Haram (Forbidden)

I.3 Haram (Forbidden)

According to the majority of ulema, haram (also known as mahzur) is a binding demand of the lawgiver in respect of abandoning something, which may be founded in a definitive or a speculative proof.

Committing the haram is punishable and omitting it is rewarded. But according to the Hanafis, haram is

a binding demand to abandon something which is established in definitive proof; if the demand is founded in speculative evidence, it constitutes a makruh tahrimi, but not haram. The former resembles the latter in that committing both is punished and omitting them is rewarded. But the two differ from one another insofar as the willful denial of the haram leads to infidelity, which is not the case with

regard to makruh tahrimi. [21. Qasim, Usul, p. 225; Aghnides, Muhammedan Theories, p. 89; Abdur Rahim, Jurisprudence, p. 198.]

The textual evidence for haram occurs in a variety of forms, which may be summarised as follows:

Firstly, the text may dearly use the word haram or any of its derivatives. For example, the Qur'anic text which provides, 'forbidden to you [hurrimat 'alaykum] are the dead carcass, blood and pork' (al- Ma'idah, 5:3); and `God permitted sale but prohibited [harrama] usury (al-Baqarah, 2:275). Similarly, the Hadith which provides, 'everything belonging to a Muslim is forbidden [haram] to his fellow

Muslims: his blood, his property and his honour'. [22. Muslim, Sahih Muslim, p. 473, Hadith no. 1775.]

Secondly, haram may be conveyed in other prohibitory terms which require the avoidance of a certain form of conduct. For example, there is the Qur'anic text which provides, 'slay not [la taqtulu] the life that God has made sacrosanct, save in the course of justice' (al-Ma'idah, 5:90); and 'devour not [la ta' kulu] one another's property in defiance of the law' (al-Baqarah, 2:188).

Thirdly, haram may be communicated in the form of a command to avoid a certain form of conduct. For example: there is the Qur'anic text which provides that wine-drinking and gambling are works of the devil and then orders the believers to 'avoid it (al-Ma'idah, 5:90).

Fourthly, haram may be communicated through expressions such as 'it is not permissible' or 'it is unlawful' in a context which is indicative of total prohibition. For example, the Qur'anic text which proclaims that `it is not permissible for you [la yahillu lakum] to inherit women against their will' (al- Nisa', 4:19), or the Hadith which provides 'it is unlawful [la yahillu] for a Muslim to take the property

of another Muslim without his consent'. [23. Bayhaqi, al-Sunan al-Kubra, III, 10.]

Fifthly, haram is also identified by the enactment of a punishment for a certain form of conduct. There are many instances of this in the Qur'an and Sunnah. The hudud penalties are the most obvious examples of this variety of haram. As is implied by its name, the hadd penalty is specific in reference to both the quantity of punishment and the type of conduct which it penalises. Alternatively, the text which communicates tahrim may only consist of an emphatic condemnation of a certain act without specifying a penalty for it as such. Thus the Qur'an prohibits devouring the property of orphans by denouncing it in the following terms: 'Those who eat up the property of orphans swallow fire into their own bodies; they will soon be enduring a blazing fire' (al-Nisa', 4:10).

Haram is divided into two types: (a) haram li-dhatih or `that which is forbidden for its own sake', such as theft, murder, adultery, marrying a close relative and performing salah without an ablution, all of which are forbidden for their inherent enormity; and (b) haram li-ghayrih, or 'that which is forbidden because of something else'. An act may be originally lawful but has been made unlawful owing to the presence of certain circumstances. For example: a marriage which is contracted for the sole purpose of tahlil, that is, in order to legalise another intended marriage, performing salah in stolen clothes, and making an offer of betrothal to a woman who is already betrothed to another man. In each of these examples, the act involved is originally lawful but has become haram owing to the attending circumstances. A consequence of this distinction between the two varieties of haram is that haram li- dhatih, such as marriage to one's sister or the sale of dead carcasses, is null and void ab initio (batil), whereas violating a prohibition which is imposed owing to an extraneous factor is fasid (irregular) but not batil, and as such may fulfill its intended legal purpose. A marriage which is contracted for the purpose of tahlil is clearly forbidden, but it validly takes place nevertheless. Similarly, a contract of sale which is concluded at the time of the Friday prayer is haram li-ghayrih and is forbidden. But according to the majority of ulema the sale takes place nevertheless; with the exception of the Hanbalis and

Zahiris, who regard such a sale as batil. [24. Khallaf, 'Ilm, p. 113; Abu Zahrah, Usul, p. 34; Abu 'Id, Mabahith, p. 70ff.]

Another consequence of this distinction is that haram li-dhatih is not permissible save in cases of dire necessity (darurah) of a kind which threatens the safety of the 'five principles' of life, religion, intellect, lineage and property. In this way, uttering a word of infidelity, or drinking wine, is only permitted when it saves life. Haram li-ghayrih, on the other hand, is permissible not only in cases of absolute necessity but also when it prevents hardship. Thus a physician is permitted to look at the private parts of a patient

even in the case of illnesses which do not constitute an immediate threat to life. [25. Abu Zahrah, Usul, p. 35; Qasim,

Usul, p. 226 ff.]

Another criterion for distinguishing the two varieties of haram that some ulema have mentioned is that haram li-ghayrih consists of an act which leads to haram li-dhatih. In this way, looking at the private parts of another person is forbidden because it can lead to zina, which is haram by itself. Similarly, marrying two sisters simultaneously is haram because it leads to the severance of ties of kinship

(qat`al-arham), which is haram by itself. [26. Abu Zahrah, Usul, p.34.]