Category: Fiqh (Jurisprudence)

The orthodox Islamic jurisprudence can be categorised into four main legal schools of thought:

1) Maliki (Imam Malik ibn Anas)
2) Hanafi (Imam Abu Hanifah)
3) Shafiʿi (Imam ash-Shafiʿi)
4) Hanbali (Imam Ahmad ibn Hanbal)

Analysis of Ashhab’s Opinion on Combining Prayers

On By splendidpearlsIn Contemporary Wrongs, Fiqh (Jurisprudence)Leave a comment

 

Ashhab ibn ‘Abd al-Aziz (140AH – 204AH) was a famous Egyptian jurist and companion of Imam Malik. Some have claimed that he was of the view that combining between two prayers without a valid Shar‘i excuse is permissible. This view contradicts the Mashhur position in the Maliki school. However, has that opinion been established from Ashhab?  Below we will analyse the view of Ashhab:

Ibn Abi Zayd al-Qayrawani (d. 386 H), the famous author of the Risalah, quotes Ashhab as follows:

“[Ashhab said:] The non-traveller also has a dispensation to do that [i.e. join Ẓuhr and ‘Asr/ Maghrib and ‘Isha’], although it is better not to. He has this licence because he is praying in one of the two times that Jibril stipulated. When the shadow becomes the same length (as a standing object), this is the end time of Ẓuhr and the start time of ‘Asr…This is also the case with Maghrib and ‘Isha’. The disappearance of the twilight is a common time for both of them…The Prophet ﷺ joined at the end of one time and the start of the other time. That is, to complete Ẓuhr when the shadow is the same length (as a standing object), or to start it when the shadow is the same length; and then to stand and pray ‘Asr after it. Or to complete Maghrib when the twilight has disappeared or to begin it at that time; and then offer ‘Isha’ thereafter.” (Nawādir, 1:263)

According to the well-known view in the Maliki school, Ẓuhr and ‘Asr have a shared time. That is, when the shadow of a standing object becomes equal to its length, the time of ‘Asr enters. However, the time of Ẓuhr does not end immediately at the start of ‘Asr, but there is a small window of time when they can both be prayed. This is based on the hadith in which Jibril led the Prophet ﷺ in prayer. In this hadith, it states that he led him in Ẓuhr on the second day when the shadow of a standing object was the same length; and this is despite the fact that he led him in ‘Asr on the first day at the very same time. Based on this, according to the well-known position in the Maliki madhhab, there is a shared time between Ẓuhr and ‘Asr. This is also the case with Maghrib and ‘Isha’: there is a small window of time when they can both be prayed just after the twilight disappears. Ashhab, who upholds this opinion, says Ẓuhr and ‘Asr can be combined even without a valid excuse, but only by praying each within their own respective times.

Ashhab’s comment: “because he is praying in one of the two times that Jibrīl stipulated” means that he is praying Ẓuhr at the time that Jibril prayed on the second day i.e. in the common time of Ẓuhr and ‘Asr. His subsequent explanation shows that he believes each of the two prayers are prayed in their own times.

Ibn Yunus (d. 451), a great mujtahid in the Maliki school, also quotes Ashhab saying the exact same thing. (al-Jāmi‘ li Masā’il al-Mudawwana, pp. 712-13) Al-Baji (d. 494) in his commentary of Muwaṭṭa’ narrates this position of Ashhab also, stating the same. (al-Muntaqā, 2:235, 236)

Qaḍi ‘Iyaḍ (d. 544 H) in his commentary on Ṣaḥīḥ Muslim says:

“All the ‘ulama’ have opined that it is not permissible to combine between two prayers without an excuse, except for a fringe group amongst them from the early Muslims, like Ibn Sirin, and from our [Maliki] authorities, Ashhab. They permitted it for a need and excuse as long as it is not made a habit. ‘Abdul Malik said something similar for Ẓuhr and ‘Asr. Their proof for this is the hadith of Ibn ‘Abbas, and the statement: ‘He did not want to cause inconvenience to his ummah.” He (‘Abdul Malik) interpreted that to mean delaying the first prayer until the end of its time and bringing the second to the start of its time, as interpreted by Abu l-Sha‘tha and ‘Amr ibn Dinar in Book of Muslim. Ashhab also explained the hadith in the same way. He said: ‘Because he prayed at the second of the two times that Jibrīl prayed’…Once this is so, there is no disagreement.” (Ikmāl al-Mu‘lim, 3:36)

Qaḍi ‘Iyaḍ makes it clear that there is no disagreement, since Ashhab did not say it is permissible to perform these prayers outside of their own times. They are each performed in their respective times but with an apparent combining (Jam’ Ṣūrī). Also note: the above references are quoting Ashhab’s words directly, explicitly showing he meant apparent combining.

It becomes very clear from the above that Ashhab did not advocate a real combining (Jam’ Haqīqī). Moreover, some Maliki authorities quote Ashhab as sharing the view of the Hanafis: that apart from Hajj, there is never a real combining, only apparent combining. The author of Manāhij al-Taḥṣīl says:

“The disputed scenario (of joining prayers) is a traveller combining outside of ‘Arafa and Muzdalifa. Malik and al-Shafi‘i said it is permissible to combine in general. Abu Hanifa and his followers said it is impermissible. Ashhab amongst the students of Malik agreed with him.” (Manāhij al-Taḥṣīl, 1:419)

Hence, the position of Ashhab cannot be used to claim there is an opinion of actual combining in the Maliki madhhab, even if some later scholars may have misunderstood his opinion to mean this. From the clear quotes from him above, no room remains for interpretation. Those who wish to respond, should address the clear reference to apparent combining  found in Ashhab’s statement and also Qaḍi ‘Iyaḍ’s comment that based on Ashhab’s own explanation, no disagreement really exists.

By Zameelur Rahman

Also see:

1) Al-Mazari on giving verdicts contrary to the Mashhur in one’s school
2) Importance of following the Mashhur — Protocols of Fatwa

 

Al-Mazari: Giving verdicts contrary to the established positions of one’s school

On By splendidpearlsIn Contemporary Wrongs, Fiqh (Jurisprudence), Seeking Islamic KnowledgeLeave a comment

Al-Mazari [d. 536 AH] was asked:

Is it possible to take the position of Sa`id bin ‘l-Musayyab in an irrevocably divorced woman by considering her legalised by mere contract? And is this issue from the issues of the fundamentals of the religion (Usul), or from the subsidiary issues (Furu’) in which every mujtahid is correct? And if I do this and did follow Sa`id bin ‘l-Musayyab, then [would it be] with sin or not?

He responded:

I already have a detailed answer I gave for this specific issue, when a question from Tunis (may Allah protect it) came. A man who studied Usul under me some time back got married to a woman, divorced her thrice, then had her returned as a legal wife after another man had contracted with her in marriage without penetration. So a question came to me from the judge and scholars of [Tunis]. Upon this, I condemned him so much that they thought I had permitted them to punish him. I mentioned that if this door is opened, a lot of religious irregularities, negative consequences in following [those] rulings, and preferring scholars of the past over competent contemporary scholars (on top of the difference that has occurred between the scholars of Usul regarding the following of a deceased scholar in the presence of a competent [living] scholar).

The advice I gave was that, as part of the fortified religion, exiting from the school of Malik and his disciples must be prohibited (Nahy) as a safeguard for the means. If [following any scholar of any school from any era] was legalised, [another] man would say, “I can sell a dinar for two, due to what has been reported from Ibn `Abbas”, then another would come and say, “I can marry a woman and take her private part as legal without any representative (Wali) or witnesses, by following Abu Hanifah in the issue of representative and Malik in the issue of witnesses, and I would marry her for just a penny by following al-Shafi`i.” This would be the worst place for harm.

Such activity was usually curbed in previous eras despite the piety of its people and their fear for the sake of their honour and religion. So how about an era in which the situation has become such that its people have fallen far too short of those preceding them, as is evident for the intellectual? This era is more worthy of having such a lax approach to religious affairs curbed. The judges and jurists of [this man’s] place should therefore not even consider the position of [Sa`id bin ‘l-Musayyab]; rather they must enact an annulment against that [marriage] and break [it] up. Their own selves should not allow them to abandon the schools of Malik, al-Shafi`i and Abu Hanifah due to the agreement of all the [Muslim] cities in following them, as this marriage prevents him from [following them]. And how can his own self allow for him to take a female private part as legal today, and have it declared illegal against him by a judge – who may contemplate punishment over that – the very next day?

As for your question regarding whether this issue is from the fundamentals of religion or from its subsidiaries, then according to me, the most correct position is that it is from the subsidiaries, because the reason for difference therein are inconclusive matters, not definitive. This is because the word of marriage in Allah’s statement “… then she would not be legal for him until she marries a husband apart from him” could be the contract as its literal meaning, and intercourse as its metaphorical meaning, or vice versa…

… However, even though this is from the subsidiaries according to me, then [realise] we have already mentioned what would prevent [that] man from [taking] this [alternative interpretation of the verse].

I remember when I was an adolescent by my master in Usul (may Allah have mercy on him). It was the first [night] of Ramadan, and the people had gone to sleep without having intended to fast [the following day]. I said, “We don’t need to make up for this day as is the position of some students of Malik in a solitary narration.” My teacher took me by the ear and told me, “If you want to read knowledge like this, then don’t bother studying at all, because if you start looking for [only] the convenient things on the path, a little heretic will come out of you…”

So you can see how our Imams — who used to fear Allah — used to condemn the one who is lax in his religious affair and exits from one school to another, as this leads to tribulation. And Allah knows the secrets of His servants. The Prophet (peace be upon him) said, “Leave that which throws you in doubt for that which does not put you in doubt.”

This amount should suffice.

[Fatawa ‘l-Mazari, pg. 151-154, Al-Dār al-Tunisiyyah Tunis, 1st edition, 1414 A.H.]

He further said, indirectly indicating to the lax nature of his contemporaries in passing rulings:

“All praise is for Allah, the only one who is praised, and the only one consulted in every affair. We seek His refuge from becoming those who are overpowered by predilection, and make ignorance their last place and abode. I turn to Allah that he does not make us from those who thinks knowledge is all about claims, and who wants to flood the laymen with his rulings – such a person is far removed. Knowledge is only that which its people testify to, and greatness is only that which is known from those who possess it. The law is not by the one who says ‘Me’, and suffices with being commended and praised.”

[Fatawa ‘l-Mazari, pg. 307, Al-Dār al-Tunisiyyah Tunis, 1st edition, 1414 AH]

Lastly, it should be noted that Al-Mazari’s opinion was directed at those in authority, passing edicts and judgements, not at laymen. He says:

“I would not pass rulings apart from that which is Mashhur. I would not place the people on anything else. Indeed, fear of Allah and safeguarding for the religion has diminished. There are a lot of those who claim knowledge and are bold enough to pass rulings without any insight. If this door was opened for them, so that they could go against the famously established position school, the tear would widen from the patch, and the school’s cover of awe would be breached. This is from the evils from which there is no hiding… “

Praising al-Mazari for his stance, Abi Ishaq al-Shatibi Ibrahim bin Musa al-Gharnati [d. 790 AH], said:

“See how this Imam and scholar, despite his leadership and greatness being agreed upon, did not allow passing rulings apart from the famously established position of the school and its known rulings, and this is a Maslahah—and necessity—based viewpoint, that fear of Allah and religiosity has diminished in many of those who have jobs in the spreading of knowledge and passing of edicts. If this door was opened, the foundations of the schools – in fact all schools – would be dismantled whatever becomes necessary for something would become necessary for its likes [as well]…”

[Taken from al-Miʿyār ál-Muʿrib Wa-‘l-Jāmiʿ ál-Mughrib by ál-Wansharīsī (died 914 A.H.), 12/25, Ministry of Awqāf and Islāmic Affairs Morocco, 1st edition, 1401 A.H.; originally sourced in al-Shatibi’s al-Muwafaqat]

By Sayyidi I. Ibrahim

 

Is Islam a violent religion?

On By splendidpearlsIn Contemporary Wrongs, Fiqh (Jurisprudence), Islamic History2 Comments

After every terrorist attack, a question is always on the mind of millions of people, Is Islam a violent religion?

If we look at the military expeditions (ghazawat) in which the Prophet Muhammad—peace and blessings be upon him—took part in during the last two decades of his blessed life (27 being the largest number that has been narrated and fighting occurred in only 9 of them) then we will see that only 1,018 people were killed: 759 of them were non-Muslims and 259 were Muslims.

Before dispatching the military forces, Caliph Abu Bakr had the following commands for his army:

  • Do not commit treachery or deviate from the right path.
  • You must not mutilate dead bodies.
  • Neither kill a child, nor a woman, nor an aged man.
  • Bring no harm to the trees, nor burn them with fire, especially those which are fruitful.
  • Slay not any of the enemy’s flock, save for your food.
  • You are likely to pass by people who have devoted their lives to monastic services; leave them alone.

So, is Islam a violent religion? Well, let’s drop the apologetic tone and be clear about what Islam does say: Islam does not prohibit war, but it has regulated war. It has set down clear guidelines as to when war is right:

  • To defend and protect.
  • Collective defence-to defend the Muslim lands when attacked by other nations.
  • To seek armed peace, where the two armies would meet before every battle and have peace talks.

How many people were killed in WWI? How many people were killed in WWII? How many people have been killed in Kashmir, Afghanistan, Iraq, Levant, north Africa and several other places? Did Islam cause all of that? If Islam caused all of that, then were the Islamic regulations followed? Hundreds of thousands of Muslims were killed during the WW fighting for the British Empire. And 4-million have been killed so far in the US-NATO wars, wars with no regulations and clearly no accountability.

In Islamic polity, it is upon the Muslims to protect Muslims, as well as non-Muslims, from all external threats. The ruler and those in authority are bound to look after the interests of all subjects using all the resources at their command. The famous Maliki scholar, Imam al-Qarafi, quotes the statement of Ibn Hazm from his book Maratib al-Ijma’:

If enemies at war come to our lands aiming at a certain dhimmi (non-Muslim who lives under Islamic governance and enjoys the rights enshrined in the contract he makes under the Shariah), it is essential for us that we—Muslims—come out to fight the enemies with all our might and weapons since the dhimmi is under the protection of Allah and His Messenger. If we did anything less than this, it means we have failed in our agreement for protection.

The main emphasis of Shariah is the sanctity of the concept of due process to guarantee the life, liberty, property and honour of every human being. Therefore, Shariah has justly regulated the conduct of the believers in this world. It has sanctioned the private as well as the society’s public conduct.

Allah says in the Qur’an

“There is no coercion into the religion. Right guidance has become clearly distinct form error.” [Surah al-Baqarah 2:255]

Ibn Juzayy al-Kalbi comments on the above verse:

“There is no coercion into the religion” means that the religion of Islam is at the furthest limit of clarity with the most obvious proofs of its authenticity, such that there is no need to coerce anyone to enter into it, but on the contrary every person possessing a sound intellect will enter into it voluntarily without coercion, and this is shown by His saying, “Right guidance has become clearly distinct from error,” i.e. it has become clear that Islam is right guidance and disbelief is error so that after this clarity there is no need for coercion.
[At-Tashil li’Ulum at-Tanzil, passage translated by Abdassamad Clarke]

Maliki School: The Timbukti Syllabus

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The Timbukti syllabus is an old method of teaching; it was the exact method of teaching adopted by scholars in Medina before and after Imam Malik: A student reads before the scholar, just like children read to the teacher, and if he makes a mistake, the teacher corrects him. The teacher interprets and explains the sacred texts to the student. The order that is followed in teaching the series of books of jurisprudence (fiqh)—according to the Maliki school—differs from place to place and from one school to another. However, the most common order is as follows:

  1. Qawāʿid aṣ-Ṣalāh (or Kawaʿidi) is a treatise of about thirty pages by an unknown author. It concerns the principles of prayer and articles of faith.
  2. Mukhtaṣar al-Akhḍarī by Abū Zaid ʿAbdur-Raḥmān al-Akhḍarī, which is an introduction to Islamic jurisprudence (fiqh) with emphasis on purification of the heart (taṣawwuf), ritual purity (tahārah) and prayer (ṣalāh).
  3. Al-ʿAshmāwiyyah by ʿAbd al-Bārī al-ʿAshmāwī ar-Rifāʿī, which is an introductory text that covers ritual purity (tahārah), prayer (ṣalāh) and fasting (ṣawm). It is studied alongside:
  4. Manẓūmah al-Qurṭubī fiʾl-ʿIbādāt by Yaḥyā al-Qurṭubī, which is another introductory text covering the five pillars of Islam: creed (ʿaqīdah), prayer (ṣalāh), fasting (ṣawm), alms (zakāh) and pilgrimage (ḥajj) to the holy sanctuary.
  5. Al-Muqaddimah al-ʿIzziyyah by Abul Ḥassan ʿAlī ash-Shādhilī is an intermediate text that concerns the jurisprudence of worship (ʿibādāt), commercial transactions (muʿāmalāt), as well as social ethics. It is studied alongside:
  6. Naẓmu Muqaddimah Ibn Rushd by ʿAbd ar-Raḥmān ar-Rāfiʿī, which is an intermediate text that adds to Manẓūmah al-Qurṭubī. It explains the jurisprudence concerning the five pillars of Islam in detail.
  7. Al-Risālah by Abū Muḥammad ʿAbdullāh ibn Abī Zayd al-Qayrawānī is another intermediate text in the school. The first half is on worship (ʿibādāt), the second concerns aspects of jurisprudence such as marriage (nikāḥ), divorce (ṭalāq), commercial transactions (muʿāmalāt), inheritance (mīrāth), punishments (ḥudūd) and social ethics. This text has the distinction of being continuously taught for over a thousand years—the only fiqh text to have reached us with tawātur (mass-transmission). One unique feature is that the author often uses prophetic traditions (ahādīth) to construct the wording of the text.
  8. Al-Murshid al-Muʿīn by Ibn ‘Āshir, which is an extensive text, categorised into three sciences: Ashʿarī Theology (ʿaqīdah), Maliki Jurisprudence (fiqh) and Spirituality (taṣawwuf) based on the spiritual path of Imam Junaid al-Baghdādī.
  9. Miṣbāh al-Sālik by ʿAbd al-Waṣīf Muḥammad is one of the first advanced books of the Maliki school that is studied before studying later advanced works. This book covers theology, all chapters of jurisprudence (worship, marriage, transactions, commerce, judicial law etc.), and social ethics (akhlāq).
  10. Aqrab al-Masālik by Aḥmad bin Muḥammad bin Aḥmad ad-Dardīr is an advance text that is an abridgement of al-Khalil’s Mukhtaṣar. The author leaves out the differences of opinion, and clarifies some difficult passages from Mukhtaṣar.
  11. Mukhtaṣar Khalīl by Khalīl ibn Isḥāq al-Jundī is the last advance text that is covered by the students of the Maliki school.  It concerns the differences of opinion among major authorities within the school. It has an unrivalled position in the later Maliki school and is the relied upon and mufta bihi text today.

References:

— Hausa Women in the Twentieth Century, edited by Catherine M. Coles, Beverly Mack
— Maliki Law: The Predominant Muslim Law in Nigeria, by Barr. Abdullahi Ghazali