The ta'lil counts as a condition

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The ta'lil counts as a condition

The ta'lil follows the regime of the condition: the one who says: "you are divorced for your leaving the house", if she did not leave, she is not divorced, with certainty. The commentator of al-Irshad fixes: "if he says: you are divorced if you enter the house, in the accusative, and the swearer speaks the language of the Arabs and no entering preceded the oath, she is not divorced, and no disagreement is mentioned". The companions said likewise: the one who says "you are divorced" then "I intended the condition" is liable; likewise for: "because of your speech, Zayd" or "because of your leaving my house without my permission": he is liable; then if she did not do the intended act, the divorce does not occur; whoever rules otherwise has erred about the madhhab (I'lam al-Muwaqqi'in 4/104-110).

The usages: verbal, legal and linguistic

Among the Malikis: without intention or carrying cause, the oath rests on verbal custom, that is, the sense toward which speech turns according to their customary use: it is the most frequent aim of the swearer; thus the mount (dabba) among them designates the donkey, the slave the White man, the garment the shirt: one who swears not to buy what is meant and then buys a horse or a turban does not violate. This differs from linguistic usage: with no settled custom over a precise mount or garment, swearing not to ride a mount nor wear a garment violates by riding a crocodile or wearing a turban, for that is the linguistic sense. And when neither the intention, nor the cause, nor verbal custom exists, the legal usage applies if the swearer belongs to the people of the law: one who swears not to pray at this hour, not to fast, not to perform wudu, not to purify himself or not to perform tayammum violates according to the legal sense, not the linguistic: he does not violate by the prayers upon the Prophet (peace be upon him) nor by washing the hands up to the elbows, even though the language calls that ablution (at-Taj wal-Iklil 2/307-308; Sharh Mukhtasar Khalil 3/69; ash-Sharh al-Kabir ma'a hashiyat ad-Dasuqi 2/421; Tathbir al-Mukhtasar 2/383-385).

Among the Hanbalis: without intention or cause, one returns to designation (the pointer), stronger than the indication of the name for it removes general ambiguity: one who swears not to enter the house of so-and-so then enters it after its sale or while it stands empty violates; one who swears not to speak to this child, who becomes an old man, then speaks to him, violates; one who swears not to eat these fresh dates, which become dry dates, then eats them, violates: the designated object remains. Without intention, cause or designation, one returns to what the name covers, in three steps: legal, then customary, then linguistic. The absolute oath turns to the legal sense: what has a place in the law and in the language: the prayer, the fast, the alms, the pilgrimage, wudu, the major washing, tayammum, the retreat. The valid counts, not the corrupt, which is forbidden by law: one who swears not to marry, sell or buy, then concludes a corrupt transaction does not violate: "Allah has permitted trade" (Surah al-Baqara 275) permits only the valid; so with marriage. Then comes the usage without the reality: the basis of the oath is the usage, for the reality has become abandoned: one who swears not to consummate with his wife violates by intercourse, the word having turned to it by usage; swearing not to depart from her (in the sense of intimacy) would be an allusive interpretation. One who swears not to set foot in the house of so-and-so violates by entering, riding or walking, barefoot or shod: the apparent is that he aims at abstaining from entering. One who swears not to enter a house violates by entering the mosque, the bath or the house of poetry: "the first house established for the people is indeed the one at Mecca" (Surah Ali 'Imran 96); "in houses which Allah has permitted to be raised" (Surah an-Nur 36); "and He made for you houses from the skins of the cattle" (Surah an-Nahl 80). One who swears not to strike a woman, then strangles her, pulls out her hair or bites her, violates: the aim of the blow, the pain, has occurred without intending the reality of the blow; and the reality of the blow without that end does not violate. If the usage is absent (its reality famous with no metaphor, or no metaphor possible), one returns to the linguistic reality: one who swears not to eat meat violates by all meat, even the forbidden: carrion, pork, the flesh of beasts of prey; everything called meat; not what is not called meat: fat, marrow, liver, kidney, tripe. The hadith "two carrions and two bloods have been made lawful for us" (the fish and the locust) shows that liver and spleen are not meat, unless the intention is to avoid fatness: he then violates, likewise if the cause requires it. One who swears not to eat milk violates by eating it, even human milk: the name covers it in reality and in usage, fresh or curdled, liquid or solid. One who swears not to eat a head or eggs violates by every head and every egg, even the head of the locust and its eggs, for they fall under the name. One who swears not to eat fruit violates by everything savored, even the watermelon, which ripens and sweetens; not the cucumber and the khiyar (vegetables), nor the olive (its aim is its oil). One who swears not to lunch then eats after midday, not to dine then eats after midnight, not to take the suhur then eats before it: he does not violate, with no intention: lunch runs from dawn to midday, dinner from midday to midnight, the suhur from midnight to dawn. One who swears not to eat from this tree violates by its fruit alone, for that is what springs to mind: the oath restricted itself to it. One who swears not to eat from this cow violates by eating anything of it, not its milk or its young, for they are not of its parts. One who swears not to drink from this river or this well then scoops with a vessel and drinks violates, for they are not customary drinking vessels; drinking from them by usage is scooping by hand or vessel. But one who swears not to drink from this vessel then scoops and drinks does not violate: the vessel is a drinking implement, and drinking from it in reality is drinking with the mouth directly (Kashshaf al-Qina' 6/317-326; Sharh Muntaha al-Iradat 6/403-420; Manar as-Sabil 3/428-434).

Among the Hanafis: the basis of all oaths is the usage, which takes precedence over the intention and the legal and linguistic senses, unless the swearer intends what the wording admits. The foundational proof is the hadith of Ibn 'Abbas: a man asked whether a cow suffices for the animal vowed on behalf of a deceased; Ibn 'Abbas asked to which people their companion belonged; they said: Banu Rabah; he said: "when did Banu Rabah acquire cows? The cow belongs to the Azd; the imagination of your companion went to the camels": a foundational report carrying the absolute word toward what the imaginations of people aim at, for usage is an emergent imposition upon the original imposition. Thus one who swears not to sit in the light of a lamp then sits in the sun does not violate, though Allah called the sun a lamp: "and He made the sun a lamp" (Surah Nuh 16); one who swears not to sit on a carpet then sits on the ground does not violate, though Allah called the earth a carpet: "and Allah made the earth for you a carpet" (Surah Nuh 19); one who swears not to touch a peg then touches a mountain does not violate: "and the mountains as pegs" (Surah an-Naba 7). What counts is the named word according to usage: the aim of the swearer, if it is the sense of the named word, is taken; if it exceeds the word, it is not. The wording of the oath is considered by its customary sense among people, particular or general usage, without regard to the linguistic or legal sense: "by Allah I will not eat a head" violates by a head sold alone in the market, a sheep or cattle head, not the head of a bird, fish or sparrow, unless the people have agreed to sell them alone. "By Allah I will not ride a peg" does not violate by mounting the mountain: the peg in usage is not the mountain; still the word carrying the intended customary sense must be mentioned: if the customary sense is understood with no word pointing to it, it is not considered: "by Allah I will not leave by the door", then he leaves by the roof: he does not violate, though the usage conveys that he aims at not going out at all; no word carrying that purpose is mentioned, and usage does not make the unspoken spoken. Likewise one who swears not to strike him with the whip then strikes him with a stick does not violate, though the customary aim is not harming him by any blow. One who swears not to sell this merchandise for ten then sells it for nine does not violate, though the customary aim is to sell it above ten: that aim is not named in the wording; only the sum of ten is named, and it does not apply to nine. And one who sells it for eleven does not violate either: his aim is the surplus over ten, and the word ten applies to ten alone and to ten joined to another number, usage restricting it to ten alone. Conversely, one who swears not to buy this merchandise for ten then buys it for eleven violates: his customary aim is the purchase below ten, and the wording leads to it, for the word ten applies to ten alone and to ten with another number: buying at eleven, the ten existed joined to another number, and the surplus over the condition of violation does not prevent it; if he buys it for seven he does not violate: the ten never existed, alone or joined. It follows that oaths rest on customary words and on the aims they carry, and that customary aims exceeding the words are not considered. The example of determining one sense of a shared word: "his wife is divorced if he goes out today" intending the journey: he is believed religiously, not judicially, for the word exit is shared between the journey, leaving the dwelling and leaving the mosque; mankind divides into Arab, Abyssinian, Zanji, Roman and Turk, and the specification of the genus by one of its varieties is valid religiously; but intending an essential attribute (Egyptian, Iraqi, Levantine) avails neither religiously nor judicially, for that attribute is not part of the meaning of the word woman: it is specifying by place, and the intention does not avail there. Without usage one returns to the linguistic sense, but with usage the linguistic sense is considered only if shared between language and usage; so with the legal sense. With neither usage nor linguistic sense, one returns to the cause that drove to the oath: one who swore because of an attribute of the target, then the attribute vanished, does not violate by acting; if the attribute remains, or if it did not exist at the oath, he violates. Example of a vanished attribute: swearing not to eat this grape while fresh; its freshness gone, eating it dried brings no violation; the freshness remaining makes him violate. Example of an attribute absent at the oath: "by Allah I will not speak to this child, or eat of this lamb": he violates if he speaks to him as an old man or eats it as a ram; for the attribute of smallness, joined to the pointer, falls away, and only the indicated essence remains, which persists in smallness and old age: since it did not exist at the oath under that aspect, it is not considered in the oath; if the cause of the oath is other than smallness (fear for his honor, prodigality), he does not violate by speaking to him as an old man: the attribute existed at the oath and vanished, and the pointer no longer exists (Bada'i' as-Sana'i' 3/35-36; hashiyat Ibn 'Abidin 3/743-745; al-Jawhara an-Nayyira 6/36, 64).

The author of the Khulasa fiqhiyya (al-Haskafi) enumerates, in this line, cases in which the swearer does not violate:

• Swearing not to enter a house then entering the Ka'ba, the mosque or a church: no violation, for those places are not called houses by habit, and what counts in the oath is the name and the habit.
• Swearing not to speak then reciting the Quran in prayer: no violation, for recitation in prayer is not speech; the Prophet (peace be upon him) said: "this prayer admits nothing of the speech of people; only glorification, magnification and the recitation of the Quran"; outside prayer, reciting the Quran or glorifying violates, for it is speaking; and swearing not to read the book of so-and-so then consulting and understanding it without voicing anything does not violate: reading is the act of the tongue.
• Swearing not to wear a garment then removing it at once: no violation; likewise the mount one quits at once; lingering an hour, he violates: remaining clothed or mounted counts as wearing and riding.
• Swearing not to enter this house while already inside: no violation by remaining; he violates only by leaving then re-entering; entering is a passing, it has no duration; one who entered on Thursday and stayed until Friday does not say: I entered on Friday; entering mounted, on foot or carried by his order violates; entered by force, he does not violate; the one ordered to carry him out, who brought him out, violates; carried out by force, he does not violate.
• Swearing not to enter a ruined house: no violation: without designation the oath rests on the house of habit, the one entered and inhabited; swearing not to wear a shirt then wearing it brings no violation: the aim is the customary wearing.
• Swearing not to enter this house then entering it after its demolition, reduced to desert: violation; for designation attaches the oath to the permanence of its name, and the name remains, as when the roofs collapse and the walls remain.
• Swearing not to enter this house then entering after its collapse: no violation, for house is the name of the building; the building gone, the name goes; but if the roof fell and the walls remain, entering violates.
• Swearing not to live in this house then leaving it himself, leaving family and goods: violation, for he is counted resident by the remaining of his family and goods by usage; swearing not to live in a town then leaving it while leaving his family is no violation, for the resident of Basra is not called a resident of Kufa, unlike the house; if he does not perform that removal in its hour though able, he violates, and all the goods must be moved: even one peg remaining makes him violate; if the wife refuses the move and he leaves without returning, he does not violate; likewise if the house is found locked and he cannot open it; if the oath falls in mid-night and he cannot leave until morning, he does not violate.
• Swearing not to speak to the wife of so-and-so then speaking to her after her irrevocable divorce: violation, if the wife is designated; likewise the friend turned enemy; without designation, no violation.
• Swearing not to enter the house of so-and-so, then so-and-so sells his house and he enters: no violation.
• Swearing not to speak to this young man then speaking to him as an old man: violation: the ruling attaches to the indicated essence; the attribute, in his presence, is set aside; with the indefinite (young man, old man, child), the oath restricts itself to it.
• Swearing not to eat the flesh of this lamb then eating it as a ram: violation: the oath attached to the indicated essence.
• Swearing not to eat from this palm while bearing fruit: the oath bears on what will come from it; eating of the fruit itself brings no violation.
• Swearing not to eat of these unripe dates then eating them ripe: no violation; the oath attached to a named object remains by its name and ends with its end; likewise milk become cheese, the egg become chick, wine become vinegar; if he intended that outcome he violates: he bound himself harshly.
• Swearing not to eat meat then eating fish: no violation: the word meat does not cover fish in usage and habit; no account of the Quran calling fish meat, for oaths are not carried on the words of the Quran; likewise the one who swears not to demolish a house then demolishes a spider's web, or swears not to ride a mount then rides a disbeliever, does not violate, though Allah called the disbelievers "the worst of beasts" (Surah al-Anfal 55); everything in the sea follows the ruling of fish; any other meat violates, forbidden or lawful, cooked or roasted, in whatever manner; carrion, pork and human flesh violate, for all of it is called meat; this is for the oath of eating; the oath of buying falls on meat whose purchase is lawful; liver, tripe, head, gut and spleen violate; the fat of the belly is not meat and does not violate unless intended; the flank fat follows the fat; the fat of the back or adhering to the meat violates, for it is called fatty meat; the flesh of birds and game violates, as does the flesh of the head, the head being a limb of the animal; but one who swears not to buy meat then buys a head does not violate: one does not say he bought meat but a head; one who swears not to buy meat or fat then buys the flank fat does not violate: it is neither meat nor fat but a third kind.
• Swearing not to drink from the Tigris then drinking by a vessel: no violation, except drinking with the mouth directly: the oath having a customary reality and a customary metaphor rests on the reality, and the reality here is direct drinking, the metaphor being the vessel.
• Swearing not to drink the water of the Tigris then drinking by a vessel: violation, for he drank water annexed to the Tigris.
• Swearing not to eat of this wheat then eating its bread: no violation; violation occurs only in chewing it: wheat has a customary reality, boiled, fried or chewed, and reality precedes metaphor.
• Swearing not to eat of this flour then eating its bread: violation, for habit eats it thus and it has no other known reality; this with no intention: if he intended that very flour, eating its bread brings no violation; sifting it as it is brings no violation either: it has no customary reality, only a customary metaphor, and the oath takes the metaphor by consensus.
• Swearing not to speak to him then speaking while he can hear but is asleep: violation, for he spoke to him and reached his hearing, even without comprehension; likewise speaking to one absent-minded, or calling him without his understanding through negligence; knocking at the door and his saying "who is it?" violates; and if the target calls him and he answers: at your service, he violates.
• Swearing not to speak to him without his permission, then he authorized him without his knowing and he spoke: violation.
• Swearing not to sell, buy or hire, then delegating someone to do it: no violation, except with intention, for the rights of these acts return to the contractor, not to the commander; if he intended it he violates: he bound himself harshly; and if the swearer is of those whose habit is not to handle it himself, like the sultan, and he orders another, he violates: his oath bears on the command; if he intends not to handle it himself he is liable in judgment, for he intended the reality of his words.
• Swearing not to marry nor divorce, then delegating someone: violation, likewise the mutual release, reconciliation over intentional blood, the gift, charity, clothing and maintenance; for the agent in these acts is a spokesman who does not attribute them to himself: he says "I married off so-and-so" and not "I married"; and the rights of the contract return to the commander; if he says: "I intended to do it myself", he is not liable in judgment but in what lies between him and Allah.
• Swearing not to slaughter his ewe then ordering a man to do it: violation; if he says: "I intended to do it myself", he is liable in judgment.
• Swearing not to sit on the ground then sitting on a carpet: no violation, for that is not called sitting on the ground; the garment between him and the ground is part of him and is no screen; but swearing not to sit on a bed then sitting on a bed covered by a carpet violates: he is counted sitting upon it; if he set another bed over it and sat there, he does not violate.

Among the Shafi'is: the oath by Allah rests on the usage: the wording is carried to its customary sense, even metaphorical, common or not: "by Allah I will not eat from this tree" violates by its fruit, though the reality of the word tree is trunk and leaves; the expression has been used by custom for the fruit. The prince who swears not to build his house violates if another builds it; one who swears not to shave his head violates if another shaves it by his order: that is the relied-upon view, by consideration of the usage, unless another intention exists. The Shafi'is specify: one who swears not to eat heads, with no intention, violates by heads sold alone: sheep, camel and cattle heads: that is the customary sense, even if it is not the usage of the town of the swearer; the heads of birds, whale, game and horses do not violate, unless in a town where they are sold alone; one who swears not to eat meat: the word is carried to the meat of edible livestock (camels, cattle, sheep, horses, wild beasts, birds) for the name applies to it in reality: he violates by eating their males, fresh or not; he does not violate by the meat of what is not eaten (carrion, donkey), for his aim is abstaining from what is not customarily eaten; the word meat falls only on the lawful edible; nor the meat of fish or locust: they are not called meat in usage, though Allah called them meat.

What concludes the oath: Allah, His names and His attributes

The oath is concluded, in the generality of the jurists, by one common matter and one disputed. The common matter: the oath by Allah, by one of His names or one of His attributes. The people of knowledge agreed: whoever swears by Allah (by Allah, by ar-Rahman, by ar-Rahim, or tallah), or by an attribute such as the might and majesty of Allah, his oath is concluded, and if he violates, the expiation is due. The proof: "they will swear by Allah: we were never idolaters" (Surah al-An'am 23); "by Allah, I will surely scheme against your idols" (Surah al-Anbiya 57); "they swear by Allah with their strongest oaths: if you commanded them, they would go out" (Surah an-Nur 53); "they swear by Allah with their strongest oaths that a warner would come to them" (Surah Fatir 42). And the hadith: "whoever is to swear, let him swear by Allah or keep silent" (reported by al-Bukhari 2533 and Muslim 1646); swearing by the names of Allah follows the same rule, and Allah commanded His Prophet to swear by his Lord. Ibn 'Umar reported that the Prophet (peace be upon him) most often swore: "No, by the Turner of hearts" (reported by al-Bukhari 6956). He also said: "they are the losers, by the Lord of the Ka'ba" (reported by al-Bukhari 6262 and Muslim 990), which does not contradict the hadith "whoever is to swear swears only by Allah": swearing by all the names of Allah or His attributes is swearing by Allah. Ibn al-Mundhir transmitted consensus: "they agreed: whoever says: by Allah, or: Allah, or: tallah, if he violates, the expiation is due; and they agreed: whoever swears by one of the names of Allah then violates, the expiation is due" (al-Ijma', pages 604-605). Al-Qurtubi and Ibn Qudama confirm it (Tafsir al-Qurtubi 6/269; al-Mughni 9/385). Ibn Hubayra wrote: "they are of one accord: the oath by Allah is concluded, as with all His names such as ar-Rahman, ar-Rahim and al-Hayy, and all His attributes such as the might and majesty of Allah; except that Abu Hanifa excepted the knowledge of Allah, which he does not count as an oath" (al-Ifsah 2/363-364). Az-Zarkashi wrote: no debate: the oath by Allah entails the expiation (Sharh az-Zarkashi 3/302).

The names of Allah divide into three categories. The first: what names none but Him: Allah, ar-Rahman, the First with no beginning, the Last with no end, the Lord of the worlds, the Master of the Day of judgment, the Living who does not die: swearing by it is always an oath. The second: what names another figuratively, the absolute turning to Allah: the Creator, the Provider, the Lord, the Merciful, the Powerful, the Subduer, the King, the Compeller: swearing by it, intending Allah or absolutely, is an oath; intending another, it is not, for the intention turns the word; it is the school of ash-Shafi'i; Talha al-'Aquli said: "by the Lord, by the Creator, by the Provider", with the definite article, is always an oath, for these words with the article are used only for Allah. The third: what names Allah and another without the absolute turning to Him: the Living, the Knowing, the Existing, the Believing, the Generous, the Thankful: intending Allah, it is an oath; absolutely or intending another, it is not. Al-Qadi and ash-Shafi'i hold that this category is no oath even intending Allah, for the oath concludes only by the sanctity of the name, and a shared name has no sanctity of its own; the reply of the Hanbalis: if he swears by the name of Allah intending the oath, it is an oath entailing expiation, for the intention turns the admissible word toward one of its senses, as in the allusions (al-Mughni 9/394-395; al-Ikhtiyar 4/61-62; al-Jawhara an-Nayyira 6/16; al-Lubab 2/384).

Swearing by other than Allah: prohibition and ruling

The scholars agreed: swearing by other than Allah or by one of His attributes is forbidden: one does not swear by fathers, by the Ka'ba, nor by anything other than Allah; and swearing by the Prophet (peace be upon him) is forbidden with the majority. The proof: Nafi' reported from Ibn 'Umar that the Messenger of Allah (peace be upon him) met 'Umar ibn al-Khattab walking among a caravan and swearing by his father; he said: "Allah forbids you to swear by your fathers; whoever is to swear, let him swear by Allah or keep silent"; 'Umar said: by Allah, I never swore by my father again after hearing him, neither willingly nor by imitation (reported by al-Bukhari 6270-6271 and Muslim 1646). 'Umar reported: "Quraysh used to swear by their fathers; he said: do not swear by your fathers" (reported by Muslim 1646). Sa'd ibn Ubayda reported that Ibn 'Umar heard a man swear: no, by the Ka'ba; he told him: I heard the Messenger of Allah (peace be upon him) say: "whoever swears by other than Allah has disbelieved or associated" (authentic hadith: Abu Dawud 3251, at-Tirmidhi 1535, graded hasan; some scholars explain it as severity of expression, the proof being the hadith of Ibn 'Umar: the Prophet heard 'Umar say: by my father, by my father, and told him: Allah forbids you to swear by your fathers; and the hadith of Abu Hurayra: whoever swears by al-Lat and al-'Uzza let him say: there is no god but Allah). Ibn Mas'ud said: "that I should swear by Allah while lying is dearer to me than swearing by other than Him while truthful", for the good of unity is greater than the good of truthfulness, and the evil of lying lighter than the evil of association (reported by at-Tabarani in al-Mu'jam al-Kabir; al-Fatawa al-Kubra 4/621).

The wisdom of the prohibition is that the oath requires the greatness of that by which one swears, and true greatness belongs to Allah alone. Ibn 'Abbas said: that I should swear by Allah a hundred times while sinning is better for me than swearing by other than Him while truthful. The jurists divided over two points. First: is swearing by other than Allah forbidden or disliked? All agree: whoever swears by other than Allah intending the oath and attributes to its object the greatness he attributes to Allah is a disbeliever (al-Bahr ar-Ra'iq 4/311; Bada'i' as-Sana'i' 3/7-8). The majority (the Hanafis, the Malikis and the Hanbalis in the sound version) hold it forbidden; among them exists a view of mere dislike. Ibn 'Abd al-Barr wrote: "no one should swear by other than Allah, by these formulas or others, by the consensus of the scholars: whoever has an oath imposed on him for another over an accepted right swears for him only by Allah; even if he swears by the star, the sky or the Milky Way saying: I meant its Lord, it is no oath with them" (at-Tamhid 5/203); elsewhere: "the scholars agreed: the oath by other than Allah is disliked and prohibited, one does not swear by it" (at-Tamhid 13/367; 14/366). Ibn Taymiyya wrote: "the oath by creatures: the Ka'ba, the tomb of the shaykh, the favor of the sultan, the sword or the standing of a person: I know of no disagreement among the scholars that such oaths are disliked and prohibited, and that they entail neither violation nor expiation; whether it is forbidden or merely disliked divides, and the sounder in the school of Ahmad and others is that it is forbidden" (Majmu' al-Fatawa 35/243; 1/204); he added: the oath by creatures is forbidden with the majority, the school of Abu Hanifa and one of the two views in the schools of ash-Shafi'i and Ahmad, with the consensus of the Companions reported; Ibn Qudama wrote: "one does not swear by other than Allah nor by His attributes: by the father, the Ka'ba, a companion or an imam; ash-Shafi'i feared it might be disobedience; Ibn 'Abd al-Barr said: it is a principle approved by all; it is said it is permitted, since Allah swore by His creatures" (al-Mughni 9/385-386; Manar as-Sabil 3/412).

Among the Shafi'is, whoever swears by other than Allah (his father, the Prophet, the Ka'ba, a Companion) falls into three cases. The first: he intends the oath without attributing to its object the greatness he attributes to Allah: it is disliked, without disbelief: the Prophet (peace be upon him) said: "do not swear by your fathers, nor by your mothers, nor by the rivals; swear only by Allah, and do not swear by Allah except truthfully" (authentic hadith: Abu Dawud 3248, an-Nasa'i in as-Sunnan al-Kubra 4710). The second: he intends the oath and attributes to its object the greatness due to Allah: he is judged a disbeliever: "whoever swears by other than Allah has disbelieved or associated". The third: it runs on his tongue without intending the oath: it is not disliked, and it counts as laghw; thus is understood the answer to the Bedouin who said: by the One who sent you, I will add nothing nor subtract, the reply of the Prophet: "he has succeeded, by his father, if he spoke the truth" (reported by Muslim 11) (al-Bayan 10/493-494; al-Hawi al-Kabir 15/263).

The oaths of the Quran by creatures and the oath of the Prophet

The generality of jurists fixed: the oath of Allah in the Quran by some of His creatures has two interpretations. The first: Allah swore by His creations pointing to His power, glorifying them and signalling their rank; it belongs to Him to swear by whatever He wills of His creation, without anyone being taken as His example. The second: the oath by the Lord of these creatures is left implicit: "by those lined up", "by the Mount" (Surah at-Tur 1), "by the sky and the night visitor" (Surah at-Tariq 1), "by the fig and the olive" (Surah at-Tin 1), "by the chargers": that is, by the Lord of the lined-up, by the Lord of the Mount (Sharh Sahih Muslim 11/104; 'Umdat al-Qari 23/175).

As for what is reported from the Prophet (peace be upon him): "he has succeeded, by his father, if he spoke the truth", the scholars held three interpretations. The first: a formula running on the tongue without intending the oath. The second: this formula is not preserved in the hadith of the reliable transmitters, as Ibn 'Abd al-Barr says; Malik and others reported it from Abu Suhayl without that formula; and Isma'il ibn Ja'far reports: "he has succeeded, by Allah, if he spoke the truth" or "he has entered Paradise, by Allah, if he spoke the truth", which is worthier than the formula by his father, a strange formula refuted by the sound traditions (at-Tamhid 14/367). The third: if it stands, the apparent is that it occurred before the prohibition of swearing by other than Allah; for 'Umar swore thus, as the Prophet did, then the prohibition came, and no permission is reported after it (al-Mughni 9/386; Sharh Sahih Muslim 11/104; 'Umdat al-Qari 23/175).

Does the oath by other than Allah conclude and entail expiation?

The jurists of the four schools agreed: whoever swears by other than Allah then violates owes no expiation; for it is due only in the oath by Allah, in protection of His names and attributes, and nothing equals Him; the oath by other than Allah is association, and its expiation is unity: "whoever swears by al-Lat and al-'Uzza let him say: there is no god but Allah" (reported by al-Bukhari 6107 and Muslim 1647); the oath is greatness of that by which one swears, and only Allah deserves it; the oath by other than Allah being invalid, no expiation follows: it is no oath, and no sanctity whose violation is barred was violated. Al-Mawardi wrote: "the oath by other than Allah being disliked, it is not concluded, fulfillment is not binding, and no expiation is due upon violation: that is the approved position" (al-Hawi al-Kabir 15/263). Ibn Qudama wrote: "the oath by a creature: the Ka'ba, the prophets and the rest of creatures, does not conclude, and no expiation is due upon violation: it is the apparent of the words of al-Kharqi and the view of most jurists" (al-Mughni 9/405). Ibn Taymiyya wrote: "the oath by other than Allah: the angels, the prophets, the shaykhs, the kings and others is prohibited, not concluded, by the agreement of the imams; they debated only over swearing by the Messenger of Allah in particular; the majority hold it does not conclude" (Majmu' al-Fatawa 35/243).

Swearing by the Prophet (peace be upon him): the Hanbalis within the madhhab judge it, him alone among the prophets, an oath entailing expiation; Ahmad fixed it in the narration of Abu Talib: he is one half of the testimony by which the disbeliever becomes Muslim, resembling in that the other half, the name of Allah (al-Mughni 9/405; al-Insaf 11/14-15). The majority of jurists (the Hanafis, the Malikis, the Shafi'is and the Hanbalis in a narration preferred by many, like Ibn Qudama and Ibn Taymiyya) hold that one does not swear by the Prophet (peace be upon him): he said: "whoever is to swear, let him swear by Allah or keep silent" (reported by al-Bukhari 6270-6271 and Muslim 1646); he swore by other than Allah, so no expiation, as with the other prophets; he is a creature, and no expiation is due for swearing by a creature, as with Ibrahim (peace be upon him); the greatness of the oath belongs to Allah alone. Bada'i' as-Sana'i' answers the argument "he swore by that without which the oath is not complete" with: that reasoning falls before the one who says: and by Adam, and by Ibrahim: no expiation is due, though he swore by that without which the oath is not complete. Ibn Qudama wrote: "the analogy of the name of another upon His name is not valid, for lack of resemblance; and the words of Ahmad here are carried on recommendation, not obligation" (al-Mughni 9/405; Bada'i' as-Sana'i' 3/8; with many concordant references). Az-Zarkashi reported from Abu al-Barakat the denial of expiation, with two narrations on the question, and the words of Ahmad fit both: on the one hand the oath does not conclude by him, with the majority (Malik, Abu Hanifa, ash-Shafi'i); on the other hand it concludes, the choice of some of his companions like al-Qadi, Ibn al-Mundhir and their likes, Ibn 'Aqil extending it to the other prophets; and making expiation obligatory for swearing by a creature, even a prophet, is a very weak view, opposed to the principles and the texts (Majmu' al-Fatawa 1/204; Sharh az-Zarkashi 3/309).

Swearing by other created things: whoever swears by his shaykh, his grave, his life, his right over Allah, the kings, the favor of the sultan, the sword, the Ka'ba, his father or the grave of his father is forbidden it, and his oath does not conclude, by the agreement of the Muslims (Majmu' al-Fatawa 11/506).

Swearing by the mushaf or by the Quran

The jurists divided over the oath by the mushaf or by the Quran: does it conclude and is expiation due? The early Hanafis and Malik in one narration require no expiation: the Quran is the assemblage written in the mushaf, made of articulated sounds, attributes of the transient; it is therefore neither Allah nor one of His eternal attributes; even swearing by the speech of Allah is no oath with them, for the tongue is transient and created, while His speech is an attribute subsisting by His person. Also an oath is the renunciation: "if I do this I am innocent of the Quran, of what the mushaf contains, of the fast of Ramadan, of the prayer or of the pilgrimage": whatever negation is disbelief and which the law never allows to be dissolved entails expiation upon violation, for disbelief can never be made lawful (al-Ikhtiyar 4/61-62; al-Jawhara an-Nayyira 6/16; al-Lubab 2/384; hashiyat Ibn 'Abidin 3/713; 'Umdat al-Qari 23/185).

The majority of jurists (the Malikis in the famous view, the Shafi'is, the Hanbalis, the later Hanafis and the generality of the people of knowledge) hold that the oath by the Quran, by a verse or by the mushaf is a concluded oath whose violation entails expiation: Ibn az-Zubayr swore upon the mushaf; the one swearing by the mushaf intends only what is written in it, and it is the Quran between its two boards, by the agreement of the Muslims; the Quran is the speech of Allah, an attribute of His person: the oath concludes upon it as with "by the majesty and grandeur of Allah". Al-'Ayni said: the mushaf is an oath, especially in our age of multiplying false oaths and of people loving to swear upon the mushaf. Ibn 'Abidin reported: it was said in their time, but in ours it is an oath by which we transact, command and believe. Muhammad ibn Muqatil ar-Razi said: it is an oath, and the majority of our shaykhs adopted it. Ibn Hubayra wrote: "they divided over the oath by the mushaf; Malik and Ahmad say: his oath concludes and if he violates the expiation is due; and it is also the school of ash-Shafi'i"; and he held unworthy of account whoever differs. Malik and Ahmad divided over the measure of the expiation for violating the oath by the mushaf: Malik holds a single expiation, and it is the school of ash-Shafi'i; from Ahmad two narrations: like Malik (one only), or one expiation per verse (al-Ifsah 2/367-368).

A reservation is voiced in the later tradition: the mushaf is not an attribute of Allah for usage to be considered there, otherwise the oath by the Prophet and the Ka'ba would be an oath since it is common; so with "by your life"; however, if the swearer says: "I take as witness what this mushaf contains of the speech of Allah", it must be an oath (hashiyat Ibn 'Abidin 3/713; 'Umdat al-Qari 23/185; Sharh Sahih al-Bukhari 6/119; al-Mughni 9/398-399; Kashshaf al-Qina' 6/294; Manar as-Sabil 3/410-411).

Swearing by the covenant, the pledge, the trust and the right of Allah

The covenant and the pledge of Allah: the majority (the Hanafis, the Malikis and the Hanbalis within the madhhab) judge that saying "the covenant of Allah is upon me" or "the pledge of Allah is upon me" forms a concluded oath whose violation entails expiation: Allah said: "Fulfill the covenant of Allah when you have covenanted, and do not break the oaths after their confirmation" (Surah an-Nahl 91): He called the covenant an oath and forbade breaking it; the pledge expresses the covenant; and 'Aisha, having sworn by the covenant never to greet Ibn az-Zubayr, freed forty slaves when she greeted him; the covenant of Allah covers His speech and His command, and His speech is eternal, an attribute of His person. If one says "by the covenant of Allah" or "by the pledge of Allah", Abu Hanifa and Muhammad make no oath of it: the covenant of Allah is His command, as in "Did I not take a covenant upon you, children of Adam?" (Surah Yassin 60); it amounts to: by the command of Allah. The Shafi'is and the Hanbalis in one narration judge: if he intends the oath, it is an oath; if he intends the acts of worship Allah has charged us with by covenant, or the primordial acknowledgment of the children of Adam (Surah al-A'raf 172), or something else: it is no oath; the formula admitting several aims, one returns to his intention. If he does not intend the oath, it is not one; with no intention at all, two views: it is an oath, the habit of swearing so having settled, as with "by the grandeur of Allah"; or it is not: the apparent turns to the worship owed, and it differs from grandeur, which is an attribute of His person (Mukhtasar Ikhtilaf al-'Ulama 3/240; Bada'i' as-Sana'i' 3/6; al-Hidaya 2/74; Tabyin al-Haqa'iq 3/109; al-Jawhara an-Nayyira 6/19; al-Mudawwana al-Kubra 3/103; at-Tamhid 14/372; al-Mughni 9/400; Kashshaf al-Qina' 6/294).

The trust (al-amana): the generality of jurists fixed that swearing by the trust is forbidden: the Prophet (peace be upon him) said: "whoever swears by the trust is not one of us" (authentic hadith: Abu Dawud 3253). Ziyad ibn Hadir reported that a man swore before him by the trust and he wept bitterly; the man asked whether it was disliked; he answered: "yes; 'Umar forbade the oath by the trust with the utmost firmness". With the Hanbalis it is a forbidding prohibition in the sound version, and a prohibition of dislike in one view. Does the oath by the trust conclude? The Hanafis in the narration of al-Usul and the Malikis make it an oath entailing expiation; likewise the Shafi'is and the Hanbalis if he intends the oath; without intention, it is not. For Abu Yusuf and at-Tahawi it is no oath: the trust of Allah is His duties of worship (Surah al-Ahzab 72: "We had offered the trust to the heavens, the earth and the mountains"); swearing by it is swearing by other than the name of Allah. The narration of al-Usul replies: the trust annexed to Allah in an oath intends His attribute, for al-Amin is one of His names, derived from trust (Bada'i' as-Sana'i' 3/6; Mukhtasar Ikhtilaf al-'Ulama 3/240; al-Mabsut 8/133; Sharh Fath al-Qadir 5/67; al-Ikhtiyar 4/60). As-Sarakhsi reported that Muhammad, asked for the meaning of "by the trust of Allah", said: I do not know, as if to say: the Arabs used to swear by the trust of Allah, and he made it an oath. The Malikis make it an oath entailing expiation when one swears by the trust of Allah: it is an attribute of His person, for al-Amin, the trustworthy, has never ceased to describe Him; it amounts to "by the grandeur and power of Allah"; but if he intends what Allah has placed in trust with His servants, it is no valid oath (al-Mudawwana al-Kubra 3/103; Sharh Sahih al-Bukhari 6/117; at-Taj wal-Iklil 2/275; Kashshaf al-Qina' 6/294).

The right of Allah: Abu Hanifa, Muhammad ibn al-Hasan ash-Shaybani and Abu Yusuf in one narration require no expiation, for it is no oath: the right of Allah over His servants is obedience, as the Messenger of Allah (peace be upon him) explained to Mu'adh: "do you know what is the right of Allah upon His servants? That they worship Him and associate nothing with Him" (reported by al-Bukhari 2701); and the oath by the worship of Allah is no oath. If he says "by the Truth", it is an oath, for al-Haqq is one of the names of Allah: "they know that it is Allah who is the manifest Truth" (Surah an-Nur 25); it is said: if he intends the oath it is one; otherwise not, for that name applies to another as well. The Malikis, Abu Yusuf in one narration and the Hanbalis judge that "by the right of Allah, I will not do this" forms an oath entailing expiation: it is an oath in the usage of the tongue and of the law, for everyone understands from the swearer what he understands from "by the might and power of Allah"; and the right of Allah is an attribute of His person, His claim upon His servants being eternal. The Shafi'is say: if he intends the oath, it is one; if he intends the acts of worship, no; absolutely, two views, of which the sound one: it is an oath, its use in swearing having prevailed (Mukhtasar Ikhtilaf al-'Ulama 3/239-240; al-Mabsut 8/134; Bada'i' as-Sana'i' 3/7; al-Ikhtiyar 4/62; al-Jawhara an-Nayyira 6/17; al-Umm 7/61-62; al-Mughni 9/395-396).

Practical note

In short: swear only by Allah or by His names and attributes, avoid the needless oath, and if an oath is sworn over the future then violated deliberately, the expiation is due: feeding ten poor people from the average of what one feeds one's family, or clothing them, or freeing a slave; whoever finds none of the three fasts three days; swearing in forgetfulness, by mistake or under coercion does not violate with most scholars; and the oath by other than Allah neither concludes nor entails expiation: unity takes the place of expiation there.