The religious-legal framework of the lawful and unlawful
Extract from the book: « Le Marché du Halal, entre références religieuses & contraintes industrielles », Mostafa Brahimi & Fethallah Otmani.
The Primary Sources
What is lawful and unlawful is defined in two primary Sources, the Book of God and the Sunnah of His Prophet Muhammad (peace and blessings upon him). God says in the Qur’an:
“And why should you not eat of that upon which the name of Allah has been mentioned while He has explained in detail to you what He has forbidden you, excepting that to which you are compelled. And indeed do many lead [others] astray through their [own] inclinations without knowledge. Indeed, your Lord – He is most knowing of the transgressors.” [Qur’an 6/119]
“And do not say about what your tongues assert of untruth, « This is lawful and this is unlawful, » to invent falsehood about Allah . Indeed, those who invent falsehood about Allah will not succeed.” [Qur’an 16/116]
Thus the Qur’anic verses are unequivocal. Only God and His Prophet can decree the unlawful (haram) nature of something. One must stress that the hadiths related to the legal rules, just as those relating to the faith, must be authentic, certain (sahih), or good (hasan). The hadith of weak authenticity, da’if, does not on its own constitute a valid argument. At best it adds weight to a Qur’anic verse or an authenticated hadith, but it is not in itself, according to the views of most scholars, a decisive argument.
However, to establish rules on issues not previously tackled in the Qur’an or Sunnah, scholars use derived sources, called secondary sources, which are deduced from and validated by the primary Sources.
After the Prophet’s death, both the Revelation and the Prophetic example became fixed in time, but as people carried on living and societies evolving, new issues emerged. In order to answer the new challenges, legal tools needed to be created. Without going into too much detail, we will list them in order of importance, to fully understand their meaning. So whenever a new question arises and no clear answer can be found in the Qur’an or the Sunnah, we rely on:
- The consensus of scholars (ijma); this consensus has a footing equivalent to a scriptural text.
- The analogy (qiyas). Qiyas offers through analogic reasoning an answer to an issue, which is similar to one already existing in the Texts.
- The opinion of the authenticated Companion (fatwa as-sahabi).
- The principle of the juristic preference (istihsan). Istihsan literally means to deem something preferable. If the analogy (qiyas) does not lead to a suitable solution, then istihsan enables Muslim scholars to choose a more appropriate rule.
- The principle of the public interest (maslaha). In the absence of a clear Text that forbids it, maslaha consists of establishing a rule for the good of the community.
- The presumption of continuity (istishab). It allows for the retention of qualification as it is, as long as there is no change. Thus, something is deemed lawful as long as no alteration rendering it unlawful has occurred (e.g. fruit juice).
- The principle of prevention (sad adh-dhara’i). Depending on its purpose, a means that is in principle lawful can become unlawful. For example, digging a hole on one’s property is lawful, but it becomes forbidden if digging that hole damages the neighbour’s wall.
- Customs (‘urf). These can be a source of law when the Texts are absent and where the methods described above have failed to provide a clear provision.
It should be noted that only the first two sources (Qur’an, Sunnah) are recognised by the different Sunni schools, while there is no consensus on the others sources.
In order to completely clarify our point, we will define some indispensable elements of understanding related to the notion of the lawful and the unlawful, the distinction between ritual and social relations, and the difference between what is lawful and what is pure.
- Basic rules on the concepts of lawful and unlawful
- When something is lawful, it must be lawful not only by nature, but also through the means of obtaining it. In the same way something is illicit by nature, and / or through the means by which it was acquired. For example, grapes are halal by definition, but the way in which they are acquired must also be halal (through purchase and not theft), just as the way one must consume them (for example by not fermenting them). The conditions are therefore threefold: inherent quality, the means of acquisition, and its use.
- One may be tempted to define the lawful by its antithesis, the unlawful, in the sense that everything that is not unlawful is lawful. But this is not always valid because while the unlawful can be delimited, the lawful is infinite.
- The halal / haram principle is general and applies to every believer, under normal circumstances. However, distinctions may exist, depending on circumstances and needs. Thus, special circumstances of extreme necessity (darura) may lift certain prohibitions.
- The domains of religious worship and social relations
The domains of religious worship (ibadat) and social relations (social affairs, mu’amalat) have totally different legal approaches.
The ritual aspect (or worship, ‘ibadat) is drawn exclusively from the Texts, because one can adore God only as Himself has decreed it in His Book or through the prophetic teachings. Any other way to worship God outside these sources is forbidden. Thus in the field of worship the principle of prohibition prevails i.e. everything is forbidden except what God has prescribed (such as prayer, fasting, charity, pilgrimage, etc.).
In the domain of social affairs (mu’amalat, social, political, economic, etc., issues), the opposite is true where everything is lawful except what God and His Prophet have forbidden (with few exceptions). This domain covers the relationship of human beings with themselves, their peers, their environment and nature.
- Halal and tayyibat
God says in His Book: « Eat of the good things (tayyibat). We have provided for your sustenance, but commit no excess.” [Qur’an 20/81]
The concept of tayyib, (plural tayyibat) which literally means “good things”, is much broader than its translation. Indeed, the notion also encompasses the meaning of good, pleasant and pure. But, more than anything, the term tayyib is very much linked in its definition to the concept of halal (lawful).
It is also the meaning of the following verse: “[the Prophet] who will enjoin upon them the doing of what is right and forbid them the doing of what is wrong, and make lawful to them the good things of life (tayyibat) and forbid them the bad things (khaba’ith)” [Qur’an 7/157]
In addition, Prophet Muhammad (peace and blessings upon him) explains this notion of halal, related to the concept of tayyibat, in the following hadith:
“O people, Allah the Almighty is Pure (tayyib) and accepts only that which is pure. And verily Allah has commanded the Believers to do that which He has commanded the Messengers. So the Almighty has said: “O Messengers! Eat of pure things (tayyibat) and do good deeds.” [Qur’an 23/51] and the Almighty has said “O you who believe! Eat of the lawful things that We have provided you” [Qur’an 2/172]
Even though the verses mentioned above are related to food, the concepts of halal and haram cover every realm of life: the actions, the words, the beliefs, the behaviour, the values, the ends, the means, trade and everyday life. Nothing escapes their definition because everything has a meaning – either good or bad – in our actions, our gestures and our words.
- Halal, haram and other qualifications
Halal and haram fit within ethico-legal qualifications that range from strict obligation to total prohibition. Between the two, there are intermediate levels. Everything that concerns man (in his religious or relational life) falls, from a legal perspective, into one of these five categories:
- Obligation (wujub, wajib): This is the most commendable act, because God requires the believer to practice it. Moreover, the believer is subject to punishment if he/she abandons it, that is to say that he/she will be held accountable for their failure to perform obligatory acts, such as (and in addition to the adherence to the attestation of faith, the shahada) the four pillars of Islam: prayer, fasting during the month of Ramadan, obligatory charity-giving, zakat, and the pilgrimage to Mecca. But there are many others.
- Recommendation (nadh, mandub): Scriptural Texts encourage such acts while not rendering them compulsory. While fulfilling recommended acts leads to divine reward, their non-fulfilment leads neither to reprobation nor to punishment. It is good added upon good.
- Permission (ibaha, mubah): the believer has the choice to do this act or to abstain from it. It will not bring him any good or evil.
- The reprehensible (karaha, makruh): the act is blameworthy without leading to sanctions.
- Prohibition (hirma, haram): it is the most blameworthy act, strictly prohibited by God, and undertaken at the risk of being punished. This concerns all Islamic prohibitions.
Each of these five categories is subject to an internal ranking system in which prohibitions and obligations have different levels of severity.
- Halal, purity and impurity
Two terms are used to define purity in Arabic: pure (tahir) and purifying (mutahhir). A pure element (tahir) is lawful by definition and can be consumed or used. A purifying element (mutahhir), such as water, serves to purify oneself – in particular to perform one’s ablutions. It is pure (tahir) because of its origin. But a tahir element is not always purifying mutahhir: for example, saffron water or soda are pure, and therefore lawful, but they cannot, in the eyes of the majority of the legal schools, be used for ablutions, because they are not purifying.
The antithesis of the pure element (tahir) is the impurity, najasa, which can be physical, in addition to being moral. The impure element is inherently illegal (haram), therefore prohibited from consumption.
Very often, in the Sources, the terms of haram and najasa (or rijs – stain) are combined as in the following verses:
“Say, « I do not find within that which was revealed to me [anything] forbidden to one who would eat it unless it be a dead animal or blood spilled out or the flesh of swine – for indeed, it is impure (rijs).” [Qur’an 6/145]
“O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah ], and divining arrows are but defilement (rijs) from the work of Satan, so avoid it that you may be successful.” [Qur’an 5/90]
But can they be automatically associated? In short, is every unlawful element an impurity (haram) and every impurity unlawful (haram)? We can summarise this as follows:
- Any illicit element is not automatically deemed an impurity: for example tobacco whose consumption is illicit, does not oblige one to re-do their ablutions (wudu) before performing the prayer.
- But on the other hand, any impurity is illicit to consume.
 Page 23 to 30, Tawhid, AVS, 2010