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Usool al Fiqh

Usool al Fiqh: al Nahi

Islamic Legal Theory: The Prohibition

2013 Summer Session (August 12 to October 13 2013)

Class taught by Shaikh Jamaal Zarabozo


Recommended Textbook:

Mohammad Hashim Kamali, Principles of Islamic Jurisprudence

http://www.bandung2.co.uk/books/Files/Law/Principles%20of%20Islamic%20Jurisprudence%20-%20Hashim%20Kamali.pdf


Required or Recommended Reading:

al-Amr and al-Nahi (Imperative and Prohibition), Kamali Chapter Six

Pages 139-148 of 2nd edition or pages 187-201 of 3rd edition of the recommended textbook


Basic Outline of the Quarter:

This quarter will cover the prohibition in Islamic law. When a prohibition appears in the Quran or Sunnah, does that mean that the act must be fulfilled immediately? Are all prohibitions treated equally? What does the prohibition imply about the legal standing of an act.


2013-08-12 Class Notes


For the past two quarters we have been discussing Amr and now we will discuss Nahi which is prohibition.


Do you think that the discussion of Nahi would mirror the discussion of Amr? What were the major topics that we discussed in the two quarters?


There were concepts of ala Faur (علي الفور) and ala Thirahi (علي التراحي) for Amr, would similar concepts also apply to Nahi? This was a disputed issue for Amr, but it will not be a disputed issue for Nahi, since it would become prohibited immediately, there would be no gradual withdrawal from drinking alcohol.


With respect to Amr, there were many possible meanings, it was sometimes a command, sometimes a threat, sometimes a recommendation, etc. Would something similar be applicable for a prohibition? For example would you tell your child, don't do something? Yes something similar would also be applicable for prohibition, then we would have to discuss what is the default case.


Amr could be obligatory just once or repeatedly. You could define nahi to be an order not to do something. There could be circumstantial prohibitions, such as acts during the daytime of fasting, etc.


What if there is a prohibition of an act, then would it affect the soundness of the act, or when would it affect the soundness of the act.


For example, riba is prohibited and somebody gets a credit card with a ribawi contract, does it make the entire contract void? Does the prohibition of riba make the credit card contract invalid?


Another example, prohibition of an act during salah, if you were to perform the act, would the entire salah become invalid? Can you look up to the sky and make the entire salah invalid?


This issue of a Nahi on an act is not seen when we discussed amr. How does a prohibition affect the entire act. There is a great deal of difference of opinion about it. And there are lots of fiqh ramifications with respect to Nahi.



Definition of al-Nahi


Nahi is a demand or a command to refrain from doing an action. It should be a demand from a higher authority to a lower authority.


This is a sufficient definition given by majority of the usooliyeen. Some of them also add a condition of isti-ala (الإِستعلا), here the position of authority is demanding it in a stern fashion. Is this a necessary condition? No it is not necessary.


Identification of al-Nahi


When we discussed amr, we discussed how to identify an Amr in the text or communication. Similarly for Nahi, we have some words that indicate Nahi in English, for example, adding don’t in front of a command, Don’t Go!!! Would we have something similar in Arabic language?


Steps to identify al Amr in Arabic


1. For the command, the verb has to be in jussive form. Verbs with the sukoon ending

2. Drop the subject marker

3. If the word can be pronounced then this is the end

4. If not pronounceable then a vowel has to be added in front


Steps to identify al Nahi in Arabic


1. The verb has to be in jussive form, i.e. verbs with sukoon ending

2. The subject marker stays

3. The word La (لا) is added up in front to the verb.


#1 Grammatical form of al Nahi from the Quran


Do not approach the salah while you are intoxicated.


This is the grammatical form for Nahi. Footnote: There are many discussions about the grammatical form but it has to deal with issues of the Mutazilah which are long drawn out.


You can see many examples of this grammatical form


Stay away from zina and salat while intoxicated


يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَقْرَبُوا الصَّلَاةَ وَأَنتُمْ سُكَارَىٰ حَتَّىٰ تَعْلَمُوا مَا تَقُولُونَ


[4:43] O you who have believed, do not approach prayer while you are intoxicated until you know what you are saying


وَلَا تَقْرَبُوا الزِّنَا ۖ إِنَّهُ كَانَ فَاحِشَةً وَسَاءَ سَبِيلًا


Sahih International [17:32]

And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.



#2 Positive Form that implies Nahi


This is not the only way to identify al Nahi. There are many commands which have the meaning of a prohibition, such as refrain, avoid, leave that, etc. Similarly the Arabic language has similar formats.


Here we have a positive form, but the verb means to stay away from something.


Surah al Juma: Oh you who believe ..... hurry to salat al juma and leave trade


يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلَاةِ مِن يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَىٰ ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ ۚ ذَٰلِكُمْ خَيْرٌ لَّكُمْ إِن كُنتُمْ تَعْلَمُونَ


Sahih International

O you who have believed, when [the adhan] is called for the prayer on the day of Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade. That is better for you, if you only knew.


Here we have an Amr to stay away from something.


#3 Fajtanibuh (فاجتنِبوا) means to stay away from something.


With respect to alcohol, gambling etc. Allah swt says, stay away from them in order to prosper.


يَا أَيُّهَا الَّذِينَ آمَنُوا إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالْأَنصَابُ وَالْأَزْلَامُ رِجْسٌ مِّنْ عَمَلِ الشَّيْطَانِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ


Sahih International [5:90]

O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah ], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful.



#4 Hurrimat, Nahi, Yaqoon are also similar examples


حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ وَبَنَاتُكُمْ وَأَخَوَاتُكُمْ وَعَمَّاتُكُمْ وَخَالَاتُكُمْ وَبَنَاتُ الْأَخِ وَبَنَاتُ الْأُخْتِ وَأُمَّهَاتُكُمُ اللَّاتِي أَرْضَعْنَكُمْ وَأَخَوَاتُكُم مِّنَ الرَّضَاعَةِ وَأُمَّهَاتُ نِسَائِكُمْ وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُم مِّن نِّسَائِكُمُ اللَّاتِي دَخَلْتُم بِهِنَّ فَإِن لَّمْ تَكُونُوا دَخَلْتُم بِهِنَّ فَلَا جُنَاحَ عَلَيْكُمْ وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ وَأَن تَجْمَعُوا بَيْنَ الْأُخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ ۗ إِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا



Sahih International [4:23]

Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives' mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful.


Sometimes we have statement of facts which imply Amr. Similarly not all prohibitions have to be in the grammatical form of Nahi.



#5 Eyaakum means you should avoid something


وَعَنْ أَبِي هُرَيْرَةَ ‏- رضى الله عنه ‏- قَالَ: قَالَ رَسُولُ اَللَّهِ ‏- صلى الله عليه وسلم

‏- { إِيَّاكُمْ وَالظَّنَّ, فَإِنَّ اَلظَّنَّ أَكْذَبُ اَلْحَدِيثِ } مُتَّفَقٌ عَلَيْهِ ‏


Abu Hurairah (RAA) narrated that the Messenger of Allah () said:

“Avoid suspicion, for suspicion is the most false form of talk.” Agreed upon by Bukhari and Muslim.

http://www.sunnah.com/urn/2054500



#6 The negation of permissibility


Allah swt says that it is not allowable for you to inherit women of your deceased relatives (Nisa v19)


يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُواْ لَا يَحِلُّ لَكُمۡ أَن تَرِثُواْ ٱلنِّسَآءَ كَرۡهً۬ا‌ۖ


Is this Nahi from the grammatical? Grammatical it should be in the second person, whereas this example is not in the second person. But we understand that this is nahi.



#7 Mim Ha is another short expression which means “don’t do something”



#8 Balagah as a way to indicate a stronger Nahi


There is a stylistic way in the Quran that tells us not to do something. Allah swt has revealed quran to be our guidance, and he has revealed it in such a way that it affects us in both emotional and intellectual way. There is a beauty in the way the Quran describes something, it has an affect on our souls.


Balagah of the Arabic language tells us to avoid something. For example, those who invent lies about Allah swt. Allah swt could tell us directly don't tell lies about Allah swt, but he puts it in such a way that has a more intense effect than a nahi.


Allah swt says in ayah 17 of Surah Yunus:


فَمَنْ أَظْلَمُ مِمَّنِ افْتَرَىٰ عَلَى اللَّهِ كَذِبًا أَوْ كَذَّبَ بِآيَاتِهِ ۚ إِنَّهُ لَا يُفْلِحُ الْمُجْرِمُونَ


Sahih International [10:17]

So who is more unjust than he who invents a lie about Allah or denies His signs? Indeed, the criminals will not succeed



وَإِذَا تَوَلَّىٰ سَعَىٰ فِي الْأَرْضِ لِيُفْسِدَ فِيهَا وَيُهْلِكَ الْحَرْثَ وَالنَّسْلَ ۗ وَاللَّهُ لَا يُحِبُّ الْفَسَادَ


Sahih International [2:205]

And when he goes away, he strives throughout the land to cause corruption therein and destroy crops and animals. And Allah does not like corruption.


There is no doubt that the way it is grammatical represented it is not a nahi, but the balagah clearly indicates that it is a prohibition.



#9 Fisq as an example of Nahi


Don’t eat something on which Allah swt name has not been mentioned


وَلَا تَأْكُلُوا مِمَّا لَمْ يُذْكَرِ اسْمُ اللَّهِ عَلَيْهِ وَإِنَّهُ لَفِسْۗقٌ  وَإِنَّ الشَّيَاطِينَ لَيُوحُونَ إِلَىٰ أَوْلِيَائِهِمْ لِيُجَادِلُوكُمْ ۖ وَإِنْ أَطَعْتُمُوهُمْ إِنَّكُمْ لَمُشْرِكُونَ


Sahih International

And do not eat of that upon which the name of Allah has not been mentioned, for indeed, it is grave disobedience. And indeed do the devils inspire their allies [among men] to dispute with you. And if you were to obey them, indeed, you would be associators [of others with Him].



#10 Strong punishment for an action also indicates prohibition


There might not be any direct prohibition of the act, but it is clear from the mention of the strong punishment for the act that such an act is prohibited.


يَا أَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ وَذَرُوا مَا بَقِيَ مِنَ الرِّبَا إِن كُنتُم مُّؤْمِنِينَ


Sahih International

O you who have believed, fear Allah and give up what remains [due to you] of interest, if you should be believers.

2:279


فَإِن لَّمْ تَفْعَلُوا فَأْذَنُوا بِحَرْبٍ مِّنَ اللَّهِ وَرَسُولِهِ ۖ وَإِن تُبْتُمْ فَلَكُمْ رُءُوسُ أَمْوَالِكُمْ لَا تَظْلِمُونَ وَلَا تُظْلَمُونَ


Sahih International

And if you do not, then be informed of a war [against you] from Allah and His Messenger. But if you repent, you may have your principal - [thus] you do no wrong, nor are you wronged.


So we have clear prohibition in the language, but we do not need this clear indicator since from the context and from other indicators that it is a prohibition. Unfortunately you will get asked this question many times, show me in the Quran that there is clear nahi mentioned about it. This clearly shows that they do not understand the Arabic language.



Different meanings of Nahi


Dua is not an Amr but a request since we are not in a position of authority. There are a lot of Dua that are in the form of Nahi, where we ask Allah swt to keep us away from hellfire etc. The grammatical form is Nahy but it is a request as the position of authority is missing.


لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا وُسْعَهَا ۚ لَهَا مَا كَسَبَتْ وَعَلَيْهَا مَا اكْتَسَبَتْ ۗ رَبَّنَا لَا تُؤَاخِذْنَا إِن نَّسِينَا أَوْ أَخْطَأْنَا ۚ رَبَّنَا وَلَا تَحْمِلْ عَلَيْنَا إِصْرًا كَمَا حَمَلْتَهُ عَلَى الَّذِينَ مِن قَبْلِنَا ۚ رَبَّنَا وَلَا تُحَمِّلْنَا مَا لَا طَاقَةَ لَنَا بِهِ ۖ وَاعْفُ عَنَّا وَاغْفِرْ لَنَا وَارْحَمْنَا ۚ أَنتَ مَوْلَانَا فَانصُرْنَا عَلَى الْقَوْمِ الْكَافِرِينَ


Sahih International

Allah does not charge a soul except [with that within] its capacity. It will have [the consequence of] what [good] it has gained, and it will bear [the consequence of] what [evil] it has earned. "Our Lord, do not impose blame upon us if we have forgotten or erred. Our Lord, and lay not upon us a burden like that which You laid upon those before us. Our Lord, and burden us not with that which we have no ability to bear. And pardon us; and forgive us; and have mercy upon us. You are our protector, so give us victory over the disbelieving people."



What is the default ruling of Nahi?


It is that of an obligation or wajib. For Amr there are mustahab Amr, we might have makrooh actions. So we will have to discuss whether the Nahi becomes Haram or makrooh.


Amr can mean permissibility and an example is from Surah Jumah where the Amr of going out and seeking bounty of Allah is actually permissibility. Could a Nahi imply permissibility?



فَإِذَا قُضِيَتِ الصَّلَاةُ فَانتَشِرُوا فِي الْأَرْضِ وَابْتَغُوا مِن فَضْلِ اللَّهِ وَاذْكُرُوا اللَّهَ كَثِيرًا لَّعَلَّكُمْ تُفْلِحُونَ


Sahih International

And when the prayer has been concluded, disperse within the land and seek from the bounty of Allah , and remember Allah often that you may succeed.


Some of the scholars mentioned seven different meanings for Nahi. Some scholars mentioned some more meanings, some said there are fifteen different meanings.



Example of Meaning of Al-Nahi #1


Prophet said that beware of sitting in the roads

http://www.sunnah.com/bukhari/79/3


حَدَّثَنَا عَبْدُ اللَّهِ بْنُ مُحَمَّدٍ، أَخْبَرَنَا أَبُو عَامِرٍ، حَدَّثَنَا زُهَيْرٌ، عَنْ زَيْدِ بْنِ أَسْلَمَ، عَنْ عَطَاءِ بْنِ يَسَارٍ، عَنْ أَبِي سَعِيدٍ الْخُدْرِيِّ ـ رضى الله عنه أَنَّ النَّبِيَّ صلى الله عليه وسلم قَالَ ‏

"‏ إِيَّاكُمْ وَالْجُلُوسَ بِالطُّرُقَاتِ ‏"‏‏.‏

فَقَالُوا يَا رَسُولَ اللَّهِ مَا لَنَا مِنْ مَجَالِسِنَا بُدٌّ نَتَحَدَّثُ فِيهَا‏.‏ فَقَالَ ‏"‏ إِذَا أَبَيْتُمْ إِلاَّ الْمَجْلِسَ فَأَعْطُوا الطَّرِيقَ حَقَّهُ ‏"‏‏.‏ قَالُوا وَمَا حَقُّ الطَّرِيقِ يَا رَسُولَ اللَّهِ قَالَ ‏"‏ غَضُّ الْبَصَرِ، وَكَفُّ الأَذَى، وَرَدُّ السَّلاَمِ، وَالأَمْرُ بِالْمَعْرُوفِ وَالنَّهْىُ عَنِ الْمُنْكَرِ ‏"‏‏.‏


Narrated Abu Sa`id Al-Khudri: (Bukhari

The Prophet () said, 'Beware! Avoid sitting on the roads." They (the people) said, "O Allah’s Apostle! We can't help sitting (on the roads) as these are (our places) here we have talks." The Prophet () said, ' lf you refuse but to sit, then pay the road its right ' They said, "What is the right of the road, O Allah's Apostle?" He said, 'Lowering your gaze, refraining from harming others, returning greeting, and enjoining what is good, and forbidding what is evil."


Here the Nahi is in the form of Eyaakum which is the grammatical form of staying away from something.


But is this an advice? We need to present evidence to go from the default ruling of Nahi which is that of haram?


Conclusion


Two things to take away from this class. The Nahi is not always in the grammatical form of a prohibition. And sometimes the Nahi is in the grammatical form but it is not a prohibition, it could be an advice.



2013-08-19 Class Notes


Handouts sent by Sh Jamaal:

Various meanings of al-Nahi

Disallowed Matters by Sh Muhammad Salih al Monajjid


We will continue our discussion of Nahi or prohibition. Sh had sent two handouts which are linked above.


It is much easier to identify nahi than to identify amr, since in most cases the nahi is preceded by the word ‘La’ in Arabic whether the word is noun or verb afterwards.


When you use Amr, it does not always mean a command, it does not mean that you have to do something. For example, “Pardon me”, is this an Amr? Grammatically it is in the form of Amr but it does not mean Amr since you cannot force somebody to pardon you.


Another example, “Come to my house for dinner”. This is in the form of Amr but among friends it is not an Amr, it is an invitation or a request.


Many times Nahi in its grammatical format does not mean that it is a prohibition.


We have nine different meanings of Nahi. Some scholars have fifteen meanings and some contemporary authors have given more than fifteen different meanings. Sometimes it is an advice, sometimes you are belittling somebody, instilling dispair, etc which are mentioned in the handout.


Verses and Hadith containing Nahi


Identify what is the nahi in the verse. Second, analogous to what we did with amr, try to determine the meaning of the nahi in the context of the particular verse.


Here are the possible meanings of the nahi in the verses found below (some may be repeated—but I am fairly certain that they are all used):

(a) Prohibition

(b) Dislike

(c) Irshaad (إِرشاد) or advice for one’s benefit

(d) Duaa (دُعاء)

(e) Tahqeer (تحقير) or disparagement

(f) Clarifying the result of a behavior

(g) Instilling despair

(h) Guiding to the best manners or behavior

(i) Khabar (خبر) or statement of fact


Example 1: Surah Al Tahrim verse 7


يا أيها الذين كفروا لا تعتذروا اليوم إنما تجزون ما كنتم تعملون


O you who have disbelieved, make no excuses that Day. You will only be recompensed for what you used to do.  [Sahih International] http://quran.com/66/7


Where is the nahi in this example?

La tahtadaru


Does it really mean that Allah swt is forbidding them from making excuses?

The nahi here does not mean it is forbidden to make excuses. The meaning is that there will be no excuses accepted on your behalf, whether they make excuses or not but they will not be accepted.


It is instilling despair since it is too late for them to make excuses when they are in front of Allah swt and their excuses will not be accepted. It could be the choice (e) as well which is Tahqeer.



Example 2: Surah Baqarah verse 286


لا يكلف الله نفسا إلا وسعها لها ما كسبت وعليها ما اكتسبت

ربنا لا تؤاخذنا إن نسينا أو أخطأنا

ربنا ولا تحمل علينا إصرا كما حملته على الذين من قبلنا ربنا ولا تحملنا ما لا طاقة لنا به واعف عنا واغفر لنا وارحمنا أنت مولانا فانصرنا على القوم الكافرين


Allah does not charge a soul except [with that within] its capacity. It will have [the consequence of] what [good] it has gained, and it will bear [the consequence of] what [evil] it has earned. "Our Lord, do not impose blame upon us if we have forgotten or erred. Our Lord, and lay not upon us a burden like that which You laid upon those before us. Our Lord, and burden us not with that which we have no ability to bear. And pardon us; and forgive us; and have mercy upon us. You are our protector, so give us victory over the disbelieving people." [Sahih International] http://quran.com/2/286


This nahi is an example of dua. All of the dua that we make are in the form of Amr or Nahi.



Example 3: Surah Al Hijr verse 88


لا تمدن عينيك إلى ما متعنا به أزواجا منهم ولا تحزن عليهم واخفض جناحك للمؤمنين

Do not extend your eyes toward that by which We have given enjoyment to [certain] categories of the disbelievers, and do not grieve over them (????Edit: We did not discuss this nahi). And lower your wing to the believers.  

[Sahih International] http://quran.com/15/88


Is the act of looking at them that is prohibited? No. Then it means that it is not a prohibition. This is the case of tahqeer or disparagement according to many fiqh books. It is showing the worthlessness in the long run of this dunya. Don't even look with desire at the bounties that are given to the disbelievers since it is worthless.


This is part of the balaghah or stylistic nature of the Qur’an in order to convey in some beautiful format.



Example 4: Surah Ibrahim verse 42


ولا تحسبن الله غافلا عما يعمل الظالمون إنما يؤخرهم ليوم تشخص فيه الأبصار


And never think that Allah is unaware of what the wrongdoers do. He only delays them for a Day when eyes will stare [in horror]. [Sahih International] http://quran.com/14/42


When we move from the default meaning of nahi, we can have slightly different meanings from it. The usooliyeen say that it is clarifying the result of your behavior (choice f above) because of the rest of the verse.


It is also a statement of fact since Allah swt is aware of all that you do.



Example 5: Hadith


What is slightly different about this example?


http://www.sunnah.com/bukhari/19/46


حَدَّثَنَا الْمَكِّيُّ بْنُ إِبْرَاهِيمَ، عَنْ عَبْدِ اللَّهِ بْنِ سَعِيدٍ، عَنْ عَامِرِ بْنِ عَبْدِ اللَّهِ بْنِ الزُّبَيْرِ، عَنْ عَمْرِو بْنِ سُلَيْمٍ الزُّرَقِيِّ، سَمِعَ أَبَا قَتَادَةَ بْنَ رِبْعِيٍّ الأَنْصَارِيّ َ ـ رضى الله عنه ـ قَالَ قَالَ النَّبِيُّ صلى الله عليه وسلم ‏ "‏ إِذَا دَخَلَ أَحَدُكُمُ الْمَسْجِدَ فَلاَ يَجْلِسْ حَتَّى يُصَلِّيَ رَكْعَتَيْنِ ‏"‏‏.



The Prophet said, "If anyone of you enters a Mosque, he should not sit until he has offered a two-Rakat prayer."


Here the nahi is in third person, because usually the nahi is in 2nd person.


If you say it is guiding to the best manner, then you say it is slightly better than mustahab, but nobody will agree that this is slightly better than mustahab.


This is either prohibition or a dislike. If you conclude that tahyatun masjid is not waajib then you would say that this nahi is a dislike, if you disagree then you would say that this nahi is indeed a prohibition.


When you do not have indicators to make the ruling of the nahi, you would go to the default ruling of nahi. And if you think default ruling is prohibition then that would be your ruling, and if you think it is a kiraha then that would be your ruling (disliked).



Example 6: Hadith


أن النبي صلى الله عليه وسلم نهى عن البول قائم


The Prophet  forbade urinating while standing.


http://www.sunnah.com/urn/1000290


أَخْبَرَنَا عَلِيُّ بْنُ حُجْرٍ، قَالَ أَنْبَأَنَا شَرِيكٌ، عَنِ الْمِقْدَامِ بْنِ شُرَيْحٍ، عَنْ أَبِيهِ، عَنْ عَائِشَةَ، قَالَتْ مَنْ حَدَّثَكُمْ أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم بَالَ قَائِمًا فَلاَ تُصَدِّقُوهُ مَا كَانَ يَبُولُ إِلاَّ جَالِسًا ‏.‏


It was narrated that 'Aishah said:

"Whoever tells you that the Messenger of Allah (pbuh) urinated standing up, do not believe him, for he would not urinate except while squatting." (Graded Hasan)


If the narrator of the hadith does not have the exact wording used by the Prophet then they have to report that narration of the Prophet as a statement of fact.


Here the narration could be in the third person or direct, we do not know exactly how the Prophet advised. But it doesn't matter, the default ruling would be the same.


If Sh. Jamaal had asked you what is the ruling about urinating while standing, what would you say?


Here a complication is that there is another narration where it is reported that Prophet (pbuh) urinated while standing. We have to ask the question, was this action of the Prophet an exception to the normal way of his doing the action.


The actions are very different from the speech. Many people go behind the action of Prophet (pbuh) and think that it was due to special circumstances Prophet (pbuh) had to urinate while standing. Without this second evidence this is either A (prohibition) or B (disliked).



Example 7: Surah Al Maidah verse 101


يا أيها الذين آمنوا لا تسألوا عن أشياء إن تبد لكم تسؤكم وإن تسألوا عنها حين ينزل القرآن تبد لكم عفا الله عنها والله غفور حليم


O you who have believed, do not ask about things which, if they are shown to you, will distress you. But if you ask about them while the Qur'an is being revealed, they will be shown to you. Allah has pardoned that which is past; and Allah is Forgiving and Forbearing. [Sahih International] http://quran.com/5/101


This is not a prohibition, it is guiding you and showing you that it is best that you do not do this action. Most of the scholars say it is irshaad or advice for your benefit.


So if you lived during the time of the Prophet, would it be a sin or haraam if you asked a question about something to the Prophet? No it is not a sin.



Example 8: Surah Luqman verse 13


وإذ قال لقمان لابنه وهو يعظه يا بني لا تشرك بالله إن الشرك لظلم عظيم


And [mention, O Muhammad], when Luqman said to his son while he was instructing him, "O my son, do not associate [anything] with Allah. Indeed, association [with him] is great injustice."  

[Sahih International] http://quran.com/31/13


This is an example of A (prohibition)



Example 9: Surah Baqarah verse 237


وإن طلقتموهن من قبل أن تمسوهن وقد فرضتم لهن فريضة فنصف ما فرضتم إلا أن يعفون أو يعفو الذي بيده عقدة النكاح وأن تعفوا أقرب للتقوى ولا تنسوا الفضل بينكم إن الله بما تعملون بصير


And if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified - unless they forego the right or the one in whose hand is the marriage contract foregoes it. And to forego it is nearer to righteousness. And do not forget graciousness between you. Indeed Allah , of whatever you do, is Seeing. [Sahih International] http://quran.com/2/237


Is the nahi clear in this example? It looks like strongest conclusion here is (h) Guiding to the best manners or behavior.



Example 10: Surah Al Rahman verse 33


يا معشر الجن والإنس إن استطعتم أن تنفذوا من أقطار السماوات والأرض فانفذوا لا تنفذون إلا بسلطان


O company of jinn and mankind, if you are able to pass beyond the regions of the heavens and the earth, then pass. You will not pass except by authority [from Allah ].  [Sahih International] http://quran.com/55/33



When you look at la tanfadhun [ لا تنفذون ] , is there something wrong grammatically speaking in the way it is stated?


If I want to tell a group of people, do not eat, how would I say it in Arabic? (لا تأكلوا)

There are two types of nun of emphasis, heavy and light. The nun at the end in لا تنفذون is for emphasis (light as there is no shadda on Nun), it is telling you that you will never be able to do it. So this is example of the statement of fact.



We had nine different usages of nahi in the above examples, which shows us that there are at least nine different usages of nahi.


Example 11

يَا أَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللَّهَ حَقَّ تُقَاتِهِ وَلَا تَمُوتُنَّ إِلَّا وَأَنتُم مُّسْلِمُونَ


Sahih International [3:102]

O you who have believed, fear Allah as He should be feared and do not die except as Muslims [in submission to Him].


In the verse from the Quran, “... have taqwa and do not die except as Muslims”, here the phrase do not die, is this a nahi, is this a special type of nahi? Yes here the nun has emphasis on it, since there is shadda on the nun.


What is the meaning of this nahi, is it literally prohibition?


In general this is not an action that you can control, it does not literally mean do not die. But it is a warning for us to take all precautions that we are ready for the time when we will die.



Example 12: Surah Tur


اصْلَوْهَا فَاصْبِرُوا أَوْ لَا تَصْبِرُوا سَوَاءٌ عَلَيْكُمْ ۖ إِنَّمَا تُجْزَوْنَ مَا كُنتُمْ تَعْمَلُونَ


Sahih International [52:16]

[Enter to] burn therein; then be patient or impatient - it is all the same for you. You are only being recompensed [for] what you used to do."


This is an example of despair. What other meaning of nahi can you get?

This is also an example of equality with respect to your actions, it does not matter if you do this or do that.



Example 13: Prophet was asked about making wudu after eating camel’s meat.


http://www.sunnah.com/urn/1254930


حَدَّثَنَا أَبُو بَكْرِ بْنُ أَبِي شَيْبَةَ، حَدَّثَنَا عَبْدُ اللَّهِ بْنُ إِدْرِيسَ، وَأَبُو مُعَاوِيَةَ قَالاَ حَدَّثَنَا الأَعْمَشُ، عَنْ عَبْدِ اللَّهِ بْنِ عَبْدِ اللَّهِ، عَنْ عَبْدِ الرَّحْمَنِ بْنِ أَبِي لَيْلَى، عَنِ الْبَرَاءِ بْنِ عَازِبٍ، قَالَ سُئِلَ رَسُولُ اللَّهِ ـ صلى الله عليه وسلم ـ عَنِ الْوُضُوءِ مِنْ لُحُومِ الإِبِلِ فَقَالَ ‏ "‏ تَوَضَّئُوا مِنْهَا ‏"‏ ‏.‏

It was narrated that Bara'bin 'Azib said:

"The Messenger of Allah was asked about performing ablution after eating camel meat. He said: 'Perform ablution after eating it.'" (Sahih)


According to the Hanbali madhab, even to this day, they say your wudu is broken after you eat camel’s meat.


When the Prophet was asked about making wudu after eating goat/sheep meat, he replied, do not make wudu from it.


Why was the Prophet asked this question? There was a shariah that anytime you ate meat touched by fire, you had to do wudu. This was a command (amr) to not pray without making wudu after eating meat touched by fire.


This amr was abrogated according to all of the madhabs. According to the Hanbalis and Nawawi from the Shafi madhab, they say that this prohibition remains about eating camel’s meat.


Now what do you think about this nahi in light of this additional information.


What happens to a nahi after an amr?


Is this a sign of permissibility or is it a sign of obligation.


Arabic language is very powerful. Even in English language the imperative can mean many things, it could be a command, an instruction, etc


Similarly nahi can have many meanings. Many people when they read the Quran or hadith and they come across nahi, they jump to the conclusion and say that it is haraam. You see this trend in many young energetic people.


http://www.sunnah.com/urn/1001760


أَخْبَرَنَا مُحَمَّدُ بْنُ بَشَّارٍ، قَالَ حَدَّثَنَا ابْنُ أَبِي عَدِيٍّ، عَنْ شُعْبَةَ، عَنْ عَمْرِو بْنِ دِينَارٍ، عَنْ يَحْيَى بْنِ جَعْدَةَ، عَنْ عَبْدِ اللَّهِ بْنِ عَمْرٍو، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏ "‏ تَوَضَّئُوا مِمَّا مَسَّتِ النَّارُ ‏"‏ ‏.‏


It was narrated from Abu Hurairah that the Messenger of Allah () said:

'Perform Wudu' from that which has been touched by fire.'"

[Below is the link for hadith discussing the hadith. I think confusion is not completely removed.]


http://islamqa.com/en/ref/7103


The hadeeth of Jaabir; the last of the two commands from the Messenger of Allaah (peace and blessings of Allaah be upon him) was that there was no need to do wudoo’ after eating food that had been touched by fire.(Narrated by Abu Dawood, 192; al-Nisaa’i, 185).


أَخْبَرَنَا مُحَمَّدُ بْنُ عَبْدِ الأَعْلَى، قَالَ حَدَّثَنَا خَالِدٌ، قَالَ حَدَّثَنَا ابْنُ جُرَيْجٍ، قَالَ حَدَّثَنِي مُحَمَّدُ بْنُ يُوسُفَ، عَنِ ابْنِ يَسَارٍ، عَنِ ابْنِ عَبَّاسٍ، قَالَ شَهِدْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم أَكَلَ خُبْزًا وَلَحْمًا ثُمَّ قَامَ إِلَى الصَّلاَةِ وَلَمْ يَتَوَضَّأْ ‏.‏




2013-08-26 Class Notes


Default ruling of the Nahi which is in the form of “La Tafalu” (لا تفعلوا)


The default ruling is the ruling or conclusion that is applied in absence of any other evidence.


For Nahi in the form of la tafalu, the default ruling for mirrors that of Amr. There are five opinions or stances about what is the default understanding of Nahi.


Footnote: The diversity of opinion regarding Amr is much larger compared to the diversity of opinion for Nahi.


Ruling #1: Haraam

The first opinion is from Al Jamhoor (majority of scholars) and it has been said explicitly that this is the opinion of the four imams.


Evidences for this ruling:


Evidence #1: Surah Al Hashr - Whatever prophet gives you take from it and whatever he makes nahi for then stay away from it.


مَّا أَفَاءَ اللَّهُ عَلَىٰ رَسُولِهِ مِنْ أَهْلِ الْقُرَىٰ فَلِلَّهِ وَلِلرَّسُولِ وَلِذِي الْقُرْبَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنكُمْ ۚ وَمَا آتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانتَهُوا ۚ وَاتَّقُوا اللَّهَ ۖ إِنَّ اللَّهَ شَدِيدُ الْعِقَابِ


Sahih International

And what Allah restored to His Messenger from the people of the towns - it is for Allah and for the Messenger and for [his] near relatives and orphans and the [stranded] traveler - so that it will not be a perpetual distribution among the rich from among you. And whatever the Messenger has given you - take; and what he has forbidden you - refrain from. And fear Allah ; indeed, Allah is severe in penalty.


Evidence #2: What about a logical argument as a type of evidence for this ruling?

The logical argument suffers from a circular type of reasoning. Since it is nahi you stay away from it and you stay away from it because it is nahi?????


Evidence #3: Hadith: Prophet said if I ordered you to do something try your best to do it but if I ask you to stay away from it then fajtanibu.

http://www.sunnah.com/bukhari/96/19


حَدَّثَنَا إِسْمَاعِيلُ، حَدَّثَنِي مَالِكٌ، عَنْ أَبِي الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ دَعُونِي مَا تَرَكْتُكُمْ، إِنَّمَا هَلَكَ مَنْ كَانَ قَبْلَكُمْ بِسُؤَالِهِمْ وَاخْتِلاَفِهِمْ عَلَى أَنْبِيَائِهِمْ، فَإِذَا نَهَيْتُكُمْ عَنْ شَىْءٍ فَاجْتَنِبُوهُ، وَإِذَا أَمَرْتُكُمْ بِأَمْرٍ فَأْتُوا مِنْهُ مَا اسْتَطَعْتُمْ ‏"‏‏.‏


Narrated Abu Huraira:

The Prophet (pbuh) said, "Leave me as I leave you, for the people who were before you were ruined because of their questions and their differences over their prophets. So, if I forbid you to do something, then keep away from it. And if I order you to do something, then do of it as much as you can." (Bukhari 7288)


Evidence #4: All of the Sahabah treated Nahi as a prohibition. Scholars claim that there was ijmaa from the beginning that Nahi was haraam.


Footnote: If I ask you to stay away from drinking alcohol and you cannot stop cold turkey, here the question becomes whether you stop immediately or gradually come to stop from it. But you cannot use it as an argument that the default ruling is that of haraam ala faur (حرام علي الفور)



Ruling #2: Makrooh

This is the opinion of Mutazalite and many Hanafis. It is attributed to Imam Shafi but there is explicit statement from Imam Shafi that this is not his opinion.


Evidences for this ruling:


Evidence #1: Logical argument based on the default ruling for everything is that of permissibility and it is better to jump from mubaah to makrooh in case of Nahi.


If you ask somebody to not do something it could be in strict sense or in less strict sense. Everybody agrees that Nahi could be either haraam or makrooh. They argue that the default ruling for everything is that of permissibility or mubaah. They claim that know if there is a nahi, then the safer approach is to go from mubaah to makrooh instead of jumping from mubaah to haraam.


What do you think about this evidence?

If I tell you don’t use the phone right now, it doesn’t mean that I will punish you if you use the phone right now.


Should you take the approach of the shortest jump (mubaah to makrooh) or the safest jump (mubaah to haraam)? The answer is that it is better to take the safest jump instead of the shortest jump.



Ruling #3: Calling to leave an action without literally meaning either Haram or Makrooh

This is the opinion of a number of Usooliyeen specially from the Shafiee school.


This is contradicted by the evidences for ruling #1 and also contradicted by the actions of the sahabah.



Ruling #4: The word is Mushtarak i.e. it has more than one meaning at one time and it can mean either Haram or Makrooh.

This is the opinion of the Shia scholars.


This is contradicted by the evidences for ruling #1 and also contradicted by the actions of the sahabah.



Ruling #5: Waqfites position (Suspended judgement) i.e. cannot decide or judgement is suspended unless further evidence is found

This is the approach of Hasan al Ashari and Baqalani and people who follow that school.


The problem with the Waqafite approach is that you have to find some evidence to base your ruling, but what happens if you do not find any additional evidence? Basically they don't have any default ruling to fall back upon.


Footnote: If an act is Makrooh does it mean that there is no punishment for it? When the fuqaha define an action as makrooh in legalese way they mean that legally it is makrooh but still makrooh means that one should stay away from it in a strict way even if it is not haram.



How to apply Ruling #1 - Nahi means Haraam


The position that Nahi means prohibition has many more followers as compared to Amr means waajib which has less followers. There is much more evidence for Ruling #1 in case of Nahi (haraam) and there is less evidence for Amr implies default ruling of waajib. So when you encounter a Nahi in the text, we are saying that the default ruling is haraam unless there is additional evidence. This is a strong statement.


Should we add more conditions or constraints on a nahi before we apply this default ruling?


Let us say that you come across a hadith that has a nahi, what additional constraints will you place on it before stating the default ruling of haraam?


Your first question would be, is this hadith Authentic (Sahih or Hasan), and nowadays a lot of Muslims ask this question about hadith evidence, for this we have to thank scholars such as …. father of Hasan al Banna, ….. and Shaykh Albani who revived our deen and taught us how to approach and understand the issue of authenticity of hadith related to our deen.


Differences between Hanafi madhab and other madhabs about Nahi


Majority of ulema are of the opinion that for any text from the Quran, we can apply the default ruling, that Nahi means haraam.


The Hanafi madhab takes a different approach, they require that the text has to be Qataai (definitive) in order for the action to be haraam. If the evidence is not Qataai (not definitive), then they say that the action is makrooh.


When most of the madhabs say haram then it means haram and makrooh means makrooh. In Hanafi makrooh also has more to it as they use terms like makrooh tanzeehi and makrooh tahreemi. The makrooh tahreemi is almost like haram (if you do the act then you will be punished) and makrooh tanzeehi is almost akin to mubah.


Another associated question that Hanafi raise is that if you deny something haram then you are denying something definitive (it is act of Kufr) and if you deny something makrooh then you are not denying something less than definitive.


Footnote: In conventional Hanafi books if they say makrooh then they mean makrooh tahreemi and if they mean makrooh tanzeehi then they will say makrooh tanzeehi. However, nowadays many Hanafis have lost this distinction and today they will look at both types of makrooh as “disliked”. This has taken another dimension in places like USA where a conventional Hanafi interacts with Shafis, Malikis and Hanbalis, that they have started to understand makrooh as understood by other schools and lost the original Hanafi understanding of makrooh.




2013-09-02 Class Notes


We are going back to a point from the lecture the week before last week. This is related to the booklet “Disallowed Matters by Shaikh Muhammad Salih al Monajjid” from the website www.islamqa.com. The book which Shaykh Jamaal sent, the author Shaykh Monajjid wrote this book……., and followed it with this book (al-manhiyyat) and this book is for people who have started to take the religion too lightly. One of the students feel that the whole booklet has just become something which is making everything haram. This book is directed towards masses who do not have the background of fiqh and usul al fiqh, so as such this booklet is even a more problem since some new zealous Muslims may start to argue too much in their communities. The book is titled “al manhiyyat” so it includes those aspects for which Nahi has been made. He says in the foreword that the book has both Haram and Makrooh in it.


Obviously if something is Makrooh so we stay away from it since Prophet (pbuh) has told us to stay away from all he (pbuh) made the Nahi for. The word Nahi does not have the same connotation in the Arabic as the word “forbidden” does in English, so the translation has not come out very neatly. However at the same time even though this effort has been a good one but still we need to be careful not to lose the vastness of the words into narrow opinions which can be abused by many people.


How to understand the legalese terms haraam and makrooh as defined by the fuqaha and how to understand these terms when they are referred in the Quran and the Hadith?


Evidence #1: Can the word makrooh or its related words ever mean haraam?


In the Quran, Surah al Isra, there is a long passage which starts with forbidding any partners with Allah swt  with ayah 22 and then there is a long list and at the end of the list, Allah swt says in ayah 38 that “all that it is its evil is ever, in the sight of your Lord, detested”. Here makrooha does not mean disliked, it is clearly haraam. These are legal classifications but it does not necessarily mean that when they were used in the Quran or mentioned in hadith, that they have the same meanings as understood by the legalese


كُلُّ ذَٰلِكَ كَانَ سَيِّئُهُ عِندَ رَبِّكَ مَكْرُوهًا

Sahih International [17:38]

All that - its evil is ever, in the sight of your Lord, detested.


Evidence #2: Hadith


From Sahih Bukhari, the Prophet said, Allah has forbidden for you disobeying mothers and killing infants and disliked ... asking too many questions and wasting water.


There are terms used for the first category and the second category, are those words as used by the Prophet map to what is later defined by the fuqaha. The first category does indeed map to the haraam as defined by the fuqaha, but the second category might be a more nuanced meaning of makrooh as defined by the fuqaha.



http://www.sunnah.com/bukhari/78/6


حَدَّثَنَا سَعْدُ بْنُ حَفْصٍ، حَدَّثَنَا شَيْبَانُ، عَنْ مَنْصُورٍ، عَنِ الْمُسَيَّبِ، عَنْ وَرَّادٍ، عَنِ الْمُغِيرَةِ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ إِنَّ اللَّهَ حَرَّمَ عَلَيْكُمْ عُقُوقَ الأُمَّهَاتِ، وَمَنْعَ وَهَاتِ، وَوَأْدَ الْبَنَاتِ، وَكَرِهَ لَكُمْ قِيلَ وَقَالَ، وَكَثْرَةَ السُّؤَالِ، وَإِضَاعَةَ الْمَالِ ‏"‏‏.‏


Narrated Al-Mughira:

The Prophet () said, "Allah has forbidden you ( 1 ) to be undutiful to your mothers (2) to withhold (what you should give) or (3) demand (what you do not deserve), and (4) to bury your daughters alive. And Allah has disliked that (A) you talk too much about others ( B), ask too many questions (in religion), or (C) waste your property."


(Bukhari 5975  -   كتاب الأدب)


Evidence #3: Things that are disliked are at different levels


What about praying Fard prayer without azan and iqama? This is like one did not do his best in performing the act, even though he performed the obligatory act.


So the above evidences point out that the terms used for dislike, makrooh have many meanings and we should be aware of them.


Differences between scholars about how to go from the default ruling of Nahi


The default ruling for nahi is that of haraam. We cannot go from the default ruling to another ruling without evidence.


However with Nahi, the differences that occur within the fuqaha is not that of the default ruling, what is the acceptable evidence to go from haraam to makrooh, this is where the differences among the fuqaha and scholars occur.


Example #1 of differences among scholars about “Performing Salat in the Camel pastures”


Hadith - Do not pray in the camel pastures for they are from the shayateen.

Based on this hadith can you say that it is haraam to pray in the camel pastures?


http://www.sunnah.com/abudawud/2/103


حَدَّثَنَا عُثْمَانُ بْنُ أَبِي شَيْبَةَ، حَدَّثَنَا أَبُو مُعَاوِيَةَ، حَدَّثَنَا الأَعْمَشُ، عَنْ عَبْدِ اللَّهِ بْنِ عَبْدِ اللَّهِ الرَّازِيِّ، عَنْ عَبْدِ الرَّحْمَنِ بْنِ أَبِي لَيْلَى، عَنِ الْبَرَاءِ بْنِ عَازِبٍ، قَالَ سُئِلَ رَسُولُ اللَّهِ صلى الله عليه وسلم عَنِ الصَّلاَةِ فِي مَبَارِكِ الإِبِلِ فَقَالَ ‏"‏ لاَ تُصَلُّوا فِي مَبَارِكِ الإِبِلِ فَإِنَّهَا مِنَ الشَّيَاطِينِ ‏"‏ ‏.‏ وَسُئِلَ عَنِ الصَّلاَةِ فِي مَرَابِضِ الْغَنَمِ فَقَالَ ‏"‏ صَلُّوا فِيهَا فَإِنَّهَا بَرَكَةٌ ‏"‏ ‏.


Bara’ b. Azib reported :

The Messenger of Allah (May peace be upon him) was asked about saying prayer at places where the camels kneel down. He replied; Do not say prayer at places where the camels kneel down because they are the places of devils. And he was asked about saying prayer in the fold of sheep. He replied: pray there because they are the places of blessing.


(Sunan abi daud, kitab al salat #174   --   Grade Sahih by Albani)


According to Abu Hanifa, Malik, Shafii and one narration from Imam Ahmad it is makrooh to perform salat in the camel pastures. Another narration of Imam Ahmad considers it as Haram.


The evidence they invoke to go from the default ruling of haraam to makrooh is another hadith of the Prophet, he said that the earth has been made a pure place and when the time comes to pray, you can pray wherever you are.....


http://www.sunnah.com/muslim/5/3


حَدَّثَنَا يَحْيَى بْنُ يَحْيَى، أَخْبَرَنَا هُشَيْمٌ، عَنْ سَيَّارٍ، عَنْ يَزِيدَ الْفَقِيرِ، عَنْ جَابِرِ بْنِ عَبْدِ اللَّهِ الأَنْصَارِيِّ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ أُعْطِيتُ خَمْسًا لَمْ يُعْطَهُنَّ أَحَدٌ قَبْلِي كَانَ كُلُّ نَبِيٍّ يُبْعَثُ إِلَى قَوْمِهِ خَاصَّةً وَبُعِثْتُ إِلَى كُلِّ أَحْمَرَ وَأَسْوَدَ وَأُحِلَّتْ لِيَ الْغَنَائِمُ وَلَمْ تُحَلَّ لأَحَدٍ قَبْلِي وَجُعِلَتْ لِيَ الأَرْضُ طَيِّبَةً طَهُورًا وَمَسْجِدًا فَأَيُّمَا رَجُلٍ أَدْرَكَتْهُ الصَّلاَةُ صَلَّى حَيْثُ كَانَ وَنُصِرْتُ بِالرُّعْبِ بَيْنَ يَدَىْ مَسِيرَةِ شَهْرٍ وَأُعْطِيتُ الشَّفَاعَةَ ‏"‏ ‏.


Jabir b. 'Abdullah al-Ansari reported:

The Prophet () said: I have been conferred upon five (things) which were not granted to anyone before me (and these are): Every apostle was sent particularly to his own people, whereas I have been sent to all the red and the black the spoils of war have been made lawful for me, and these were never made lawful to anyone before me, and the earth has been made sacred and pure and mosque for me, so whenever the time of prayer comes for any one of you he should pray whenever he is, and I have been supported by awe (by which the enemy is overwhelmed) from the distance (which one takes) one month to cover and I have been granted intercession.


(Muslim 521a - كتاب الْمَسَاجِدِ وَمَوَاضِعِ الصَّلاَةِ)


Is there any conflict between these two hadith?


We know that if there is najas in a place we do not pray there, similarly with najas on our clothes etc. But the question about the camel pastures is not that of najas.


The schools that use the first hadith say that it is not tahreem because of the second hadith. It is only makrooh and not haram. Scholars have the second narration about places of prayer, they say that the first narration about camel pastures implies it is only makrooh and not haraam.


Here the scholars had another hadith as evidence to move the nahi from haraam to makrooh. So here also the phrase “.... places of devils……” has been used so it should be even harder to move away from default ruling of haram.



Example #2 of differences among scholars about garment covering shoulder while doing prayers


Prophet said that you should not pray in a garment that does not at least cover one shoulder.


If you have just one garment, some would just tie it around the waist and would not have any covering over their shoulder. This hadith says that you should cover at least one shoulder. There is another hadith that says you should cover both shoulders.


http://www.sunnah.com/nasai/9/28


أَخْبَرَنَا مُحَمَّدُ بْنُ مَنْصُورٍ، قَالَ حَدَّثَنَا سُفْيَانُ، قَالَ حَدَّثَنَا أَبُو الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏

"‏ لاَ يُصَلِّيَنَّ أَحَدُكُمْ فِي الثَّوْبِ الْوَاحِدِ لَيْسَ عَلَى عَاتِقِهِ مِنْهُ شَىْءٌ ‏"‏ ‏


It was narrated that Abu Huraira said:

"The Messenger of Allah()said: 'No one of you should pray in a single garment with no part of it on his shoulder.'"


(Sunan al Nasai 769 - كتاب القبلة)


According to the Hanbalis, it is obligatory to cover at least one shoulder in your salah and if you do not cover your shoulder, then your salah is baatil, based on this hadith. bin Baaz said that if you do not cover your shoulder then your prayer is not valid.


The majority of the fuqaha (other madhabs) say that this nahi means it is makrooh but not haraam. They agree that this hadith is authentic. The proof for why it is not tahreem is that the shoulder is not aurah and hence it is like the rest of the body which is not aurah so this is the proof that it is makrooh and not haram.


Discussion about the evidence used to deviate from the default ruling of a Nahi


They do not present any other hadith. They have no illa. The burden of proof is on the one who is moving from the default ruling, and how strong should be their evidence?


They do not clearly state how the aurah evidence is tied to the above hadith about covering at least one shoulder. There is no illa in the aurah evidence. So it looks like their evidence is weak.



Example #3 differences among scholars about mukhtasirat مُخْتَصِرً


In another hadith, Prophet forbade that the person prays mukhtasirat. There is difference of opinion about what the word mukhtasirat means. Some say it means when you lean on a cane, some say it means to shorten the surah just read the last few verses. The strongest opinion is that it means to pray with your one or both hands on the hips.


http://www.sunnah.com/bukhari/21/24


حَدَّثَنَا عَمْرُو بْنُ عَلِيٍّ، حَدَّثَنَا يَحْيَى، حَدَّثَنَا هِشَامٌ، حَدَّثَنَا مُحَمَّدٌ، عَنْ أَبِي هُرَيْرَةَ، رضى الله عنه قَالَ نُهِيَ أَنْ يُصَلِّيَ الرَّجُلُ مُخْتَصِرًا‏.‏

Narrated Abu Huraira:

It was forbidden to pray with the hands over one's hips.

(Bukhari -- 1220:  كتاب العمل فى الصلاة)


The vast majority of the scholars from the 4 madhabs say it is makrooh and not haraam. Ibn Hazm and Shawqani say it is haraam and not makrooh.


Is placing of the hands on your chest sunnah or waajib? If you pray with your hands on your side, is your prayer valid? What happens to your hands when you rise from the rukuh, do you fold them or put them on your side? What happens if somebody convinces you to fold your hands and it takes time for you to adjust, do you correct your prayers if you make a mistake?


Since placing hands is act of sunnah so they make a logical argument to imply the placing of hands in hips as makrooh.


Here they make a logical argument to imply that it is makrooh. However taken to its extreme, you can present a logical argument.


Conclusion: One cannot go from the default ruling to any other ruling without the proper evidence. Similarly we cannot go from the Haqeeqi meaning to the Mijazi meaning without proper evidence. Unfortunately in Tafseer this happens a lot and people move to Mijazi meaning without proper evidence.




2013-09-09 Class Notes


Tonight’s class will focus on some minor issues related to Nahi, before we tackle the biggest issue related to Nahi.


Nahi - Prohibition that is enforced forever


When there is Nahi, in some cases the prohibition is very clear that it is forever. We have three examples from the Quran and Hadith.


Example #1: Prohibition to pray in the mosque of the hypocrites


وَالَّذِينَ اتَّخَذُوا مَسْجِدًا ضِرَارًا وَكُفْرًا وَتَفْرِيقًا بَيْنَ الْمُؤْمِنِينَ وَإِرْصَادًا لِّمَنْ حَارَبَ اللَّهَ وَرَسُولَهُ مِن قَبْلُ ۚ وَلَيَحْلِفُنَّ إِنْ أَرَدْنَا إِلَّا الْحُسْنَىٰ ۖ وَاللَّهُ يَشْهَدُ إِنَّهُمْ لَكَاذِبُونَ


Sahih International

And [there are] those [hypocrites] who took for themselves a mosque for causing harm and disbelief and division among the believers and as a station for whoever had warred against Allah and His Messenger before. And they will surely swear, "We intended only the best." And Allah testifies that indeed they are liars.


9:108

لَا تَقُمْ فِيهِ أَبَدًا ۚ لَّمَسْجِدٌ أُسِّسَ عَلَى التَّقْوَىٰ مِنْ أَوَّلِ يَوْمٍ أَحَقُّ أَن تَقُومَ فِيهِ ۚ فِيهِ رِجَالٌ يُحِبُّونَ أَن يَتَطَهَّرُوا ۚ وَاللَّهُ يُحِبُّ الْمُطَّهِّرِينَ

Sahih International

Do not stand [for prayer] within it - ever. A mosque founded on righteousness from the first day is more worthy for you to stand in. Within it are men who love to purify themselves; and Allah loves those who purify themselves.



Example #2: Nahi about sitting and praying on graves


The word abadan is very clear prohibition. We have seen it where the prohibition is forever when the prophet said that do not pray facing the graves.


http://www.sunnah.com/abudawud/21/141

حَدَّثَنَا إِبْرَاهِيمُ بْنُ مُوسَى الرَّازِيُّ، أَخْبَرَنَا عِيسَى، حَدَّثَنَا عَبْدُ الرَّحْمَنِ، - يَعْنِي ابْنَ يَزِيدَ بْنِ جَابِرٍ - عَنْ بُسْرِ بْنِ عُبَيْدِ اللَّهِ، قَالَ سَمِعْتُ وَاثِلَةَ بْنَ الأَسْقَعِ، يَقُولُ سَمِعْتُ أَبَا مَرْثَدٍ الْغَنَوِيَّ، يَقُولُ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ لاَ تَجْلِسُوا عَلَى الْقُبُورِ وَلاَ تُصَلُّوا إِلَيْهَا ‏"‏ ‏.

Narrated Abu Marthad al-Ghanawi :

The Messenger of Allah () as saying: Do not sit on the graves, and do not pray facing them.



Example #3: Prohibition of fighting during the state of Ihraam


Another example of clear prohibition is that of not hunting during Hajj. This is a temporary for the time during performing Hajj. But in another sense, this prohibition is forever, from now until the end of time, whenever somebody is in the state of Ihram, this prohibition is always enforced.


يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَقْتُلُوا الصَّيْدَ وَأَنتُمْ حُرُمٌ ۚ

Sahih International

O you who have believed, do not kill game while you are in the state of ihram.


This example is mentioned in many fiqh books to highlight that the Nahi is conditional but this conditional Nahi is enforced forever.



Nahi ala Faur or Nahi ala Tharakhi

(Immediate enforcement or Delayed enforcement over time of the prohibition)


Next issue is whether Nahi is enforced ala faur (علي الفور)  or ala tharakhi (علي التراخي), do we have to enforce it immediately, and also do we have to stay away from it permanently. There are some different opinions about this question. Ar Razi and some Shafi scholars say that the Nahi does not imply ala faur and permanent prohibition.


Question to the classroom, what do you think about this opinion and what is your evidence for your opinion?


Actions of the Prophet and the Sahabah are evidence of immediate and permanent enforcement, when the command for staying away from alcohol came, their went and got rid of alcohol in their possession, they did not delay for a single moment. Can somebody claim that their high level of taqwa was the reason for this behavior?


When we discussed Amr, did any of you say that it is Amr ala tharakhi? Is this issue of Nahi ala faur or ala tharakhi, so obvious, that it is difficult to explain?


The example of the slave who has to buy supplies for his master, his master says don’t buy supplies for xyz merchant, and the slave continues to buy supplies for xyz, we all agree that the slave is wrong in his actions.


In general when something is prohibited, it is a sign, that action that is prohibited is (قبيح) i.e. the action is evil and not good. The shariah is defining it as not good or qabih (قبيح) and you have to stay away from it.


The people who have different opinion about it say that there is nothing in the Nahi itself that says that it needs to be enforced immediately, they have the same opinion about Amr, they say Amr is ala tharakhi. However this is a minority opinion.


Are there are any examples where the Prophet prohibited something and there was a slow response. The sahabah were ordered to leave the ihraam. However this was an Amr and not a Nahi, and the sahabah were slow to leave the ihraam. We have to make the distinction between an Amr and a Nahi. There are no examples about the slow response to a Nahi.


http://www.sunnah.com/bukhari/96/19


حَدَّثَنَا إِسْمَاعِيلُ، حَدَّثَنِي مَالِكٌ، عَنْ أَبِي الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ دَعُونِي مَا تَرَكْتُكُمْ، إِنَّمَا هَلَكَ مَنْ كَانَ قَبْلَكُمْ بِسُؤَالِهِمْ وَاخْتِلاَفِهِمْ عَلَى أَنْبِيَائِهِمْ، فَإِذَا نَهَيْتُكُمْ عَنْ شَىْءٍ فَاجْتَنِبُوهُ، وَإِذَا أَمَرْتُكُمْ بِأَمْرٍ فَأْتُوا مِنْهُ مَا اسْتَطَعْتُمْ ‏"‏‏.‏


Narrated Abu Huraira:

The Prophet () said, "Leave me as I leave you, for the people who were before you were ruined because of their questions and their differences over their prophets. So, if I forbid you to do something, then keep away from it. And if I order you to do something, then do of it as much as you can."


Conclusion: The nature of the nahi is such that the response is ala faur.



Is Nahi forever (i.e. is it permanent)


When Allah swt says don’t do something, la tafal (لا تفعل), this prohibition is forever, for all mankind. If somebody disagrees, they have to present evidence why it is not forever. Another evidence is that when Quran says “O you who believe…..” then how can we not respond if we are claiming that we are believers.


Classroom discussion about some people claiming that they are not following some prohibitions because the society has changed etc etc


Example from Sahih Bukhari about Nahi not being permanently enforced?


http://www.sunnah.com/nasai/43/63


أَخْبَرَنَا إِسْحَاقُ بْنُ إِبْرَاهِيمَ، قَالَ أَنْبَأَنَا عَبْدُ الرَّزَّاقِ، قَالَ حَدَّثَنَا مَعْمَرٌ، عَنِ الزُّهْرِيِّ، عَنْ سَالِمٍ، عَنِ ابْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى أَنْ تُؤْكَلَ لُحُومُ الأَضَاحِي بَعْدَ ثَلاَثٍ ‏.‏


حَدَّثَنَا أَبُو عَاصِمٍ، عَنْ يَزِيدَ بْنِ أَبِي عُبَيْدٍ، عَنْ سَلَمَةَ بْنِ الأَكْوَعِ، قَالَ قَالَ النَّبِ


http://www.sunnah.com/bukhari/73/25


It was narrated from Ibn 'Umar that:

the Messenger of Allah forbade eating the meat of sacrificial animals after three days" (Sahih )


يُّ صلى الله عليه وسلم ‏"‏ مَنْ ضَحَّى مِنْكُمْ فَلاَ يُصْبِحَنَّ بَعْدَ ثَالِثَةٍ وَفِي بَيْتِهِ مِنْهُ شَىْءٌ ‏"‏‏.‏ فَلَمَّا كَانَ الْعَامُ الْمُقْبِلُ قَالُوا يَا رَسُولَ اللَّهِ نَفْعَلُ كَمَا فَعَلْنَا عَامَ الْمَاضِي قَالَ ‏"‏ كُلُوا وَأَطْعِمُوا وَادَّخِرُوا فَإِنَّ ذَلِكَ الْعَامَ كَانَ بِالنَّاسِ جَهْدٌ فَأَرَدْتُ أَنْ تُعِينُوا فِيهَا ‏"‏‏.


Narrated Salama bin Al-Aqua':

The Prophet () said, "Whoever has slaughtered a sacrifice should not keep anything of Its meat after three days." When it was the next year the people said, "O Allah's Messenger ()! Shall we do as we did last year?" He said, ' Eat of it and feed of it to others and store of it for in that year the people were having a hard time and I wanted you to help (the needy).

(Sahih al-Bukhari 5569)


Prophet at the time of the Hajj said, whoever has sacrificed an animal, he should not keep any portion left over for you after three days.


The Hadith continues, the sahaba asked the next year, should we do what we did like the previous year.


Discussion: Why would the sahaba ask this question, if the Nahi was supposed to be enforced forever?

You have to ask why did the sahaba ask this question, because the Nahi was meant only for last year.


When you study the commentary on this hadith, they highlight the fact, as said by ibn Hazm, they understood the Nahi for a specific reason or purpose and it was meant for the particular year. However this is logical conclusion and is a conjecture and they do not present any evidence.


However we know that the sahabah never showed this behavior for any other nahi by asking questions whether they should stay away from a prohibition. Since this is an exceptional behavior for one specific event we consider it to not present evidence that Nahi is not to be permanently enforced.


Conclusion: There is no fiqh issue that arises because of the difference of opinion whether the Nahi itself implies ala faur or ala tharakhi. So this minority opinion has no fiqh ramifications. ar Razi who says the Nahi is ala faur, even though he says that Nahi by itself does not imply ala faur, he says it is due to other evidences.



Issues related to Conjunctions, plurals and combinations of prohibitions


When something is prohibited by itself, such as prohibition to not kill a soul except due to course of law. By itself we know that taking a soul is forbidden.


Suppose I say, do not eat, drink and work on the computer. What do you understand from it?


Don’t drink and drive. This prohibition means that you cannot drive after consuming alcohol and also not to drink alcohol while driving.


How do you state prohibitions for multiple actions to remove ambiguity?


In Arabic there is a clear way to avoid this ambiguity, you just add the word la in front of each of the action. Example from the hadith:


http://www.sunnah.com/urn/417110


وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ أَبِي الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏

"‏ إِيَّاكُمْ وَالظَّنَّ فَإِنَّ الظَّنَّ أَكْذَبُ الْحَدِيثِ وَلاَ تَجَسَّسُوا وَلاَ تَحَسَّسُوا وَلاَ تَنَافَسُوا وَلاَ تَحَاسَدُوا وَلاَ تَبَاغَضُوا وَلاَ تَدَابَرُوا وَكُونُوا عِبَادَ اللَّهِ إِخْوَانًا ‏"‏ ‏.


Yahya related to me from Malik from Abu'z-Zinad from al-Araj from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, "Beware of suspicion. Suspicion is the most untrue speech. Do not spy and do not eavesdrop. Do not compete with each other and do not envy each other and do not hate each other and do not shun each other. Be slaves of Allah, brothers."

(Muwatta Imam Malik)


When you have combinations of prohibitions in the Quran and Sunnah, each of the prohibition has la in front of it, in order to remove this ambiguity.



Al Waajib al mukhayyar (الواجب المُخيَّر) - An Optional Obligation


Sometimes there is an obligation to do one of multiple acts in order to accomplish your obligation. For example the expiation of sins such as having sexual relationship with your wife during fasting, etc


Is there an equivalence for Nahi? Can we have Al Haram al Mukhayyar (الحرام المخيَّر)


An example is bringing two sisters into marriage as a husband at the same time. Is this example of Al haram al mukhayyar? This is more of an example of conditional prohibition. Muatazila use this term al haram al mukhayyar but it has not been an acceptable term to other Ulema. This concept can work with the Wajib but not the Haram.


Question to think about: Is Nahi giving Amr for the opposite action?




2013-09-16 Class Notes



Is Nahi the same thing as Amr for the opposite?


Allah swt says about the divorced women, it is not lawful for them to conceal what is in their wombs if they fear Allah swt. Is this the same thing as commanding them to state if they are pregnant?


وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۚ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا ۚ وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ ۚ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ


Sahih International

Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.



If I tell you don’t walk, does that mean stand or does that mean run? You cannot possible both stand and run at the same time. However if you ran, would you have complied with my prohibition?


If I order you to do something, is it the same as the prohibition of the opposite action? So is Amr the Nahi of the opposite action?


As we can see that Amr and Nahi are not the negative mirror of one another. When looking grammatically, they look like they are the opposite of each other but in reality (in jurisprudence) there are clear differences.


If the text is clear about what Allah swt wants you to do. For example, Shaytan is trying to make you fear his awliya, and Allah swt says do not fear them but fear me if you truly believe.



إِنَّمَا ذَٰلِكُمُ الشَّيْطَانُ يُخَوِّفُ أَوْلِيَاءَهُ فَلَا تَخَافُوهُمْ وَخَافُونِ إِن كُنتُم مُّؤْمِنِينَ


Sahih International [3:175]

That is only Satan who frightens [you] of his supporters. So fear them not, but fear Me, if you are [indeed] believers.


If the opposite actions are spelt out as in the example above, then the Amr and Nahi are clear to understand. Otherwise the opposite of don't walk is ambiguous, somebody has to clearly state what you should do. A traffic light which says don’t walk does not imply that you should run.


We have Nahi about not fasting on the day of Eid, can we say that this is an Amr to eat on the day of Eid? This is an obligation for you to eat and drink on the day of Eid barring any exceptional circumstances. When you are ordered not to fast, then you can eat or drink or have sexual relationship with your wife, all three are signs of you not fasting.


Is the question of not fasting on the day of Eid is the same as the divorced women not concealing what is in their womb?


Opinions about Nahi implying Amr for the opposite


There are six opinions about this issue.


Opinion #1: The Nahi implies the obligation of its opposite through the dalaalatul iltizam (دلالةُ الالتزام) via logical conclusion.


By logical conclusion or necessity, Nahi implies Amr of the opposite, if the opposite implies one thing and one thing only. The single opposite action becomes an obligation.


If the opposite is more than one possibility, then you have a choice to do one of the opposite actions. If you do not perform one of the opposite actions, then you are not complying with the prohibition.


This view is the vast majority of the ulema. This is the opinion also of the Mutazila including the Qazi Abdul Jabbar and Hussein al Basari or Hussein al Badari (did not catch the full name).



We have three cases for the opposite action of Nahi: 1) No action, 2) no action but do one of the opposite actions and 3) no action but do the opposite of that action which is one clear action.


If the opposite of the Nahi does not have any actions, such as do not commit homosexual acts, then there is no opposite action that is required for you to do.



Opinion #2: The Nahi does not imply any kind of obligation of the opposite, even if the opposite is one thing or many things.


This is the view of the majority of the Mutazila, and also of some of the Shafi, Ghazali, Harmayin, ... and others.



Opinion #3: Nahi is itself an Amr and not just a opposite conclusion.


One of the jurists Baqillani is know to hold this opinion among some minor scholars in Shafi and Hanafi schools. Nahi is considered an Amr, not just a logical conclusion. The results of this madhab and madhab of opinion #1 will not have any differences.



Opinion #4: Nahi implies the obligation of the opposite action, if the opposite is one action then that action is an obligation, if the opposite is multiple actions, then all of those actions are obligation.


This is amazing that some people hold this opinion. If I tell you ‘do not walk’ then this means that one must sit, stand, run etc., i.e. they should do all the possible opposites of the walk.


Sh says there is no confusion that this opinion is incorrect, since this madhab puts you in a bind for the multiple actions that are the opposite of a nahi. You cannot possibly be able to perform all of the opposite actions. Sh Jamaal quoted the following verse, Allah (swt) says in the Quran (2:286):


لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا وُسْعَهَا ۚ

Allah does not charge a soul except [with that within] its capacity.


So this ayah renders this opinion #4 invalid and incorrect.



Opinion #5: If the Nahi has one possible opposite then one must do it, however if there are more than one possibilities then one does not need to do any of them.


This is the opinion of Jasas the famous Hanafi scholar, some say it is the opinion of Abu Hanifa.



Opinion #6: Nahi of something is not amr in the complete sense however its opposite is sunnah al muakadah and sometimes wajib.


This is opinion of many hanafis including …., Zarkashi, Bazdawi, ……, etc. It looks like they are trying to go to cases which are hard to predict. For example for the ihram of men during Hajj, Prophet (pbuh) told us what not to wear, but he (pbuh) did not specify what to wear. The ihram dress that we wear meets the requirement so it can be considered as sunnah muakadah. However we cannot say what we wear as ihram is wajib to wear.  


وَإِذَا قُرِئَ الْقُرْآنُ فَاسْتَمِعُوا لَهُ وَأَنصِتُوا لَعَلَّكُمْ تُرْحَمُونَ

Sahih International

So when the Qur'an is recited, then listen to it and pay attention that you may receive mercy.


So here it is Amr and it is related to the listening in the Salat. If someone recites fatiha behind the Imam then is he breaking the hukm of this ayah? Here we have one understanding that Amr is opposite of Nahi even though they do not always mirror each other.




2013-09-23 Class Notes


Sahih, Batil, and Fasid Acts


Reminder of three terms we should know:


1) Sahih (صحيح);

2) Batil (باطل) and

3) Fasid (فاسد)


From Shariah perspective when is an act sound? If you were to say this salah is sound, what do you mean by it?


An act that fulfills all of its obligations or conditions and legal requirements is Sahih.


Similarly for a business contract, additionally there should not be any aspect that would prohibit it from being a sound contract, for example, you cannot sell something that does not belong to you.


If we say that salah is sahih, does it mean that it is accepted by Allah swt?


No, it just means that you fulfilled the outward requirements and whether the act is accepted by Allah swt or not is not known. From worldly perspective you have met the requirements. For example, the prayers of the hypocrites did meet all of the worldly requirements but it was not accepted by Allah swt.


Opposite of Sahih is Batil which means void.


If you pray without tahara your prayer is batil.


What would make a business contract batil?


For example, selling a stolen car is a batil contract, since you have to be the owner of the item that you are selling.


Fasid is translated as improper, literally it means rotten or spoilt.


For the majority of the scholars, everyone except the Hanafis, for them fasid and batil is the same thing.


With respect to salah, have you heard anyone say that this salah is fasid? However you might have heard that the salah is batil.


Hanafis when it comes to acts of ibadaat, fasid and batil are the same thing. But when it comes to worldly matters such as contracts, if the aqd is sahih then all of the ramifications of the aqd come into play, for example if the marriage contract is sahih, then the man and woman are considered legal for each other.


The Hanafis distinguish between fasid and batil in the muamalat. If the contract has one arkan (pillars) not fulfilled then they will call it batil (i.e. null and void). If contracts has something missing from the secondary aspects (called shuroot) then the Hanafi will call it fasid.


For example, there are certain relations that are considered invalid for marriage, if the man marries a woman that is from the prohibited relations, then that contract is batil. If such a marriage takes place and they have children, then this marriage is considered null and void and the children are considered as illegitimate. From Shariah point of view Batil contract is considered as if the contract even did not exist.


However if the man and woman are not related to one another, but they got married without the wali of the woman (this is only true for Hanafi school)  then what would the status of this marriage contract? What is the legal status of the children born from this type of marriage contract?


For Hanafis it is sinful to do a fasid contract on purpose and if one finds out the contract is fasid then one is obligated to fix it.


The Hanafis also say that if contract is fasid then it will have some legal ramifications. E.g. if some Muslim buys alcohol, then is it batil or fasid contract? This contract is batil if it is for drinking purposes since alcohol is haram and has no intrinsic shariah value.


What about if someone wants to exchange gold for silver or if one wants to exchange gold for gold? Lets say someone wants to exchange gold for gold then it has to be hand to hand (spot transaction) otherwise it riba al fadil; the amount of gold exchanged has to be the same amount.


What if two persons exchange one ounce of gold for two ounces of gold and both gold are of same quality. It is batil for non Hanafis but for Hanafis it is fasid and one can return one ounce of gold and the contract is sahih again for the hanafis.  


If the contract stipulates that if you are late in repayment of the gold that you have borrowed, then you have to pay a penalty of 73%, and if this contract is fasid, how would you fix it? You can simply void the contract stipulations that are fasid.


The Hanafis main distinction between fasid and batil is based on the fixable contracts, if the invalid parts of the contract can be fixed, then it is a fasid contract, if the contract is unfixable  then it is a batil contract.


Footnote: The hanafi are called (fuqaha) jurists because their approach is better practically but it does not always mean that it is right. So one has to always look deeper for what is correct.



What makes an action prohibited?


Scholars discuss three reasons why actions are prohibited.


First Category - An act is prohibited due to its essence


Sometimes things are prohibited because of the essence of the thing itself. The thing itself is bad and Allah swt does not want us to associate with such type of action. Scholars give example of alcohol in this category.


If a thing is prohibited in this first category, then does it imply whether the act is batil?


If a thing is prohibited due to its essence, then according to majority of Shafiess, Hanbalis and .... that indicates that the act is batil regardless of whether the act is an act of ibadaah or a worldly act.


Another opinion for this category of prohibition, does not imply that the act itself is batil. This is the opinion of .... and shafi scholar ... and hanafi scholar.


Third opinion is that the act is batil if it is related to ibadaat but not to mu’amalat. this is the opinion of Abu Husayn al Basri (not to be confused by Abu Hasan al Basri) who was a Mutazilah scholar and Razi who was a Shafi scholar.


http://www.sunnah.com/bukhari/53/7


In the following ahadeeth, if somebody does an act that contradict the shariah then it is rejected (mardood means the act is batil)


حَدَّثَنَا يَعْقُوبُ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ سَعْدٍ، عَنْ أَبِيهِ، عَنِ الْقَاسِمِ بْنِ مُحَمَّدٍ، عَنْ عَائِشَةَ ـ رضى الله عنها ـ قَالَتْ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏

"‏ مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ فِيهِ فَهُوَ رَدٌّ ‏"‏‏.‏ رَوَاهُ عَبْدُ اللَّهِ بْنُ جَعْفَرٍ الْمَخْرَمِيُّ وَعَبْدُ الْوَاحِدِ بْنُ أَبِي عَوْنٍ عَنْ سَعْدِ بْنِ إِبْرَاهِيمَ‏.‏


Narrated Aisha:

Allah's Messenger (pbuh) said, "If somebody innovates something which is not in harmony with the principles of our religion, that thing is rejected."


http://www.sunnah.com/riyadussaliheen/1/169


عن عائشة، رضي الله عنها، قالت‏:‏ قال رسول الله صلى الله عليه وسلم‏:‏ ‏"‏من أحدث في أمرنا هذا ما ليس منه فهو رد‏"‏ ‏(‏‏(‏ متفق عليه‏)‏‏)‏‏.‏

وفي رواية لمسلم ‏:‏ ‏"‏من عمل عملاً ليس عليه أمرنا فهو رد‏"‏‏.‏


'Aishah (May Allah be pleased with her) reported:

Messenger of Allah (pbuh) said, "If anyone introduces in our matter something which does not belong to it, will be rejected".


[Al-Bukhari and Muslim]


One of their strongest argument is that this was the approach of the sahabah. Scholars give number of examples. We will mention one such example. During the time of jahiliyyah they had a unique way of selling something, if they were selling fabric and it was laid out in piles, the buyers would throw pebbles on it and wherever it landed they would purchase it. It is forbidden due to Gharar.


The majority opinion is that if something is forbidden due to its essence, then the act is considered batil.


Second Category - An act is prohibited due to some attribute or quality tied to the action that cannot be separated from it


Sometimes things are prohibited not because of the thing by itself, but there are some qualities that are stuck to the act that cannot be separated from it which are not good.


For example, fasting is promoted by the shariah, but this act of fasting leads to some ramifications. However, on the day of eid it is forbidden to fast in Shariah because if you are fasting on that day then you cannot separate it from the fact that it will hinder in the enjoyment of the day of Eid. [??? InshaAllah we should ask for clarification here]


Buying and selling is also allowed in Shariah and nothing wrong in buying gold or selling the gold. However there is a particular way (exchanging gold in unequal amount) of buying and selling gold which is not allowed, because it has a quality attached to it which cannot be separated from it.


Issues related to imminent domain such as taking over somebody’s property by force. If you build a masjid on land confiscated by eminent domain, can you pray in this masjid, is prayer in this place valid?


If somebody does business transaction or marriage contract after azan of salat al jumuah, is this contract void. Think on these issues and inshaAllah we will continue from here next week.



2013-09-30 Class Notes



Second Category - An act is prohibited due to some attribute or quality tied to the action that cannot be separated from it


A good example from second category: Another good example is that action of buying and selling is halal. However, for gold there are restrictions that the buying and selling of gold must be hand to hand and in equal amount because otherwise the transaction can be ribawi. So due to this permanent quality where the riba is hard to remove (regarding the buying and selling of gold) it has restrictions and certain aspects are forbidden in Shariah.


Another example is that say person A loans money to person B. In Islam this is a brotherly act and A loans money and says that B has to do some favors for A even though A is not charging any interest. Act of loaning is halal but if due to the loan A demands from B favors then it is haram because this quality of favors is what makes it haram.


Second Category Issue - Does it matter if the act that is prohibited due to some attribute or quality tied to the action that cannot be separated from it belongs to the category of ibadaat or muamalat?


One more point on this second category. Will it make a difference if this was related to muamalat or ibadaat. Say someone fasts on the day of Eid and this is done intentionally.


So the distinction in the above example is the action is related to ibadaat and not business transaction, would it make a difference?


On this question if something is prohibited due to inseparable attribute, then according to Shafi, Hambali and Maliki then the act is considered batil and it does not matter if the action is for ibadaat or for muamalat.


Second opinion is by Mutazilite (Qazi Abdul Jabbar) which says that if something is prohibited due to the quality tied to the action then it is neither sinful nor batil.


A third view says that something prohibited due to this nature it is batil if it is related to ibadaat and not if it is related to muamalat. This is due to Fakharuddin Al Razi from Herat.


The fourth opinion is the Hanafi opinion this shows that it is the quality which is fasid but the asl of the action is still valid. If you change two coins of silver for gold so the act of buying and selling is valid but the quality of it being gold and silver involves riba which makes it fasid. This is the opinion of Al Alaiee and he claims that Hanafis are united on this.


Second Category: Evidences for opinions about the Second Category


The majority of the scholars present the following evidence, which took place after Khayber. One of the sahaba said that on the day of Khayber, I bought a necklace for 12 dinars (gold). This necklace contained gold and pearls. He then took the necklace apart and found out that it contained more than 12 dinars of gold. He mentioned to the Prophet (pbuh), and the Prophet said that they should not be sold until they are separated.


The prophet voided this transaction and he did not ask the sahabah to try and fix the transaction. He basically voided the entire transaction.


http://www.sunnah.com/tirmidhi/14/55


حَدَّثَنَا قُتَيْبَةُ، حَدَّثَنَا اللَّيْثُ، عَنْ أَبِي شُجَاعٍ، سَعِيدِ بْنِ يَزِيدَ عَنْ خَالِدِ بْنِ أَبِي عِمْرَانَ، عَنْ حَنَشٍ الصَّنْعَانِيِّ، عَنْ فَضَالَةَ بْنِ عُبَيْدٍ، قَالَ اشْتَرَيْتُ يَوْمَ خَيْبَرَ قِلاَدَةً بِاثْنَىْ عَشَرَ دِينَارًا فِيهَا ذَهَبٌ وَخَرَزٌ فَفَصَّلْتُهَا فَوَجَدْتُ فِيهَا أَكْثَرَ مِنِ اثْنَىْ عَشَرَ دِينَارًا فَذَكَرْتُ ذَلِكَ لِلنَّبِيِّ صلى الله عليه وسلم فَقَالَ ‏ "‏ لاَ تُبَاعُ حَتَّى تُفَصَّلَ ‏"‏ ‏


Narrated Fadalah bin 'Ubaidah:

"On the Day of Khaibar I purchased a necklace that contained gold and jewels for twelve Dinar. I separated it and found that it was worth more than twelve Dinar. I mentioned that to the Prophet (pbuh) and he said: 'Do not sell it until it is separated.'" ( Jami` at-Tirmidhi 1255; Sahih)


This is decent evidence for their opinion. Notice that the words of Prophet (pbuh) is in the passive voice grammatically.


They also quote that there are many reports from the sahaba who when they had similar transactions, they voided the entire transaction, they never tried to fix the transaction.


In the above hadith, if they had bought the necklace with silver coins, then the transaction would be valid. Only gold-gold transaction has to be done without any increase or decrease, it has to be free of riba.


A lot of people exchange their jewelry, new jewelry for old jewelry, but not in equal amount, the jeweler charges them extra amount for the workmanship, and many times it is not a spot transaction. This is problematic according to the restrictions on gold-gold transaction.


They also use logical arguments that if the action is prohibited and is sinful and wrong, then how can we fix it.


The Hanafis say that essence of the action is valid but this additional quality or attribute is not. However they have to present textual evidence for their view, otherwise it is considered to be problematic. The other madhabs differ with the Hanafis about this opinion.



Third Category - An act is prohibited due to external reasons


And lastly somethings are prohibited due to some external reasons. Here there is something which is separable from the haram act. As an example the buying of kabob is halal. Say I buy the kabob when the azan for the Jumah is being called and khateeb is giving khutbah. The following ayah makes it clear that it is not allowed to participate in a business transaction during the time of Jumuah. The transaction is batil, even if you do not plan to eat the sandwich until after the prayers.


يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلَاةِ مِن يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَىٰ ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ ۚ ذَٰلِكُمْ خَيْرٌ لَّكُمْ إِن كُنتُمْ تَعْلَمُونَ


Sahih International

O you who have believed, when [the adhan] is called for the prayer on the day of Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade. That is better for you, if you only knew.



Most of the students of the class said that the transaction of buying a kebab sandwich during Jumuah is valid but the action is sinful.


The Hanafi view is clear and some of the non-Hanafis join them. We know what the Mutazilah will say about it.


It is prohibited to buy and sell during the Jumuah prayers and it is applicable just on whom the Jumuah prayer is obligatory. So women, travellers, non Muslims are permissible to conduct business transactions during this time. This shows that there is nothing wrong with buying and selling and it only is problematic if Jumuah is obligatory on you.


If a woman is handling the transaction and somebody who is supposed to pray and conducts a transaction then both of them are considered sinful because of the ayah that you are supposed to help one another to perform the good and prohibit the evil. This is the second verse of the Surah al Maidah.



وَتَعَاوَنُوا عَلَى الْبِرِّ وَالتَّقْوَىٰ ۖ وَلَا تَعَاوَنُوا عَلَى الْإِثْمِ وَالْعُدْوَانِ ۚ


And cooperate in righteousness and piety, but do not cooperate in sin and aggression.

What would a dhahiri say about it?


Ibn Qudamah a famous Hanbali scholar says that some contracts such as getting married or renting are not forbidden. He says it is not proper to do analogy between business and these other transactions, since you could do these business transactions every Friday and not go to prayers.


The Shafiees says that any transaction that keeps a person from praying Friday prayers is sinful.


Qurtubi says that Allah swt mentions business transaction because these are the transactions that can keep a person away from the prayers.


Another example, lets say that a mosque has been built on the stolen land or with ribawi mortgage.


Is the prayer valid or is it considered a sin to pray there?




2013-10-07 Class Notes


Third Category - An act is prohibited due to external reasons


We continue from the example of the buying and selling during Jumah salat. This prohibition is due to external reasons.


Are business transactions conducted during Jumuah Salah valid or invalid?


Imam Shafi has wrote if two people who are supposed to attend jumah salat and make a transaction during the jumah time then it is not clear to me that the transaction is invalid. He gives the example that if someone has to pray Asr and the time is becoming tight so he finishes his transaction to rush to prayer then just like that the business transaction during jumah salat is still valid. Keep in mind that that everyone agrees that the people who took part in the business transaction and missed the  jumah are sinful. However, from the dunya perspective is the transaction valid or not?


Two women engaged in a business transaction during jumah time is valid since attending Jumuah salah is not obligatory for them. The problem is with men who are obligated to be at jumah are sinning if they participate in a transaction during the time of Jumuah. This opinion of Imam Shafi is agreed by Abu Hanifa and two famous students (Abu Yusuf and Shaybani).


Footnote: Throughout our history the most number of books that have been written have been about the Shafis and the Hanafis arguing about fiqh issues however this is one of the places where they both agree.


Many Hanbali see any such business transaction as null and void. They say that this transaction took place at a time which is wrong. Shariah is telling us that this is not the time to make business transaction. Qurtubi, a Maliki scholar quotes hadith saying that if anything is not consistent with our affair is to be rejected.  



Both opinions have logical argument.

Why would someone come to an opposite conclusion? You have to see how the other party comes to their conclusion.


Footnote: It is very important in Jurisprudence to understand the opinions of all the sides. Many times problems occur because people start to consider their opinion to be final and do not even bother to look how the other side is looking at it. This way divisions start to show up. For example the opinion of Imam Shafi has validity to it. However still it looks like Hanbali opinion is stronger. Still in Jurisprudence one should not become too dogmatic about one’s ijtihad. There is some validity to Imam Shafis argument, he says it is ijaab wa Qabool so still it is valid.


If we say that the business transaction is not valid and they go and return the merchandise and money, but they could immediately go and redo their transaction. But what happens if the price goes up or the goods are damaged before he could return it. In the case when the goods are damaged, then the person who bought it is responsible for it, since they were in his possession.



How to handle prohibitions due to external reasons?


If there is a prohibition of something which is due to external reasons, then we know that this makes the act haraam, but is the act itself null and invalid? Are we establishing a new principle or a new position?


Another scenario: Lets take a man who is wearing silk clothing which is not permissible for men to wear. Say he is wearing a silk thaub or silk pants rather than silk shirt. If this man prays salat in silk clothing then is his prayer valid? We have chosen the thaub or the pants because he is covering his awrah with these clothing. So the neck tie or shirt is not tied to the conditions of the salat.


The person is fulfilling the conditions of covering the awrah for performing the salah, but he is doing so with silk garments which is not permissible. And he is doing so by choice, so is his salat valid here?


Another scenario: A person who prays in the mosque that is usurped property, is his salah valid or is it void? And he knowingly prays in the mosque that he knows is usurped property.


We established earlier the distinction between worldly matters and ibaadat. Which one should be stricter in the above scenarios?


Footnote: Discussion about Hanafi approach to Haraam


Hanafis distinguish between baatil and faasid for the transactions. For ibaadat it is either Sahih or Batil there is no middle ground (faasid). But for muamalat, an invalid act can be either baatil or faasid.


Hanafis divide haraam into two categories, haraam li dhaatihi (حرام لِغيرهِ) haraam due to its external reasons and haraam li ghairihi (حرام لِذاتهِ) haraam due to its essence. Historically other schools did not use these terms and only the Hanafis used it.


Some actions by themselves are not bad but they lead to something that is bad. Haraam li dhaatihi is a bad action and haraam li ghairihi is an action that is not bad but could lead to haraam.


For example, an adult man and woman who are not related to one another are in seclusion, is this haraam or not? This is khalwah and it is haraam. We all know it is haraam. But why is it haraam? Is it haraam due to its essence or due to some other external reasons? If there is a need then one can violate something which is Haram Li Ghayrihi, e.g. there is some rash to a women and the only doctor available is male so she may have to uncover her awrah. If it was Haram Li Dhatihi then one cannot do this at all and example will be, zina which is haram Li Dhatihi.


Haram li dhatihi is divided into two categories.

1) Things which our senses tell us is wrong, like kufr, lying, spreading corruption on earth, cheating, etc.


2) Shariah has told us, like eating carrion, drinking alcohol, committing zina, stealing, etc. However now a days in the Western societies we cannot rely on this.


There are two categories of Haram li ghayrihi


1) Nothing wrong with it in essence but it is forbidden at certain times. For example fasting on the day of Eid.

2) Something which is haram due to some external aspect.


Summary


The default meaning of Nahi is prohibition unless you have evidence to show otherwise. There are three categories for something to be haram according to Hanafis which is Sahih, Batil and Fasid. The other schools only recognize only Sahih and Batil.


Question: For a divorce to be correct according to Sunnah, it has to have three condtions. 1) The women should not be at her menses at the time for pronouncing of divorce 2) the divorce should be in time of purity so there is knowledge whether she is pregnant or not and 3) the divorce pronouncement has to be just one divorce pronouncement.


يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ۖ


[65:1] O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period,


If a man pronounces a divorce while the wife is on the menses then does that divorce take place. Is it haram due to essence, is it haram due to some attribute or is it haram due to external circumstances?




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