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Time and Moral Choice in Islamic Jurisprudence
Published online by Cambridge University Press: 15 February 2022
Abstract
Even though the Islamic legal tradition advanced its own set of conceptions of time, modern scholarship on Islamic law has not paid much attention to these conceptions. This paper argues that Islamic jurisprudents understood time in moral terms, not as a neutral container or mere background for action, but as a series of opportunities in which the authority of divine revelation and human moral reasoning are articulated. I suggest that the debates over the manners of compliance with divine commands in time were attempts at reaching some form of balance between the considerations of faithfulness to the demands of divine revelation and the practical imperatives of human temporal lives. This argument is advanced through a study of classical debates among jurists within the two major Sunnī schools of jurisprudence on the specific question of whether divine commands that are devoid of time indications should result in immediate or delayed performance.
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References
1. Siân Beynon-Jones & Emily Grabham, “Introduction” in Siân Beynon-Jones & Emily Grabham, eds, Law and Time (Routledge, 2018) 1 at 1. Frederic Bloom also observes that time is an understudied concept, in spite of its central importance to understanding law’s authority: “time is an overlooked but essential element in modern law—a tool of power, punishment, and progress—and so we must take a more time-sensitive point of view.” Frederic Bloom, “The Law’s Clock” (2015) 104:1 Geo LJ 1 at 55. The same idea that time in law does not receive the degree of attention commensurate with its importance was also raised in Rebecca French, “Time in the Law” (2001) 72:3 U Colo L Rev 663.
2. Beynon-Jones & Grabham, supra note 1 at 1.
3. Carol J Greenhouse, “Just in Time: Temporality and the Cultural Legitimation of Law” (1989) 98:8 Yale LJ 1631 at 1631.
4. Renisa Mawani, “Law as Temporality: Colonial Politics and Indian Settlers” (2014) 4:1 UC Irvine L Rev 65 at 71.
5. Lynn Kaye, Time in the Babylonian Talmud: Natural and Imagined Times in Jewish Law and Narrative (Cambridge University Press, 2018) at 1-2. Among the many interesting insights into ideas of time in Talmudic legal reasoning is that space and motion-related images are helpful in understanding the concept of time in that tradition.
6. Ibid at 54-55.
7. See William E Conklin, “Legal Time” (2018) 31:2 Can JL & Jur 281.
8. The idea that time in Islamic thought is central to the understanding of human moral accountability was also advanced in LE Goodman, “Time in Islam” (1992) 2:1 Asian Philosophy 3. Goodman’s article, like Böwering’s below, focuses on philosophical and theological discussions.
9. See Gerhard Böwering, “The Concept of Time in Islam” (1997) 141:1 Proceedings of the American Philosophical Society 55.
10. In his conclusion, Böwering highlights the areas that his paper does not study: “I have not talked about the intricate timing of ritual prayer in Islam, the complex literature on time in Islamic astronomy, the work of al-Bīrūnī’s Chronology, al-Tūsī’s work on the duodecennial animal cycle, the reflections of Islamic historians on their use of time in annals and biographies, or the role time plays in poetical meter and musical mode. I also neglected aspects of time brought to light by anthropologists and sociologists in the myriad ethnic traditions of Islam.” Ibid at 66. Many of the debates discussed in the present article take the “intricate timing of prayer” and other rituals as their central examples, although they extend to all types of rights and obligations that could arise under Islamic law. For a recent discussion of the history of Islam as “ethical time,” see Wael B Hallaq, Reforming Modernity: Ethics and the New Human in the Philosophy of Abdurrahman Taha (Columbia University Press, 2019) at 12-13.
11. See Jon McGinnis, “The Topology of Time: An Analysis of Medieval Islamic Accounts of Discrete and Continuous Time” (2003) 81:1 Modern Schoolman 5.
12. Ibid at 6-7.
13. See Peter Adamson, “The Existence of Time in Faḫr al-Dīn al-Rāzī’s al-Maṭālib al-ʿāliya,” in Dag Nikolaus Hasse & Amos Bertolacci, eds, The Arabic, Hebrew and Latin Reception of Avicenna’s Physics and Cosmology (De Gruyter, 2018) 65 at 67.
14. A distinction can be helpfully made between the time in which commands are made and the time in which legal rulings arise, although these are closely related issues. A fundamental theological debate occurred on whether divine speech, commands included, is eternal (qadīm) or created at the time of revelation (ḥādith). In both of these accounts, commands would have been made at a time prior to the determination of how urgently compliance in a particular case must occur. In classical jurisprudence, this led to a disagreement on whether commands are eternal meanings or the concrete words of revelation. In some early post-classical works, such as al-Bayḍāwī’s (d. 1282), we can see the continuation of these disagreements into the realm of juristic pronouncements. For example, see ʿAbd Allāh b ʿUmar Bayḍāwī, Minhāj al-wuṣūl ilā ʿilm al-uṣūl, ed by Shaʿbān Muḥammad Ismāʿīl (Dār Ibn Ḥazm, 2008) at 53-54.
15. Abrogation is a widely discussed and studied concept in Islamic exegetical and legal theory, and broadly refers to the idea of replacement of a revealed text or the injunction that follows from it by another one. This theory raises many questions pertaining to the understanding of time and history. A study of the idea of abrogation in Ḥanafī legal theory can be found in Rumee Ahmed, Narratives of Islamic Legal Theory (Oxford University Press, 2012) at 52-66.
16. In the philosophy of time, it is common to distinguish between the cosmological and personal aspects of time. The first pertains to time as historical movement: the coming-into-being and constant becoming of the world. The second concerns time as an element of human consciousness, which is inseparable from ethics. For example, see John Panteleimon Manoussakis, The Ethics of Time: A Phenomenology and Hermeneutics of Change (Bloomsbury Academic, 2018) at xiii. A similar dichotomy can be observed in Islamic traditional sciences. On the one hand, Islamic scriptural and theological discussions which underlie and inform the legal tradition, are filled with reflections on the world’s temporality and God’s eternity, the recurrence of natural phenomena, the importance of consistency in worship, and timeliness in matters of transaction. Being embodied in time (ḥādith) was, in theological discourse, the defining characteristic of the immanent, or the non-divine. On the other hand, in jurisprudential discourse, time and timeliness were necessary criteria for the proper fulfillment of one’s duties, an integral component of human moral life. The distinction between the world of movement and temporality that embodies human moral consciousness and the metaphysical world, which John Manoussakis places at the heart of Christian and Platonic thought, is also true in the Islamic context. A distinction in exegetical and theological discussions of time between eternity, epochs, and time periods was observed by Stern: “According to al-Bayḍāwī in the Anwār at-tanzil wa-asrār at-taʾwīl (The Lights of the Revelation and the Secrets of the Interpretation), time consists of mudda, the period of revolution of the sphere from beginning to end (i.e., the totality of time); az-Zamān, a gross subdivision of mudda into long periods of time (e.g., specific historical eras such as dynastic reigns); and al-Waqt, a fine subdivision of zamān into definite points of time or short intervals (e.g., precise times of the five obligatory prayers).” MS Stern, “Time in Islam” in Helaine Selin, ed, Encyclopaedia of History of Science, Technology, and Medicine in Non-Western Cultures (Springer Netherlands, 2008) 2132 at 2132.
17. Conklin, supra note 7 at 281-84.
18. Another level of engagement with the question of divine moral demands over human lives, which are constituted of time, can be found in mystical (Ṣūfī) literature. Although this is beyond the scope of this study, it is worth noting that time was sometimes referenced in Ṣūfī works as a series of mental states that are defined primarily by obedience or disobedience to God. This extensive sense of responsibility of the worshiper is contrasted with the “legal” rights, which were more flexible and less pressing. For example, in al-Ḥikam of Ibn ʿAṭā (d. 1309), it is held that “duties in time may be postponed, but duties of time may not, since there is not a moment in time in which God does not impose on you a new duty and an unambiguous demand. How, then, could we use our time to fulfil duties towards others when we have not fulfilled our duties towards God?” ʿAbd al-Majīd Sharnūbī, Sharḥ al-Ḥikam al-ʻĀṭāʼiyya (Dār Ibn Kathīr, 1989) at 139. In his commentary, al-Sharnūbī explains that duties in time are specific legal actions, whereas duties of time are “internal” states which require that every human must constantly experience blessing, curse, obedience, or disobedience. Each of those states imposes an internal demand on humans towards God. In fact, human time on earth is entirely constituted by those four states, according to Sharnūbī, ibid.
19. See Jeanette Wakin, “Interpretation of the Divine Command in the Jurisprudence of Muwaffaq al-Dīn Ibn Qudāmah” in Nicholas Heer, ed, Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh (University of Washington Press, 1990) at 44-45. For another study that highlights this dimension of Islamic legal theories see Aron Zyzow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (Lockwood Press, 2013).
20. Stern, supra note 16 at 2133.
21. Ibid.
22. For example, although he correctly observed that time served as “an arena for moral action,” MS Stern reached the obviously erroneous conclusion that: “There is an implicit ambivalence as regards the pursuit of scientific and technological knowledge. In so far as the Muslim centers his consciousness on God, his greatness and omnipotence, he can easily succumb to a fatalistic acceptance of what comes to him. He then asserts God’s absolute will and denies causality in nature. Without cause and effect there is no necessary natural order. In so far as man sees time as his sphere of action, he can hear the Quranic command to perceive God in his Creation. Exploration of the world becomes an act of moral compliance.” Ibid.
23. Manṣūr b. Muḥammad Samʿānī, Qawāṭiʿ al-adilla fī l-uṣūl, ed by Muḥammad Ḥasan Muḥammad Ḥasan Ismāʿīl al-Shāfiʿī (Dār al-Kutub al-ʿIlmiyya, 1997) vol 1 at 75. A later Shāfiʿī, Sayf al-Dīn al-Āmidī (d. 1233), paints a similar picture. See Sayf al-Dīn Al-Āmidī, al-Iḥkām fī uṣūl al-aḥkām, ed by Ibrahīm al-ʿAjūz (Dār al-Kutub al-ʻIlmiyya, 1985) vol 1 at 387-88.
24. I say ‘very schematic’ because there is a range of disagreements within each school on the specifics of each of those schemes. For example, some prominent Shāfiʿīs held that, although immediate performance is not required, one must have the intent (ʿazm) to perform at a later point if they choose to postpone. In that case, intent acts as an alternative to actual performance until compliance with command takes place. The Shāfiʿī debates on whether intention to perform is required in the event of postponement can be found in Bayḍāwī, supra note 14 at 61-62.
25. This distinction can also be understood along the lines of the ideas of ‘point in time’ and ‘time duration’ developed in Liaquat Khan, “Temporality of Law” (2009) 40:1 McGeorge L Rev 55.
26. Aḥmad b ʿAlī al-Rāzī al-Jaṣṣāṣ, Uṣūl al-fiqh al-musammā al-fuṣūl fī l-uṣūl, 2d ed by ʿUjayl Jāsim Nashamī (Wizārat al-Awqāf wa l-Shuʾūn al-Islāmiyya, 1994) vol 2 at 107. The issue of obedience “in the first instant of possibility” was further analyzed in later jurisprudence. Zarkashī (d. 1392) asks whether, in an abstract sense, obligation arises as soon as the designated time arrives or only when compliance becomes possible. Zarkashī’s chosen position from within the Shāfiʿī views is that obligation arises with the arrival of time, becomes “firmly established” (yastaqirru wujūbuhā) with possibility, and may be postponed until the last segment of the designated time. Abū Abdullāh Badr al-Dīn Zarkashī, Al-Baḥr al-muḥīṭ fī uṣūl al-fiqh, ed by ʿAbdulqadir ʿAbdullāh al-ʿĀnī (Wizārat al-awqāf wa l-shu’ūn al-Islamiyya, 1992) vol 1 at 216-17. The position that it is acceptable for obligation to be established and still be permissible to postpone performance will be explained in the context of Samʿānī’s thought.
27. It is worthwhile to observe that the line between the philosophical and theological discussions of time, although not our central focus here, has not been always drawn in a uniform manner. For example, al-Tahānawī suggests that the difference between philosophical accounts of time, which were influenced by the Greek traditions, as opposed to traditional theological accounts, rests on the issue of existence of time, rather than whether or not it was linear as opposed to atomistic. In his entry on time (zamān), Tahānawī explained that a view prevalent among “ancient” philosophers is that time consists of an “atom devoid of matter” and that it “exists by necessity,” which of course is a view that would be theologically unacceptable to many scholars who believed that only God existed by necessity. Muḥammad ʿAlī al-Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, ed by Lutfī ʿAbd al-Badīʿ (Dār Ṣādir, 1963) vol 2 at 619. Tahānawī also relates the Aristotelian idea that time is a way of measuring (miqdār) motion (ḥaraka) and does not have a separate existence. Theologians, by contrast, disagreed on whether time was a manner of measuring existence (miqdār al-wujūd), or whether it is merely an imagined thing (mawhūm) that humans use to construct pasts that no longer exist and futures that are not here yet. Ashʿarīs, he further explains, were among the theologians who believed that time had an atomistic existence and was in constant renewal, a view that aligns with some of the conceptions of time we find in jurisprudence. See ibid at 619-21.
28. Jaṣṣāṣ, supra note 26 at 107 [emphasis added].
29. Ibid.
30. Ibid at 107-08 [emphasis added].
31. Ibid at 108.
32. Jaṣṣāṣ here maintains that only performance at the first moment of possibility is a proper primary performance (adāʾ), whereas performance in any following moment is a form of secondary compliance (qaḍāʾ). The distinction between adāʾ and qaḍāʾ is a fairly standard one in works of Islamic law and jurisprudence. We could still see some nuances in the way different scholars understood this distinction. The illustrious Abū Ḥāmid al-Ghazalī (d. 1111) distinguished between three types of performance. Fulfilling one’s obligation on time is called adāʾ. Performance that is done after the designated time period “whether restricted (muḍayyaq) or extended (muwassaʿ) is called qaḍāʾ.” Abū Ḥāmid al-Ghazālī, al-Mustaṣfā min ʻilm al-uṣūl, ed by Tāha al-Shaykh (al-Maktaba al-Tawfīqiyya, 2010) at 137. Finally, if the act is performed a second time “because of some defect (khalal) but within the allocated time,” it is called a repetition (iʿāda) (ibid). Implicit in this position is the Shāfiʿī view that performing the same act in different times is akin to performing the same act, as long as one performs in the specified time window. Ghazalī also follows Samʿānī in his view (discussed below) that the subjective sense of the impending impossibility of performance is what places a limitation on the extended duration in which performance can take place (ibid). Samarqandī (d. 1089), while he held the opposed position that performance in any moment in the designated period is adāʾ, made the interesting argument that, if a prayer started shortly before the expiration of its duration extends into the next period, then it would be part adāʾ and part qaḍāʾ. Samarqandī here seems to extend Sarakhsī’s method, which aligns action in time with standard categories of jurisprudence. See ʿAlāʼ al-Dīn Muḥammad b Aḥmad Samarqandī, Mīzān al-uṣūl: fī natāʼij al-ʿuqūl (al-Mukhtaṣar), ed by Muḥammad Zakī ʿAbd al-Bar (Wizārat al-Awqāf wa l-Shuʾūn al-Islāmiyya, 1984) at 215-16.
33. Jaṣṣāṣ’s views on this matter only partially align with his prominent predecessor Abū l-Ḥusayn al-Karkhī (d. 952). While Karkhī reportedly held that an untimed command must be obeyed immediately, and spoke of time as a succession of moments, he did not hold the view that a secondary obligation will renew indefinitely as long as it remains unfulfilled, as Jaṣṣāṣ did. Some of Karkhī’s arguments were collected by Ḥusayn Jubūrī: “On the issue of unspecified command, whether it is not immediately performed in the first instant of possibility (fī awwali aḥwāli l-imkān) must be performed later, or would we need evidence for that: Karkhī held that later performance is not indicated by the command itself but requires further proof. He supported this claim in the following manners. First, a commanded act may be performed [in the first or] second instants, but not the third, since we should neither obey commands too early or too late. Second, mere command imposes obligation by way of immediacy and so falls in the first moment of possibility. Since time-specific commands may not be performed at a later time, the same can be said of unspecific commands.” Ḥusayn Khalaf Jubūrī, al-Aqwāl al-uṣūliyya lil Imām Abī l-Ḥasan al-Karkhī (Maṭābiʿ al-Ṣafā, 1989) at 47-48 [emphasis added].
34. Muḥammad b Aḥmad b Sahl Sarakhsī, Uṣūl al-Sarakhsī, ed by Abū l-Wafā Afghānī (Lajnat Iḥyāʾ al-Maʿārif al-ʿUthmāniyya, 1993) vol 1 at 27. An explanation of the idea of the unrestricted in the thought of al-Āmidī was provided by Bernard Weiss. He explains unrestricted (muṭlaq) in conjunction with the more extensively studied general (ʿām) expressions: “Among the remaining tasks the mujtahid must turn to, one of the most important is the determination of the scope or range of the rule’s application. This requires him to deal with two important types of expressions: the ‘general’ (ʿāmm) expression and the ‘unqualified’ (mutlaq) expression. A good example of a general expression is the expression ‘the thief’ (al-sāriq) in Qur’ān 5:38 (‘As for the thief, both male and female, cut off their hands’); and a good example of an unqualified expression is the expression ‘a slave’ in Qur’ān 58:3 (‘Those who put away their wives and afterward would go back on that which they have said, [the penalty] in that case [is] the freeing of a slave’).” Bernard G Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi (University of Utah Press, 2010) at 382-83. We can surmise from these examples that generality tends to characterize the range of individuals or actions upon which the rule is imposed, whereas ‘restricted’ or ‘unrestricted’ pertain to the range of licenses or possibilities that a person might take in complying to a divine injunction, which places the question of time into the realm of the un/restricted as opposed to the general or specific.
35. Sarakhsī, supra note 34 at 27.
36. Ibid.
37. Tahānawī explained that ẓarf was used to refer to a range of meanings, including “the condition of validity of an act, whether in time or in place.” Tahānawī, supra note 27 at 933. When it is used to refer to a duration of time in which an act could validly be performed, it could be divided into segments of definite beginning and end, and those that are unclear or ambiguous. The discussion of a time segment as a condition of validity of action signifies the important shift that occurs between discussions of the pure concept of time, which was predominant in philosophical conversations, as opposed to discussions of legal time, which were mainly concerned with the validity and moral status of actions (see ibid at 933-36).
38. Sarakhsī, supra note 34 at 30.
39. Adamson, supra note 13 at 67.
40. Ibid.
41. An important background to this distinction is a more fundamental debate on whether divinely ordained obligations can only be found in divine speech. For some Transoxanian scholars, such as Abū Zayd al-Dabūsī (d. 1038), non-textual occurrences, such as the arrival of the time of prayer, effectively give rise to obligation. A discussion of this debate was provided by Aron Zysow in his investigation of the theological roots of some Ḥanafī jurisprudential positions. Zysow refers to the distinction between the requirement to perform and the “underlying obligation” in Transoxanian Ḥanafī legal theory. Zysow’s view, which confirms my above analysis, was that the Transoxanian distinction between obligation and performance was developed in response to some occasionalists who argued that the recurrence of time brings with it renewal of obligation in an atomistic fashion. Ḥanafīs believed that “only the obligation of performance is based on God’s communications (khitab). The underlying obligation, by contrast, does not issue from a communication from God, as for al-Ghazzali. Rather it is built into the natural order of time and place, so to speak, although in fact our knowledge of what times and places have been instituted by God as occasions will have to be gleaned from textual sources. This is the gist of the Central Asian theory of occasions shorn of details and without reference to internal controversies.” Aron Zysow, “Muʿtazilism and Mātūrīdism in Ḥanafī Legal Theory” in Bernard Weiss, ed, Studies in Islamic legal theory (Brill, 2002) 235 at 259. The Transoxanian Ḥanafī view can be seen in Dabūsī’s discussion of the non-textual sources of rights and obligations. Dabūsī’s was the view that the existence of concrete conditions of obligation, such as the time of prayer or arrival of Ramadan, are causes of obligation (asbāb) that give rise to it independently of divine command. See ʿAbd Allāh b ʿUmar Abū Zayd Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh, ed by Khalīl Muḥyī al-Dīn Mays (Dār al-Kutub al-ʿIlmiyya, 2001) at 418.
42. The distinction between the time of emergence and performance of obligation can be traced to discussions in Transoxanian Ḥanafī jurisprudence, notably by Dabūsī, on the difference between obligations imposed by natural occurrences, and commands imposing the necessity to act. See Zysow, supra note 41 at 259-60. The distinction between the textual and non-textual origins of obligations will not concern us much here, although it is worth noting that Samʿānī dedicates a lengthy section to the refutation of Dabūsī’s view that divine discourse (khiṭāb) imposes the necessity to act as opposed to the obligation itself. See Samʿānī, supra note 23 at 292-301.
43. Sarakhsī, supra note 34 at 30.
44. Underlying this distinction between times giving rise to obligation and those that are a criterion (miʿyār) of validity is the bigger question of whether norms can arise from natural circumstances rather than divine speech. This connection is made more clearly by the Ottoman Ḥanafī jurist Shams al-Dīn al-Fanārī (d.1431). After distinguishing between obligations that are restrained in time and those that are not, Fanārī goes on to distinguish between time that constitutes a precondition (ẓarf) and time as a criterion (miʿyār). The former tends to be longer than the duration of performance, whereas the latter aligns with it perfectly. Muḥammad ibn Ḥamza Fanārī, Fuṣūl al-badāʼiʻ fī uṣūl al-sharāīʻ, ed by Muḥammad Ḥasan Ismāʻīl (Dār al-Kutub al-ʻIlmiyya, 2006) vol 1 at 218. To this extent, Fanārī does not differ from Sarakhsī’s account. The controversy, for Fanārī, lies in the question of whether or not the arrival of a certain time causes the obligation to exist. Fanārī here appears to take a position that is more compromising than his Transoxanian predecessor Dabūsī. He maintained that “the meaning of causality here is that the imposer of obligation, God Almighty, has designed obligation in such a way that it conventionally (iṣṭilāḥī) arises [when time arrives], but not literally (ḥaqīqī). This is the same way with the rise of property upon purchase or burning upon contact with fire” (ibid at 219). This, for Fanārī, is a way of making compliance with divine ordinances easier. It does not ‘literally’ mean that time is the actual cause of the existence of obligation (see ibid at 218-19).
45. Sarakhsī, supra note 34 at 31.
46. Ibid.
47. The use of ‘farḍ’ here suggests that this is an obligation of unequivocal nature, both in its specific details and the authoritativeness of its imposition. For the concept of farḍ in Ḥanafī jurisprudence, see A Kevin Reinhart, “‘Like the Difference between Heaven and Earth’: Hanafī and Shafiʿī Discussions of Fard and Wājib in Theology and Uṣūl” in Bernard Weiss, ed., Studies in Islamic Legal Theory (Brill, 2002) 205-34.
48. The close association between the understanding of time and the language of revelation can be seen in the thought of a later Shāfiʿī, Sayf al-Dīn al-Āmidī, who argued that “whenever performance occurs, whether early or late, it satisfies the command, and there can be no blame for postponement. That is because command’s literal meaning (ḥaqīqa) is requiring action, and nothing more. Therefore, committing the act in any time, early or late, accords with the meaning of command, without fault in the case of postponement, since in that case one would be performing what has been commanded in the way it has been commanded.” Al-Āmidī, supra note 23 at 388.
49. Samʿānī, supra note 23 at 78.
50. Ibid.
51. Ibid at 81 [emphasis added].
52. Rumee Ahmed discusses the idea of waḍʿ in Ḥanafī jurisprudence. Ahmed correctly renders the word as “referent,” although I opt for a different translation here since Samʿānī, unlike the Ḥanafī jurists discussed by Ahmed, was centering his analysis on the words themselves and their positive indications and separating them from any possible idea of intent. See Ahmed, supra note 15 at 37-38. Also capturing the idea of positive or conventional assignment of meaning to language, Bernard Weiss refers to waḍʿ as “the primordial moment of invention” of linguistic meanings. Weiss, supra note 34 at 433. Elsewhere Weiss also uses “assignment,” as I did, to refer to waḍʿ. See ibid at 323. In an article on waḍʿ in Islamic philological sciences, Weiss explains that, whereas exactly how language becomes “posited” or “assigned” to meanings was debated in these classical sciences, the question was never settled. See Bernard G Weiss, “ʿIlm al-waḍʿ: An Introductory Account of a Later Muslim Philological Science” (1987) 34:3 Arabica 339. These debates were sometimes referenced in works of jurisprudence. For example, Samarqanḍī briefly explains that some, especially of Muʿtazilī inclination, thought that language was socially constructed (iṣṭilāḥī), while others held that all meanings were originally determined by God (tawqīfī). Samarqandī, supra note 32 at 388-91.
53. The view that time is not necessarily determinative of the nature of action appears to have survived in later works, as seen in Āmidī’s Iḥkām. He wrote that “[t]ime, even though it necessarily contains the action, need not be part of the meaning of command by necessity. The conditions of action are more numerous than what is meant by commands, and [not everything] needs to be specified. If you command someone to hit a person, that would not necessarily mean that they must use a specific instrument or hit a specific person, even though these are conditions of performance.” Al-Āmidī, supra note 23 at 388. Āmidī evidently continued to uphold Samʿānī’s approach that time can be understood by analogy to other conditions of action, such as the instruments used to perform the act. Āmidī added to this view a more elaborate understanding of the nature of divinely ordained norms: they are by necessity general directives. No general norm could possibly specify all the details required in performance, and so all those details are up to the legal subject’s discretion (ibid). The idea that most of the specific details of action escape the normative realm of the law’s injunctions was even more directly advanced by Badr al-Dīn al-Zarkashī, who made the arguments that “most acts of ritual are up to the worshiper’s discretion (ʿala l-takhyīr). For example, any pure water can be used for ablution, any place or garments are suitable for prayer, and any money is suitable for taxes. The same argument can be extended to time, since a required act can be performed at any moment within the designated period, it is also up to the person’s discretion (ʿalā l-takhyīr) to that extent.” Zarkashī, supra note 26 at 202.
54. Samʿānī, supra note 23 at 84 [emphasis added].
55. Jeanette Wakin observed a similar view in the work of the Ḥanbalī Ibn Qudāma: “Ibn Qudāmah’s adversaries argued that the command ‘Observe the fast!’ must be generally applicable to all time, because it is analogous to using a collective expression to apply to all individuals in a category. Ibn Qudāmah replies that a command makes no allusion to time, but time, like place, is one of the self-evident qualities of a command (ḍarūratihi). Just as a man cannot perform an act in all places, neither can he perform it at all times.” Wakin, supra note 19 at 44. The similarity in treating time as one among many possible features of action is clear. Importantly, Wakin ties this argument to a belief in “our original freedom from abstract responsibility” which she argued was “an important notion in the Ḥanbalī school” (ibid at 45). In other words, non-responsibility in time was seen by Ḥanbalīs like Ibn Qudāma to be a default human condition that can only be altered exceptionally and in specifically designated manners by divine revelation (see ibid at 44-45).
56. On the close association between Muʿtazilism and the Iraqi Ḥanafī school more generally, see Aron Zysow, supra note 41 at 235-36. Zysow included Jaṣṣāṣ among those Iraqi Ḥanafī’s who were “Muʾtazilis, but not renowned theologians whose opinions on theology were preserved in the Mu’tazili tradition” (ibid at 236).
57. Jaṣṣāṣ, supra note 26 at 108 [emphasis added]. The opposite view, advanced, for example, by Sayf al-Dīn al-Āmidī, supposes that performance of an act does not in itself entail performance in a specific time: “a command may or may not indicate immediacy, and in each case, we would say that an act is commanded. The default meaning, when not otherwise specified, is the literal one (al-aṣl fī l-iṭlāq al-ḥaqīqa). The only common meaning between immediacy and non-immediacy is committing the act itself, and so this is the only meaning of command.” Al-Āmidī, supra note 23 at 388. Āmidī, like Samʿānī, attaches the temporal implications of divine speech to specific linguistic categories. What is noteworthy is that both Āmidī and Jaṣṣāṣ advance their positions as a reference to a default meaning. For Jaṣṣāṣ, the default meaning is immediate performance; for Āmidī, it is mere performance, regardless of time. This difference seems to ultimately rest on their differing conceptions of time: for one, time is a feature of action that does not necessarily change its nature; for the other, performing in a different time means performing an altogether different action. See Al-Āmidī, supra note 23 at 388. The idea that mere command only indicates the performance of the act itself was also expressed by Tāj al-Dīn al-Subkī. See Tāj al-Dīn al-Subkī, Jamʿ al-jawāmiʿ fī uṣūl al-fiqh, 2d ed by ʿAbd al-Munʿim Khalīl Ibrāhīm (Dār al-Kutub al-ʿIlmiyya, 2002) at 42.
58. Jaṣṣāṣ, supra note 26 at 107. The idea that God wants us to obey his commands has been widely held in Muʿtazilī theology and legal theory. See e.g. Mankadīm Shishdīw, [Taʿlīq ʿalā] sharḥ al-uṣūl al-khamsa [lil-Qāḍī ʿAbd al-Jabbār] ed by ʻAbd al-Karīm ʻUthmān (Maktabat Wahba, 1965) at 533. (Bracketed portions of this title have been erroneously omitted in this edition). In Muʿtazilī jurisprudence, this position can be found in the work of Abū l-Ḥusayn al-Baṣrī (d. 1044). See Muḥammad b ʿAlī Baṣrī, Kitāb al-Muʻtamad fī uṣūl al-fiqh, ed by Ḥasan Ḥanafī & Maḥammad Bakr (al-Maʿhad al-ʿIlmī al-Faransī lil-Dirāsāt al-ʿArabiyya bi-Dimashq, 1964) vol 1 at 49.
59. Jaṣṣāṣ, supra note 26 at 107.
60. Ibid.
61. Ibid at 109.
62. Ibid.
63. One difficulty with this argument, which treats the urgency of a superior command as a sort of obvious social fact, is that accounts of what is socially true or conventional can vary without possibility of verification. For example, in response to this argument Sayf al-Dīn al-Āmidī simply claimed: “this is only true when there is evidence [that indicates that immediacy is necessary], in which case the command becomes specific (muqayyad). When the command is general, the subordinate can respond ‘I postponed my performance because I did not know immediacy was required,’ and neither argument would be stronger than the other.” Al-Āmidī, supra note 23 at 391. On the claim that it is ‘prudent’ to obey divine commands immediately, Āmidī responded in a way that replicates Samʿānī’s views against overinterpretation: “It is more prudent to follow specifically what we believe God imposed. If we believe immediate compliance is required, then this is what we do, if we believe postponement is allowed, then that is what we follow. If someone believes that postponement is allowed but persists in imposing immediacy, they would be committing a harmful transgression, not being careful.” Ibid.
64. Jaṣṣāṣ, supra note 26 at 123. Another position on the restricted and extended obligation was related later by Shāfiʾī al-Zarkashī. According to this position, performance may be postponed within the designated window of time provided that the subject’s internal mental state is of the intent to perform (ʾazm) in a later moment in time. This position which appears more prominently in later texts seems to attempt a compromise between the plain sense meaning of an extended obligation and the subjective moral implications of consciously postponing an act that was required by God. Zarkashī appeared conscious that this position deviates from some arguments made by himself. See Zarkashī, supra note 26 at 209-10.
65. Jaṣṣāṣ, supra note 26 at 124.
66. Ibid.
67. Later Shāfiʿī literature confirms that the argument according to which action becomes obligatory only as we approach the deadline is more common in Ḥanafī jurisprudence. Al-Zarkasḥī attributed this view primarily to Ḥanafīs, but also noted that this was the position of the prominent Shāfiʿī-Ashʿarī Imām al-Ḥaramayn al-Juwaynī (d. 1085), along with many jurisprudents who held Muʿtazilī views. Zarkashī also confirms, as we will see, that Karkhī, Sarakhsī, and many Shāfiʿīs, held that performance is due throughout the duration of time in an extended (muwassaʿ) manner. Zarkashī, supra note 26 at 214.
68. Jaṣṣāṣ, insisting that command is an expression of divine will which creates the necessity to act in the first moment of possibility, saw all of those arguments as inadequate. Jaṣṣāṣ, supra note 26 at 124.
69. As we saw, Sarakhsī believed that obligation exists in a stable way over a determined duration of time: “my position is that the correct opinion in our school is that it can be delayed (ʿala l-tarākhī), so that the command alone does not establish that immediate performance is necessary.” Sarakhsī, supra note 34 at 26.
70. Ibid.
71. Ibid at 27.
72. Ibid at 26.
73. Ibid.
74. Samʿānī, supra note 23 at 81.
75. Ibid.
76. Bernard Weiss appears to have also understood Āmidī’s position, which largely follows Samʿānī’s, as an effort to restrict the meaning of command to the mere performance of action without imposing too many assumptions on it: “The ifʿal [command] form, he argues, is a zāhir signifier of a calling for an act and nothing else. This being the case, we must, whenever we encounter the ifʿal [command] form, assume as a matter of principle, in the absence of contextual evidence to the contrary, that the speaker intends nothing extraneous to this simple meaning…. Furthermore, it is quite permissible … for one to use the ifʿal form to command either that an act be performed immediately or that it be performed at the leisure of the one commanded. Since it is the context that will indicate which of these is intended, we must regard the ifʿal form as signifying in and of itself only what is common to these two cases—the simple notion of a calling for an act quite apart from the matter of timing.” Weiss, supra note 34 at 370-71.
77. Samʿānī, supra note 23 at 82.
78. Ibid.
79. Ibid at 83. For a similar argument, see Al-Āmidī, supra note 23 at 391.
80. Jaṣṣāṣ, supra note 26 at 112.
81. Dabūsī provided a direct response to Jaṣṣāṣ’s argument. Dabūsī, refuting the position that mere divine command entails immediate compliance, explained that Jaṣṣāṣ was wrong to believe that an obligation categorically leads to the prohibition of omission at every moment: “Abū Bakr al-Jaṣṣāṣ mentioned in his uṣūl that untimed command indicates immediacy, because he believed that a command is a prohibition of omission, and prohibitions are due immediately. For him, performing an action means refraining from omitting it categorically in the same way we would immediately refrain from a prohibited action. [The correct view] is that an obligation indicates the prohibition of omission by way of implication, not direct indication. A clear statement indicates the equivalents of its meaning, for example where showing disrespect is prohibited, cursing is also prohibited. In that sense, obligation is indicated by the command, but the prohibition of its opposite is not indicated by it. We can however infer such prohibition indirectly…. Therefore we hold that prohibition requires immediacy only when it must be carried on for the whole duration of one’s lifetime. Where this is not the case, such as the prohibition to abandon prayer, no immediacy is entailed, since prayer only requires a limited time to perform.” Dabūsī, supra note 41 at 48.
82. Jaṣṣāṣ, supra note 26 at 108.
83. Ibid at 105.
84. An argument for the license to choose the proper time (takhyīr) within the specified time period was made by Samarqandī, who argued that textual evidence of the imposition of prayers shows that the action is required throughout the time period, which typically lasts several hours. Since prayers take a few moments, we would be justified in choosing the appropriate moment to perform within the time window. It becomes due immediately towards the end of the time period (and not, as Samʿānī believed, when one subjectively feels that they might fail to perform). See Samarqandī, supra note 32 at 219-20.
85. Samʿānī, supra note 23 at 82.
86. Ibid.
87. Ibid.
88. Ibid.
89. Felicitas Opwis explains that, even by the time of Jaṣṣāṣ, maṣlaḥa was still a highly controversial concept, including in Ḥanafī debates. See Felicitas Opwis, Maṣlaḥa and the purpose of the law: Islamic discourse on legal change from the 4th/10th to 8th/14th century (Brill, 2010) at 17-18. See elsewhere in the same book, especially the first chapter, for an extensive study of the history of the concept of benefit in Islamic legal theory. For the development of the theory of the ‘intentions’ (maqāṣid) of the law in the eighth century of Islam, see Wael B Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-fiqh (Cambridge University Press, 1997) at 163-203.
90. Sarakhsī, supra note 34 at 27.
91. It should be noted that Jaṣṣāṣ also argued that most obligations imposed by God rest on an idea of human benefit (maṣlaḥa) although he did not advance this as a central component of his discussion of the need to perform commands immediately. In the context of his discussion of divinely ordained norms that could be changed or abrogated (naskh), Jaṣṣāṣ explains that some commands and prohibitions may not be changed because they are categorically good or evil, such as acknowledging the oneness of God (tawḥīd) and the prohibition of distrusting the monotheistic prophets. Conversely, there are many norms that could rationally (bil ʾaql) be sometimes beneficial and sometimes not. Most duties fall into this category, and so it is conceivable that God may abrogate all duties of worship if, due to any particular context, they ceased to be beneficial for humanity. See Jaṣṣāṣ, supra note 26 at 203-4.
92. Sarakhsī, supra note 34 at 28.
93. This idea that obligation in the proper sense extends over a significant time period persisted in Transoxanian Ḥanafī thought, as we can see, for example, in the writings of Samarqandī. Of particular note in the latter’s treatment of the question of time in divine commands is that he saw time as one among the ‘components’ (aqsām) of command. The profound Ḥanafī concern over the moral implications of immediate or non-immediate performance, it would seem, evolved into a particular structure of the discussion on divine commands that incorporated time as a central component. Further, Samarqandī frames his argument almost entirely using the language of moral responsibility: “the correct position is that an action can be performed throughout a time period, without prioritizing any portion of it over another, therefore action is due unqualifiedly in the whole duration, and we may not qualify it without particular evidence … this is the meaning of an unqualified or flexible obligation. It is properly fulfilled if performed in any moment in time, and it is considered a sin (ithm) if it is not performed at all during the specified period.” Samarqandī, supra note 32 at 210-13 [emphasis added].
94. Weiss, supra note 34 at 341-42.