Shakk (doubt in law: its kinds, the rule that certainty is not removed by doubt, and its effect on worship, contracts, penalties and evidence)

Shakk, in language, is the opposite of certainty: one doubts a matter when one hesitates between two things, whether they are equal or one is preferred. The jurists use it in both senses. The theorists of legal method define it as the equal standing of two opposed possibilities, because of two equal indications or because of no indication at all. ¹ Doubt is distinguished from certainty (a firm belief that matches the fact), from supposition (the preferred side), from a misgiving (the less likely side) and from confusion (a state arising from doubt). ²

• Doubt about an origin that is forbidden: a slaughtered animal found by a Muslim in a town with both Muslims and Magians may not be eaten until he knows it was slaughtered by a Muslim; if most of the townsfolk are Muslims, eating it is allowed on the strength of the likelier case. ³
• Doubt about an origin that is permitted: water that is changed in colour may be used for purification, because the origin of water is purity, and God did not oblige believers to search. 'Umar did not ask the owner of a cistern or a gutter whether their water was pure. If clean and unclean water are confused, one judges by one's reasoning and purifies with what it shows to be clean. ³
• Doubt whose origin is unknown: dealing with someone whose lawful and unlawful money is mixed beyond separation is not forbidden, since the return may be lawful, but the jurists disliked dealing with him for fear of the unlawful. ⁴

Al-Qarafi divides doubt by agreement on its effect into three. Doubt agreed to count, as about a slaughtered animal or a dead one, makes both forbidden. Doubt agreed to be void, as whether one has divorced or not, has no effect. Doubt disputed as a cause, as whether one has broken ablution (Malik takes it as a cause, al-Shafi'i does not). ⁴

The rule, in its various forms, is one of the great principles of the law, and it is said to run through every part of jurisprudence, the cases that depart from it making up three quarters of the science. It is completed by the rule that doubt about a shortfall is like its certainty, and doubt about an addition is like its certainty, as with doubt whether interest was paid in a usury contract, or the number of divorces. ^{5 8}

• Inheritance is a right that is established only when its causes exist, its conditions are met and its impediments are absent; it cannot be established by doubt. ⁵
• Pillars: one who doubts whether he performed a pillar or an obligation of worship builds on what is certain and performs what he doubts, then makes two prostrations after the greeting; Ibn Labbaba says before the greeting. A habitual doubt counts as nothing and is met by a prostration after the greeting. ^{5 8}
• Causes: doubt about a cause prevents the rule from taking effect, as when the cause of inheritance or the time of a prayer is in doubt. Al-Qarafi distinguishes doubt about a cause from a cause that is doubt: the first prevents the act from being an act of devotion; the second makes a rule take effect, as a doubtful animal is forbidden and doubt about purity requires ablution. ^{8 9}
• Conditions: doubt about a condition prevents the conditioned act from taking effect. So a man who is sure of his purity and doubts breach of it must, in Maliki doctrine, renew his ablution, and a father is not subject to retaliation for killing his son when there is doubt. ^{9 10}
• Impediments: doubt about an impediment has no effect by consensus, so inheritance is valid by presuming the continuing Islam of the deceased, and doubt about divorce, emancipation, zihar and fosterage is set aside, so the earlier state is kept. ^{10 11}

• One certain of breach but doubtful of purity must renew ablution and repeat any prayer, since the duty is not discharged without certainty. ¹¹
• One certain of purity but doubtful of breach has no duty of ablution in the view of most jurists, following the report of 'Abd Allah ibn Zayd about the man who imagines something during prayer: he does not turn away until he hears a sound or smells something. The Malikis in the known view require ablution, or in another view recommend it, since doubt about one of two opposites entails doubt about the other, unless the doubt is constant. ¹¹
• One certain of both purity and breach but doubtful which came first acts on the opposite of the one before: if he was in breach before, he is now pure; if he was pure and used to renew ablution, he is now in breach. Ibn 'Abd al-Barr reports that al-Thawri, Abu Hanifa, al-Awza'i, al-Shafi'i, Ahmad and Ishaq build on the original state, whatever it was; Malik says that if this comes often, he stays on his ablution. ^{11 12}
• A woman who sees menstrual blood without knowing when it began is treated as a man who sees semen on his clothes without knowing when: she bathes and repeats prayers since her last sleep, and the doubtful menses are treated as certain in the abandonment of acts of worship. ¹²

• Direction: one who doubts the direction of the Ka'ba asks the people who know the place, or else searches and reasons; the Companions prayed in different directions on a dark night, and God revealed that whichever way you turn, there is the face of God. Whoever has searched prays toward his intended direction. Ibn 'Abd al-Hakam thought one who doubts among four directions should pray toward each, to be safe, though the majority favoured the first view. ^{12 13}
• Time: one who doubts whether the time has come does not pray until he thinks it has; if he prays with doubt he must repeat it even if it falls in the time. ¹³
• A missed prayer: one who has missed a prayer of a day and does not know which must repeat the prayers of a full day and night until he is sure he is free of the duty. ¹³
• Number of rak'as: Malik and al-Shafi'i build on certainty and do not rely on guess. Abu Hanifa says that if the doubt comes for the first time the prayer is void and a new one is begun, while if it recurs he relies on his stronger opinion. Al-Thawri and al-Awza'i allow guess; al-Layth says that if it is constant the prostrations for forgetfulness make up for guessing. Ahmad holds that one may build on certainty (with the prostrations before the greeting) or on guess (with them after). The majority rely on the report of Abu Sa'id, that one should drop doubt and build on what is certain, and on the maxims that certainty is not removed by doubt and that doubt about a shortfall is like its certainty. Ahmad relies on the report of Ibn Mas'ud about guessing. ^{13 14}
• Sitting in the witr: according to Malik, one who doubts whether he sat after an even or odd number greets and makes the prostration for forgetfulness, then performs one unit of witr, because he may have added the unit to the two without a greeting. ⁹

• Payment: one who doubts whether he has paid must pay, because the whole of life is the time for it, unlike a timed prayer. ¹⁴
• Whether all of it was paid: a man who gave his zakat in scattered sums without keeping count was told by Ibn Nujaym to repeat it, since it stays in his duty by certainty. ¹⁵
• Recipients: one who gives zakat while doubting that the recipient is eligible, without searching, has not paid it unless he learns that the recipient was eligible. Giving after a sincere search to someone who turns out not to be eligible is treated under the chapter on zakat. ¹⁵

• The start of Ramadan: a fast intended on the thirtieth of Sha'ban, with no basis, as the first day of Ramadan, is not valid, because intention must be firm; the same holds for one who relies on astronomers. al-Thawri and al-Awza'i allow it if the intention is made at night and it proves right. ¹⁵
• The start of Shawwal: an intention is valid on the night of the thirtieth of Ramadan, since the basis is that Ramadan continues; but a conditional intention ("if tomorrow is of Ramadan I fast, and if of Shawwal I break it") is not valid for some, since it lacks firmness. ¹⁶
• Dawn: it is recommended to abstain on doubt about dawn, following the hadith "leave what troubles you for what does not". If one eats in doubt, there is no making up for the Hanafis, Shafi'is and Hanbalis, since the night is presumed to continue; the Malikis require making up and forbid it in obligatory fasts. ¹⁶
• Sunset: one may not break the fast on doubt about sunset, since the day is presumed to continue; if he does, he must make it up by consensus, and expiation for it is disputed, the common view denying it. ¹⁶

• Type of ihram: a pilgrim who doubts before circumambulation whether he entered in the form of separate, combined or joined pilgrimage: the Hanafis and Malikis and al-Shafi'i in his later view make it joined; the Hanbalis allow any form; al-Shafi'i in his earlier view makes an estimate. If the doubt is after circumambulation, it can only be made a lesser pilgrimage. ¹⁷
• Start of Dhu al-Hijja: if people doubt its new moon, stand at 'Arafa, and it later proves that their standing was on the day of sacrifice, their standing is valid by the four schools, following the saying that fasting is the day you fast, breaking the fast the day you break it, and sacrifice the day you sacrifice. The Hanafis hold this a preference, not an analogy. If it proves that they stood on the eighth day, the standing is not valid in the view of most scholars. ^{17 18}
• Circumambulation: a pilgrim who doubts the number of circuits builds on certainty, by consensus of those whose view is known, since the doubt about a shortfall is like its certainty. If a trustworthy person tells him after the circuits, he follows the report; if the doubt comes after finishing, it is disregarded. ¹⁸

If a slaughtered animal is mixed with a carrion one, both are forbidden. If a hunter shoots a game animal that falls in water and dies, and it is unclear whether the arrow or the water killed it, it may not be eaten. A slaughtered sheep found in a town with lawful and unlawful slaughterers may not be eaten unless the lawful slaughterers prevail. ¹⁸

• Whether a divorce was pronounced at all: none takes effect, by consensus, since marriage is established by certainty and is not removed by doubt, citing the verse of the surah of the Night Journey (36): do not follow what you have no knowledge of. ¹⁸
• Its number when it is certain: the Malikis, Khurqi among the Hanbalis and some Shafi'is forbid her to him until she marries another, lest it be three; the Hanafis, al-Shafi'i and Ahmad rule for the least. ¹⁹
• Its kind, revocable or irrevocable: the revocable is taken, since it is weaker and so certain. Al-Kasani reports that if a man says to his wife, "you are divorced in the worst divorce," it is revocable for Abu Yusuf and irrevocable for Muhammad al-Shaybani. ¹⁹

Protecting the honour of marriages is required, and it is more binding where the doubt concerns those whom one may not marry. A doubt about the existence or number of fosterage is set aside, though it is better to avoid it, following the hadith "whoever avoids doubtful things has cleared himself in religion and honour". If a man doubts whether a woman is a stranger or his sister by fosterage, both are forbidden to him. ^{19 20}

• Oaths: a doubt whether an oath was sworn at all leaves the doubter with no duty, since the default is release from liability. A doubt about what was sworn by, such as a divorce, emancipation, a walk to the House or charity, is answered by the Malikis by ordering him, as a matter of guidance and not judgement, to carry out all of them; the Hanafis hold that nothing is due. ^{20 21}
• Vows: one who doubts the kind of thing vowed owes, according to most, an expiation for an oath, since doubt about a vow is like not naming it. ²⁰
• Bequests: Abu Hanifa and Abu Yusuf hold that one who bequeathed a third to a man and said the third was a thousand, and it proves larger, has the whole third and the wrong figure is void; a mistake does not undo a bequest. ²¹

• Claims: a debtor who doubts the amount of a debt claimed must pay what is certain, which is the larger of the two sums, though this is a matter of caution. If the claimant insists, the debtor swears if he thinks himself wrong. A buyer who claims a defect that experts dispute cannot return the good, since soundness is the certain original state. A wife's claim that maintenance was not paid is accepted, since her right stays certain in the husband's duty. ^{21 22}
• Testimony: a witness who says "I testify that X owes Y a hundred, as far as I know or think" is not accepted, because the doubt enters the testimony; the word "I testify" is the required form. Sahnun of the Malikis holds that witnesses who are sure of the woman they named may testify even if they cannot be sure now that she has not changed, provided she is the only one of her name. The Malikis hold that testimony with doubt loses the witness his reputation for uprightness. ^{22 6}

• A divorced woman's child is attributed to the husband unless she bears it after more than two years; the child born within less than six months of divorce is known to have been conceived under the marriage; after six months or more, the marriage is not proven. ^{22 6}
• A foundling claimed by two men who are both assigned to him by the physiognomers is their son, inheriting from both; this is reported from 'Umar, 'Ali and Abu Thawr. ⁶

All agree that penalties are averted by doubt, citing the saying of 'A'isha: avert penalties from the Muslims as far as you can; if there is a way out, let him go, for the imam errs better in pardon than in punishment. al-Shatibi holds that when a doubt confronts a proof that gives probability, and the doubt is strong, the pardon prevails. 'Umar on the case of al-Mughira ibn Shu'ba acquitted him when a fourth witness did not confirm the act, and 'Umar did not cut the hand of the thief in the year of famine, treating the general hunger as a sign of necessity. Abu Hanifa holds that a shubha of contract averts the penalty, while his companions hold it averts it only if the offender did not know the prohibition. ^{6 7}

The rule that concessions do not rest on doubt, which al-Suyuti reports from al-Subki, has these instances: whoever doubts the permission to wipe over leather socks must wash his feet; one who doubts whether he washed one foot and then put both into the socks may not wipe; and one who doubts whether the shortening of prayer is allowed must complete it. ⁷