Mubah (Permissible)

I.5 Mubah (Permissible)

Mubah (also referred to as halal and ja'iz) is defined as communication from the Lawgiver concerning the conduct of the mukallaf which gives him the option to do or not to do something. The Lawgiver's communication may be in the form of a clear nass such as the Qur'anic text which provides, in a reference to foodstuffs, that `this day all things good and pure have been made lawful (uhilla) to you [...]' (al-Ma'idah, 5:6). Alternatively the text may state that the mukallaf will not incur a sin, blame or liability if he wishes to act in a certain way. Concerning the permissibility of betrothal, for example, the Qur'an provides, `there is no blame on you [la junaha `alaykum] if you make an offer of betrothal to a woman [. . .]' (al-Baqarah, 2:235). Similarly, committing a sinful act out of sheer necessity is permissible on the authority of the Qur'an, which provides, `If someone is compelled by necessity without willful disobedience or transgression, then he is guiltless [fala ithma `alayh]' (al-Baqarah,

2:173). [35. Ghazali, Mustasfa, I, 42; Khallaf, 'Ilm, p. 115; Abdur Rahim, Jurisprudence, p. 198.]

Sometimes a command to the Qur'an may only amount to permissibility when the nature of the conduct in question or other relevant evidence indicates that such is the case. An example of this is the text which orders worshippers to `scatter in the earth' once they have completed the Friday prayers (al- Jumu`ah, 62:10). Although the believers have been ordered to `scatter in the earth', the nature of this command and the type of activity to which it relates suggest that it conveys permissibility only.

In the event where the law provides no ruling to specify the value of a certain form of conduct, then according to the doctrine of istishab al-asl (presumption of continuity), permissibility (ibahah) remains the original state which is presumed to continue. The authority for this presumption is found in the Qur'anic text which provides, in an address to mankind, that God Almighty `has created everything in the earth for your benefit' (al-Baqarah, 2:29). By implication, it is understood that the benefit in question cannot materialise unless `everything in the earth' is made mubah for mankind to use and to utilise in the first place.

Mubah has been divided into three types. The first is mubah which does not entail any harm to the individual whether he acts upon it or not, such as eating, hunting or walking in the fresh air. The second type of mubah is that whose commission does not harm the individual although it is essentially forbidden. Included in this category are the prohibited acts which the Lawgiver has made permissible on account of necessity, such as uttering words of unbelief raider duress, or eating the flesh of a dead carcass to save one's life. The third variety of mubah is not really mubah per se; it is included under mubah for lack of a better alternative. This category of mubah consists of things which were practiced at one time but were then prohibited with the proviso that those who indulged in them before the prohibition are exonerated. The Qur'an thus prohibits marriage with certain relatives, and the text then continues to make an exception for such marriages that might have occurred in the past (al-Nisa', 4:22). Similarly, wine-drinking was not prohibited until the Prophets migration to Madinah, and fell under the category of mubah until the revelation of the ayah in sura al-Ma'idah (5:90) which imposed a total ban

on it. [36. Abu 'Id, Mabahith, pp. 84-88.]

It would be incorrect, as al-Ghazali explains, to apply the term 'mubah' to the acts of a child, an insane person, or an animal, nor would it be correct to call the acts of God mubah. Acts and events which took place prior to the advent of Islam are not to be called mubah either. 'As far as we are concerned, our position regarding them is one of abandonment [tark]', which obviously means that such activities are not to be evaluated at all. Mubah proper, al-Ghazali adds, is established in the express permission of Almighty God which renders the commission or omission of an act permissible either in religious terms

or in respect of a possible benefit or harm that may accrue from it in this world. [37. Ghazali, Mustasfa, I, 42.]

The ulema of usul definitely consider mubah to be a hukm shar'i, although including it under al-hukm al-taklifi is on the basis of mere probability as there is basically no liability [taklif] in mubah as one of the five varieties of defining law. The Hanafis have only differed with the majority with regard to the sub-divisions of wajib and makruh as already explained, but not with regard to mubah.

Bearing in mind the two sub-divisions of wajib and makruh that the Hanafis have added to al-hukm al- taklifi, the Hanafis thus classify the latter into seven types, whereas the majority divide it into five varieties only.