This post is the first in a series of four posts on obligation, jihād, revolution and prisons.
Among the most significant challenges in studying or teaching Islamic law is situating it within its proper normative framework. Unfortunately, an account of Islamic law’s historical growth and development is often considered sufficient for understanding its jurisprudence. What remains absent is any discussion of the larger conceptual system within which Islamic law operates; a system that revolves around obligation. This lacuna is particularly pronounced because modern legal discourse is dominated by a rights-centered approach, the default frame for discussing law. For Islamic law though, the normative universe of obligation is elemental; the central animating inquiry is not what is owed to me, but what is required of me. As Robert Cover noted, “every legal culture has its fundamental words,” with its own origin stories, “conceptual difficulties” and “rhetorical advantages.”[1] Trying to understand a duty-based legal system solely through a rights-centered lens inevitably confuses categories and misapplies ideas. It is not possible to understand Islamic law without adequate reference to its universe; in this universe, obligation is the most potent tool in the jurist’s toolbox.
Whenever scholarship does discuss Islamic legal obligations the focus is almost exclusively on individual obligations (farḍ ʿayn). These acts include well-known requirements to pray, fast, and perform the pilgrimage. Every person of legal capacity (mukallaf) is individually responsible for performing these acts, and that responsibility cannot be transferred to anyone else (with rare exception). Alongside individual obligations, another category of obligations emerged in the early juristic literature: collective duties (farḍ kifāya). Despite the centrality of obligation in Islamic law, there is surprisingly little written on farḍ kifāya by Western academics. No entry for farḍ kifāya exists in any edition of the Encyclopedia of Islam, though it is mentioned in a brief entry on “farḍ.”[2] A slightly longer entry on farḍ kifāya appears in the Oxford Encyclopedia of the Islamic World, but it also provides a basic overview.[3] The topic does get some treatment in secondary scholarship on specific areas of substantive law where collective duties are invoked, such as jihād, foundlings, and funeral rites.[4] For the most part though, these tend to be cursory references with no detailed exploration of the concept. In this post, I hope to briefly introduce premodern juristic thought on collective duties and demonstrate the potentially rich insights it has for the study of Islamic law. This is part of a larger book project, Duties to the Collective, on how and why jurists cultivated this category of obligations in the Early Middle Period (945 to 1258 CE).
The term farḍ kifāya literally translates to “sufficiency obligation,” meaning an obligation that requires a sufficient number of performers in order to be fulfilled.[5] However, the term is typically translated as either “collective” or “communal” duty (or obligation) based on how it operates. The idea behind farḍ kifāya is unique: everyone carries the burden of performing the obligation, but actual performance is only required of some. The obligation can be fulfilled without every person performing it; in other words, there is shared responsibility. Individuals can satisfy the obligation without undertaking an act as long as someone else has carried out the necessary performance. Premodern jurists express this idea in various versions of an oft-repeated, conditional formula consisting of two clauses. The first clause states that: “if some perform [the duty] then it is suspended for the rest” (idhā qāma bihi al-baʿḍ saqaṭa ʿan al-bāqīn).[6] The second clause is a correlating statement that is less formulaic, but expresses the basic idea that “if no one performs [the obligation], then everyone is sinful.”[7] Hence, if a sufficient number of people fulfill this duty then everyone else is exempt, but if no one fulfill it then everyone is held accountable.
One of the earliest mentions of collective duties in the legal literature occurs in Shāfiʿī’s (d. 204/820) seminal works, al-Risāla and al-Umm.[8] However, the manner in which he discusses kifāya suggests that the concept was not his original contribution; it was already in circulation. Aside from providing the standard two-clause formula for kifāya, Shāfiʿī does not elaborate on the broader concept. Virtually all jurists seem to derive the kifāya concept from Qurʾānic verses on participating in jihād. The Qurʾān does not require everyone to take part in jihād campaigns and some people are excused from the duty in order to pursue knowledge instead. The verses suggest that everyone, whether they participate or stay behind, is eligible for a reward. However, they further stipulate that those who take part in the jihād (i.e. perform the duty to fight) are entitled to a greater reward.[9] For his part, Shāfiʿī is comfortable simply explaining the concept of kifāya with reference to these Qurʾānic verses without needing to theorize further.
After Shāfiʿī, discussions on collective duties occur in the legal literature in two principal places: manuals of applied law (furūʿ) and treatises on legal theory (uṣūl al-fiqh). For the most part, the topic does not receive full treatment in legal theory until the eighth/fourteenth century. Prior to that, discussion of collective duties appears almost exclusively in manuals of applied law. Some collective duties are always mentioned by jurists in every period: the duty to fight, duties to the dead, duties to rescue, and the duty to pursue knowledge.
A few common themes also arise in the premodern discourse on these duties; themes with implications for Islamic law more generally. One theme is that jurists consider political authority, specifically the ruler (imām), central to law as the administrator and regulator of many collective duties. For instance, with jihād, political authority controls the terms of engagement, the number of participants required for the duty to be satisfied, and when the duty ceases.[10] The only exception jurists make is in cases of defense; when a locality faces imminent attack they do not need to wait for authorization to fight.[11] For the duty to rescue foundlings, the ruler functions as a guarantor of the child’s well-being. The state is required to help meet any financial needs, punish people who abandon foundlings, and even assume their guardianship where necessary.[12]
Another theme that emerges is the jurists’ continuous struggle to create rules on collective duties that appreciate functionality, but also preserve a “meta-meaning” behind the acts. They seek to articulate a more profound rationale for how a duty is to be performed, beyond any obvious practical reason. Collective duties serve the state’s political objectives, but are also sacred religious commitments for individual believers. One illustration of how jurists address this issue is in the duty to perform funerary rites for martyrs. Ordinarily, there is a collective duty that every Muslim who dies be washed, shrouded, prayed over, and buried. However, the case of soldiers killed on the battlefield presents obstacles for performance of these duties. It is impractical to perform funerary rites on each Muslim killed in battle. Hence, unsurprisingly, jurists generally agree that funerary rites for martyrs do not need to be performed in the same way as other believers. In fact, most argue that you can forgo the duties entirely. This suspension of the standard funerary duties satisfies a functional need to modify performance for practical reasons. However, it creates an additional challenge: non-believers killed in battle also do not receive funerary rites. We are left with a situation where the absence of belief and the height of faith are seemingly equal in status when it comes to the last rites conferred on them. For many premodern jurists, the response is to search for meta-meaning to provide an explanation for this incongruence. They propose different ideas that preserve the sacred place of the martyr. For instance, Māwardī suggests that funerary rites are suspended because the Qurʾān does not consider martyrs dead, but alive (see, Q 3/Āl ʿImrān: 169); duties to the dead cannot be performed on the living.[13] Similarly, Ghazālī argues that blood from a martyr’s wounds is pure and thus substitutes for water in ritually cleansing the body after death.[14] Others argue that there is a distinction between being ineligible for rites and being exempt from them due to an elevated status.
These themes reveal an important feature of premodern Islamic legal discourse: jurists are at once articulating law for empire, community, and the individual. In the centuries following Shāfiʿī, jurists crafted legal guidance on various hypothetical circumstances that might arise in the performance of the duties mentioned above. This expanded the commentary on collective duties as a whole and, in the fifth/eleventh and sixth/twelfth centuries, led to a growing number of new acts being classified as kifāya, such as learning alchemy or cupping.[15] During this period, the contours of a “kifāya doctrine” started taking shape as well, one that searched for principles that could apply evenly across the entire category of collective duties. In developing the kifāya doctrine, jurists explored the relationship between the two types of obligations, individual and collective, as well as between various collective duties. They theorized hierarchies of performance, generally arguing for individual obligations to be performed before collective duties, but also outlining circumstances when the opposite would be true.[16] Jurists considered certain collective duties more important than others and justified this preference through typologies of kifāya acts.[17] One common division of kifāya acts was between duties that are “exhaustible,” yielding no additional benefit from repeat performance, or “inexhaustible,” where benefit is attained with each repeat performance.[18] In general, unperformed collective duties were preferred over those that had already been fulfilled, even if the performed duty was inexhaustible.
Beginning in the fifth/eleventh century, another question jurists uniformly ask in crafting the kifāya doctrine is who should be obligated to fulfill a collective duty. Despite “community” being so central to the kifāya doctrine the term is never explicitly defined. On its face, this would make it difficult to determine what exactly the boundaries are, geographic or otherwise, that define the collective that is duty-bound to carry out kifāya acts. Does this collective include the population of a particular town, a city, a larger geographic area or the entire Muslim community that existed at the time? Although the legal literature does not have any explicit answers, premodern scholars, seemingly without exception, are not particularly discomfited by this and seem to operate on an implicit understanding of what the collective comprises. In fact, the absence of this definition seems purposeful: through the discussion of kifāya-duties jurists are defining the boundaries of a moral community. This is particularly pronounced in certain periods where collective duties become an avenue for encouraging social cohesion in an increasingly fractured polity. Unity is promoted through giving supremacy to an individual’s Muslim identity, over all other affinities, and binding neighbors through shared responsibilities based on geographic proximity.
In sum, the discourse on collective duties is an understudied space with fascinating insights into Islamic law and its jurists. Through discussion of these duties, jurists demonstrate priorities and commitments to larger ideals. They showcase an ability to provide practical guidance for empire while thinking more broadly about the implications for individuals in the performance of sacred obligations. In the process, they determine who belongs in the moral community, define a robust role for the state in law’s implementation, and speculate on what should constitute ethical behavior. They seem to be in pursuit of a more unified and cohesive society, illustrating how essential the normative universe of obligation is for Islamic civilization in all its facets.
My next post will build on the ideas here and explore how the potency of legal obligation was utilized in the late 20th century to transform one critical area of the law: the duty to fight.
Notes:
[1] Robert Cover, “Obligation: A Jewish Jurisprudence of the Social Order,” Journal of Law and Religion, vol. 5, no. 1 (1987): 65.
[2] Th. W. Juynboll, “Farḍ,” EI2.
[3] A. Kevin Reinhart, “Farḍ al-Kifāyah,” Oxford Encyclopedia of the Islamic World, ed. John L. Esposito (Oxford: Oxford University Press, 2009).
[4] See generally, Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2010).
[5] There are a few different Arabic formulations that express the idea of “collective duties” in the premodern legal literature. For example, farḍ kifāya, see, Abū Ḥāmid al-Ghazālī, Iḥyāʾ ʿulūm al-dīn, vol. 3, ed. Badawī Ṭabāna (Cairo: Dār Iḥyāʾ al-Kutub al-Arabiyya, 1957), 391-392; wājib ʿalā al-kifāya, see, ʿAlī b. Muḥammad al-Āmidī, al-Iḥkām fī uṣūl al-Aḥkām, vol. 1, ed. ʿAbd al-Razzāq ʿAfīfī (Riyadh: Dār al-Ṣamīʾī li al-Nashr wa al-Tawzīʾ, 2003), 137; farḍ al-kifāya, see, Yaḥyā b. Sharaf al-Nawawī, Rawḍa al-Ṭālibīn, vol. 7, eds. ʿĀdil Aḥmad ʿAbd al-Mawjūd and ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-Kutub al-ʿIlmiyya, 2003), 416.
[6] See for example, Shams al-Dīn al-Sarakhsī, Kitāb al-Mabsūṭ, vol. 30 (Beirut: Dār al-Maʿrifah, 1993), 263.
[7] Abū al-Ḥusayn al-Qudūrī, Mukhtaṣar al-Qudūrī fī al-fiqh al-Ḥanafī, ed. Kāmil Muḥammad Muḥammad ʿUwayḍah (Beirut: Dār al-kutub al-ʿilmiyya, 1997), 231.
[8] See for example, Shāfiʿī, al-Risāla, ed. Aḥmad M. Shākir (Beirut: Dār al-Kutub al-ʿIlmiyya, n.d.), 366 and al-Umm, vol. 5, ed. Rifʿat Fawzī ʿAbd al-Muṭṭalib (al-Manṣūra: Dār al-Wafāʾ li’l-Tibāʿ wa-l-Nashr wa-l-Tawzīʿ, 2005), 283-84.
[9] See Q 4/al-Nisāʾ:95 and Q 9/al-Tawba:122.
[10] See for example, Shīrāzī, al-Muhadhdhab fī fiqh al-Imām al-Shāfiʿī, vol. 3 (Beirut: Dār al-Kutub al-ʿIlmiyya, 1995), 270; Ibn Ḥazm, al-Muḥallā, vol. 7, ed. Aḥmad M. Shākir (Cairo: Idārat al-Ṭabāʿat al-Munīriyyah, 1928), 291.
[11] See for example, ʿAlāʾ al-Dīn al-Kāsānī, Badāʾiʿ al-ṣanāʾiʿ, vol. 7, ed. ʿAbbās Aḥmad al-Bāz (Beirut: Dār Kutub al-ʿArabī, 1974), 98. For a fuller discussion, see Adnan Ahmad Zulfiqar, “Collective Duties (Farḍ Kifāya) in Islamic Law: The Moral Community, State Authority and Ethical Speculation in the Premodern Period,” (PhD diss., University of Pennsylvania, 2018), 148-155.
[12] See Zulfiqar, “Collective Duties,” 365-375.
[13] Māwardī, al-Ḥāwī al-kabīr, vol. 3, ed. ʿAlī Muḥammad Muʿawwaḍ (Beirut: Dār al-kutub al-ilmiyya, 1999), 36.
[14] Ghazālī, al-Wasīṭ, vol. 2, ed. Aḥmad Maḥmūd Ibrāhīm (Cairo: Dār al-Salām, 1997), 379.
[15] Ghazālī, Iḥyāʾ, vol. 1, 43.
[16] See for example, Sarakhsī, Sharḥ al-siyar al-kabīr, ed. by Ṣalāh al-Dīn al-Munjid (Cairo: Maʿhad al-Makhṭuṭāt, n.a.) 24; Kāsānī, Badāʾiʿ al-ṣanāʾiʿ, vol. 7, 10.
[17] Zulfiqar, “Collective Duties,” 42-53.
[18] Badr al-Dīn al-Zarkashī, al-Bahr al-muhīṭ fī uṣūl al-fiqh, vol.1, ed. ʿAbd al-Qādir ʿAbd Allāh al-ʿĀnī (Kuwait: Wizārat al-awqāf wa-l-shuʿūn al-islamiyya, 1992), 253; Shihāb al-Dīn al-Qarāfī, Anwār al-burūq fī anwāʿ al-furūq, ed. Muḥammad Aḥmad al-Sirāj and ʿAlī Jumuʿa Muḥammad (Cairo: Dār al-Salām, 2001), 234.