, she becomes licit for husbands; if she is a slave woman, when she performs the major ritual ablution following the second menstrual period. If she is menopausal or has never menstruated, then her waiting period is three months; for the slave woman, two months. When he has divorced her such that he retains a right of taking back and she is a slave woman, then her waiting period is not completed before she has been freed, her waiting period continues until she has completed the waiting period of a free woman (counting from the divorce). If he divorces her such that he does not retain a right of taking back and she is freed, her waiting period is that of a slave.

  • 127 “If she knows why she has stopped menstruating” alludes to illness, nursing, and other causes.

322If he divorces her and she is among those who have menstruated, then she stops menstruating without knowing why, her waiting period is a year. If she is a slave woman, her waiting period is eleven months: nine months for pregnancy (to make sure she is not pregnant) and two months for the waiting period. If she knows why she has stopped menstruating, her waiting period continues until menstruation returns, which is then what counts, unless she becomes menopausal, in which case her waiting period is three months from the time she became menopausal.127 If she has one or two periods, then stops menstruating she knows not why, her waiting period [p. 262] is not completed until a year has passed from when she stopped menstruating. [pp. 118 165]

  • 128 The problem is whether it amounts to a pregnancy if it is ended by spontaneous abortion, potentiall (...)

323If he divorces her and she is not among those who have menstruated, then her waiting period is not completed by (the passage of some number of) months until she does menstruate. Then she starts a waiting period of three menstrual periods if she is free or two if she is a slave. If she is widowed by either a free man or a slave, before consummation or after it, her waiting period is complete only after a full four months and ten days if she is free or a full two months and five days if she is a slave. If he divorces or widows her when she is pregnant by him, her waiting period is not complete until she has given birth, whether she is a slave or free. A pregnancy by which a waiting period is completed is one in which something of a human form becomes evident, whether she is a slave or free.128 If he divorces or widows her and she does not marry before giving birth to a child within four years of his divorcing or death, the child is attached to him and her waiting period is thereby complete.

324If he divorces or widows her and she marries someone who has sex with her before her waiting period is complete, they are to be separated. She resumes the waiting period from the first (husband), then starts a waiting period for the second. He may marry her after the completion of the two waiting periods. If she gives birth to a child who might be from either of them, it is shown to the physiognomists (qāfa) and attached to whichever of them they choose. Her waiting period from him (the one to whom paternity has been assigned) is completed, then she observes a waiting period for the other.

325A concubine who has given birth to a child by her master (umm al-walad), if her master dies, is not to marry until she has had a [p. 166] complete menstrual period. If she is menopausal, (the waiting period is) three months. If she stops menstruating she knows not why, her waiting period is nine months for pregnancy and a month in place of a period; if she is pregnant by him, until she gives birth. [p. 263] If such a concubine is freed or one that he used to have sex with, she is not to marry until she has had one complete period. It is likewise if he wishes to marry her (to someone), she being his property: he makes sure she is not pregnant by means of a menstrual period, then marries her. If he acquires a slave girl, he is not to have sex with her or kiss her until he has made sure she is not pregnant after his acquisition is sure by means of a complete menstrual period, if she is one of those who menstruate, by giving birth if she is pregnant, or by the passage [p. 119] of three months if she is menopausal or one of those who has not menstruated.

326A widowed woman is to avoid perfume, ornament, spending the night outside her residence, kohl with antimony, and the veil—she may let down (a veil) cover her face at need, as a sacralized woman does—until the end of her waiting period. A triply divorced woman avoids perfume, ornament, and kohl with antimony. If she goes out for the pilgrimage, then her husband dies when she is near, she is to return to complete her waiting period. If she has gone far, she continues on her travel. If she returns and something of her waiting period remains, she conducts it in her residence. [p. 167] If her husband dies or divorces her when he is distant from her, her waiting period is counted from the day of his death or his divorcing, if she is sure of that, even if she has not avoided what someone in her waiting period is to avoid. [p. 264]

36. The book of nursing (raḍāʿ)

  • 129 The complicated expression about lineage apparently restricts this to pregnancy in the context of p (...)

327The nursing that undoubtedly makes forbidden (to marry) is five nursings or more. Sniffing in (mother’s milk) is like nursing, likewise taking in (milk) by dribbling into the mouth. Diluted milk is like pure. The milk of a dead woman makes forbidden just as does the milk of a living, since milk does not die. If she becomes pregnant by someone to whom her child will be connected by lineage so that milk wells up in her and with it she nurses an infant five separate sucklings over two years (ḥawlayn), she becomes forbidden to him. (It is likewise for) her daughters by the father of this one and others.129 If she nurses a female child, she becomes daughter to her and her husband, since the milk is from her pregnancy by him. [p. 168]

  • 130 The first husband had become a milk father to the boy by her nursing him.

328If a man triply divorces his wife when she is nursing with his milk his child, then she marries a nursing boy whom she nurses, she becomes forbidden to him (as his milk mother). (If she) then marries [p. 120] another and he consummates the marriage, then divorces her or leaves her a widow, it is not permissible for the first to (re)marry her, for she joined the wives of his sons when she nursed the boy she had married. A contract with her is impermissible after that.130 If someone marries [p. 265] both a mature woman and a minor but does not consummate the marriage with the mature one until she has nursed the minor during two years, the mature one becomes forbidden to him while the marriage to the minor is effective. If he did consummate the marriage to the mature one, they both become forbidden to him. He may take back half the nuptial gift of the minor from the mature one.

329If he marries a mature woman without consummating the marriage, also two minors, then the mature ones nurses the two minors, the mature one becomes forbidden to him and the marriages to the two minors of the ones nursed are rescinded. If there are three minors and she nurses them individually, the mature one becomes forbidden to him and the marriages to the two minors are rescinded. The mature one gets no bride price. He may take back half the nuptial gifts of the minors from the mature one. Then he may marry whichever of them (the two minors) he pleases. If the minors are three and she nurses them individually, the mature woman becomes forbidden to him. The marriage to the first of the two to be nursed is rescinded but the marriage to the last of them to be nursed is effective, for if she nursed one of them individually and the two together afterwards, [p. 169] the mature one becomes forbidden and the marriages to the minors are rescinded. He may then marry whomever he likes of the minors. If he has consummated the marriage to the mature one, then all of them become forbidden to him forever.

  • 131 See ʿAbd al-Razzāq, Muṣannaf, vol. 7, pp. 482‒483.

330If one woman testifies to nursing, the marriage becomes forbidden if she was the one nursing. Abū ʿAbd Allāh (God have mercy on him) said in another place, “If she was the one nursing, she is asked to swear. If she was lying, a year will not pass before her breasts turn white.” In that, he went for the position of Ibn ʿAbbās (may God be pleased with him).131

331If he marries a woman, then says before consummating the marriage, “She is my sister by nursing”, [p. 266], the marriage is rescinded. If she confirms what he says, she can claim no bride price from him. If she says he is lying, she gets half the bride price. If the woman is the one who says, “He is my brother by nursing” and he says she is lying and she brings forth no proof (two witnesses) as to what she has described, she remains legally his wife. [pp. 121 170 267]

37. The book of maintenance (nafaqa) for relatives

  • 132 See for example Buḫārī, Kitāb al-buyūʿ 95, bāb man aǧrā amr al-amṣār, no. 2211, and Kitāb al-aḥkām (...)

332A husband is obliged to maintain his wife so long as she cannot do without him, also to clothe her. If he denies her (maintenance) or part of it while she has control of some of his property, she takes from it in proportion to her need according to what is proper. This is as the Prophet … said to Hind when she said, “Abū Sufyān is a stingy man and will not give me maintenance sufficient for me and my child.” He said, “Take what will suffice you and your child according to what is proper.”132 If he prevents her, she cannot find anything to take, and she chooses separation, the judge (ḥākim) is to separate them.

333A man is to be compelled to maintain his parents and his children, male and female, if they are needy and he has sufficient to expend on them. It is likewise for a child who has no father: his heirs, male and female, are to be compelled to maintain him in proportion to their inheritance from him. If the child has a mother and grandfather, the mother is obliged (to provide) a third of the maintenance, the grandfather two-thirds. If [p. 268] there are a grandmother and a brother, the grandmother is obliged (to provide) a sixth of the maintenance, the brother the rest. This is the underlying principle (maʿnā) of calculating maintenance. A manumitter is obliged to maintain his freedman if he is needy, since he is his heir. [p. 171]

334A slave girl who marries becomes the responsibility of her husband to maintain or her owner if he (the husband) is a slave. If she is a slave girl who resorts by night to her husband but is with her master by day, each of them spends on her for the time of her being with him. If she has a child, her husband is not responsible for its maintenance, whether he is free or slave. Their maintenance is incumbent on their owner. A slave is not obliged to maintain his child whether the wife is free or a slave. A female slave who has a contract of manumission (after a time) is obliged to maintain her child rather than its husband who has a contract of manumission. A slave who has a contract of manumission (after a time) is obliged to maintain his child by his concubine. [p. 269]

a) The chapter of the situation in which maintenance is incumbent on a husband

335If a woman is married to her like and sex is had with her, she not denying herself to him nor her guardians denying her to him, then maintenance is incumbent on him. [p. 122] If her state is as I have described but her husband is a minor, then his guardian is obliged to provide her maintenance out of the boy’s property. If he has no property and she chooses to separate from him, the judge (ḥākim) is to separate them. If the husband demands to consummate the marriage but she says, “I will not surrender myself until I have taken possession of my nuptial gift”, that she may do. Maintenance is incumbent on him until he renders her nuptial gift to her.

336If a man divorces his wife such that he has no right to take her back, she gets no housing or maintenance unless she is pregnant. If a woman separates from her husband by ḫulʿ [p. 172] and declares him not responsible for her pregnancy, she gets no maintenance. Neither is there any for the child until she weans it. A contumacious woman gets no maintenance. If she has a child by him, he is to give her maintenance for her child. [p. 270]

b) The chapter of whoever has the greatest claim to custody (kafāla) of an infant

337The mother has the greater claim to the custody of an infant or insane (child). If she is divorced and a son has reached seven years, he is given a choice between the parents and is placed with whichever of them he chooses. If a girl has reached seven years, the father has a greater claim to her. If there is no mother or the mother has remarried, the father’s mother has a greater claim than a maternal aunt. A (half-) sister by the father has a greater claim than a (half-) sister by the mother as well as a maternal aunt. A father’s maternal aunt has a greater claim than a mother’s.

338If a son is taken from a mother when she remarries, then she is divorced, she reclaims her claim to his custody. If a woman marries, her husband may forbid her to nurse a child of hers unless she should be compelled to by fear of its perishing. [p. 173] The father is obliged to provide nursing for his child unless the mother wishes to nurse it for the customary wage. She has a greater claim to that than anyone else, whether she is bound by marriage or divorced. [p. 271]

c) The chapter of maintenance for slaves

339Owners of slaves are obliged to maintain them, to clothe them in the customary manner, and [p. 123] to marry a slave if he needs that. If he refuses, he is to be compelled to sell him if the slave demands that. If a slave is transferred as a pledge, his master maintains him. He may not make a slave girl nurse someone other than her child unless she has an excess of milk. A master is not required to maintain a slave on a contract of manumission unless he (the slave) is unable (to make his payments). If a slave runs away, then whoever brings him back to his master gets whatever he spent on him. [pp. 174 272]

38. The book of injuries (ǧirāḥ)

  • 133 A group, presumptively male kin, liable to pay wergild for a member.

340There are three kinds of killing: deliberate, quasi-deliberate, and mistaken. Deliberate is to strike someone with a piece of iron, a large piece of wood larger than a tent post, or a large stone, the like of which usually kills; or to strike repeatedly with a smaller stick; or to do something else that is usually fatal: for that there is retaliation (qawad) if the heirs (awliyāʾ) all agree and the one killed was a free Muslim. Quasi-deliberate is to strike someone with a small piece of wood, a small stone, or a fist; or to do something else that usually does not kill. There is no retaliation for this. The wergild is the responsibility of the ʿāqila.133 Mistaken is of two kinds. One is to shoot prey or do something permissible to do that results in a free person’s perishing, Muslim or unbeliever. In this case, the wergild is the responsibility of the ʿāqila and he (the killer) must free a believing slave. [p. 175] The other sub-category is that one kills in Roman territory someone whom one takes to be an unbeliever [p. 273] who had converted to Islam but was keeping his conversion secret until he should be able to escape to the territory of Islam. [p. 124] His killer must set free a believing slave. There is no wergild, though, since God (mighty and glorious is He) said, “If the victim is from a people who are hostile to you but is [nevertheless] a believer, [the recompense is] the freeing of a believing slave” (Q. al-Nisāʾ 4:92).

341A Muslim is not to be killed in exchange for an unbeliever. If an unbeliever deliberately kills a slave, he must pay his value and is to be killed for violating the pact. Neither a child nor someone who has lost his mind is to be killed for anyone. Neither is a father to be killed for his child, however far removed. A mother is like a father in this. A child is to be killed in exchange for either of them. A group is to be killed in exchange for one. If they cut off someone’s hand, each one has the like cut off. If a father kills deliberately (in collaboration with) someone else, anyone besides the father is killed. If a boy, a madman, and a mature person collaborate in a killing, [p. 176] none of them is to be killed. The rational man must pay a third of the wergild out of his property, while the ʿāqila of each of the boy and the madman must pay a third of the wergild and free two slaves out of their property, since their intention was mistaken.

342A male is to be killed in exchange for a female and a female in exchange for a male. Whoever has a right of retaliation (qiṣāṣ) for a life has it also for an injury. If two kill one, one of them by mistake but the other deliberately, there is no retaliation (qawad) for either of them. The one (who killed) deliberately must pay half the wergild out of his property, likewise the ʿāqila of the one (who killed) accidentally must pay half of it. He must out of his property free a believing slave. The wergild of a slave is his value, even if it should total several wergilds (for killing other persons). [p. 274]

a) The chapter of retaliation (qawad)

343If one person splits open someone’s belly so that his intestines come out, then he cuts them so that they are separated from him, then someone else cuts off his head, the killer is the first. If one person cuts open his belly, then another cuts off his head, the second is the killer, since the first—the like of him does not live, whereas the second may live. If one cuts off his hands and feet, then comes back [p. 125] and cuts off his head before [p. 177] his wounds have stopped bleeding, he is to be killed but his hands and feet are not cut off in one of the two versions from Abū ʿAbd Allāh (God have mercy on him). The second version is that he said, “He deserves to be done to as he did.” If the heir (walī) exempts him, he must pay a single wergild. But if the wounds healed before his being killed, then the one exempted must pay triple the wergild unless they want retaliation, in which case they exact retaliation and take double the wergild from his property.

344If a Muslim shoots a slave or an unbeliever with an arrow but the arrow does not bring him down until he has been freed or converted to Islam, there is no retaliation (qawad) but he is obliged to pay the wergild for a free Muslim if he dies from the shooting. If a man kills two one after the other and the heirs of both agree on retaliation, then he suffers retaliation for the two of them. If [p. 275] the heirs of the first want retaliation but of the second the wergild, he suffers retaliation for the first and the heirs of the second are given the wergild out of his property. It is likewise if the heirs of the first want the wergild and of the second retaliation.

  • 134 That is, the wergild must be accepted instead of retaliation, since trying to inflict an equal inju (...)

345If someone injures another such that it is possible to exact retaliation without excess (ḥayf), retaliation is exacted. Thus, if someone cuts off part of someone’s joint, the same proportion of his joint is cut off, if the offender is someone who is to suffer retaliation on account of the victim if he had died. However, there is no retaliation for an injury to the head or the interior.134 An ear is cut off [p. 178] for an ear, a nose for a nose, a penis for a penis, two testicles for two testicles. An eye is plucked out for an eye, a tooth for a tooth. If part of someone’s tooth is broken, the offender’s tooth is filed to that extent. A right hand is not cut off for a left, nor a left for a right. If the one cutter has sound limbs but the one cut was paralysed, there is no retaliation. If the cutting was paralysed but the wronged one sound and the one wronged wishes to take it, he may, getting nothing else. If he wishes, he exempts him and takes the wergild for his hand.

346If someone is killed who has two heirs, one mature but one a child or absent, (the killer) is not killed until the absent one returns or the child reaches maturity. Whoever of the heirs to the one killed exempts (the killer) from retaliation, there is no [p. 126] chance of retaliation, even if the one exempting is a husband or wife. If a number participate in a killing and the heirs wish to kill the whole group, [p. 276] they may. If they wish to kill some and exempt others (from retaliation), taking the wergild from those who remain, they may. If someone is killed on whose account (his) heirs may demand retaliation for him and the killer offer more than the wergild on condition of not suffering retaliation, the heirs may accept that. If one man has killed someone whom another had seized, the killer is killed, the one who seized imprisoned till he dies. [p. 179] Whoever orders his slave to kill a man and the slave is a barbarian (aʿǧamī), not knowing that killing is forbidden, the master is killed. If the slave knows about the prohibition of killing, the slave is killed and the master chastised (uddiba). [p. 277]

39. The book of wergilds (diyāt) for a person

347The wergild (diya) for a free Muslim is one-hundred camels. If the killing was deliberate, it comes from the property of the killer, divided into four: twenty-five one-year-old she camels (banāt maḵaḍ), twenty-five two-year-old she-camels (banāt labūn), twenty-five three-year-old she-camels (ḥiqqa), and twenty-five four-year-old she-camels (ǧaḏaʿa). If the killing was quasi-deliberate, it is the same as I have described as to the ages (of animals owed) but it is incumbent on the ʿāqila over three years, a third of it each year. If the killing was mistaken, then one-hundred camels are due from the ʿāqila, taken in fifths over three years: twenty one-year-old she camels, twenty one-year-old male camels (banū maḵaḍ), twenty two-year-old she-camels, twenty three-year-old she-camels, and twenty four-year-old she-camels. [p. 127]

348The ʿāqila does not bear (the cost) for a slave, deliberate (killing), a negotiated settlement (ṣulḥ), confession, or what is less than a third (of the wergild for killing). If a slave offends, it is incumbent on his master to ransom him or turn him over. If the [p. 180] offence is greater than the value of the slave, the master need not ransom him for more than his value.

349The ʿāqila consists of the paternal uncles and their children, including all their descendants according to one of the two versions. In the other version they are the father, son, and brothers. All of the ʿaṣaba are included in the ʿāqila. [p. 278] A poor member of the ʿāqila, a woman, a boy, and someone who has lost his mind are not obliged to bear any part of the wergild. Whoever lacks an ʿāqila, it (the wergild) is taken from the state treasury. If someone is unable (to get the wergild from the state treasury), then nothing is due from the killer.

  • 135 See ʿAbd al-Razzāq, Muṣannaf, vol. 10, p. 96.
  • 136 As stated before, their wergild does not exceed their value.

350The wergild for a free Kitābī is half the wergild for a free Muslim. Their women are assessed at half their wergilds. If they are killed deliberately, the wergild incumbent on the Muslim killer is doubled, since there is no retaliation. Thus judged ʿUṯmān ibn ʿAffān (may God be pleased with him).135 The wergild of a Magian is 800 dirhams. The wergild of a free Muslim female is half the wergild of a free Muslim male. (Compensation for) injuries to a woman and injuries to a man is equal up to a third (of the wergild for killing). When it exceeds a third, then (an injury to a woman) is calculated at half an injury to a man. The wergild for a male or female slave is their value so long as it adds up to that.136

351The wergild for a foetus, if it is aborted from a blow and came from a free Muslim woman, is a slave, male or female, whose value is five camels. This is inherited from it (the foetus) as if it had come out [p. 181] alive. If the foetus was a slave, its value is a tenth the value of its mother, whether the foetus was male or female. If someone strikes her belly so that she gives birth to a live foetus, then it dies from the blow, it calls for the wergild of a free person if it was free or its value if it was a slave—this is if it came out at a time when its like (usually) lives, which is six months or more. Incumbent on any striker I have mentioned is freeing a believing slave, whether the foetus was alive or dead. [pp. 128 279] If a pregnant woman drinks medicine and so aborts a foetus, incumbent on her is a slave. She does not inherit anything from it (the foetus). She must set free a slave.

352If three shoot with a catapult so that the stone comes back and kills a man, the ʿāqila of each of them owes a third of the wergild. Each of them must free a believing slave out of his own property. If they are more than three, the wergild is divided among their (respective) properties. [pp. 182 280]

a) The chapter of the wergild for injuries

353Whoever destroys something of which a man has just one, it calls for the wergild. Whatever he has two of, each of them calls for half the wergild. For the two eyes there is the wergild. For the four eyelids there is one wergild; for each of the four a quarter of the wergild. For the ears there is the wergild. For hearing, if it goes away from the two ears, there is the wergild. For baldness, when the hair does not sprout, there is the wergild. For the hair of the beard there is the wergild. For the eyebrows there is the wergild if they do not sprout. For the sense of smell there is the wergild. For the lips there is the wergild. For the tongue by which one speaks there is the wergild. For each tooth there are five camels if one is pulled out from someone with adult teeth. Molars and canines are like (other) teeth. For the hands there is the wergild. For the breasts there is the wergild, equally for a man or a woman. For the buttocks there is the wergild. For the penis there is the wergild. For the testicles [p. 281] there is the wergild. For the legs there is the wergild. For every digit of hands and feet are ten camels, for every nail a third of its wergild (ʿaql), except for the thumb, for it comprises two joints, so for each of its joints are five camels. [p. 183]

354For the belly if it is struck so that one cannot restrain defecation there is the wergild. For [p. 129] the bladder if one cannot restrain urination there is the wergild. For doing away with one’s reason there is the wergild. For ṣaʿar there is the wergild. Ṣaʿar means to strike someone so that his face hangs to one side. For a paralysed hand there is a third of the wergild, likewise for a blind eye and a black tooth. For the head of the penis there is the same (wergild) as for the whole penis. For a woman’s labia there is the wergild. For a revealing head wound (mūḍiḥa) to a free person there is (a wergild of) five camels, whether it is to a man or woman. Wounds to women equal wounds to men (in the compensation due) up to a third of the wergild. If it exceeds that, (then a woman’s compensation is calculated at) half (a man’s).

355Revealing wounds to the head and face are equal. It means for the bone to be exposed. For a smashing wound there is (a wergild of) ten camels. This is what exposes the bone and smashes it. For a displacing wound there is (a wergild of) fifteen camels. This is what exposes and smashes so violently that the bone is displaced. For a maʾmūma head wound there is a third of the wergild. This is what reaches to the [p. 184] pericranium. For an āmma head wound is the like of what there is for the maʾmūma.

  • 137 The commentaries take this to refer either to tearing the perineum or the flesh between the vagina (...)
  • 138 Zand (“forearm”) is apparently everywhere in the singular, but al-Ḫiraqī must have meant the two fo (...)

356For a ǧāʾifa wound there is a third of the wergild, [p. 282] this being what penetrates to the interior. If one wounds someone in the interior and it comes out the other side, this is two ǧāʾifa wounds. Whoever has sex with his wife when she is small such that he tears her, he must pay a third of the wergild.137 For a rib there is a camel, for a collarbone two camels. For the forearm there are four camels, for it comprises two bones.138

357Abū ʿAbd Allāh (God have mercy on him) said, “The head wounds for which there is no time limit are first the ḥāriṣa, which ruptures the skin, splitting it a little. Some have said this is a ḥarṣa. Then there is the bāḍiʿa, which is what splits the flesh beyond the skin. Then there is the bāḏila, which is what blood flows from. Then there is the mutalāḥima, which is what takes away some of the flesh. Then there is the simḥāq, which is what (reaches) a fine membrane between the flesh and the bone. Then there is the mūḍiḥa.”

358Whatever there is by way of injuries for which there is no fixed amount (tawqīt), nor anything comparable for which the wergild is fixed, calls for an adjudicated penalty (ḥukūma). “An adjudicated penalty” means to represent the offended party as a slave who has committed no offence and has recovered, [p. 130] having healed, so that his value has not lessened such that he might take the like (of his injury) by way of the wergild; [p. 185] if, say, his value as a sound slave is ten, his value as an injured slave nine, then there is [p. 283] a tenth of the wergild (to pay). The adjudicated penalty may be more or less than this, except for an injury to the head of face, in which case it must be less than the wergild fixed for that: it may not surpass the fixed penalty (arš). If the offence against a slave is something for which there is no fixed amount for a free person, (the adjudicated penalty) is for what he has lost after the healing of the wound. If the offence against him is something for which there is a fixed amount for a free person, (the adjudicated penalty) is fixed for the slave. Thus, his hand is worth half his value, a mūḍiḥa wound half a tenth of his value, whether the loss from the offence is less than that or greater. It is the same for a female slave.

359If the one killed is an ambiguous hermaphrodite, that calls for half the wergild of a male and half the wergild of a female. If the victim is half free, there is no retaliation. The wrongdoer, if it was deliberate, owes half the wergild of a free man and half his (the slave’s) value. It is the same for his wounds. If it was accidental, then he (the killer) owes half his value from his own property and his ʿāqila half. [pp. 186 284]

b) The chapter of compurgation (qasāma)

  • 139 “Open enmity” translates lawṯ, a rare word (and missing the first time in the text of al-Ḫiraqī as (...)

360If a murder victim is found and his heirs (awliyāʾ) accuse a people toward whom there is not hostility or open enmity, without proof (two witnesses), who have not in their favour an oath or anything else, then there is no judgement in favour of them by an oath or anything else.139 If there is hostility and open enmity between them and the heirs accuse one of them but he denies it, the heirs having no proof (witnesses), then the heirs swear fifty oaths against his killer. They have a valid claim to his blood [p. 131] if the charge is deliberate (killing). If the heirs do not swear, the accused swears fifty oaths and (is declared) innocent. If the accusers do not swear but are unsatisfied with the oath of the accused, the imam redeems him from the state treasury. If two just witnesses testify that the wounded man said, “My blood is on so-and-so”, that does not require compurgation so long as there is not open enmity.

361Women and children are not asked to swear. If the murder victim leaves three sons, fractions are imposed on them: each one them swears seventeen oaths. It is the same whether the [p. 285] victim was Muslim or unbeliever, free or slave: if the accused is to be killed for the victim, [p. 187] the killing having been established as his, since compurgation calls for retaliation unless the heirs prefer to take the wergild. The heirs may not swear against more than one.

362Whoever kills a protected soul, or participates in it, or strikes a woman’s belly so that she gives birth to a dead foetus, if the deed was an accident, the doer must free a believing slave. If he does not find one, then (he owes) a fast for two months in a row out of penitence before God. There is another version from Abū ʿAbd Allāh (God have mercy on him): that the deliberate killer must free a slave. Whatever requires retaliation, nothing is accepted concerning it but (the testimony of) two righteous persons. Whatever offences require payment short of retaliation, there is accepted concerning it (the testimony of) a man and two woman or (the testimony of) a righteous man with the oath of the complainant. [pp. 188 286]

c) The chapter of fighting rebels (ahl al-baġy)

363When the Muslims have agreed on a leader (imām), whichever of the Muslims comes out against him, seeking his place, they are be fought and repulsed from that by the lightest known means. If their repulse extends to (taking) their lives, the defender is not guilty of any offence. If the defender dies, he is a martyr. If [p. 132] they are repelled, they are not pursued as they retreat. The wounded are not to be finished off nor are prisoners to be killed. They are not subject to plunder, nor are their women and children to be enslaved. Whoever of them is killed, he is washed, shrouded, and prayed over. Whatever they have taken by way of the alms or land tax when they were refusing proper obedience is not charged against them. Nor are the verdicts of a judge of theirs overturned except where they went against other verdicts. [pp. 189 287]

40. The book of apostates (murtadd)

364Whoever apostatizes from Islam by way of men and woman, being rational and mature, is bidden (to return) for three days. He is to be pressured. If he returns (well and good); otherwise, he is killed and his property becomes plunder after the settling of his debts. Whoever leaves off the ritual prayer is bidden to (resume) it for three days. If he prays, (well and good); otherwise, he is killed, whether having left off denying or not denying (its obligatory character). What an apostate slaughters is forbidden, even if he has apostatized to a religion of the People of the Book. A child of ten years who understands Islam and converts is a Muslim, so if he reverts, saying, “I did not understand what I was saying”, no attention is paid to what he says and Islam is forced on him. He is not to be killed until he reaches maturity and passed three days since then. If he persists in his unbelief, he is killed. [p. 190]

  • 140 Exactly what description al-Ḫiraqī is pointing to here is not obvious, and the commentators disagre (...)

365If two spouses apostatize and make off to the House of War, neither they nor any of their children from before their apostasy are to be enslaved. Whoever of them refuses, likewise any of their children whom I have described as being Muslim and after reaching maturity, is to be asked to repent for three days.140 If he does not repent he is killed. If one parent converts to Islam, his small children follow him. Likewise when one of the parents dies as an unbeliever, he partakes in the division of his legacy, being considered a Muslim from his death. [p. 288] If it is testified against someone that he has apostatized but he says, “I have not become an unbeliever”, if he testifies that there is no god but God and that [p. 133] Muḥammad is the messenger of God, nothing more is to be discovered. Whoever apostatizes when drunk is not killed until he recovers and three days have passed from the time of his apostasy. If he dies in his drunkenness, he is an unbeliever. [p. 289]

41. The book of quranic punishments (ḥudūd)

  • 141 Muḥṣan (“safeguarded”) effectively indicates someone who has been married to another free Muslim.

366If a free muḥṣan man or woman commits adultery, they are flogged and stoned until they die in one of the two versions from Abū ʿAbd Allāh (God have mercy on him).141 The other version is that they are stoned but not flogged. They are washed, shrouded, prayed over, and buried. If a free virgin commits adultery, he is flogged one-hundred lashes and banished for a year, likewise a woman. If a slave man or woman commits adultery, each of them is flogged fifty lashes but not banished. [p. 191] An adulterer is someone who commits gross immorality by either front or back. Whoever acts like the people of Lot (talawwaṭa) is killed whether virgin or not, according to one of the two versions. The other version is that he suffers the same sentence as the adulterer. Whoever goes into a beast suffers taʿzīr. He is well chastised and the beast is killed.

367The one who must suffer the quranic punishment, of those we have mentioned, is whoever has confessed four times, being mature, in good health, and rational, who does not take back his confession before the [p. 290] penalty has been carried out; otherwise, against whom four Muslim men have testified—free, righteous, and describing the adultery. If someone is (to be) stoned on the basis of his confession, then retracts before being killed, he is left alone. Likewise, if he retracts after being flogged but before the completion of the punishment, he is released. Whoever commits adultery repeatedly but does not suffer the quranic punishment, just one is applied to him. If protected subject people (ahl al-ḏimma) come to us for judgement, we judge them by the same standard as that by which God (mighty and glorious is He) judges us.

  • 142 Literally “one who is struck”, but the active form is also used for coitus. The commentators interp (...)

368If a free, mature, rational man accuses a free Muslim man or woman of adultery (qaḏafa), he is flogged [p. 134] the penalty of eighty lashes if the one accused asks for that and the accuser has no proof (four witnesses). If the accuser is a male or female slave, he is flogged forty lashes with a lesser whip than the one by which a free man is flogged. [p. 192] If he says to someone “yā lūṭī”, he is asked what he meant. If he says, “I meant that you are of the people of Lot”, nothing is held against him. If he says, “I meant that you do the work of the people of Lot”, then he is like someone who makes an unsupported accusation of adultery. It is likewise if someone says “yā maʿfūǧ”.142

369Whoever makes an unsupported accusation of adultery against a man who does not suffer the quranic punishment before he has committed adultery, the accuser is not spared the quranic punishment. Whoever makes an unsupported accusation of adultery against a slave, a polytheist, a male Muslim of less than ten years, or a female Muslim of less than nine is chastised (uddiba) but does not suffer the quranic punishment. Whoever makes an unsupported accusation of adultery against a former polytheist, saying, “I meant that he committed adultery as a polytheist”, no attention is paid to what he says: the accuser of adultery suffers the quranic punishment if the one accused asks for it; likewise for a former slave. [p. 291]

370Whoever makes an unsupported accusation of adultery against (a woman) divorced by reciprocal cursing (mulāʿana) suffers the quranic punishment. If a woman is accused of adultery without support, her son may not demand (that the accuser be punished) if the mother is alive. If someone makes an unsupported accusation of adultery against his mother when she is dead, whether she was a Muslim or unbeliever, free or a slave, the accuser suffers the quranic punishment if the son demands it, he being a free Muslim. [p. 193] Whoever accuses the mother of the Prophet … of adultery is to be killed, whether Muslim or unbeliever. Whoever makes an unsupported accusation of adultery against a group with one pronouncement suffers the quranic punishment once if they or one of them demands it. Someone who commits an offence meriting a quranic punishment, then takes refuge in the sacred district (al-Ḥaram in Mecca), is not to be bought from or sold to until he emerges from the sacred district. Then he suffers [p. 135] the quranic punishment. Someone who kills or commits an offence meriting a quranic punishment in the sacred district, the quranic punishment is applied to him in the sacred district. [p. 292]

42. The book of amputation for theft

371Whoever steals a quarter of a dinar or more of gold, three dirhams of silver, or the value of three dirhams, whether food or anything else that he has taken from a protected zone (ḥirz), he is to suffer amputation unless the thing stolen is fruits (ṯamar) or palm marrow (kaṯar), for which there is no amputation. The beginning of amputating the thief is that his right hand be amputated from the joint of the [p. 194] palm, then cauterized. If he repeats (the offence), his left foot is to be amputated from the joint of the ankle, then cauterized. If he repeats, he is to be imprisoned. Only one hand and one foot are to be cut off. Free men and women, male and female slaves are alike in this. The thief is to be amputated even if the stolen good is given him after his removal of it. If one removes it, its value is three dirhams, and he does not suffer amputation before its value has dwindled, he is to suffer amputation. If one suffers amputation and the stolen good remains, it is returned to its owner. If it perishes, he owes its value whether he is straitened or at ease.

  • 143 Ālat lahw, effectively a musical instrument or game board.

372If a graverobber steals from a grave a shroud whose value is three dirhams, he suffers amputation. There is no amputation for (stealing) something forbidden or for an instrument of dissipation.143 A father is not to suffer amputation for what he takes from the property of his child, [p. 293] since he is taking what is his to take. A mother is not to suffer amputation for what she takes from the property of her child, nor a slave for what he steals of the property of his master. [p. 136]

  • 144 Muṭālaba is the usual word for demanding application of a penalty. Iddiʿāʾ is associated with prose (...)

373A thief is not to suffer amputation except on the testimony of two upright persons or confessing twice, and then if he does not retract (his confession) before he suffers amputation. If a number of persons share in a theft whose value is three dirhams, they (all) are to suffer amputation. There is no amputation, even if someone has confessed or there has been proof (two witnesses), until the owner of the thing stolen claims it (yaddaʿīh).144 [pp. 195 294]

43. The book of highway robbers (quṭṭāʿ al-ṭarīq)

374Bandits (muḥāribūn) are those who waylay people with arms in the country, openly extorting their property. Whoever of them kills and takes property is to be killed, even if excused by the owner of the property, and crucified to be made infamous. He (his corpse) is returned to his people. Whoever kills without taking property is to be killed but not crucified. Whoever takes property without killing is to suffer amputation of his right hand, then his left leg, at the same time. Then they are cauterized and he is released. None of them are to suffer amputation except who took the like of that for which a thief suffers amputation. Their banishment is that they be scattered, not left to take refuge in any city. If they repent before they can be apprehended, the penalties of God (mighty and glorious is He) fall from them and they are held to account for the claims of men by way of souls, injuries, and property except as they are excused. [pp. 196 295]

44. The book of drinks and other things

  • 145 “The rest of the quranic offences (sāʾir al-ḥudūd)” evidently refers to offences besides those of a (...)

375Whoever drinks an intoxicant, little or much, is to suffer the punishment of eighty lashes, if he drinks it deliberately, knowing that much of it intoxicates. If he dies from the flogging, it is the Truth that has killed him; that is, no one is liable for it. A man is to be flogged standing for the rest of the quranic offences, with a whip neither worn out nor new.145 He is neither extended nor bound. The face is to be avoided. A woman is to be flogged sitting with her clothes fastened tight around her. Her hands are held to keep her from exposure. Male and female slaves are to be flogged forty lashes with a lighter whip than for a free person.

  • 146 The commentaries indicate dates, raisins, or other fruits soaked in water; e.g., Ibn Qudāma, Muġnī, (...)
  • 147 I take it that the silver is part of what fixes the handle to the goblet.

376Juice, when three days have passed, becomes forbidden unless it is fermented before that and so becomes forbidden; likewise nabīḏ.146 [p. 137] When wine has been spoilt, becoming vinegar, it does not cease to be forbidden. If God (mighty and glorious is He) has reversed its nature so that it has become vinegar, then it is licit. [pp. 197 296] Drinking from vessels of gold and silver is forbidden. If a wooden goblet has a silver ferrule and one drinks from it elsewhere than the ferrule, there is no harm in it.147

  • 148 That is, it must comprise fewer lashes.
  • 149 “Their people (ahluhā)” implies keepers as well as owners.

377Taʿzīr punishment does not reach the quranic punishments.148 If an aggressive camel attacks him and there is no way to protect oneself but with a blow so one strikes it and kills it, there is no liability for that. If an armed man enters one’s house and one commands him to leave but he does not, one may strike him as lightly as will make him leave. If one knows that he will leave at the blow of a staff, it is not permissible to strike him with a blade. If the blow is such that it kills him, there is no offence. If the owner of the house is killed, he is a martyr. Whatever cultivation beasts ruin by night, their people are liable.149 Whatever they ruin by day, they are not liable. Whatever harm a riding animal does with its forelegs by way of killing, injury, or (damage to) property, its rider is liable. It is likewise if he has led or driven it. Whatever it does with its hind legs, he has no liability.

378If two riders collide so that the two mounts die, each of them is liable for the value of the other’s mount. If one was moving and the other standing but both [p. 198] mounts perish, then the one who was moving must pay the value of the mount of the one who was standing. If two persons collide as they walk and die, the ʿāqila of each one must pay the wergild of the other. A slave must be freed from the property of each of them. [p. 297] If a boat going with the current hits and sinks a boat going against it, the boat going with the current must pay the value of the boat going against it or compensation for any damage if it escapes, unless the boat going with the current was overcome by the wind so that it could not be controlled. [pp. 138 298]

45. The book of the holy war (ǧihād)

  • 150 The implied context is an attack on the Muslims, which all able-bodied men in the vicinity must act (...)

379The holy war is a collective duty. If some undertake it, the duty lapses for the rest. Abū ʿAbd Allāh (God have mercy on him) said, “I do not know of any work after the required more virtuous than the holy war.” Attacking by sea is more virtuous than attacking by land. One is to campaign with every upright and reprobate (leader). Every people should fight whatever enemy is nearest them. The full term for manning a frontier outpost (ribāṭ) is forty days. If one’s parents are Muslims, one may not volunteer for the holy war except with their permission. If one is called out to the holy war, then no [p. 199] parental permission (is called for), as for all the duties. There is no obeying them in not doing them.150

  • 151 With allusion to Q. al-Tawba 9:29–31, “Fight from among the people who have been given the Scriptur (...)

380The People of the Book and Magians are to be fought. They are not called (to Islam), since the call has already reached them. Idolators are to be called before being fought. The People of the Book and Magians are to be fought until they convert to Islam or pay the ǧizya tax readily, having been humbled.151 Other unbelievers are to be fought until they convert to Islam. [p. 299] It is a duty for people, when the enemy comes upon them, to join the battle, the one who has little property along with the one who has much. They do not go out (to fight) the enemy except with the permission of the military commander (amīr), unless an overwhelming enemy surprises them and they, afraid of his ferocity, cannot ask his permission.

  • 152 See for example Muslim, Kitāb al-ǧihād wa-l-siyar 48, bāb al-nisāʾ al-ġāziyāt, no. 1812.

381Women do not accompany the Muslims into the land of the enemy save for one advanced in years to carry water and treat the wounded, as the Prophet … did.152 If the military commander leads the people on an expedition, it is not permissible for anyone to graze, gather firewood, challenge an infidel to single combat, or leave the camp, (even) to answer a call of nature, save with his permission. If someone gives something to help with his campaign, whatever is left over is his. If [p. 200] he did not give it for a particular campaign, he returns what is left over for the fighting. If [p. 139] a man is sent out on a mount, when he returns from the campaign it is his unless he says, “It is devoted (ḥabīs)”, in which case it may not be sold unless it should reach a state in which it is useless for campaigning, in which case it is to be sold (with the proceeds) going into something else devoted. It is likewise for a mosque if it becomes too small for its people or is in a place not to be prayed in: it is to be sold and (the proceeds) put to use in a place where it can be of benefit. It is likewise with a sacrifice, if one substitutes a better one for it.

382When the leader (imām) takes prisoners, he has a choice. If he sees fit, he kills them. If he sees fit, he behaves generously toward them and sets them free for nothing in return. If he sees fit, he ransoms them. If he sees fit, he sets them free for property he takes from them. If he sees fit, he enslaves them. Whatever of that he sees fit to do to vex the enemy and protect the Muslims, he does. Those of them who have been enslaved and that which has been taken from them in exchange for [p. 300] releasing them are to be treated as booty (ġanīma). He may enslave them only if they are of the People of the Book or Magians. As for others of the enemy, nothing is accepted from their mature men but conversion to Islam, the sword, or ransom.

  • 153 That is, members of a raiding party were promised these shares of the booty, in preference to the w (...)

383The leader (imām) may give out extra shares of the booty, likewise anyone the leader has appointed as his deputy, as did the Prophet …: at the dispatch of a raiding party, a quarter after the fifth; on its return, a third after the fifth.153 Some of the spoils are rendered to members of the raiding party with him, since their reinforcement made it possible for him to acquire it. [p. 201] Whoever of us kills one of them on the way to the fight, he may despoil him without setting aside a fifth, whether the leader (imām) has said so or not. A riding animal and its equipment count as spoil (salab) if it was killed while he (one of them) was on it. It is likewise for all that is on it by way of clothing, arms, and ornaments, however many, and even if he has with him property that was not spoil. Another position has been related of Abū ʿAbd Allāh (God have mercy on him): that the riding animal is not part of spoil.

384Whoever of us gives them safe-conduct, a man, a woman, or a slave, his safe-conduct is valid. Whenever someone asks for a safe-conduct to open up a fortress and does so, then every one of them says, “I am the one given it”, [p. 140] none of them are to be killed. Whatever combatant goes into their territory riding whose horse is exhausted before the booty has been collected gets the share of a foot soldier. Whoever goes in on foot but when the booty has been collected [p. 301] is riding gets the share of a rider. He is given three shares: one for him and two for his horse, unless the horse is non-Arabian, in which case he gets one share for himself and one share for his non-Arabian horse. Shares are not given for more than two horses. [p. 202]

  • 154 These are persons understood not to have participated in the fighting that secured the booty.
  • 155 Al-Zarkašī alone gives “does not attend the battle” (Šarḥ, vol. 6, p. 501), presumably a lectio fac (...)

385Whoever goes campaigning on a camel, unable to do otherwise, shares in the division with two shares for him and his camel. Whoever dies after the booty has been set aside, his heir takes his place as to his share. The foot soldier is given a share. Something less than a full share is given to women and slaves. Unbelievers get shares if they campaign with us. If a slave campaigns on a horse belonging to his master, a share goes to the horse at the division, which is for the master, while the slave gets something less than a full share. When the booty has been collected, there is no portion for anyone who came with supplies or reinforcements or has fled captivity.154 Anyone the commander (amīr) has sent away in the interest of the army and so does not attend the (division of) the booty has a share assigned him.155

  • 156 Being separable, their total value turns out to be more than what the new owner paid for them, so h (...)

386When they are captured, a father and his child are not separated, nor a mother and her child. A grandfather is like a father in this, and a grandmother like a mother. Two brothers are not separated, nor two sisters. Whoever buys some of them when they are together and it transpires that they are not related is to return the excess value to the place of dividing.156 Whoever of their children is captured individually or with one of its parents, it is a Muslim. Whoever is captured along with both parents, he keeps their religion.

387Whatever is taken from the people of the House of War by way of the property of Muslims or their slaves [p. 203] whose owner shows up before the division, he has the greatest claim to them. If he finds them already divided, he has the greatest claim to the price by which they were bought from the place of dividing, according to one of the two versions. The other version is that once they have been [p. 141] divided up, he has no claim to them whatever. [p. 302] Whoever quarries a stone or cuts wood from their uncultivated wastes or fishes or hunts, he is to return it to the rest of the army if he does not need to eat it or benefit by it. Whoever gathers fodder beyond his need renders it to the Muslims. If he sells it, he renders its price to the place of dividing. He shares with the army whatever his raiding parties plunder, as others share with him. Whoever brings excess food into the country (from the House of War) is to leave it at the local combatants’ place of dividing according to one of the two versions. The other version is that it is indifferent whether they eat of it if it is just a little.

388If a Muslim buys a prisoner in the hands of the enemy, the prisoner must give the buyer what he paid for him. If the polytheists capture someone who was paying us the ǧizya tax, then we get power over them again, they are returned to their previous condition, not enslaved. Whatever the enemy has taken from them by way of property or slaves is returned to them if it is identified before being divided. They are to be ransomed after the Muslims are ransomed. When the commander (amīr) has collected the booty and charged someone with guarding it, it is not permissible to eat of it except from necessity, if they do not find anything (else) to eat. [p. 204] Whoever buys from the place of dividing in Roman territory, then the enemy overcomes him, he is no longer obliged to pay for it. If the price has been taken from him, it is to be returned to him (by the Muslims who have auctioned off the spoil).

  • 157 Naḥl (“bees”) seems to be the correct reading, supported by the commentaries of Ibn Qudāma (Muġnī, (...)

389When war is waged against the enemy, he is not to be burnt by fire, nor are bees to be drowned.157 One is not [p. 303] to hamstring sheep and riding animals unless to eat them, by necessity. One is not to cut down their trees or burn their crops except when they have been doing that in our territory, to make them stop. One is not to marry in enemy territory save when overcome by desire. Then one may marry a Muslim woman, practising coitus interruptus with her. One is not to marry them (unbelievers). Whoever buys a slave girl from them is not to have genital sex with her so long as he is in their territory.

390Whoever enters enemy territory on a safe-conduct is not to cheat them of their property or to treat with them taking interest. [p. 142] Whoever has a pact with the Muslims and violates it is to be fought. Their men are to be killed but their children are not to be taken prisoner or enslaved except for those born after the violation. If the commander (amīr) hires a group to campaign with the Muslims for their benefit, they get no shares but they get their hire. [p. 205] Whoever wrongly appropriates booty, all of his baggage is to be burnt except for copies of the Quran and animals. Quranic punishments are not to be carried out in enemy territory. When a fortress is taken, no one is to be killed who has not ejaculated, whose (pubic hair) has not sprouted, or has not reached fifteen years. Whoever of those, women, old men, or monks who fight in the battle are to be killed. If one of our prisoners is released having sworn to send them some specified thing, then is unable, he does not go back to them.

391It is not licit for a Muslim to flee from two unbelievers. It is permissible for him to flee from three. If he fears to be captured, he fights until he is killed. [p. 304] Whoever hires himself, after the taking of booty, to guard it, what he takes is permissible, whether he is on foot or mounted on an animal he owns. If someone meets an infidel and tells him “Stop” or “Throw down your arms”, he has promised him safety. If someone steals from the booty who has some claim to it, or whose child or master has, he does not suffer amputation. If one has sex with a slave girl before the division, he is chastised but it does not reach the quranic penalty for an adulterer. There is taken from him the bride price of her like, which is to be thrown in for redistribution. However, if she gives birth to his child, he must pay her value. [pp. 206 305]

46. The book of the tax on non-Muslim subjects (ǧizya)

392The tax on non-Muslim subjects is not accepted save from a Jew, Christian, or Magian, if they are residing on the conditions that were imposed on them by agreement. As for others, it is conversion to Islam or being killed. The tax taken from them has three levels. From the lowest of them is taken twelve dirhams, from the middle of them twenty-four dirhams, and from the wealthiest of them forty-eight [p. 143] dirhams. There is no tax on a child, someone who has lost his mind, a woman, a poor person, an exhausted old man, someone chronically ill, or someone blind. Neither must the master of a slave pay for his slave if the master is a Muslim. Whoever is obliged to pay the tax but converts to Islam before it is taken from him, it lapses. If someone is set free, he is bound to pay the tax for the time to come, whether the manumitter was a Muslim or unbeliever.

393The tax on non-Muslim subjects is not taken from the Christians of Banī Taġlib. What is taken from them is the alms tax on their property, herds, and fruits, double what is taken from the Muslims. Their slaughters are not to be eaten or their women married according to one of the two versions from Abū [p. 207] ʿAbd Allāh (God have mercy on him). The other version is that their slaughters are eaten and their women married. [p. 306]

394Whoever of the protected subject people (ahl al-ḏimma) travels to another country, there is taken from him half of the tithe each year. If someone of them comes to us as a trader from enemy territory on a safe-conduct, a tithe is taken from him. Whoever violates the pact by disobeying the negotiated terms, his blood and wealth become licit. Whoever flees to the House of War from our protection, violating the pact, is back to a state of war with us. [p. 307]

47. The book of hunting and slaughters (al-ṣayd wa-l-ḏabāʾiḥ)

395Whoever says bi-smi Llāh and sends out his dog or his trained cheetah, which hunts and kills but does not eat of (its prey), it is permissible to eat it. If the dog or cheetah has eaten of the prey, it is not to be eaten, since it took it for itself and cannot have been trained. If one sends out a hawk or something of that sort, which hunts and kills, it is to be eaten, even if it has eaten of the prey, since it is trained to eat. What a black dog hunts is not be eaten, if it is just the one colour, for it is a devil. If one gets to the prey and it is still alive and he does not slaughter it before it dies, [p. 208] it is not eaten. If one hasn’t with him anything with which to slaughter it, he sets his hunting animal onto it until it kills it. Then it is eaten. If one sends his dog and another (dog) assails it as well, it is not to be eaten unless he reaches it when it is still alive to be slaughtered. If one says bi-smi Llāh and shoots at a prey [p. 144] but hits something else, it is permissible to eat it. If one shoots it and it goes out of sight, then he finds it with his arrow in it and no trace of anything else, it is permissible to eat it.

  • 158 The principle is that killing with an edged instrument constitutes a proper slaughter and renders t (...)

396If one shoots (a prey) and it falls in water or falls down a mountain, it is not to be eaten. If one shoots at a prey and kills a number, they are all licit. If one strikes a prey [p. 308] and a member of it is separated, that which is separated is not to be eaten. The rest of it may be eaten according to one of the two versions from Abū ʿAbd Allāh (God have mercy on him). The other version is that he is to eat it and whatever was separated from it. It is likewise if one has set up sickles to hunt. If one hunts with a sharpened stake, one is to eat what is killed by its edge but not what is killed by its broad part.158

397If one shoots a prey so as to wound it, then another shoots it and brings it down, then a third shoots and kills it, it is not to be eaten. The one who brought it down is owed its value, wounded, by the one who killed it. [p. 209] If one is in a boat and a fish jumps into it and falls into one’s area, it belongs to him rather than the owner of the boat. One is not to fish with anything polluting (naǧis). One may not eat what an apostate has hunted or slaughtered, even if he follows a religion of the People of the Book.

398Whoever fails to say bi-smi Llāh over a prey, whether intentionally or forgetfully, it is not to be eaten. If one intentionally omits to say bi-smi Llāh over a slaughter, it is not to be eaten. If one forgetfully omits to say bi-smi Llāh over a slaughter, it is to be eaten. Whosever camel escapes, such that he cannot regain control of it so he shoots it with an arrow or the like that causes its blood to flow and kills it, it may be eaten. It is likewise if it falls into a well and he does not manage to slaughter it. If he injures it in any place he can and kills it, it is eaten. However, if its head was in the water, it is not permissible to eat it, since the water must have helped kill it. A Muslim and a Kitābī are alike in everything I have described. What is killed by a ball or a stone is not to be eaten, since it is killed by striking (mawqūḏ). Neither [p. 309] is the prey of a Magian to be eaten except for a large fish, for there is no slaughtering it. It is likewise for everything that dies by way of large fish in water, even floating on the surface. [pp. 145 210]

399The decreed slaughter for animals wild and domestic (ṣayd, anʿām) is the throat and neck (ḥalq, labba). It is recommended to slaughter camels by stabbing, then cutting (naḥr). Other domestic animals are to be slaughtered by cutting alone (ḏabḥ). But if what should be slaughtered by stabbing, then cutting, is slaughtered by cutting alone, or what should be slaughtered by cutting alone is slaughtered by stabbing, then cutting, that is permissible. If the slaughtering reaches a fatal point but the spirit does not depart until it has fallen into water or had something press down on it, it is not to be eaten. If someone slaughters from the nape (qafā), which misses the mark, but the knife touches the proper point of slaughter while it is (yet) alive, it may be eaten. If one slaughters a sheep with a foetus in its belly, it is to be eaten. Its slaughter is the slaughter of the foetus, whether one was aware or not. No member is cut from a slaughtered animal until its soul has departed. The slaughter of anyone capable, whether of the Muslims or the People of the Book, is licit, whether they name God or forget to. If someone is mute, he is to point to heaven. If one is in a state of major ritual purity, it is yet permissible to say bi-smi Llāh and to slaughter.

  • 159 See for example Buḫārī, Kitāb al-ḏabāʾiḥ wa-l-ṣayd, bāb luḥūm al-ḥumur al-insiyya, no. 5521.
  • 160 See for example Buḫārī, Kitāb al-ḏabāʾiḥ wa-l-ṣayd, bāb akl kull ḏī nābin min al-sibāʿ, no. 5530.

400Animals that are forbidden are what God (mighty and glorious is He) has expressly declared in his Book. Whatever the Arabs used to pronounce good is licit. What they used to pronounce bad (ḫabīṯ) is forbidden on account of God’s saying (mighty and glorious is He), “He will make the good things lawful for them and make the bad things unlawful for them” (Q. al-Aʿrāf 7:157); also on account of the sunna of the Messenger of God … “domestic asses”159 and “Everything with fangs by way of [p. 310] wild beasts”,160 [p. 211] which means anything that strikes with its fangs and tears with them, also birds with talons, which hang on things by their talons and hunt with them.

  • 161 Al-Zarkašī quotes al-Ḫiraqī here as adding the fox (Šarḥ, vol. 6, p. 693). The fox is not mentioned (...)
  • 162 The reference is to a supposed antidote to venom.
  • 163 The use foreseen is evidently anointing oneself at the start of the day.

401Whoever is driven by necessity to carrion is not to eat of it save what preserves him from death. Whoever passes by some fruit may eat of it but not carry any away. If there is a wall around it, he may not enter save with permission. Whoever is driven by necessity and comes across a death animal and bread whose owner he does not know is to eat the dead animal. If he has come across [p. 146] nothing but food whose owner has not sold it, he may take it by force to preserve himself alive, giving him its value, unless the owner is equally in need. There is no harm in eating lizards and hyenas.161 Theriaca (tiryāq) is not to be eaten, since it includes the flesh of snakes.162 Neither is prey to be eaten that has been shot with poisoned arrows if one knows that the poison contributed to killing it. Whatever resorts to the sea but lives on land is not to be eaten whether it dies on land or sea. If some impurity (naǧāsa) falls into something liquid, such as oil and its like, it becomes polluted. One may use it in a lamp if one likes but it is not licit to eat or sell.163 [pp. 213 311]

48. The book of sacrificial animals (aḍāḥī)

  • 164 The meat is expected to be distributed to ten.

402Sacrifices are a custom (sunna) it is not recommended to omit for whoever is capable of them. Whoever wishes to sacrifice, he is included among the ten.164 Let him not remove anything of its hair or skin (before slaughtering). A camel discharges the duty for seven, likewise a cow. Only a ǧaḏaʿ suffices as to sheep or a ṯanī of other things. A ǧaḏaʿ as to sheep is one of six months, going on seven. Abū al-Qāsim said, “I heard my father say, ‘I asked some rural people, ‘How do you know a ḍaʾn from a ǧaḏaʿ?’ They said, ‘Its wool still stands up on its back as long as it is a lamb (ḥamal). If the wool on its back lies down, it is known to have become a ǧaḏaʿ.’’” A ṯanī of goats is one that has completed a year, going into a second. A camel (is a ṯanī) when it has completed five years, going into six. [pp. 147 312]

  • 165 “With it” (maʿahā) missing from al-ʿAǧmī’s text.

403To be avoided (in choosing) sacrificial victims is any obviously one-eyed, obviously lame, obviously ill whose recovery is despaired of, emaciated animals that will never fatten, and ʿaḍbāʾ, meaning that it is missing more than half an ear or horn. If one buys it sound and dedicates it, then it becomes defective in his possession, he may slaughter it and it counts as a sacrifice. If it gives birth, its offspring is to be slaughtered with it.165 Dedicating it is to say, “This is a sacrifice.” If one dedicates it in a defective state, he must slaughter it but it does not discharge his duty. A dead person’s sacrificial victim is not to be sold to settle his debts. Rather, his heirs eat it.

404The recommendation is to eat a third of a sacrificial victim, to give away a third as alms, and to make a gift of a third of it. If one eats more of it, that is permissible. A professional slaughterer is not to be paid any of it as a wage. He may benefit by its hide. It is not permissible to sell it or any part of it. It is permissible to exchange a sacrificial animal, once it has been dedicated, for a better one. If there has passed of the Day of the Sacrifice (9 Ḏū al-Ḥiǧǧa) more than the space of the leader’s festival prayer and sermon, it becomes permissible to perform the sacrifice. This goes on until the last two days of al-Tašrīq (12‒13 Ḏū al-Ḥiǧǧa), during daylight. It is not permissible by night. If one sacrifices before that, it does not discharge his duty and he must make a substitution.

  • 166 The commentaries explain that this means cut up at the joints with no bones broken as a good omen f (...)

405It is not recommended that the slaughter be carried out except by a Muslim. If one slaughters it oneself, that is better. One says at slaughtering, bi-smi Llāh (“in the name of God”) and Allāhu akbar (“God is greater”). If one forgets, that does no harm. One need not say at the sacrifice on whose behalf it is, since the intention discharges one’s duty. [p. 214] It is permissible for seven to share, sacrificing a cow or camel. [p. 313] The ʿaqīqa sacrifice is a sunna (highly recommended). At the birth of a boy it is two sheep; at the birth of a girl, one sheep. It is slaughtered on the seventh day. One avoids here any defect as one does with (other) sacrificial victims. Its course as to eating, almsgiving, and giving away is the same except it is cooked joint by joint (aǧdālan).166 [pp. 148 314]

49. The book of racing and shooting

  • 167 Al-Ḫiraqī’s term ḥāfir (literally “that which tears up the earth”) may denote any hooved animal, bu (...)
  • 168 The point of these rules, by which there may or may not be a loser corresponding to each winner, is (...)
  • 169 Both terms can refer to rejected practices in relation to the alms tax. In relation to a race, thei (...)

406A stake (sabaq) may be placed on horses (ḥāfir), arrows, or camels—nothing else.167 If two wish to compete (yastabiqā), one puts up a stake (aḫraǧa) but the other does not. If the one who has put up a stake wins the competition, he takes his stake and takes nothing from the one he beat. If the one who has not put up a stake wins the competition, he takes the other’s stake. If they both put up a stake, it is not permissible unless there come between them a muḥallil (one who makes licit) whose horse is equal to theirs, whose camel is equal to theirs, or whose shooting is equal to theirs. If he beats both of them, he takes both their stakes. If the one who wins is one of them, he takes his stake and his rival’s, which becomes like the rest of his property. He takes nothing from the muḥallil.168 [p. 215] It is not permissible when one sends off two horses to have another horse next to his, urging him to race; nor is one to yell at the time of a race. This is on account of what is related of the Prophet …, “There is no ǧalab or ǧanab.”169 [p. 315]

50. The book of oaths and vows (al-aymān wa-l-nuḏūr)

  • 170 With allusion to Q. al-Baqara 2:225, “God will not take you to task for making slips in your oaths” (...)

407Whoever swears (ḥalafa) to do something but does not do it, or not to do something but does it, owes penance (kaffāra). If he does it forgetfully, he owes nothing so long as the oath did not involve divorce or manumission. Whoever swears to something knowing it is a lie owes no penance. What he has done with it is more enormous than what involves penance. An act of penance binds only someone who swears intending to be bound by an oath (yamīn). Whoever swears to something thinking that it is as he swore to when it is not [p. 149] owes no penance, since it is just a matter of slips in your oaths.170 An exception is an oath to divorce or set free, which swearing falsely (ḥinṯ) requires. [p. 216]

408The vow for which penance may be made is that one swear by God (mighty and glorious is He), by one of his names, by a verse of the Quran, by giving away his property as alms, by the pilgrimage, by the pact, by leaving Islam, by pronouncing illicit his slave or something of his property, by sacrificing his child, or saying “I swear by God”, “I testify by God”, or “I am determined by God” or “by God’s faithfulness”. If he swears by all of these oaths to one thing and breaks it, there is incumbent on him [p. 316] one act of penance. If one swears to one thing by two oaths requiring different penances, he is bound to offer its act of penance for each of the two oaths.

409If someone swears by the truth of the Quran, he must offer an act of penance for each verse. There are two versions related of Abū ʿAbd Allāh (God have mercy on him) concerning someone who swears by slaughtering his child. One of them is that (he owes) penance for the oath, the other is that (he must) slaughter a ram. Whoever swears by declaring his wife forbidden must make the penance for someone who compares his wife to his mother’s back (muẓāhir), whether he intended divorce or not. Whoever swears to free what he owns and breaks his oath therefore frees all that he owns by way of his slaves, his concubines (imāʾ), slaves promised manumission on his death (mudabbar), slave women by whom he has had children (ummahāt al-awlād), slaves with whom he has a contract of manumission (mukātab), and his share of slaves owned jointly. Whoever swears has a choice of penances both before breaking an oath and after, whether [p. 217] the penance is fasting or something else, except for comparing his wife to his mother’s back and anything forbidden, in which case he owes penance before he has broken his oath.

  • 171 That is, delegation does not constitute breaking his oath if when he swore he had in mind not to bu (...)

410If one swears an oath saying, “if God wills”, then if he wills he does it and if he wills he omits it and he owes no penance, if there was no speech between the oath and the exception. If he makes this exception (for an oath) concerning divorce or manumission, most of the versions reported of Abū ʿAbd Allāh (God have mercy on him) are that he refrained from answering, but he clearly affirmed in another place that the exception does him no good. If one says, “If I marry so-and-so, she is divorced”, she is not divorced if he marries her. If [pp. 150 317] one says, “If I acquire so-and-so, he is free”, then he acquires him, he becomes free. If one swears not to marry so-and-so or not to buy so-and-so, then marries her in an invalid (fāsid) fashion or buys him in an invalid fashion, he has not broken his oath. If one swears not to buy so-and-so or not to beat him but delegates the buying or beating, he has broken his oath if he had no intention.171 If one swears by manumission or divorce not to do something, then does it forgetfully, he has broken his oath.

  • 172 See for example Muslim, Kitāb al-aymān 4, bāb yamīn al-ḥālif ʿalā niyyat al-mustaḥlif, no. 1653. Ib (...)

411If one swears, then offers an interpretation, his interpretation passes if he has been wronged. If he has been doing wrong, his interpretation does him no good. This is on account of what is related of the Prophet …, that he said, “Your oath is to what your companion believes of you.”172 [pp. 218 318]

51. The book of penances (kaffārāt)

412If penance for a broken oath is incumbent on someone, he has a choice. If he wishes, he feeds ten destitute, free Muslims, adults or children, if they eat the food. Every destitute person gets a mudd of wheat or flour, two riṭls of bread, or two mudds of barley or dates. If one gives them instead of food multiples of its value in silver, that does not discharge his duty. One may give to such relatives of his as it is permissible for him to give his alms tax to. If one can find only one poor person, one gives him daily the total for ten days. If one wishes, one may clothe ten destitute persons: to a man, a garment in which he may pray; to a woman a shift and a veil.

  • 173 “Profession and works” is part of the Sunni argument against the Murǧiʾa, who held that one was fai (...)
  • 174 This alludes to close relatives, who must be freed on one’s acquiring them.

413If one wishes, one may free a believing slave who has prayed and fasted, since faith is profession and works. It should be sound, lacking nothing such as would harm work.173 If one buys (a slave) on whose acquisition one is obliged to set him free, then sets him free for the sake of an act of penance, the slave becomes free but it does not discharge the duty of offering an act of penance.174 It does not suffice for an act of penance (to free) [p. 219] a slave woman by whom one has had children or a slave with whom he has a contract of manumission who has paid something on his contract. It does suffice (to free) a slave promised manumission on one’s death, a eunuch, or an illegitimate child. If one does not find any of these three, one is to fast for three days in a row. [p. 319] If the one who has broken a vow is a slave, there is no act of penance but fasting. If one breaks an oath as a slave, then does not offer an act of penance before becoming free, fasting is incumbent on him: [p. 151] nothing else will discharge his duty.

  • 175 That is, someone with this little is expected to make penance by fasting, not otherwise.

414One atones by fasting who has no more food on hand for him and his family than for a day and a night. This is the amount at which one makes act of penance.175 Whoever has a house that he must live in, a riding animal he must ride, and a servant whose service he needs, it discharges his duty to atone by fasting. It discharges one’s duty to feed five destitute persons and clothe five. If one sets free half of each of two male or female slaves or half of each of a male and female slave, that discharges his duty. If one sets free half of a slave and feeds or clothes five, that does not discharge his duty. Whoever begins to fast, then comes into easier circumstances, is not obliged to leave off fasting in favour of manumission or feeding unless he wishes. [pp. 220 320]

a) The summary chapter of oaths

415The matter of oaths goes back to the intention. If someone did not intend something, one goes back to the occasion of the oath and what provoked it. If one swears not to live in a house that he is living in, he is to leave it immediately. If he holds back from leaving, he has broken his oath. If someone swears not to enter a house, then he is borne into it such that he cannot refuse, he has not broken his oath. If one swears not to enter a house, then puts his hand, foot, head, or anything else of himself into it, he has broken his oath. If one swears to enter, he has not fulfilled (his oath) until he has put all of himself into it. If one swears not to wear a garment that he is wearing, he is to put it off immediately. If he does not do so, he has broken his oath. If one swears not to eat food that Zayd has bought, then he eats food that Zayd and Bakr have bought together, he has broken his oath unless he meant that neither of them [p. 221] should buy individually. If one swears not to speak to two of them, or not to visit two of them, then speaks to or visits one of them, he has broken his oath unless he meant not to comprehend the two of them in his action.

  • 176 The obligation referred to is a debt of gratitude. Trading it for something else one desires does n (...)

416If someone swears not to wear a garment, then trades for it or buys with its price another garment and wears it, he has broken his oath if he is [p. 152] one of those who were obliged by that garment, likewise if he benefits from its price.176 If someone swears not to resort with his wife to a house, then resorts with her in another, [p. 321], he has broken his oath if he meant by it to reject his wife and the house had no part in provoking his oath. If someone swears to beat his slave the next day, then the one who has sworn dies that day, he is not guilty of breaking his oath. But if the slave dies, he has broken his oath. Whoever swears not to address someone for a time, then addresses him before six months, has broken his oath. If one swears to give someone his claim at a certain time, then discharges it before that, he has not broken his oath if he intended by his oath not to go beyond that time. If one swears not to drink the water in a particular container, then drinks part of it, he has broken his oath unless he meant not to drink all of it. [p. 222]

417If one says, “By God, I will not leave you until you fulfil my claim on you” and he flees from him, he has not broken his oath. If he says, “We will not part” and he flees from him, he has broken his oath. If one swears to his wife that she is not to go out except with his permission, that covers every time unless he was intending one time. If one swears not to eat some fresh dates but then eats them dry, he has broken his oath, likewise for everything that grows from those fresh dates. If one swears not to eat some dried dates but eats some fresh ones, he has not broken his oath. If one swears not to eat some meat but eats some grease (šaḥm), marrow (muḫḫ), or brains (dimāġ), he has not broken his oath unless he intended to avoid fat (dasam), in which case he has broken his oath by eating the grease. If one swears not to eat grease but eats meat, he has broken his oath, since meat always contains some grease. If one swears not to eat meat, not intending a particular meat, then eats the flesh of domestic animals, birds, or fish, he has broken his oath. If he swears not to eat barley broth (sawīq) then drinks it, or not to drink it, then eats it, he has broken his oath unless he had an intention. [p. 223]

418When one swears by divorce not to eat a date, then it falls amidst a number of dates, if he eats one, he is prevented from having sex with his wife until he knows that it is not the one to which the oath applied. [p. 322] He has not fully broken his oath until he has eaten all the dates. If one swears to whip someone ten lashes, then combines them into one stroke, he has not fulfilled his oath. If one swears not to speak to someone, then writes to him or sends him a messenger, he has broken his oath unless he intended not to address him face to face. [pp. 153 323]

52. The book of vows (nuḏūr)

419Whoever vows to obey God (mighty and glorious is He) is bound to fulfil that. Whoever vows to disobey him is not to disobey him but offer the penance for an oath. Vowing to obey means the ritual prayer, fasting, the greater and lesser pilgrimages, manumission, alms, residing in the mosque, the holy war, and similar things. This is so whether one makes a general vow, saying “God (glorious and mighty is He) may claim from me that I do thus and so”, or attaches a qualification to it, as by saying, “If God (mighty and glorious is He) cures me of my illness” or “cures so-and-so” or “preserves my faraway property” or the like—when what he hoped to happen does, he must fulfil it. [p. 224]

  • 177 See for example Abū Dāwūd, Kitāb al-aymān wa-l-nuḏūr 28, bāb fī-man naḏara an yataṣaddaqa bi-mālih, (...)

420Vowing to disobey is to say “God may claim from me that I drink wine” or “kill a protected soul” or the like, then not to do that, for which one make the act of penance for an oath. If one says, “God may claim from me that I ride my mount” or “live in my house” or “wear my best clothing” or the like, this is not a vow to obey or disobey. If one does not do that, he is to make the act of penance for an oath, since a vow is like an oath. If one vows to divorce his wife, it is recommended that he not divorce and make the penance for an oath. [p. 324] Whoever vows to give away all his property in alms, it discharges his duty to give away a third of it, as was related of the Prophet …, that he said to Abū Lubāba when he had said, “Part of my repentance is to be divested of my property”, the Messenger of God … said, “A third discharges your duty.”177

421Whoever vows to fast, being a very old man who cannot fast, is to make the penance for an oath, feeding for every day a destitute person. If one vows an oath without [p. 225] mentioning a number, not intending any, then the least for that is fasting a day. The least of a ritual prayer is two sets of bowings. If one vows to walk to the sacred House of God, nothing discharges his duty but to walk in the greater or lesser pilgrimage. If he is unable to walk, he is to ride and make the penance for an oath. If one vows to free a slave, it may be any that discharges one’s duty unless he intended a particular slave.

422If one vows to fast for a month from the day that so-and-so comes, then he comes the first day of Ramadan, [p. 154] his fasting discharges his duty for Ramadan and his vow. If one vows to fast from the day that so-and-so comes, then he comes on the day of breaking the fast or of the sacrifice, he does not fast it, rather fasting a day in its place while making the penance for an oath. If his coming coincides with a day of the days of al-Tašrīq (11‒13 Ḏū al-Ḥiǧǧa), he fasts it according to one of the two versions from Abū ʿAbd Allāh. The other version is that he does not fast it, rather fasts a day in its place and makes the penance for an oath. If one vows to fast continuously for a month without naming it, then falls ill for part of it, when he is cured he resumes and makes the penance for an oath. If he wishes, he does it continuously for a month and does not [p. 325] have to make any penance. It is likewise for a woman who vows to fast continuously for a month, then menstruates during it. [p. 226] Whoever vows to fast for a particular month, then breaks the fast one day without excuse, begins a month and makes the penance for an oath. Whoever vows to fast and dies before fulfilling it, his heirs who are relations fast for him. It is likewise for any vow of an act of obedience. [p. 326]

53. The book of the qadi’s conduct (adab al-qāḍī)

  • 178 For al-Ḫiraqī, ʿālim may have indicated especially one knowledgeable of hadith, faqīh knowledgeable (...)
  • 179 Al-Ḫiraqī strongly prefers ḥākim, here translated as “judge”, to qāḍī, here anglicized as “qadi”, b (...)
  • 180 This functionary is called “divider of inheritances” by Schacht (Introduction, p. 189), “distributo (...)

423No one is appointed a qadi unless he is mature, rational, Muslim, free, upright, learned (ʿālim), discerning (faqīh), and scrupulous.178 A judge (ḥākim) is not to judge between two when he is angry.179 When something comes up the like of which is perplexing for him, he is to consult the people of knowledge and trustworthiness. A judge is not to rule by his (personal) knowledge. Neither is he to reverse the ruling of another if it is brought up before him unless it goes against the Book, the sunna, or consensus. If someone testifies before him whom he does not know, he inquires about him. If two persons pronounce him upright before his testimony (well and good). If two pronounce him upright but two disparage him, the disparagement prevails. He is to have an upright secretary (kātib) and divider (qāsim).180

424He is not to accept gifts from anyone who did not use to give him gifts before his assumption (of the judgeship). He is to treat opponent equals as concerns access to him, sitting, and address. If he decides against a man from someone else’s district and writes asking execution of his decision to the qadi of that district, his letter is to be accepted. The one condemned is to be taken to account for that claim. A letter is not to be accepted except by the testimony of two upright persons who say, “It has been read to us” or “It was read back to him in our presence” and he said, “Testify that this is my letter to so-and-so.” Translation is not to be accepted [p. 327] from a non-Arab who comes for adjudication, if his tongue is unknown, except from two upright persons who know his tongue.

425If one is dismissed (from the judgeship) and says, “I decided in the period of my authority (as a judge) in favour of so-and-so’s claim against so-and-so”, his statement is to be accepted and that claim is fulfilled. Someone may lose a decision in his absence if the claim against him is valid. If two partners come to him concerning some houses (rabʿ) or the like and ask him to divide them between them, he is to divide them and confirm that on the record, saying that his division between them is by their affirmation, not by proof (two witnesses who have) testified for them as to their ownership. If one of them asks his partner to divide but he refuses, the judge may force that on him, so long as he feels sure of their ownership and it is the sort of thing to be divided and from which, divided, both may benefit. Once it is divided, lots are cast and each one receives according to what has fallen to him, unless they have come to a mutual agreement so that each one gets what he is satisfied with. [p. 328]

54. The book of testimonies (šahādāt)

  • 181 The Tanta and ʿAǧmī editions of the Muḫtaṣar read illā mimmā yaṭṭaliʿu ʿalayhi al-riǧāl, but illā i (...)

426Nothing is accepted concerning adultery except (the testimony of) four free, Muslim men. Save concerning property, nothing is accepted as to what men see less than two men.181 Concerning property, nothing is accepted less than a man and two women or a man with the claimant’s oath. Concerning what men do not see, such as nursing, childbirth, menstruation, the waiting period, and such things, [p. 156] the testimony of an upright woman is accepted. If someone is obliged to testify, he must undertake it, equally against a near or [p. 229] far relative. One may not refrain from performing it so long as one is capable of it. Whatever one has come across by way of an action seeing or hearing with certainty, even if he has not seen the subject of testimony, he is to testify to. Whatever has transpired by report, knowledge of which has settled in one’s heart, he is bound to testify to that; for example, testifying as to descent and childbirth.

427Any man and woman who is not rational, Muslim, mature, and upright, his testimony is not acceptable. “Upright” (ʿadl) applies to one of whom nothing doubtful has transpired. The testimony of unbelievers is acceptable, that of the People of the Book, concerning a testament while travelling if there is no one else. Their testimony is not acceptable concerning other things. [p. 329] The testimony of an adversary is not acceptable, likewise of anyone drawing a benefit to himself or defending himself. Unacceptable is the testimony of someone known for many mistakes and inattention. A blind person’s testimony is acceptable if he is certain of the sound. [p. 230] The testimony of parents for a child (descendant), however far removed, is unacceptable, likewise of a child for them (ascendants), however far removed, of a master for his slave or a slave for his master, or of a husband for his wife or a wife for her husband. The testimony of a brother for his brother is acceptable. The testimony of a slave is acceptable concerning everything except the quranic punishments. The testimony of a slave woman is acceptable concerning that for which the testimony of women is acceptable. The testimony of a bastard is acceptable concerning adultery and anything else. If someone guilty of making an unsupported accusation of adultery has repented, his testimony is accepted. His repentance is his accusing himself of lying.

  • 182 That is, such a person may testify as to something observed in secret.

428Whoever testifies, being upright, to what he witnessed when he was not upright, (his testimony) having then been rejected, (his testimony) is not accepted from him in his state of uprightness. If he did not testify to it before a judge until he became upright, it is accepted from him. If one testifies, being upright, but no ruling is made on the basis of his testimony till something comes up that disallows his testimony, it may not (any longer) be the basis of a ruling. The testimony of an upright person to the testimony of an upright person is acceptable concerning everything except [p. 157] the quranic punishments when the first witness is dead or absent. One may testify that one has heard someone acknowledge a claim even if he did not tell the witness to testify about it. The testimony of a hidden person is acceptable if he is upright.182 [pp. 231 330]

55. The book of judicial decisions (aqḍiya)

429If a man perishes leaving two children and two-hundred dirhams, then one of them acknowledges his father owed one-hundred dirhams to someone unrelated, half of what he possesses of his inheritance from his father is rendered to the acknowledger. However, if the acknowledger is upright and the debtor wishes to swear along with the testimony of the son, he takes one-hundred. Then the remaining hundred is divided between the two sons. If a man perishes and leaves two sons but also has a claim in his favour supported by a witness and debts to consume all his property, then the two heirs refuse to swear with the witness, the creditor may not swear with the dead man’s witness to establish his claim (to the debt owed the dead man). If the two heirs swear with the witness, the debt is judged (sound) and paid to the creditor.

430Whoever makes a claim against a man, mentioning that he has proof (two witnesses) at a distance from him, then the defendant swears, then the claimant produces his proof, the ruling goes by it. The oath (of the defendant) was not such as to do away with the claim. The oath that clears one of a claim is an oath by God (mighty and glorious is He), even if the one swearing is an unbeliever. However, if he is a Jew, he is told, “Say ‘By God who sent down the Torah to Moses’”; if he is a Christian, he is told, [p. 232] “Say ‘By God who sent down [p. 331] the Gospel to Jesus.’” If they have places they venerate, where they fear to swear falsely, make them swear there.

  • 183 There is some textual uncertainty here. My translation follows the ʿAǧmī edition, in agreement with (...)

431A man is made to swear as to what he knows for certain. An heir may swear to a dead person’s debt on the basis of positive knowledge (ʿalā al-ʿilm).183 If two of the four swear that this one committed adultery with that one in this [p. 158] house while the other two swear that he committed adultery with her in a different house, the four have made unsupported accusations of adultery and are to suffer the quranic punishment. If four come separately while the judge is sitting in his session of judgement and has not arisen (so ending the session), he is to accept their testimony. If some of them come after he has arisen, they are makers of an unsupported accusation of adultery and are to suffer the quranic punishment. Whoever condemns on the basis of their testimony to injury or killing, then they retract, saying “We did it deliberately”, they are liable to retaliation. If they say, “We were mistaken”, they are fined the wergild or the penalty (arš) for the injury. If their testimony had to do with property, they are fined that amount. He (the judge) does not claim back (that property) from the person in whose favour the ruling was, whether the property still exists or has been consumed. It is the same if the subject of the ruling was a slave or slave woman: they (the false witnesses) are fined its value.

432If a judge cuts off a thief’s hand on the testimony of two, then learns that they were unbelievers or reprobates, the wergild for the hand comes from the public treasury. [p. 233] If a slave asserts that his master freed him and produces a witness, he swears along with his witness and becomes free. Whoever testifies falsely is chastised and made to stand in places where he will become infamous for being a false witness, if that has become certain and he did it deliberately. If an upright person changes his testimony in the presence of the judge, adding to it or subtracting, that is accepted from him so long as he has not ruled on the basis of his testimony. [p. 332] If one witness testifies to a thousand, another to five-hundred, the one who claimed a thousand is awarded five-hundred. He may swear with his witness to the (remaining) five-hundred if he wishes. If someone claims an upright person’s testimony but that upright person denies it, then later offers that testimony, saying “I was made to forget it”, that is accepted from him. Whoever testifies to attract part of something to himself, his testimony is disallowed as to all of it.

  • 184 The commentaries explain that he is entitled to use their property, making him an interested party.

433If a man dies leaving a son and a thousand dirhams, then a man claims the dead one owed him a thousand dirhams and the son pronounces him truthful, while a second claims the like of that, whom also the son pronounces truthful, if this is in a single session, the thousand is divided between them. If they were in two sessions, [p. 159] the thousand goes to the first and nothing to the second. [p. 234] If a claim is made against an ill person, who gestures with his head, meaning “yes”, there is no ruling on the claim against him until he says so by his tongue. Whoever makes a claim, saying “I have no proof (two witnesses)”, then later produces proof, it is not accepted, for he has belied his proof. If an executor (waṣī) testifies against someone over whom he has charge, his testimony is accepted. If he testifies for them, it is not accepted if they are close relatives of his.184 If someone testifies who is occasionally subject to loss of consciousness, his testimony is accepted when he has recovered. One upright physician’s testimony is accepted concerning a revealing head wound (mūḍiḥa) if (the opinion of) a second cannot be obtained; likewise a veterinarian concerning a beast’s illness. [pp. 235 333]

56. The book of claims and proofs (al-daʿāwā wa-l-bayyināt)

  • 185 See for example Tirmiḏī, Kitāb al-aḥkām 12, bāb mā ǧāʾa fī anna al-bayyina ʿalā al-muddaʿī wa-l-yam (...)

434Whoever claims to be married to a woman, she denying it, but who has no proof (two witnesses), they are to be separated. He is not asked to swear. Whoever claims an animal in a man’s hands but he denies it, while each one produces proof (two witnesses) that it was raised in his possession, it is ruled in favour of the claimant on the basis of his proof. No attention is paid to the defendant’s proof, for the Prophet … commanded listening to the proof of the claimant or the defendant’s oath.185 This is equally so whether the claimant’s proof testified that it belonged to him or said that it had been born in his possession.

435If there is an animal in the hands of two and one produces proof (two witnesses) that it is his, the other proof that it was raised in his possession, both proofs fall and they become like two persons with no proof. It (the animal) is made into halves. Each one receives according to his oath against the other concerning the half of the thing ruled on. If the animal is [p. 236] in a third party’s hands and he acknowledges that he does not own it or that it belongs to one of them but he does not know which, lots are cast [p. 334] between them. Whichever of them wins the draw, he swears and the animal is rendered to him. [p. 160]

  • 186 That is, he may reopen the case.

436If a house is in someone’s hands and a man claims it, then he acknowledges that it belongs to someone else, if the acknowledged (owner) is present, he becomes the adversary concerning it. If he is absent, the defendant may present proof (two witnesses) and the ruling is in his favour on that basis. The one absent remains an adversary whenever he turns up.186 If a man dies leaves two children, one Muslim and the other an unbeliever, and the Muslim claims that his father died a Muslim, the unbeliever that he died an unbeliever, the unbeliever’s word prevails along with his oath. This is because the Muslim, by his admission that he has an unbeliever for a brother, is acknowledging that his father was an unbeliever, (merely) purporting his conversion. If he did not recognize the unbeliever as a brother and he had no proof as to his being a brother, then the heritage would be divided in two halves between them on account of the equality of their possession. If the unbeliever produces evidence (two witnesses) that he died an unbeliever while the Muslim produces evidence (two witnesses) that he died a Muslim, both proofs fall and they become like two persons with no proof. [p. 237] If two witnesses say, “We know him to be an unbeliever” and two say, “We know him to be a Muslim”, the heritage is ruled to belong to the Muslim. This is because Islam succeeds unbelief, if the witnesses have not dated their knowledge.

437If a woman and her son die and her husband says, “She died before my son, so I am her heir, then my son died, so I am his heir”, but her brother says, “Her son died, so she inherited from him, then she died, so we inherited from her” and there is no proof (two witnesses), each of them swears to the invalidity of his counterpart’s claim. The heritage of the son goes to his father while the heritage of the woman is divided in halves between her brother and her husband. If two witnesses testify against the man that he took a thousand from the boy and two witnesses testify against another man that he took a thousand from that boy, the boy’s guardian is obliged to demand [p. 335] a thousand of one of them, unless neither proof (two witnesses) testified to the thousand that the other did, in which case the guardian takes two thousand. If two aliens come to us from enemy territory as Muslims, each of them saying that he is his companion’s brother, we consider them brothers. If they were prisoners and each claimed [p. 238] that after they were freed, the heritage of each one goes to whoever freed him if he [p. 161] does not believe them. However, if there is proof (two witnesses) from Muslims as to what they claimed by way of brotherhood, then their descent is established by it and each of them is made the heir of his brother.

  • 187 See for example Tirmiḏī, Kitāb al-buyūʿ 38, no. 1264, followed by a short disquisition from the col (...)

438If two spouses are in a house, then they separate or die, and each of them claims that what is in the house is his or his inheritance, it is ruled that what suits men belongs to the man and what suits women goes to the woman. What suits both of them is divided in half between them. Whoever has a claim against another but he keeps him from it, then happens to get power over some property of his, he is not to take from it the amount of his claim. This is on account of the saying of the Prophet …, “Render the trust to him who entrusted you with it and do not betray one who has betrayed you.”187 [p. 336]

57. The book of manumission (ʿitq)

439If a slave is owned by three and they set him free together, or two of them commission the third to set free their shares along with his, and he does it, or each of them sets free [p. 239] his share, being straitened, he becomes free and his patronage is divided among them in thirds. If one of them frees him, being wealthy, all of him becomes free. He comes to owe his other two owners two-thirds of his value. If they set him free after the manumission of the first, before taking that value, they have no share in setting free, since he had become free by the manumission of the first. If the first sets free his share, being straitened, then the second sets free his share, being wealthy, both his share and that of his partner become free and he owes a third of his value. A third of his patronage goes to the first manumitter and two-thirds to the second. If the second manumitter is straitened, his share becomes free on his account and a third of him stays enslaved, belonging to the one who has not set free. If he (the part-freedman) dies with wealth in his possession, a third of it goes to the one who did not set free (his share of him) and two-thirds to the first and second manumitters by patronage, if there is no heir with a stronger claim than the two of them have.

  • 188 Each partner’s allegation that the other set free his half implies that the slave has become wholly (...)

440If a slave is owned by two, each of whom claims that his partner has freed his share, if they are both straitened, the word of neither is accepted against his partner. If they are both upright, the slave may swear with each of them and become free or swear [p. 162] with one of them and become half-free. [pp. 240 337] If the two partners are wealthy, he (the slave) becomes free by each one’s acknowledgement of his freedom while he (each partner) becomes a claimant against his partner over half his (the slave’s) value.188 If there is no proof (two witnesses), then (there serves) each one’s oath for his partner.

441If a man dies and leaves two sons and two slaves, owning nothing else, and they are equal in value, then one of the sons says, “My father set free this one” while the other says, “My father set one of them free but I do not know which one”, lots are casts between them. If the lot falls on the one whose manumission the son acknowledged, two-thirds of him becomes free if the two sons do not permit his complete manumission. The other remains a slave. If the lot falls on the other, a third of him becomes free. The one whose word is confirmed by lot gets a sixth of him and half of the other slave, half of him going to his brother and a sixth of the slave of whom one said his father set him free. Thus, a third of each one of the slaves becomes free.

442If a man owns half a slave, another owns a third of him, and another a sixth of him, then the owners of the half and sixth together set (their shares) free, if they are wealthy, he is freed at their expense. They are liable to pay their partner equal halves. His patronage is divided between the (first) two in thirds, the half owner getting two-thirds, the sixth owner one-third. If a slave woman is owned by two persons and one has sex with her and makes her pregnant, he is chastised but it falls short of the quranic punishment. He is liable to pay half her value to his partner. She becomes umm [p. 241] walad to him (the acknowledged mother of an owner’s child). His child is free. If he is straitened, he has responsibility for half her value. If she has not become pregnant by him, he owes half the bride price of her like and she remains the property of both of them.

  • 189 The implication is that the slave is a close relative he is not allowed to own.
  • 190 Khalid translates “likewise” (fa-kaḏālika) as “one or all of them become free accordingly” (‘“Mukht (...)

443If one acquires a share of one who is thereby freed apart from inheritance, he being wealthy, he becomes wholly free.189 His partner is owed the value of his share in him (the slave) [p. 338] by him (the manumitting part-owner). If he is straitened, only that proportion of him he owns becomes free. If he acquires part of him by inheritance, then only that part of him he owns becomes free, whether he is wealthy or straitened. If one has three slaves and frees them in his death illness, promises them freedom on his death (dabbarahum), or so promises [p. 163] one of them and calls by testament for the manumission of the others, only one is taken from his third (the fraction he may dispose of by testament), since their value is equal. Then lots are cast, one for freedom and two for slavery. On whomever there falls the lot of freedom, he becomes free, unlike the other two. If he tells them in his death illness, “One of you is free” or “All of you are free”, then dies, it is likewise.190

444If one owns half a slave and promises him freedom on his death or frees him in his death illness so that he becomes free at his death, and a third [p. 242] of his property suffices to cover the half of him that is his partner’s, it is granted and he becomes wholly free, according to one of the two versions. The other version is that only his share is set free, even if a third of his property suffices to cover his partner’s share. It is likewise if one promises part of a slave freedom on his death when he owns all of him. If one frees them when his third bears them (i.e., covers their value), then we free them, then there appears that he owed a debt comprehending all of them, we would sell them to settle his debt. If one sets them free, they being three, and we free one of them because his (the dead person’s) third does not cover more than that, then there appears property of his so that they may come out of his third, those who were in slavery are set free.

  • 191 The catch is that a slave cannot own property; rather, all that he has belongs to his master.

445If one says to his slave, “You are free at a certain time”, which he names, he does not become free until that time. If a Christian’s umm walad converts to Islam, he is prevented from covering her and taking pleasure from her. He is obliged to support her. If he converts to Islam, she becomes licit to him. When he dies, she becomes free. [p. 339] If one says to his slave woman, “The first child you bear is free” and she gives birth to two, lots are cast between them. On whom the lot falls, he is free if it is unclear which of them came out first. If a slave tells a man, “Buy me from my master with this property, then set me free” and he does it, he becomes free. It is incumbent on the buyer to render to the seller the like of what he bought him with. His patronage goes to the one who bought him unless he have told him (the original master), “Sell me for this property”, in which case purchase and manumission are null, the master having taken his property.191 [pp. 164 243 340]

58. The book of slaves promised freedom on their master’s death (mudabbar)

  • 192 That character is his death.

446If one says to his slave, male or female, “You are a mudabbar” or “I hereby make you a mudabbar” or “You are free after my death”, he becomes a mudabbar (a slave promised freedom on his master’s death). One may sell him to settle a debt. A slave woman promised freedom may not be sold except to cover a debt, according to one of the two versions from Abū ʿAbd Allāh (God have mercy on him). The other version is that a female slave is like a male. If he buys him after that, he returns to being promised freedom. If he makes someone a mudabbar, then says, “I hereby do go back on my promise of freedom at my death” or says, “I hereby do rescind that”, it is not rescinded because he made it depend on a certain character, according to one of the two versions.192 The other version is that the promise of freedom is rescinded.

447Whatever offspring a woman has who has been promised freedom on her master’s death, her child has her status. One may have sex with his slave woman promised freedom on his death. Whoever denies having promised (some slave) freedom on his death, there is no imposing it against him except on the basis of two upright witnesses or one witness with the slave’s oath. [p. 244] If one promises his slave freedom on his death, then dies having wealth not immediately available or (being owed) a debt by contract with someone else, wealthy or straitened, a third of him is set free in accordance with the promise of freedom. Then as amounts come in that is proportionately reinforced until he is completely freed out of the third (disposable by testament). If one makes a promise of freedom on one’s death before having reached maturity, that promise is permissible if he is ten years old or more. What I have said concerning a man, the like goes for [p. 341] a woman if she is nine years old or more. If a slave promised freedom on his master’s death kills his master, his promise of freedom is rescinded. [p. 342]

59. The book of slaves with a contract of manumission (mukātab)

  • 193 Sāʾir al-waraṯa means all of the heirs, according to Ibn Qudāma, Muġnī, vol. 14, p. 470, and Zarkaš (...)

448If one writes a contract of manumission with his male or female slave by instalment, then the contract is fulfilled, the slave becomes free and his patronage goes to the writer of the contract. He (the slave) is given, of whatever the contract called for, one-fourth, on account of his saying (be he exalted), “Give them some of the wealth of God that He has given you” (Q. al-Nūr 24:33). If the contract is paid off in advance of its expiry date, the master must accept it and he is freed at that time, according to one of the two versions from Abū ʿAbd Allāh (God have mercy on him). The other version is that as soon as he acquires what he is to give, he becomes free. If one renders part of his contract of manumission, then dies [p. 165] while having enough to pay it all off and more, it [p. 245] belongs to his master, according to one of the two versions. The other is that the master gets the rest of his contract, the remainder going to his (the slave’s) heirs. If the master dies, the slave is still under contract. Whatever he pays goes among his master’s heirs, divided like an inheritance. His patronage goes to his master. If he is unable (to pay off his contract of manumission), he is a slave to the rest of the heirs (ʿabd li-sāʾir al-waraṯa).193

  • 194 The significance of this odd prohibition is said to be that such a trade would constitute ribā, imp (...)

449A slave with a contract of manumission is not prevented from travelling. He may not marry except by permission from his master. His master may not sell him a dirham for two dirhams.194 A man may not have sex with a slave woman with whom he has a contract of manumission unless he have stipulated that. If he has sex with her without having stipulated that, he is chastised but short of the quranic punishment for an adulterer. He must pay the bride price for her like. If [p. 343] she becomes pregnant by him, she has a choice between (on the one hand) nonpayment and becoming umm walad (mother of an acknowledged child to her master) and (on the other hand) continuing to execute her contract of manumission. If she fulfils (the contract), she becomes free. If she ceases to pay, she becomes free on his death. If he dies before she has finished paying, she becomes free, since she is among the ummahāt awlād (mothers of acknowledged children to their masters). What is left of her contract of manumission falls away. Whatever she possesses goes to her master’s heirs.

  • 195 “The like of it going to his master (wa-miṯluhu li-sayyidihi)” is a puzzling parenthesis but seems (...)

450If one makes a contract of manumission with half a slave and he fulfils what he has contracted to pay, the like of it going to his (other) master, he becomes half-free by the contract of manumission if the one who made the contract with him is straitened.195 [p. 246] If he is wealthy, he becomes wholly free and the one who made the contract of manumission with him owes half his value to his partner. When a slave with a contract of manumission has become free, he keeps by what he possesses by way of wealth for the period of the alms tax (ḥawl) and pays the tax on it if it constitutes the minimum amount (liable to the alms tax). If he has not paid an instalment until another instalment has become due, the master may pronounce him unable to pay if he wishes and the slave goes back to having no contract of manumission. Whatever he has taken hold of by way of the instalments of his contract of manumission, he keeps it by for the period of the alms tax.

451If a slave with a contract of manumission commits an offence requiring payment of damages, the payment of damages takes priority over his contract of manumission. If he cannot (pay), his master has a choice between redeeming him for his value if it is less than the damages or handing him over. If one makes a contract of manumission with him, then promises him freedom on his death, if he pays off (the contract of manumission), he becomes free, and if the master dies before payment, he is freed by the promise of freedom on his death, if the third (that one may bequeath by testament) bears what remains of his contract of manumission. Otherwise, he is freed in proportion to the third. (Whatever is owned on) the contract of manumission falls in proportion as he becomes free. Whatever is left, the contract of manumission still obtains.

452If a slave with a contract of manumission claims that his contract has been fulfilled and produces a witness, he swears with his witness and becomes free. [p. 344] A slave with a contract of manumission makes penance by nothing but fasting. The children of a woman with a contract of manumission that she has borne during the period of her contract of manumission become free with her becoming free. [p. 166] It is permissible to sell a slave with a contract of manumission. His buyer takes the place of him who made the contract of manumission. If [p. 247] he pays off (the contract), he becomes free. His patronage goes to his buyer. If it was not clear to the buyer that he was a slave with a contract of manumission, he has a choice between getting back the price and taking the difference between (the slave’s) value clear and subject to a contract of manumission. If a slave with a contract of manumission acquires his father or a close relative he is forbidden to marry, he (or she) does not become free except by his fulfilling the contract with them in his possession. If he is unable (to fulfil the contract), they are slaves to the master.

453If a slave belongs to three and he comes to them with three-hundred dirhams, saying, “Sell me to myself for this” and they agree, then when he returns to them to write the contract of manumission for him one of them denies having taken anything but two of them testify that he did, the slave becomes free by the testimony of the two partners if they are upright. He (the third partner) shares with the two of them in taking the money and the slave has no (further) obligation. If the master says, “I hereby write you a contract of manumission for two-thousand” and the slave says “one-thousand”, the word of the master prevails with his oath.

454If one frees a slave woman or writes a contract of manumission with her, stipulating (retention of) what is in her belly, or frees what is in her belly but not her, he may make such a condition. It does no harm for a slave with a contract of manumission to speed up (his payments) to the master for (the master) to out away part of his contract. [p. 248] If a slave is owned by two and one of them writes him a contract of manumission, then he does not fulfil the whole contract before the other frees him, he being wealthy, then the slave becomes free and the partner may get back [p. 345] half his value from the manumitter. If a slave with a contract of manumission is unable (to fulfil his contract) and reverts to being a slave, having received something as alms, it goes to his master.

455If two slaves with contracts of manumission buy each other, the purchase of the first is valid but not the purchase of the second. If one stipulates in his contract of manumission that he may become the client of anyone he wishes, the patronage goes to whoever sets free and the stipulation is invalid. If the enemy capture a slave with a contract of manumission, then a man buys him, he sends him to his master, and he wishes to take him, he takes him for what he bought him for and he (the slave) is governed by his contract of manumission. If he does not wish, he is the property of his buyer, still owing whatever is left of his contract of manumission. He becomes free by fulfilling it. His patronage goes to the one he pays off. [pp. 167 249 346]

60. The book of the manumission of ummahāt al-awlād

456The rules for ummahāt al-awlād (mothers of acknowledged children by their masters) are the rules for slave women in all regards except that they may not be sold. If one has sex with a slave woman, she being the property of someone else, to whom one is married, and she becomes pregnant by him, then he acquires her pregnant, the foetus is freed but he may sell her. If she becomes pregnant by him when in his possession and she gives birth to something recognizably human, she thereby becomes umm walad (the mother of an acknowledged child by her master). When he dies, she becomes free, even if he owns no other than her.

457When a slave woman become umm walad as we have described, then gives birth by someone else, he (the child) is in the same category (ḥukm) as she as to being freed on the death of her master. If a Christian’s umm walad converts to Islam, he is forbidden to have sex with and take pleasure from her. He is compelled to support her. If he converts to Islam, she becomes licit to him. If he dies before that, she is set free. If umm al-walad is set free at the death of her master, whatever she has in her possession belongs to her master’s heirs. If he gave her what she possesses by testament, it is hers if the third (that he is allowed to dispose of by testament) can bear it.

458If one dies leaving his umm al-walad, her waiting period is one menstrual period. If umm al-walad commits an offence requiring payment of damages, [p. 250] her master is to redeem her with her value or something less. If she repeats and offends again, he is to redeem her, as I have described. [p. 347] A man’s testament in favour of his umm al-walad or appointing her an executor is permissible. He may marry her off even if she dislikes it. There is no quranic punishment for someone who makes an unsupported accusation of adultery against her. If she prays with her head uncovered, that is disapproved of for her to do but it discharges her duty. If umm al-walad kills her master, she must pay her own value.

Haut de page

Bibliographie

Primary Sources

ʿAbd Allāh ibn Aḥmad (d. 290/903), Masāʾil al-imām Aḥmad ibn Ḥanbal, Zuhayr al-Šāwīš (ed.), Bayrūt, al-Maktab al-Islāmī, 1401/1981.

ʿAbd al-Razzāq ibn Hammām al-Ṣanʿānī (d. 211/827), al-Muṣannaf, 11 vols, Ḥabīb al-Raḥmān al-Aʿẓamī (ed.), Bayrūt, al-Maǧlis al-ʿIlmī, 1390/1970–1392/1972.

Abū Dāwūd Sulaymān ibn al-Ašʿaṯ (d. 275/889), Kitāb masāʾil al-imām Aḥmad, Muḥammad Bahǧat al-Bayṭār (ed.), al-Qāhira, Dār al-Manār, 1353/1934.

Abū Muṣʿab al-Zuhrī (d. 242/857?), Aḥmad ibn Abī Bakr, al-Muḫtaṣar, Nūr al-Dīn Šūbad (ed.), al-Ribāṭ, al-Rābiṭa al-Muḥammadiyya li-l-ʿUlamāʾ, Markaz al-Dirāsāt wa-l-Abḥāṯ wa-Iḥyāʾ al-Turāṯ, 1439/2018.

Abū Yaʿlā ibn al-Farrāʾ (d. 458/1065), Muḥammad ibn al-Ḥusayn, Šarḥ Muḫtaṣar al-Ḫiraqī, 2 vols, ʿAbd Allāh ibn ʿAbd al-ʿAzīz al-Fāḍil (ed.), al-Riyāḍ, Dār Aṭlas al-Ḫaḍrāʾ, 1439/2018.

Aḥmad ibn Ḥanbal (d. 241/855), Musnad al-imām, 6 vols, al-Qāhira, al-Maṭbaʿa al-Maymaniyya, 1313/1895; 50 vols, Šuʿayb al-Arnaʾūṭ et al. (eds), Bayrūt, Muʾassasat al-Risāla, 1413/1993–1421/2001 [Reference to the latter edition in italic].

al-Buwayṭī (d. 231/846?), Yūsuf ibn Yaḥyā, al-Muḫtaṣar, ʿAlī Muḥyī al-Dīn al-Qara Dāġī (ed.), Ǧidda, Dār al-Minhāǧ, 1436/2015.

al-Ḫallāl (d. 311/923), Kitāb al-wuqūf, 2 vols in 1, ʿAbd Allāh ibn Aḥmad ibn ʿAlī al-Zayd (ed.), al-Riyāḍ, Maktabat al-Maʿārif, 1410/1989.

Ḥarb ibn Ismāʿīl al-Kirmānī (d. 280/893–894), Masāʾil al-imām Aḥmad ibn Muḥammad ibn Ḥanbal wa-Isḥāq ibn Rāhwayh, Nāṣir ibn Suʿūd ibn ʿAbd Allāh al-Salāma (ed.), al-Riyāḍ, Maktabat al-Rušd, 1425/2004.

al-Ḫaṭīb al-Baġdādī (d. 463/1071), Aḥmad ibn ʿAlī, Tārīḫ Madīnat al-Salām, 17 vols, Baššār ʿAwwād Maʿrūf (ed.), Bayrūt, Dār al-Ġarb al-Islāmī, 1422/2001.

al-Ḫiraqī (d. 334/945–946), ʿUmar ibn al-Ḥusayn, Muḫtaṣar al-Ḫiraqī ʿalā maḏhab Abī ʿAbd Allāh Aḥmad ibn Ḥanbal, Muḥammad Zuhayr al-Šāwīš (ed.), Dimašq, Muʾassasat Dār al-Salām, 1378, repr. Dimašq, al-Maktab al-Islāmī, 1383/1964.

al-Ḫiraqī, ʿUmar ibn al-Ḥusayn, Matn al-Ḫiraqī ʿalā maḏhab Abī ʿAbd Allāh Aḥmad ibn Ḥanbal al-Šaybānī, Abū Ḥuḏayfa Ibrāhīm ibn Muḥammad (ed.), Ṭanṭā, Dār al-Ṣaḥāba li-l-Turāṯ, 1413/1993. [Reference to this edition in italic.]

al-Ḫiraqī, ʿUmar ibn al-Ḥusayn, al-Muḫtaṣar fī al-fiqh, Muḥammad Nāṣir al-ʿAǧmī (ed.), Dimašq, Dār al-Nawādir, 1429/2008, repr. 1440/2019. [Reference to this edition underlined.]

Ibn ʿAbd al-Ḥakam (d. 214/829), ʿAbd Allāh, al-Muḫtaṣar al-kabīr, Aḥmad ibn ʿAbd al-Karīm Naǧīb (ed.), n.p., Markaz Naǧībawayh li-l-Maḫṭūṭāt wa-Ḫidmat al-Turāṯ, 2011.

Ibn ʿAbd al-Ḥakam, ʿAbd Allāh, al-Muḫtaṣar al-ṣaġīr: ḫilāfiyyāt fī al-fiqh, recension of Abū ʿAbd Allāh al-Barqī, ʿUmar ʿAlī Abū Bakr Zāriyā (ed.), al-Riyāḍ, Dār Ibn al-Qayyim/al-Qāhira, Dār Ibn ʿAffān, 2013.

Ibn ʿAbd al-Ḥakam, ʿAbd Allāh, al-Muḫtaṣar al-kabīr, Ḥamīd Laḥmar (ed.), al-Qāhira, Dār al-Kalima, 2020.

Ibn Abī Šayba (d. 235/849), Abū Bakr, al-Muṣannaf, 15 vols, ʿĀmir al-ʿUmarī al-Aʿẓamī, ʿAbd al-Ḫāliq Ḫān al-Afġānī & Muḫtār Aḥmad al-Nadwī (eds), Ḥaydarābād, al-Maṭbaʿa al-ʿAzīziyya, 1386/1966 (1); Mumbaʾī, al-Dār al-Salafiyya, n.d.‒1403/1983 (2‒15) = 16 vols, ed. Ḥamad ʿAbd Allāh al-Ǧumʿa & Muḥammad Ibrāhīm al-Luḥaydān, al-Riyāḍ, Maktabat al-Rušd, 1425/2004 [References to the latter edition in italic].

Ibn Abī Yaʿlā ibn al-Farrāʾ (d. 526/1133), Muḥammad ibn Muḥammad, Ṭabaqāt al-ḥanābila, 3 vols, ʿAbd al-Raḥmān ibn Sulaymān al-ʿUtaymīn (ed.), [al-Riyāḍ], al-Amāna al-ʿĀmma li-l-Iḥtifāl bi-Murūr Miʾat ʿĀm ʿalā Taʾsīs al-Mamlaka, 1419/1999.

Ibn al-Bannā (d. 471/1079), al-Ḥusayn ibn Aḥmad, Kitāb al-muqniʿ, 4 vols, ʿAbd al-ʿAzīz ibn Sulaymān ibn Ibrāhīm al-Buʿaymī (ed.), al-Riyāḍ, Maktabat al-Rušd, 1414/1993.

Ibn al-Ǧawzī (d. 597/1201), ʿAbd al-Raḥmān ibn ʿAlī, al-Muntaẓam, 18 vols, Muḥammad ʿAbd al-Qādir ʿAṭā & Muṣṭafā ʿAbd al-Qādir ʿAṭā, with Naʿīm Zarzūr (eds), Bayrūt, Dār al-Kutub al-ʿIlmiyya, 1412/1992.

Ibn Hāniʾ al-Naysābūrī (d. 275/888–889), Isḥāq ibn Ibrāhīm, Masāʾil al-imām Aḥmad ibn Ḥanbal, 2 vols, Zuhayr al-Šāwīš (ed.), Bayrūt, al-Maktab al-Islāmī, 1400.

Ibn al-Mibrad (d. 909/1503), Yūsuf ibn Ḥasan, al-Durr al-naqī fī šarḥ alfāẓ al-Ḫiraqī, 3 vols, Riḍwān Muḫtār ibn Ġarbiyya (ed.), Ǧidda, Dār al-Muǧtamaʿ, 1411/1991.

Ibn al-Nadīm (d. 380/990?), Muḥammad ibn Isḥāq, Kitāb al-Fihrist, 4 vols, Ayman Fuʾād Sayyid (ed.), 2nd ed., London, Muʾassasat al-Furqān li-l-Turāṯ al-Islāmī, 1435/2014.

Ibn al-Naqīb al-Miṣrī (d. 769/1368), Aḥmad ibn Luʾluʾ, The Reliance of the Traveller, Noah Ha Mim Keller (trans.), Evanston, Ill., Sunna Books, 1991.

Ibn Qudāma (d. 620/1223), ʿAbd Allāh ibn Aḥmad, al-Muġnī, 15 vols, ʿAbd Allāh ibn ʿAbd al-Muḥsin al-Turkī & ʿAbd al-Fattāḥ Muḥammad al-Ḥulw (eds), al-Qāhira, Haǧr, 1406/1986–1411/1990.

Ibn Rušd (d. 595/1198), Muḥammad ibn Aḥmad, The Distinguished Jurist’s Primer: Bidāyat al-Mujtahid, 2 vols, Imran Ahsan Khan Nyazee (trans.), Muhammad Abdul Rauf (rev.), Reading, Garnet, 1994–1996.

Ibn Saʿd (d. 230/845), Muḥammad, Kitāb al-ṭabaqāt al-kabīr, 11 vols, ʿAlī Muḥammad ʿUmar (ed.), al-Qāhira, Maktabat al-Ḫānǧī, 1421/2001.

Kawsaǧ (d. 251/865), Isḥāq ibn Manṣūr, Masāʾil al-imām Aḥmad ibn Ḥanbal wa-Isḥāq ibn Rāhwayh, 2 vols, Abū al-Ḥusayn Ḫālid ibn Maḥmūd al-Rabāṭ, Wiʾām al-Ḥawšī & Ǧumʿa Fatḥī (eds), al-Riyāḍ, Dār al-Hiǧra, 1425/2004.

Mālik ibn Anas (d. 179/795), al-Muwaṭṭaʾ, Mohammad Fadel & Connell Monette (trans.), Cambridge, Mass., Program in Islamic Law, Harvard Law School, 2019.

al-Mardāwī (d. 885/1480), ʿAlī ibn Sulaymān, al-Inṣāf fī maʿrifat al-rāǧiḥ min al-ḫilāf ʿalā maḏhab al-imām Aḥmad ibn Ḥanbal, 12 vols, Muḥammad Ḥāmid al-Fiqī (ed.), al-Qāhira, Maṭbaʿat al-Sunna al-Muḥammadiyya, 1374/1955–1378/1958.

al-Māwardī (d. 450/1058), Abū al-Ḥasan, al-Ḥāwī al-kabīr, 24 vols, Maḥmūd Maṭraǧī et al. (eds), Bayrūt, Dār al-Fikr, 1414/1994; 20 vols, ʿAlī Muḥammad Muʿawwaḍ & ʿĀdil Aḥmad ʿAbd al-Mawǧūd (eds), Bayrūt, Dār al-Kutub al-ʿIlmiyya, 1414/1994.

al-Muzanī (d. 264/878), Ismāʿīl ibn Yaḥyā, al-Muḫtaṣar, in margin of al-Šāfiʿī, Kitāb al-umm, 7 vols in 4, Būlāq, al-Maṭbaʿa al-Kubrā al-Amīriyya, 1321–1325, repr. al-Qāhira, Kitāb al-Šaʿb, 1388/1968.

Nūr al-Dīn Abū Ṭālib (d. 684/1285), ʿAbd al-Raḥmān ibn ʿUmar, al-Wāḍiḥ, 5 vols, ʿAbd al-Malik ibn ʿAbd Allāh ibn Duhayš (ed.), Makka, Maktabat al-Nahḍa al-Ḥadīṯa, 1421/2000.

al-Qudūrī (d. 428/1037), Aḥmad ibn Muḥammad, The Mukhtaṣar al-Qudūrī of Imām Abūʾl-Ḥusayn Aḥmad ibn Muḥammad ibn Aḥmad ibn Jaʿfar ibn Ḥamdān al-Qudūrī al-Baghdādī (362 ah‒428 ah): A Manual of Islamic Law According to the Ḥanafī School, Ṭāhir Maḥmood Kiānī (trans.), London, Ta-Ha, 2010.

al-Šāfiʿī (d. 204/820), Muḥammad ibn Idrīs, Kitāb al-umm, 11 vols, Rifʿat Fawzī ʿAbd al-Muṭṭalib (ed.), al-Manṣūra, Dār al-Wafāʾ, 1422/2001.

Ṣāliḥ ibn Aḥmad (d. 266/880?), Masāʾil al-imām Aḥmad ibn Ḥanbal, 3 vols, Faḍl al-Raḥmān Dīn Muḥammad (ed.), Dilhī, al-Dār al-ʿIlmiyya, 1408/1988, Ṭāriq ibn ʿAwaḍ-Allāh ibn Muḥammad (ed.), al-Riyāḍ, Dār al-Waṭan, 1420/1999.

al-Šaybānī (d. 189/804‒805), Muḥammad ibn al-Ḥasan, al-Ǧāmiʿ al-kabīr, Abū al-Wafā al-Afġānī (ed.), al-Qāhira, Maṭbaʿat al-Istiqāma, 1356, repr. Bayrūt, Dār Iḥyāʾ al-Turāṯ al-ʿArabī, 1399.

al-Šaybānī, Muḥammad ibn al-Ḥasan, al-Ǧāmiʿ al-ṣaġīr, Mehmet Boynukalın (ed.), Istanbul, Ocak, 2009, repr. Bayrūt, Dār Ibn Ḥazm, 2011.

al-Šaybānī Muḥammad ibn al-Ḥasan, Kitāb al-aṣl, 13 vols, Mehmet Boynukalın (ed.), Bayrūt, Dār Ibn Ḥazm, 1433/2012.

al-Ṣaymarī (d. 436/1045), al-Ḥusayn ibn ʿAlī, Aḫbār Abī Ḥanīfa wa-aṣḥābih, Haydarābād, Maṭbaʿat al-Maʿārif al-Šarqiyya, 1394/1974, repr. Bayrūt, Dār al-Kitāb al-ʿArabī, 1976.

al-Ṭaḥāwī (d. 321/933), Aḥmad ibn Muḥammad, al-Muḫtaṣar, Abū al-Wafā al-Afġānī (ed.), Haydarābād, Laǧnat Iḥyāʾ al-Maʿārif al-Nuʿmāniyya, 1370.

al-Zarkašī (d. 772/1370–1371), Muḥammad ibn ʿAbd Allāh, al-Šarḥ, 7 vols, ʿAbd Allāh ibn ʿAbd al-Raḥmān ibn ʿAbd Allāh al-Ǧabrīn (ed.), al-Riyāḍ, Maktabat al-ʿUbaykān, 1413/1993.

Secondary Sources

ʿAbd al-Qādir ibn Badrān, al-Madḫal ilā maḏhab al-imām Aḥmad ibn Ḥanbal, al-Qāhira, Idārat al-Ṭibāʿa al-Munīriyya, n.d., ʿAbd Allāh ibn ʿAbd al-Muḥsin al-Turkī (ed.), Bayrūt, Muʾassasat al-Risāla, 1401/1981.

Brockopp, Jonathan, Early Mālikī Law: Ibn ʿAbd al-Ḥakam and his Major Compendium of Jurisprudence, Brill, Leiden, 2000.

Brunschvig, Robert, “Polémiques médiévales autour du rite de Mālik”, Al-Andalus 15, 1950, pp. 377–413.

Calder, Norman, Studies in Early Muslim Jurisprudence, Oxford, Clarendon Press, 1993.

El Shamsy, Ahmed, “The First Shāfiʿī: The Traditionalist Legal Thought of Abū Yaʿqūb al-Buwayṭī (d. 231/846)”, Islamic Law and Society 14, 2007, pp. 301‒341.

Ġanāyim, Muḥammad Nabīl, al-Muzanī wa-aṯaruhu fī al-fiqh al-Šāfiʿī, n.p., Dār al-Hidāya, 1998.

al-Ḥabašī, ʿAbd Allāh Muḥammad, Ǧāmiʿ al-šurūḥ wa-l-ḥawāšī, 3 vols, Abū Ẓaby, al-Maǧmaʿ al-Ṯaqāfī, 1425/2004.

Hurvitz, Nimrod, “The Mukhtaṣar of al-Khiraqī and its Place in the Formation of Ḥanbalī Legal Doctrine”, in Ron Shaham (ed.), Law, Custom, and Statute in the Muslim World: Studies in Honor of Aharon Layish, Leiden, Brill, 2007, pp. 1–16.

Jones, Alan, The Qurʾān, n.p., Gibb Memorial Trust, 2007.

Juynboll, G.H.A., Encyclopedia of Canonical Ḥadīth, Leiden, Brill, 2007.

Khalid, Anas, “The ʻMukhtasar’ of al-Khiraqi: A Tenth-Century Work on Islamic Jurisprudence”, Ph.D. dissertation, New York University, 1992.

Lane, Edward William, An Arabic-English Lexicon, 8 pts, London, Williams & Norgate, 1863–1893.

Makdisi, George, “Ṭabaqāt-Biography: Law and Orthodoxy in Classical Islam”, Islamic Studies (Islamabad) 32, 1993, pp. 371–396.

Melchert, Christopher, “The Relation of Ibn Taymiyya and Ibn Qayyim al-Jawziyya to the Ḥanbali School of Law”, in Birgit Krawietz & Georges Tamer with Alina Kokoschka (eds), Islamic Theology, Philosophy and Law: Debating Ibn Taymiyya and Ibn Qayyim al-Jawziyya, Berlin, de Gruyter, 2013, pp. 146–161.

Melchert, Christopher, “Basra and Kufa as the Earliest Centers of Islamic Legal Controversy”, in Behnam Sadeghi, Asad Q. Ahmed, Adam Silverstein & Robert Hoyland (eds), Islamic Cultures, Islamic Contexts: Essays in Honor of Professor Patricia Crone, Leiden, Brill, 2015, pp. 173–194.

Sabari, Simha, Mouvements populaires à Bagdad à l’époque Abbaside, IXe-XIe siècles, Paris, Librairie d’Amérique et d’Orient Adrien Maisonneuve, 1981.

Schacht, Joseph, The Origins of Muhammadan Jurisprudence, Oxford, Clarendon Press, 1950.

Schacht, Joseph, “The Schools of Law and Later Developments of Jurisprudence”, in Majid Khadduri & Herbert J. Liebesny (eds), Law in the Middle East 1: Origin and Development of Islamic Law, Washington, D.C., Middle East Institute, 1955, pp. 57–84.

Schacht, Joseph, “Sur quelques manuscrits de la bibliothèque de la mosquée d’al-Qarawiyyīn à Fès”, Études d’orientalisme dédiées à la mémoire de Lévi-Provençal, 2 vols, Paris, G.-P. Maisonneuve & Larose, 1962, vol. 1, pp. 271–284.

Schacht, Joseph, An Introduction to Islamic Law, Oxford, Clarendon Press, 1964.

Spectorsky, Susan, “Aḥmad ibn Ḥanbal’s fiqh”, Journal of the American Oriental Society 102, 1982, pp. 461–465.

Tsafrir, Nurit, “Abū Jaʿfar al-Ṭaḥāwī (d. 321/933)”, in Oussama Arabi, David S. Powers & Susan A. Spectorsky (eds), Islamic Legal Thought: A Compendium of Muslim Jurists, Leiden, Brill, 2013, pp. 123–145.

al-Turkī, ʿAbd Allāh ibn ʿAbd al-Muḥsin, al-Maḏhab al-ḥanbalī, 2 vols, Bayrūt, Muʾassasat al-Risāla, 1423/2002.

Yanagihashi, Hiroyuki, Studies in Legal Hadith, Leiden, Brill, 2019.

Haut de page

Notes

1 The principal biography is al-Ḫaṭīb al-Baġdādī, Tārīḫ, vol. 13, pp. 87–88, to be supplemented as to the names of teachers and students by Ibn Abī Yaʿlā ibn al-Farrāʾ, Ṭabaqāt al-ḥanābila, vol. 3, pp. 147–149.

2 Here and in the text to come, page numbers in roman indicate the Egyptian edition, in italics the Šāwīš edition, underlined the ʿAǧmī edition.

3 Al-Ḫaṭīb al-Baġdādī, Tārīḫ, vol. 13, p. 87.

4 Ibn al-Ǧawzī, Muntaẓam, vol. 13, pp. 316–317, vol. 14, pp. 5, 27. On Ḥanbali-Shiʿi strife, see for example Sabari, Mouvements populaires, chap. 4.

5 Ibn Qudāma, Muġnī, vol. 1, p. 7.

6 Makdisi, “Ṭabaqāt-Biography”.

7 Brunschvig, “Polémiques médiévales”, esp. pp. 379–387; Schacht, Origins, esp. pt 2, chap. 3, “The conflict of doctrines as reflected in the growth of traditions”, pp. 152–163; Melchert, “Basra and Kufa”.

8 See Brockopp, Early Mālikī Law, pp. 50–54.

9 See Schacht, “The schools of law”, esp. pp. 63, 67; Schacht, “Sur quelques manuscrits”, esp. p. 274.

10 On al-Buwayṭī’s Muḫtaṣar, see El Shamsy, “The first Shāfiʿī”. The question mark after his date of death as reported by me indicates that this is just one of two or more dates to be found in primary sources. He seems to have written short and long versions of it, only one of which survived: Ibn al-Nadīm, Fihrist, vol. 2, p. 46. On al-Muzanī’s Muḫtaṣar, there is evidently a useful monograph, Ġanāyim, Muzanī, which I have so far been unable to procure. Al-Muzanī also seems to have written short and long versions, of which only the short survived: Ibn al-Nadīm, Fihrist, vol. 2, p. 47.

11 Actually the shorter version of two, the long one no longer extant, for which see Ibn al-Nadīm, Fihrist, vol. 2, p. 47.

12 On al-Ṭaḥāwī’s Muḫtaṣar, see Tsafrir, “Abū Jaʿfar al-Ṭaḥāwī”. According to the editor, the one that has survived is the middle version of three (Ṭaḥāwī, Muḫtaṣar, p. 5). Al-Ǧāmiʿ al-kabīr and al-Ǧāmiʿ al-ṣaġīr are not epitomes in the style of al-Ṭaḥāwī’s Muḫtaṣar inasmuch as they tend to skip over basic rules in favour of difficult cases.

13 Ḥabašī, Ǧāmiʿ al-šurūḥ, vol. 3, pp. 1590–1542 (Ḫiraqī), pp. 1633–1638 (Muzanī), pp. 1621–1622 (Ṭaḥāwī).

14 ʿAbd al-Qādir ibn Badrān, Madḫal, p. 221 = ed. al-Turkī, pp. 434–435.

15 Al-Fayyūmī (d. after 770/1367), al-Miṣbāḥ al-munīr, trans. Lane, Lexicon, s.n. kh -  - r.

16 Ṣaymarī, Aḫbār Abī Ḥanīfa, p. 168.

17 Against Hurvitz, “Mukhtaṣar”, p. 8. I see no reason to doubt that there was a personal Hanbali school by the early tenth century, but Hurvitz’s emphatic argument that the Muḫtaṣar marks the advent of a Hanbali school is weakened by his simply ignoring Makdisi’s distinction between a personal and a guild school, likewise Calder’s distinction between the classical and pre-classical muḫtaṣar, for which see below.

18 Abū Dāwūd, Masāʾil; Ibn Hāniʾ, Masāʾil; ʿAbd Allāh ibn Aḥmad, Masāʾil; Ṣāliḥ ibn Aḥmad, Masāʾil; Kawsaǧ, Masāʾil; Ḥarb al-Kirmānī, Masāʾil.

19 Melchert, “The relation of Ibn Taymiyya and Ibn Qayyim al-Jawziyya”, pp. 157–158.

20 This particular position is identified as a peculiarity of al-Ḫiraqī’s by Ibn Qudāma, Muġnī, vol. 5, p. 226.

21 Zarkašī, Šarḥ, vol. 5, p. 11; Mardāwī, Inṣāf, vol. 8, p. 66.

22 This offers some support to al-Turkī’s assertion that the first opinion given is al-Ḫiraqī’s identification of the preferred position: al-Maḏhab al-ḥanbalī, vol. 2, p. 38. How strong one thinks that support must depend heavily on one’s estimate of how much Islamic jurisprudence changed from the tenth century to the fifteenth—in particular how far al-Mardāwī’s manifest concern to identify aṣaḥḥ al-riwāyatayn (“the sounder of the two versions”) and al-maḏhab (the preponderant rule of the school) were already present in al-Ḫiraqī’s mind, how far a development over time.

23 Spectorsky, “Aḥmad ibn Ḥanbal’s fiqh”, p. 461.

24 Ḫiraqī, Muḫtaṣar, pp. 48 57 144–145; Hurvitz, “Mukhtaṣar”, p. 13; Ibn Qudāma, Muġnī, vol. 4, p. 313. Al-Mardāwī mentions the two versions and describes al-Ḫiraqī as having chosen the first position: Inṣāf, vol. 3, pp. 169–170.

25 Ibn Qudāma, Muġnī, vol. 2, p. 258.

26 Ibn al-Bannā, Muqniʿ, vol. 1, p. 365; Zarkašī, Šarḥ, vol. 1, pp. 595–596.

27 Zarkašī, Šarḥ, vol. 7, p. 473.

28 The most famous example is Ibn Rušd (d. Marrakech, 595/1198), The Distinguished Jurist’s Primer.

29 Calder, Studies, p. 246.

30 Māwardī, Ḥāwī.

31 Ibn al-Mibrad, Durr, vol. 1, pp. 49–50.

32 Lane, Lexicon, s.v. “ṣ-w-b”, citing al-Fayyūmī.

33 Khalid, “The ʻMukhtasar’”, pp. 37, 74.

34 Khalid, “The ʻMukhtasar’”, p. 23; Ḫiraqī, Muḫtaṣar, pp. 13 7 82.

35 Khalid, “The ʻMukhtasar’”, p. 193; Ḫiraqī, Muḫtaṣar, pp. 111 154 250.

36 The Šāwīš and Tanta editions here add “and the layman”, not supported by the ʿAǧmī edition or Ibn Qudāma, Muġnī, vol. 2, p. 109, although the addition does appear in one manuscript of al-Zarkašī’s commentary, for which see Šarḥ, vol. 1, p. 534n.

37 See for example Buḫārī, Kitāb al-aḏān 148, bāb al-tašahhud fī al-āḫira, no. 831.

38 See for example Abū Dāwūd, Kitāb al-ṣalāt 136, man raʾā al-qirāʾa iḏā lam yaǧhar, no. 827.

39 For the report from Abū Hurayra, at the end of which he asks for clarification from ʿImrān ibn Ḥuṣayn, see for example Buḫārī, Kitāb al-ṣalāt 88, bāb tašbīk al-aṣābiʿ, no. 482.

40 See for example Buḫārī, Kitāb al-ṣalāt 31, bāb al-tawaǧǧuh naḥwa al-qibla, no. 401.

41 See for example Muslim, Kitāb al-masāǧid 19, bāb al-sahw fī al-ṣalāt wa-l-suǧūd lahu, no. 389.

42 See for example Abū Dāwūd, Kitāb al-ṣalāt 101, bāb al-raǧul yarkaʿu dūna al-ṣaff, nos 683–684.

43 The screen (sutra) referred to is something one puts in front of one’s place of prostration to mark out a little sacred zone not to be intruded on. It might be a staff or a sandal, the latter to make sure that no one will mistakenly think the screen itself is being worshipped.

44 This must allude to a prayer for the ruler, historically an important indication of who seemed to be in charge of any place at any particular time.

45 See for example Tirmiḏī, abwāb al-ṣalāt 278, bāb mā ǧāʾa fī ṣalāt al-istisqāʾ, nos 556–559, with the comment after the first, “This is advocated by al-Šāfiʿī, Aḥmad, and Isḥāq (ibn Rāhwayh).”

46 “Whether rejecting it or not (ǧāḥidan laḥā aw ġayr ǧāḥid)” refers to denial that one is obliged to obey God. In general, disobeying rules makes one a bad Muslim, denying one’s obligation to obey makes one an apostate. However, the Hanbali school is peculiarly strict about the duty to perform the ritual prayer.

47 With allusion to Q. al-Tawba 9:60, “The alms are for the poor and the destitute, for those who work to collect them and those whose hearts are to be reconciled, to free slaves and debtors, in God’s way and for the traveller.”

48 See Ibn Abī Šayba, Muṣannaf, vol. 3, p. 219, vol. 4, p. 355.

49 See Nasāʾī, Muǧtabā, Kitāb al-ṣiyām 83, kayfa yaṣūmu ṯalāṯat ayyām min kull šahr, no. 2420.

50 That is, from al-ḥill as opposed to al-ḥaram.

51 See for example Muslim, kitāb al-ḥaǧǧ 19, bāb ḥiǧǧat al-nabī, no. 1218.

52 With allusion to Q. al-Baqara 2:197, translated by Jones as “let there be no sexual intercourse or immoral behaviour or wrangling during the Ḥajj”.

53 Šurayḥ ibn al-Ḥāriṯ (d. 78/697–698?), long-time Kufan qadi; his appearance on sacralizing is reported, among other places, by Ibn Saʿd, Ṭabaqāt, vol. 8, p. 262. The deaf snake is one that resists being charmed, as if not hearing, for which see Lane, Lexicon, s.v. ṣ-m-m.

54 The ḥiǧr, also called the ḥaṭīm, is a low semi-circular wall of white marble on the northwestern side of the Kaʿba.

55 See for example Muslim, Kitāb al-ḥaǧǧ 19, bāb ḥiǧǧat al-nabī, no. 1218.

56 Tanʿīm is a place two farsaḫs or about four miles from Mecca.

57 As al-Ḫiraqī will explain in the book of sacrificial victims, Ibn Qudāma defines the ṯanī as a goat of at least a year, a cow (bovine animal) of two years, and a camel of five years in connection with this passage (Muġnī, vol. 5, pp. 459‒460).

58 The exception covers such choice as is stipulated at the time of purchase or when someone finally sees something he has bought only on description.

59 That is, with both buyer and seller present.

60 “Piece by piece (ʿaynan bi-ʿayn)” is explained by the commentaries as saying “I hereby sell you these dinars for those dirhams”, indicating the very coins to be traded, as opposed to trading by description: Ibn al-Bannā, Muqniʿ, vol. 2, p. 670; Ibn Qudāma, Muġnī, vol. 6, p. 100; Zarkašī, Šarḥ, vol. 3, p. 451.

61 Qiṯṯāʾ and ḫiyār are varieties of cucumbers, the former mentioned in the Quran (Q. al-Baqara 2:61), the latter the more familiar plant, probably spread from Northern India.

62 Al-Ḫiraqī’s expression might be interpreted to mean that he was going against Aḥmad’s opinion here. Ibn al-Bannā quotes al-Ḫiraqī as expressly characterizing this as an alternative version (Muqniʿ, vol. 2, p. 680), but the word riwāya is missing from the manuscripts of al-Ḫiraqī and from other quotations (e.g., Ibn Qudāma, Muġnī, vol. 6, p. 199, and Zarkašī, Šarḥ, vol. 3, p. 549). However, the commentaries do make clear that there circulated two versions of Aḥmad’s opinion, while al-Mardāwī asserts that fasḫ was al-Ḫiraqī’s choice (Mardāwī, Inṣāf, vol. 4, p. 475).

63 The buyer owes compensation for the milk he has extracted.

64 This disallows simultaneous contracts as a means of effectively borrowing at interest.

65 In practice, murābaḥa was evidently about supplying a merchant with trade goods, for which the return should be known in advance, not guessed at.

66 See for example Muslim, Kitāb al-buyūʿ 6, bāb taḥrīm bayʿ al-ḥāḍir li-l-bādī, no. 1522.

67 See for example Buḫārī, Kitāb al-buyūʿ 68, bāb hal yabīʿu ḥāḍir li-bādin bi-ġayri aǧr, no. 2158.

68 Such a slave, becoming umm walad, is no longer permitted to be sold.

69 Redemption here refers to paying the appropriate compensation for the slave’s offence.

70 That is, it is not simply returned to him but rather when the bankrupt’s property is divided, he like other creditors will receive an amount proportionate to the debt owed him.

71 The claimant may seek his claim from either the guarantor or the one guaranteed.

72 That is, he must appear in court in his stead.

73 “Bodies” here indicates a commitment of labour as opposed to property.

74 That is, profits are to be divided by agreed proportion, not absolute number.

75 e.g., if he inherits a third of his father’s property, he also inherits a third of the acknowledged debt.

76 The acknowledged children of a free father and a slave mother are free from birth, but here the unwittingly unrightful owner has deprived the rightful owner of his slave’s offspring, hence the requirement of compensation, apparently in the form of slaves of the same age and sex.

77 That is, there is no pre-emption for co-owners whose shares are separated by fixed boundaries and set paths.

78 That is, the cultivator’s share may not be a portion of the yield and a set sum of money beyond that, since it cannot be known that there will be any such money.

79 To be avoided is that the crop should be no more than the seed provided by the landowner, in which case the cultivator would end up with nothing for his labour.

80 Middle Eastern gardens are presumptively walled, but the definition given also fits penning in livestock or going on to build a house.

81 The reference to ʿĀdd apparently comprehends Antiquity generally.

82 See for example Buḫārī, Kitab al-hiba 12, bāb al-hiba li-l-walad, no. 2586, and Kitāb al-hiba 13, bāb al-išhād fī al-hiba, no. 2587.

83 The ruqbā donation renders the property permanently to the survivor, whichever he be.

84 “Heir” refers here to someone who is assigned a share on the basis of kinship according to Q. al-Nisāʾ 4:11–12 and 176 or by analogical extension of that list. On the basis of hadith, no more than a third of anyone’s estate may be diverted from the quranic heirs by bequest.

85 The commentaries envisage, for example, a bequest in favour of a brother from someone who has no children: a bequest in favour of kin who would inherit without it is normally invalid, but this one is executed if before his death a child is born to the bequeather, who then cuts out the brother as an automatic heir.

86 “Four fathers” indicates the outer limits of his relatives. The reference to the Hashimids has to do with the Prophet’s division of the booty of Ḫaybar, Hāšim being his great-grandfather. Thus, he included second-cousins but not third-. See for example Abū Dāwūd, Kitāb al-ḫarāǧ wa-l-fayʾ wa-l-imāra 20, bāb bayān mawāḍiʿ qasm al-ḫums, nos 2978, 2980–2981.

87 Min qibal abīhi wa-ummih, explained by the commentators as indicating his relatives (qarāba), which is to say grandparents, uncles and aunts, first cousins, and so on, but excluding relations by marriage (Ibn Qudāma, Muġnī, vol. 8, pp. 533‒534; Zarkašī, Šarḥ, vol. 4, pp. 404‒405).

88 This rule has consequences if something changes in value, which might affect whether it is worth more than a third of an estate, or if a question of liability arises.

89 The ʿaṣaba comprise residuaries with claims to whatever is left over of an estate, if anything, after the fixed shares, if any, have been distributed.

90 Ibn al-Bannā quotes al-Ḫiraqī as calling this problem the muštaraka (Muqniʿ, vol. 2, p. 817), al-Zarkašī the ḥimāriyya (Šarḥ, vol. 4, p. 445). Ibn Qudāma quotes al-Ḫiraqī as in the manuscripts of al-Muḫtaṣar but comments that this problem is called al-mušarraka (Muġnī, vol. 9, p. 24).

91 The shares here add up to ten-sixths, to be resolved by increasing the denominator, the ʿawl procedure described in the next section.

92 This is the doctrine of radd: if the fixed quranic shares do not exhaust the estate and there are no more distant relatives (ʿaṣaba or ḏawū al-arḥām) to claim the remainder, that remainder is divided only among blood relatives with fixed claims, excluding a surviving spouse.

93 That is, she is not excluded by an uncle.

94 “Grandfather” translates Arabic ǧadd, but it must be understood here and elsewhere as including ancestors further removed.

95 More precisely, persons who may inherit without being either quranic heirs assigned fixed shares nor heirs as members of an ʿaṣaba.

96 That is, for example, whereas among survivors a son normally excludes a brother from inheriting, an apostate son does not.

97 That is, the manumitter may expressly renounce any assumption of patronage.

98 That is, his wealth is applied to freeing other slaves.

99 “Close relative” represents ḏū raḥim muḥarram, interpreted by the commentators as a person one is forbidden to marry.

100 The situation foreseen is of a slave girl who is set free, then marries a slave. Her children by him are born free but clients to her former master.

101 See for example Aḥmad ibn Ḥanbal, Musnad, vol. 6, p. 405, vol. 45, pp. 257‒259.

102 Al-Ḫiraqī refers to ṣiḥāḥ and ġalla, which seem to have puzzled the commentators. I follow the boldest of them, Ibn al-Mibrad, Durr, vol. 3, p. 599.

103 Ibn Qudāma explains the collocation, “This means (God knows better) that the properties of the Muslims over which rulers have authority are of three categories”: Muġnī, vol. 9, pp. 281‒282.

104 That is, Hashimids and Muttalibids by descent, excluding clients.

105 “The alms are for the poor and the destitute, for those who work to collect them and those whose hearts are to be reconciled, to free slaves and debtors, in God’s way and for the traveller” (Q. al-Tawba 9:60).

106 That is, they are comparable to those manumitted sāʾibatan. The alternative version prevents a mukātab slave from spending what he has received on something else than his freedom, also a master from using required alms to secure the advantage of patronage for himself.

107 Sulṭān means literally “power”. Ḥanbali jurisprudents expect marriages to be carried out, if no relative or patron is available, by the local qadi—in the Abbasid period, a deputy of the caliph. There is some disagreement over whether a governor or village headman may do the same.

108 That is, a woman may not act as guardian to marry her own slave to someone.

109 The difference between fāsid and bāṭil is significant when it comes to marriage. “If a fāsid marriage is consummated, a mahr must be paid to the wife, the wife must keep the waiting period if the marriage is dissolved, and the children born of it are legitimate—all this in contrast with a marriage which is bāṭil” (Schacht, Introduction, p. 163).

110 “Bride price” is the anthropological term for a payment from the man, which describes the mahr of Islamic law. Mahr is often translated “dowry” in English, but that properly designates wealth brought by the wife to the husband. The legitimacy of an Islamic contract should not depend on rough similarities to medieval European customs. Medieval Muslim jurisprudents were well aware of similarities between marriage and purchase, as when Ibn Qudāma refers to the mahr as the value of the woman’s genitals (qīmat buḍʿihā; Muġnī, vol. 9, p. 414). They point out such differences as the simplicity of dissolving a sale by contrast with the complexity of dissolving a marriage. I have translated ṣadāq as “nuptial gift” (after Schacht), although it sometimes appears to be used interchangeably with mahr.

111 See ʿAbd al-Razzāq, Muṣannaf, vol. 7, pp. 243‒244; Ibn Abī Šayba, Muṣannaf, vol. 4/2, pp. 259‒260, vol. 6, p. 178.

112 That is, having been made free, she may not be returned to slavery; therefore, as if she had been free to start with, the divorcer would have to have given her half the promised nuptial gift, in this case half her value as a slave.

113 See for example Buḫārī, Kitāb al-nikāḥ 52, bāb al-šurūṭ fī al-nikāḥ, no. 5151.

114 “Nursing mothers” refers to women who have nursed someone a minimum number of times (five) and “milk sisters” to others who have been nursed by the same woman.

115 Hence, for example, a man may not marry his natural daughter.

116 “The People of the Book (Ahl al-Kitāb)” include Jews, Christians, and possibly Magians. A Kitābī (“Book person”) is one of them.

117 Half is required if he divorces her before consummation.

118 Whiteness is said to be a sign of the former, loss of hair of the latter.

119 The four faults peculiar to women are that she be ratqāʾ, qarnāʾ, ʿaflāʾ, or fatqāʾ. There is disagreement over the meaning of the second, third, and fourth, for which see Ibn Qudāma, Muġnī, vol. 10, p. 57.

120 So, for example, a promise to teach her some verses of the Quran, as in a famous hadith report, is acceptable, since there is a conventional price for teaching the Quran, potentially divisible, whereas a promise to take her on pilgrimage is not acceptable.

121 Ibn Qudāma and Nūr al-Dīn Abū Ṭālib quote rather “if he separates her by ḫulʿ”, but this is apparently a slip to force agreement with the general topic of this section, not supported by the manuscripts of al-Ḫiraqī or other commentaries: Ibn Qudāma, Muġnī, vol. 10, p. 313; Nūr al-Dīn Abū Ṭālib, Wāḍiḥ, vol. 3, p. 542; Abū Yaʿlā, Šarḥ, vol. 2, p. 128; Ibn al-Bannā, Muqniʿ, vol. 3, p. 958; Zarkašī, Šarḥ, vol. 5, p. 369.

122 There is some ambiguity in the Arabic here: ṭallaqtuhā means both “I have divorced her” (the intended lie) and “I hereby divorce her.”

123 Hanbali jurisprudents evidently consider the form of words crucial: with anti ṭāliq anti ṭāliq, the second pronouncement simply falls on an already-divorced woman without effect, whereas (they hold) anti ṭāliq wa-ṭāliq wa-ṭāliq implies that the three pronouncements are tightly connected. See Ibn Qudāma, Muġnī, vol. 10, pp. 490‒495.

124 That is, his former pronouncement of divorce still affects how many more times he may divorce her before she becomes triply divorced, making remarriage considerably more difficult.

125 That is, he may call her back.

126 With allusion to Q. al-Muǧādala 58:3‒4: “Those who make their wives like their mothers’ backs and then return to what they have said: [the penalty is] the freeing of a slave before they touch each other … He who does not find [the means to do that] must fast for two successive months before they touch each other; and he who is unable [to fast] must feed sixty destitute people.”

127 “If she knows why she has stopped menstruating” alludes to illness, nursing, and other causes.

128 The problem is whether it amounts to a pregnancy if it is ended by spontaneous abortion, potentially reducing the waiting period to less than four months.

129 The complicated expression about lineage apparently restricts this to pregnancy in the context of proper marriage or concubinage, not adultery, which does not produce kinship, for which see Abū Yaʿlā, Šarḥ, vol. 2, p. 249.

130 The first husband had become a milk father to the boy by her nursing him.

131 See ʿAbd al-Razzāq, Muṣannaf, vol. 7, pp. 482‒483.

132 See for example Buḫārī, Kitāb al-buyūʿ 95, bāb man aǧrā amr al-amṣār, no. 2211, and Kitāb al-aḥkām 28, bāb al-qaḍāʾ ʿalā al-ġāʾib, no. 7180.

133 A group, presumptively male kin, liable to pay wergild for a member.

134 That is, the wergild must be accepted instead of retaliation, since trying to inflict an equal injury on the offender’s head or interior might turn out to be fatal, which would be going to excess.

135 See ʿAbd al-Razzāq, Muṣannaf, vol. 10, p. 96.

136 As stated before, their wergild does not exceed their value.

137 The commentaries take this to refer either to tearing the perineum or the flesh between the vagina and the urethra.

138 Zand (“forearm”) is apparently everywhere in the singular, but al-Ḫiraqī must have meant the two forearms, as say the commentaries; e.g., Abū Yaʿlā, Šarḥ, vol. 2, p. 358; Ibn Qudāma, Muġnī, vol. 12, p. 173; and Zarkašī, Šarḥ, vol. 3, p. 60.

139 “Open enmity” translates lawṯ, a rare word (and missing the first time in the text of al-Ḫiraqī as reported by some of the commentaries). The evident concern is whether the murder victim was involved in a standing feud between two groups.

140 Exactly what description al-Ḫiraqī is pointing to here is not obvious, and the commentators disagree, some taking al-Ḫiraqī to mean that children born to them after their apostasy are not to be killed as apostates, although they may be enslaved (Ibn Qudāma, Muġnī, vol. 12, p. 283; Zarkašī, Šarḥ, vol. 6, p. 258), some taking him to mean that, their parents’ conversion to another religion being invalid, all their children are born Muslims and so liable to be killed if they will not embrace Islam (Abū Yaʿlā, Šarḥ, vol. 2, pp. 390–391; Nūr al-Dīn Abū Ṭālib, Wāḍiḥ, vol. 4, p. 392). There is also some disagreement about the text: allaḏīna waṣaftu min al-islām baʿda l-bulūġ in most versions but allaḏīna waṣaftu baʿda al-ḥurriyya wa-l-bulūġ in Abū Yaʿlā’s.

141 Muḥṣan (“safeguarded”) effectively indicates someone who has been married to another free Muslim.

142 Literally “one who is struck”, but the active form is also used for coitus. The commentators interpret “likewise” to mean that the person who says this is asked for his intention, just like someone who says yā lūṭī. If he says he was referring to some sexual practice not involving penetration, then it does not constitute an accusation of adultery. They admit that what Aḥmad is quoted as saying, evidently the reason for mentioning this second accusation, does not imply waiting for a damaging interpretation: Abū Yaʿlā, Šarḥ, vol. 2, p. 416; Ibn Qudāma, Muġnī, vol. 12, p. 391; Zarkašī, Šarḥ, vol. 6, pp. 313–314.

143 Ālat lahw, effectively a musical instrument or game board.

144 Muṭālaba is the usual word for demanding application of a penalty. Iddiʿāʾ is associated with prosecution for offences, but the concern here seems to be certainty that the good was stolen. Moreover, the quranic penalties (ḥudūd) distinguish divine claims, so it should not be up to humans whether to apply them.

145 “The rest of the quranic offences (sāʾir al-ḥudūd)” evidently refers to offences besides those of adulterers, thieves, and highway robbers; i.e., those for which the punishment is flogging (alone). However, it seems that al-Ḫiraqī sometimes uses sāʾir to mean not “the rest” but “all”, for which compare n. 193 below.

146 The commentaries indicate dates, raisins, or other fruits soaked in water; e.g., Ibn Qudāma, Muġnī, vol. 12, pp. 513–514.

147 I take it that the silver is part of what fixes the handle to the goblet.

148 That is, it must comprise fewer lashes.

149 “Their people (ahluhā)” implies keepers as well as owners.

150 The implied context is an attack on the Muslims, which all able-bodied men in the vicinity must act to repel, no more asking parental permission than to perform the ritual prayers.

151 With allusion to Q. al-Tawba 9:29–31, “Fight from among the people who have been given the Scripture those who do not believe in God and the Last Day and who do not forbid that which God and His messenger have forbidden and who do not follow the religion of truth, until they pay the tribute readily, having been humbled.”

152 See for example Muslim, Kitāb al-ǧihād wa-l-siyar 48, bāb al-nisāʾ al-ġāziyāt, no. 1812.

153 That is, members of a raiding party were promised these shares of the booty, in preference to the whole army, after the Prophet’s fifth had been put aside. For a quarter and a third after the fifth, see for example Abū Dāwūd, Kitāb al-ǧihād 156, bāb fī-man qāla al-ḫums qabla al-nafal, no. 2749.

154 These are persons understood not to have participated in the fighting that secured the booty.

155 Al-Zarkašī alone gives “does not attend the battle” (Šarḥ, vol. 6, p. 501), presumably a lectio facilior that makes better sense.

156 Being separable, their total value turns out to be more than what the new owner paid for them, so he should return the additional value for redivision. “Place of dividing” translates maġnam. Al-Ḫiraqī evidently envisages a grand auction of the booty, combatants then rewarded with shares of the proceeds.

157 Naḥl (“bees”) seems to be the correct reading, supported by the commentaries of Ibn Qudāma (Muġnī, vol. 13, pp. 142–143), and Ibn al-Mibrad (Durr, vol. 3, p. 775). However, naḫl (“date palms”) is the reading of the Šāwīš and Tanta editions of the Muḫtaṣar, also the commentaries of Abū Yaʿlā (Šarḥ, vol. 2, pp. 511–512) and al-Zarkašī (Šarḥ, vol. 6, pp. 525–526), both of which discuss the destruction of trees.

158 The principle is that killing with an edged instrument constitutes a proper slaughter and renders the animal licit to eat but not killing with other instruments. Drowning and collision have just been singled out as unacceptable means. A trap that kills by means of slicing, such as the sickles referred to here, is licit; a trap that kills by other means, such as suffocation, is implicitly ruled out.

159 See for example Buḫārī, Kitāb al-ḏabāʾiḥ wa-l-ṣayd, bāb luḥūm al-ḥumur al-insiyya, no. 5521.

160 See for example Buḫārī, Kitāb al-ḏabāʾiḥ wa-l-ṣayd, bāb akl kull ḏī nābin min al-sibāʿ, no. 5530.

161 Al-Zarkašī quotes al-Ḫiraqī here as adding the fox (Šarḥ, vol. 6, p. 693). The fox is not mentioned in al-Ḫiraqī’s text as related by any other commentary I have consulted. However, al-Ḫiraqī’s allowing foxes to be eaten is confirmed by Mardāwī, Inṣāf, vol. 10, p. 360.

162 The reference is to a supposed antidote to venom.

163 The use foreseen is evidently anointing oneself at the start of the day.

164 The meat is expected to be distributed to ten.

165 “With it” (maʿahā) missing from al-ʿAǧmī’s text.

166 The commentaries explain that this means cut up at the joints with no bones broken as a good omen for the health of the child; e.g., Abū Yaʿlā, Šarḥ, vol. 2, p. 585, and Ibn Qudāma, Muġnī, vol. 13, p. 400.

167 Al-Ḫiraqī’s term ḥāfir (literally “that which tears up the earth”) may denote any hooved animal, but the commentaries insist that only horses are intended (e.g., Abū Yaʿlā, Šarḥ, vol. 2, p. 578, and Ibn Qudāma, Muġnī, vol. 13, p. 407).

168 The point of these rules, by which there may or may not be a loser corresponding to each winner, is to encourage training in martial arts without quite permitting gambling.

169 Both terms can refer to rejected practices in relation to the alms tax. In relation to a race, their meaning is disputed, but they may refer respectively to sending another horse to run alongside the racer’s and riding behind the racer vocally urging him on, as proposed by Ibn al-Mibrad, Durr, vol. 3, p. 795. For the hadith report, see for example Nasāʾī, Muǧtabā, Kitāb al-ḫayl 15, al-ǧalab, no. 3590, and 16, al-ǧanab, no. 3591; also Juynboll, Encyclopedia, pp. 205–206.

170 With allusion to Q. al-Baqara 2:225, “God will not take you to task for making slips in your oaths”; similarly, Q. al-Māʾida 5:89.

171 That is, delegation does not constitute breaking his oath if when he swore he had in mind not to buy or beat this slave himself.

172 See for example Muslim, Kitāb al-aymān 4, bāb yamīn al-ḥālif ʿalā niyyat al-mustaḥlif, no. 1653. Ibn Qudāma gives the examples, among others, of someone who swears, “He is my brother”, meaning that he is a fellow Muslim (acceptable), and of someone who swears, “I have taken nothing of this”, meaning what he has left (unacceptable): Muġnī, vol. 13, pp. 497–498.

173 “Profession and works” is part of the Sunni argument against the Murǧiʾa, who held that one was faithful or not depending on one’s profession alone, to the exclusion of works (ritual observances). The second time, “work” in connection with soundness is about a slave’s ability to fulfil expectations, so that one does not make penance for a broken vow by freeing an ill, decrepit, or otherwise incapable slave. So says Abū Yaʿlā, at any rate (Šarḥ, vol. 2, pp. 627–628; similarly, Zarkašī, Šarḥ, vol. 7, pp. 137–138), although Ibn Qudāma is more circumspect, allowing the manumission of an infant (Muġnī, vol. 13, pp. 518–519).

174 This alludes to close relatives, who must be freed on one’s acquiring them.

175 That is, someone with this little is expected to make penance by fasting, not otherwise.

176 The obligation referred to is a debt of gratitude. Trading it for something else one desires does not erase such a debt and violates an oath of renunciation. However, trading it for something else because it was poorly made, for example, would be acceptable (Abū Yaʿlā, Šarḥ, vol. 2, p. 635; Ibn Qudāma, Muġnī, vol. 13, pp. 566–567; Zarkašī, Šarḥ, vol. 7, p. 173).

177 See for example Abū Dāwūd, Kitāb al-aymān wa-l-nuḏūr 28, bāb fī-man naḏara an yataṣaddaqa bi-mālih, nos 2319–2320.

178 For al-Ḫiraqī, ʿālim may have indicated especially one knowledgeable of hadith, faqīh knowledgeable of jurisprudence. Abū Yaʿlā interprets ʿālim merely as disqualifying an illiterate (Šarḥ, vol. 2, pp. 664–665), but Ibn Qudāma expressly denies that illiteracy is a disqualification, pointing to the Prophet as an illiterate who was nonetheless the best judge ever (Muġnī, vol. 14, pp. 16–17). The majority view of the school evidently came to be that literacy is not required, for which see Mardāwī, Inṣāf, vol. 11, pp. 179–180. There is unusual disagreement in the manuscripts and commentaries as to the order of these qualities.

179 Al-Ḫiraqī strongly prefers ḥākim, here translated as “judge”, to qāḍī, here anglicized as “qadi”, but they are apparently interchangeable. Versions of the hadith report on which the present rule is based use almost every combination of the nouns qāḍī, ḥākim, and ḥakam, the verbs qaḍā and ḥakama. They sometimes even come with a comment that some transmitter alternated between them. See for example Šāfiʿī, Umm, vol. 8, p. 211; Buḫārī, Kitāb al-aḥkām 13, bāb hal yaqḍī al-qāḍī aw yuftī wa-huwa ġaḍbān, no. 7158; Muslim, Kitāb al-aqḍiya 7, bāb karāhat qaḍāʾ al-qāḍī wa-huwa ġaḍbān, no. 1717; Abū Dāwūd, Kitāb al-aqḍiya 9, bāb al-qāḍī yaqḍī wa-huwa ġaḍbān, no. 3589; Tirmiḏī, Kitāb al-aḥkām 7, bāb mā ǧāʾa lā yaqḍī al-qāḍī wa-huwa ġaḍbān, no. 1334; and Ibn Māǧa, abwāb al-aḥkām 4, bāb lā yaḥkumu al-ḥākim wa-huwa ġaḍbān, no. 2316.

180 This functionary is called “divider of inheritances” by Schacht (Introduction, p. 189), “distributor” by Kiani (Qudūrī, Mukhtaṣar, p. 532), and his work probably was dominated by dividing inheritances.

181 The Tanta and ʿAǧmī editions of the Muḫtaṣar read illā mimmā yaṭṭaliʿu ʿalayhi al-riǧāl, but illā is missing from the Šāwīš edition and the commentaries and ignored in my translation (see Abū Yaʿlā, Šarḥ, vol. 2, p. 680; Ibn al-Bannā, Muqniʿ, vol. 4, p. 1296; Ibn Qudāma, Muġnī, vol. 14, p. 126; and Zarkašī, Šarḥ, vol. 7, p. 302).

182 That is, such a person may testify as to something observed in secret.

183 There is some textual uncertainty here. My translation follows the ʿAǧmī edition, in agreement with Abū Yaʿlā (Šarḥ, vol. 2, p. 708) and Ibn Qudāma (Muġnī, vol. 14, p. 228). The Šāwīš and Tanta editions read here ʿalā nafy al-ʿilm, apparently to deny knowledge of something, in agreement with al-Zarkašī (Šarḥ, vol. 7, p. 379) and Ibn al-Mibrad (Durr, vol. 3, p. 818).

184 The commentaries explain that he is entitled to use their property, making him an interested party.

185 See for example Tirmiḏī, Kitāb al-aḥkām 12, bāb mā ǧāʾa fī anna al-bayyina ʿalā al-muddaʿī wa-l-yamīn ʿalā al-muddaʿā ʿalayh, no. 1341. Hadith on basic judicial procedure was still shakily established in al-Ḫiraqī’s time, but all the Sunni and most of the Shiʿi schools agreed at the practical level. See now Yanagihashi, Studies, chap. 8.

186 That is, he may reopen the case.

187 See for example Tirmiḏī, Kitāb al-buyūʿ 38, no. 1264, followed by a short disquisition from the collector explaining an application just like al-Ḫiraqī’s.

188 Each partner’s allegation that the other set free his half implies that the slave has become wholly free and that the other, being wealthy, now owes him half the slave’s value.

189 The implication is that the slave is a close relative he is not allowed to own.

190 Khalid translates “likewise” (fa-kaḏālika) as “one or all of them become free accordingly” (‘“Mukhtasar”’, p. 293), but that assumes that all of them can fit within the one-third of an estate allowed to be disposed of by testament. I am inclined to think that al-Ḫiraqī has in mind rather choosing among the slaves by lot, supposing that only some fit within the one-third. Compare for example Abū Yaʿlā’s discussion, entirely about why it is right to draw lots as opposed to freeing some fraction of each slave (Šarḥ, vol. 2, pp. 742–744).

191 The catch is that a slave cannot own property; rather, all that he has belongs to his master.

192 That character is his death.

193 Sāʾir al-waraṯa means all of the heirs, according to Ibn Qudāma, Muġnī, vol. 14, p. 470, and Zarkašī, Šarḥ, vol. 7, p. 493.

194 The significance of this odd prohibition is said to be that such a trade would constitute ribā, impossible between a master and a normal slave on account of the latter’s having no independent power of ownership: Ibn Qudāma, Muġnī, vol. 14, pp. 485–486, and Zarkašī, Šarḥ, vol. 7, pp. 495–496.

195 “The like of it going to his master (wa-miṯluhu li-sayyidihi)” is a puzzling parenthesis but seems to indicate that he owes equal effort to each of his half-owners while he is working to fulfil his contract of half-manumission.

Haut de page

Pour citer cet article

Référence papier

Christopher Melchert, « Al-Muḫtaṣar of al-Ḫiraqī (d. 334/945–946) »MIDÉO, 38 | 2023, 107-268.

Référence électronique

Christopher Melchert, « Al-Muḫtaṣar of al-Ḫiraqī (d. 334/945–946) »MIDÉO [En ligne], 38 | 2023, mis en ligne le 25 octobre 2023, consulté le 10 mars 2026. URL : http://journals.openedition.org/mideo/8756

Haut de page

Auteur

Christopher Melchert

Oxford University (ret.)

Haut de page

Droits d’auteur

CC-BY-NC-ND-4.0

Le texte seul est utilisable sous licence CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont susceptibles d’être soumis à des autorisations d’usage spécifiques.

Haut de page
Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search