Idhn (permission: the Lawgiver's, the owner's, the right holder's and the judge's)

In the lexicon idhn (permission) means releasing an act and allowing it, and the jurists do not depart from this sense. ¹ Ibaha (permissibility) is the choice between doing and not doing without reward or punishment. The usulis list it among the kinds of the legal ruling, and the jurists explain ibaha in the same sense. They use idhn and ibaha as one, since permission is the root of permissibility: without something showing permission the act could not occur. ^{1 2} Ijaza is the approval of a thing, making it lawful and binding; idhn is permission to do an act and comes before the act, while ijaza comes after it. Amr (command) is a demand for an act from a higher, and every command carries permission by priority. ²

Permission is general or specific. Generality and specificity may concern the person permitted, the transaction, the time or the place. ² General permission to a person is like one who throws something and says "whoever takes it may have it", or who puts water at his door so that any passer-by may drink, or who lets the Muslims stand their animals in a place, and the open invitation to a wedding feast. Specific permission is like one who says "this is alms for so-and-so", or who singles out one guest for a particular food. ^{2 3} A master's permission to his slave to trade is, for the Hanafis and the relied-on Maliki view, general over all trade except gifts, so that once given it is unlimited until he is restrained. The Shafi'is, Hanbalis, some Malikis and Zufar of the Hanafis restrict it to the kind, time or place the master named. ^{3 4}

The Lawgiver's permission is either by text or by the ruler's ijtihad on matters of the people's welfare, observing the general principles of the law in bringing benefits and averting harms. ³ It may be for ease and widening: sale, purchase, hire and pledge; the good things of food, drink, dwelling and clothing; marriage; hunting outside the state of ihram; reviving dead land; and the use of the public road and the public watercourse. ⁴ It may be for worship and nearness to God, such as using mosques, graves and ribats. ⁴ All of this is limited by the rule that there is no harm and no harming in Islam, and each act has rules and conditions whose breach voids it. ⁴ The Lawgiver's permission may also lift hardship: the traveller and the sick may break the fast in Ramadan. The Prophet ordered the one who had vowed to fast standing in the sun to speak, to shade himself and to complete his fast when he learned of it. ^{4 5} Permission may make lawful what is forbidden in itself under necessity, as carrion, pork or wine to clear a blocked throat when death or loss is feared, and what is forbidden for another reason, such as looking at a woman to marry her, or at a private part for treatment. ⁵ The principles are that necessity makes forbidden things lawful, hardship brings ease, and harm is removed. Defence against an attacker is permitted, and there is no liability for killing him. ⁵

Ownership is a lawful tie between a person and a thing which makes it his to dispose of and bars others from disposing of it. Whatever belongs to someone may not be disposed of by another without his permission, except out of need, as a father or son may buy a sick person's necessities from his property. ⁵ The owner's permission to others takes several forms: permission to dispose, as in agency, the profit-sharing partnership and guardianship and the administration of endowments; permission to transfer ownership, as in sale, gift and endowment; permission to consume, as in food at feasts, coins scattered at celebrations, and a loan with a return; and permission to use, as in lending, hire and a bequest of usufruct. ⁶ For permission to use, the owner need not own the thing itself; owning the usufruct suffices. It must be for a lawful purpose, and use must be as permitted or less harmful, or else it is trespass. ⁶

A right is a settled interest of a person under the law, financial or not. A transaction that touches another's right is not valid without that holder's permission. ⁶ Examples: a husband's right to keep his wife from leaving the house without his leave, excepting the stronger rights such as the obligatory pilgrimage, treatment and visiting parents, on the schools' differences; a pledgee's right to hold the pledge, so the pledgor may not sell it without his leave, and according to the Hanafis such a sale stands on the pledgee's consent or on payment of the debt; the donor's right before delivery, so the recipient may not take the gift without the donor's leave, according to the Shafi'is; and the wife's right to intercourse, so a husband may not practise withdrawal with a free wife without her permission. ^{6 7} A woman has a right over her own marriage. A previously married woman's consent is required by consensus, and for a virgin the jurists differ between obligation and recommendation. The owner of a house has the right to bar entry without his leave, on the command in al-Nur (verse 27) about asking leave before entering houses. ⁷

Judgeship is a general office whose purpose is to establish justice and deliver rights to their owners. Some transactions therefore need the judge's permission to take effect, to prevent injustice and dispute. ⁷ If a husband cannot pay maintenance, the Hanafis do not separate them; the judge fixes the maintenance and orders the wife to borrow, and the debt then falls on the husband if she borrowed on the judge's order. ⁷ For the Malikis zakat is due on a minor's property, and the later scholars of the school hold that a guardian should pay it only with the ruler's permission, to leave the disagreement. ⁷

The Hanbalis say that a man who is away and leaves a deposit or the like and dependants may have them maintained from it only with the judge's permission; the maintenance of a foundling needs no judge's permission, though the judge's leave is the safer course. ⁸

A guardian (wali) has power to act for another in person or property because of minority, foolishness, slavery or some other cause, and the interdiction lasts until its cause ends. Because the acts of one under interdiction may harm him or his master, the guardian's oversight and permission are needed to prevent harm. ⁸ Transactions of the foolish, the discerning minor and the slave in property and marriage need the guardian's permission according to the majority of jurists; Abu Hanifa does not place the foolish under interdiction. The Shafi'is, and one Hanbali view, hold that a minor's acts are invalid even with the guardian's permission, and the sounder Shafi'i view is the same for the foolish, though his marriage is valid. An insane person's acts are invalid even with permission. If a discerning person, a foolish one or a slave acts without the guardian's leave, the jurists differ between ratification, rejection and nullity. ^{8 9} A mature free woman needs her guardian's permission to marry, whether virgin or previously married, according to the majority, on the Prophet ﷺ's words that "any woman who marries without her guardian's permission, her marriage is void". Abu Hanifa and Abu Yusuf, on the apparent narration, hold that a sane adult free woman's marriage is valid with her own consent, since she disposes of her own right; the guardian is asked to marry her so that she is not ascribed to shamelessness. ⁸

The trustee (mutawalli or nazir) of an endowment looks after it, keeps and repairs it, and carries out the founder's condition. He acts only for the good of the endowment. Those to whom it is endowed, or anyone else, may not build or plant on it without his leave where he sees benefit. Collecting and distributing its revenue is his duty, and a collector, agent or teacher may not do so without his permission. ⁹ The usufruct of an endowment belongs to its beneficiaries, who may take it in person or through others by loan or hire, according to the Shafi'is, but may do so only with the trustee's permission. ⁹

Jurists use the term licensed person (ma'dhun) mostly for a slave whose master has licensed him to trade, and they devote a special chapter to him. They differ on whether he may license another to trade. The Hanafis and Malikis allow it, since permission to trade is itself trade. The Shafi'is and Hanbalis do not allow it without the master's permission, which then makes it valid; for a general act they require the master's leave, while for a specific act such as buying a garment it is allowed. ^{9 10} A profit-sharing (qirad) agent is licensed by the capital owner to trade. Most jurists hold that he may not give his share to another without the owner's permission, which then makes it valid. The Hanafis hold that if the owner leaves the matter to him, saying "act as you see", he may do so without permission, but not if he has restricted him. The sounder Shafi'i view forbids it even with permission, while a second view allows it with permission, a view al-Subki strengthened and said most jurists hold. ⁹

When two or more people with a right to permit the marriage of the same woman stand in the same rank, such as brothers or paternal uncles, and dispute the matter, the Hanbalis and Shafi'is draw lots to end the dispute, since they are equal in right and cannot all act. The Malikis have the judge choose whoever he judges best among the guardians. The Hanafis let each marry her separately, if the suitor is a suitable match with a full dowry. ¹⁰ If there is more than one suitor, her consent is taken, and if she names none, the judge considers the best choice. ¹⁰ If two guardians of equal rank marry her to two men, the earlier contract stands and the later is void if the earlier is known; if the two contracts are made at the same time, or the earlier is unknown, both are void. ¹⁰ In a bequest to two executors, neither acts alone. If they disagree, the Malikis have the judge decide what is best. The Hanafis, except Abu Yusuf, let one act alone only when they were appointed by two judges of different towns; Abu Yusuf lets each act alone in all matters. ¹⁰

Permission may be expressed in several ways. The explicit word is one, as when a father says to his discerning son, "I have permitted you to trade". ¹⁰ It may be by sign, writing or messenger; a dumb person's known sign is valid, and an invitation to a feast by letter or messenger counts as permission to enter and eat, on the report of Abu Hurayra (may God be pleased with him) that when one of you is invited and comes with the messenger, that is permission. Appointing an agent by writing or message is also permission. ^{10 11}

Silence is not in principle permission, on the maxim that no word is attributed to one who is silent. There are exceptions. A virgin's silence before her guardian counts as permission, by consensus, on the report that women are to be asked about their marriages, and that a virgin's silence is her consent. ¹¹ The jurists differ on whether a guardian's silence when he sees his ward buying and selling is permission: the Hanafis and one Maliki view say it is, while the Shafi'is, the Hanbalis, Zufar and another Maliki view say it is not, since permission is a condition and silence may mean either consent or displeasure. ¹¹ Permission may also be given by indication: serving food to guests, a master's buying goods for his slave and placing them in his shop and ordering him to sit there, and the building of water-points and inns for Muslims and travellers. ¹¹

A rule holds that what results from a permitted act is not an injury and is not guaranteed, except where the permission is conditioned on the safety of the outcome. ¹¹ The Hanafis divide the rights of a licensed person into obligatory ones, such as the imam's right to carry out the prescribed penalty, retaliation and discipline, and the rights of a craft, such as phlebotomy, cupping and circumcision, which require safety of the outcome only beyond the usual limit; and permitted ones, such as a guardian's right to discipline. ¹¹

The other jurists agree with the Hanafis that some rights are conditioned on the safety of the outcome, but they differ on which ones are, according to their reasons for the act, even within one school. ¹² Not conditioned on safety are the rights imposed by the Lawgiver, such as a hadd carried out in the lawful manner, for which there is no liability for what it destroys. Likewise retaliation short of a life, with no excess: if the wound spreads and the person dies, there is no liability, by agreement. Discretionary punishment (ta'zir) imposed by the ruler carries no liability if the person dies, according to the Hanafis, Hanbalis and Malikis; the Shafi'is hold liability, since the ruler's ta'zir is for them conditioned on safety. If the injured party takes retaliation himself and cuts the other's hand and death follows, there is no liability according to most jurists; Abu Hanifa makes it a liability on the injured party's kin. ^{12 13} Among the rights imposed by contract are the cupper, the phlebotomist, the circumciser and the physician: there is no liability for what their act destroys if it was permitted, they did not go beyond the usual place and they have the skill. In hire, the renter's hand is a trust, so he is not liable for what perishes through the permitted use, but he is if he neglects or exceeds what he was allowed. ^{12 13}

A permitted right that is conditioned on safety includes a husband's beating a rebellious wife, for which there is liability for what is destroyed by it according to the Hanafis and Shafi'is, and none according to the Hanbalis and Malikis if safety is expected. ¹³ Use of the public road is permitted to all on condition of a safe outcome. A rider whose animal tramples someone is liable for what was struck by its hoof, leg, head or collision, but not for a kick from behind, which cannot be avoided. If he halts it on the road he is liable even for a kick, since what the law permits is passage, not standing. Standing before a mosque door is the same as the road. ¹³ Digging a well in a public road without need makes the digger liable for what falls into it. If the digging serves the Muslims and is done with the ruler's leave, there is no liability; without his leave there is liability according to the Shafi'is, Hanbalis and Hanafis, except Abu Yusuf. Digging on one's own land or in dead land creates no liability by agreement. ¹³ One who puts a projecting wing, a rain-spout, a shop, a stone, a plank, melon rind or poured water on the road is liable for what follows if someone slips on it, according to the Hanbalis, Hanafis and Shafi'is; the Malikis hold him liable for what he placed on the road. A rain-spout set up on the street that later falls on someone creates no liability, since it was permitted. ^{13 14} A wall leaning onto the road makes its builder liable for any harm it causes. If it is built upright or leans into his own property and falls, there is no liability. If it leans onto the road before falling and cannot be taken down without fault, there is no liability; if he could take it down, was asked, and did not, he is liable. ¹⁴

No one may enter another's house without leave, and so asking leave is obligatory, on the verse in al-Nur (27). If leave is given he enters, and if not he turns back. ¹⁴ Permission to enter also affects the hadd for theft: it is a doubt that averts the hadd, since the house has ceased to be a safe place by the leave, and the one admitted stands as one of the household; what he takes makes him a traitor rather than a thief. The details are in the chapter on theft. ^{14 15} It has an effect on injury and liability too. If a guest admitted by the owner is bitten by the owner's dog, the owner is liable according to the Hanbalis, Malikis and a second Shafi'i view, since he caused the loss by not restraining the dog; the Hanafis and another Shafi'i view disagree. If one digs a well in his house and a guest admitted by him falls in, there is no liability according to the Malikis and Hanafis; the Hanbalis and Shafi'is hold no liability if the well is open and visible to the guest, but liability if the guest is blind or the well is in darkness. ¹⁵

In principle a licensed person's act takes effect where it benefits him; harmful acts are not valid even with permission, so a gift by him is invalid. For a contract to be valid by permission, the licensed person must understand that a sale removes ownership from the seller and a purchase brings it to the buyer, and must know small deception from great. ¹⁵ Permission in contracts gives the power of disposal the permission covers, as in agency, partnership and profit-sharing, and no contract may be made against the permission's terms. The rights of a contract made under permission return to the partners and to the profit-sharing agent's capital owner; for the agent (wakil) there is a difference: according to the Hanbalis and the sounder Shafi'i view they return to the principal, while according to the Hanafis, in sale, purchase and hire that need no mention of the principal, they return to the agent, and in marriage, divorce, manumission and khul' they return to the principal. ¹⁵ The Lawgiver's permission may stand in for the owner's: one who owes a debt and refuses to pay may have his property sold by the judge without his leave, to meet the debt. ¹⁵ A disposal of another's property without leave, as by an unauthorised seller, depends on ratification for non-Shafi'is, the later ratification being like a prior agency; for the Shafi'is, and one Hanbali view, the sale is void. ¹⁵

Permission may apply to the thing itself and its use. When the Lawgiver permits, it gives ownership by taking possession, as in the permission to hunt at sea and on land outside the sanctuary, and the three things held in common, as the report says: "Muslims are partners in three: in water, in pasture and in fire." Between people, consumption under permission has different effects: it may transfer ownership for a return, as in a loan of bread, dirhams or dinars; it may transfer ownership without return, as in the gift of food, drink or coins; or it may be a means to ownership without transferring it, as in feasts and hospitality. ¹⁶ In crimes: blood is not made lawful by permission, but permission is a doubt that averts retaliation. If one says to another "kill me" and he does, retaliation falls away according to the Hanafis, Hanbalis and the more likely Shafi'i view; one Maliki view says the killer is killed; a third says he is beaten a hundred times and imprisoned for a year. The blood-money is due according to the Hanafis, one Maliki view and the Shafi'is. If one says "cut off my hand" and it is cut, there is no liability according to the Hanafis and Hanbalis, and the Shafi'i view is likely the same; the Malikis punish but there is no retaliation. ¹⁶ If one commands another to kill a third, without compulsion, retaliation falls on the one commanded, and the jurists differ on the commander. If the command was made under compulsion that leaves no choice, retaliation falls on the commander, and the jurists differ on the one commanded: the Hanbalis, the Malikis, the sounder Shafi'i view and Zufar hold that the one commanded is killed for doing the killing; Abu Yusuf holds neither is killed; the school's view is that the one commanded is not killed. ¹⁶

No retaliation is due from one who kills another in defence of his self, honour or property, since such defence is permitted, on the condition that the repulsion cannot be achieved except by killing. ¹⁷

When the Lawgiver permits use, it may give ownership by actual taking, as in owning lawful game by hunting and dead land by reviving it. It may give precedence to the first comer, as in the seats of mosques for prayer and i'tikaf, and in schools, ribats and market seats. It may give a bare right of use, as in the public road and the public watercourse, which is conditioned on a safe outcome. ¹⁷ Where use is by permission between people without a contract, as when the owner of a private road lets another pass, it does not give ownership, and misuse makes the user liable. Where the use arises from a contract, hire gives ownership of the usufruct, so the renter may use it himself or let it out. For a loan, the Hanbalis and the sounder Shafi'i view hold that the borrower may not lend without the owner's permission, while the Hanafis and Malikis hold that a loan gives the usufruct so the borrower may lend. Liability arises from exceeding the permitted use or from neglect. ^{17 18}

The Lawgiver's permission does not end, since his permission over lawful property gives a settled ownership by taking. Permission between people that rests on a binding contract, such as hire, ends with the term or the completion of the work. A permission resting on a revocable contract, such as a loan, ends when the lender takes it back at any time, according to the Hanafis, Shafi'is and Hanbalis; the Hanafis hold that for a fixed-term loan where the borrower has planted or built on the land, return before the term is not allowed; the Hanbalis and Shafi'is require the land to be left until the harvest when lent for cultivation, and until the traces of a buried body have gone when lent for burial. The Malikis do not allow return from a fixed-term loan before the term, and for an open loan require leaving it for a customary period. ¹⁸ Permission to dispose, as in agency, partnership and profit-sharing, ends with dismissal, provided the licensed person knows of it and no right of a third party is attached. It also ends with death, permanent insanity, the principal's interdiction, the loss of the thing, the principal's own disposal of it, and apostasy by joining the enemy territory. A trustee of an endowment or an executor is removed by dismissal, by betrayal or by incapacity. ¹⁸