Usool al Fiqh

Usool al Fiqh Islamic Legal Theory: The Imperative and Prohibition

2013 Spring Session (April 1 to June 3 2013)

Class taught by Shaikh Jamaal Zarabozo

Required or Recommended Reading:

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

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

Recommended Textbook:

Mohammad Hashim Kamali, Principles of Islamic Jurisprudence

Basic Outline of the Quarter:

Amr and Nahi (Imperative and Prohibition), Kamali, pp. 139-148 of 2nd edition (pp. 187-201 of 3rd edition)

2013-04-01 Class Notes

Brief review of the last quarter

Amr is the imperative which means to order something or command something. We discussed last time how to recognize Amr. We discussed explicit and implicit Amr, such as the third person. We also talked about the khabar which implies Amr, for example, the kutiba alaikum Al siyam or the divorced women wait for 4 months. We also talked about when we use the imperative, it can have many meanings. We also discussed that when we use the imperative we do not mean always by it a command. It can be in meaning of challenge (2:23,24) or warning, for Irshad (guidance, recommendation) etc.

The default meaning or implication of Amr is the next question and there are 6 different opinions. The strongest opinion is that Amr is obligatory. If Amr is not obligatory then there has to be evidence available which shows that Amr did not mean obligation. For this we need a separate verse of the Quran or hadith from Prophet (pbuh) and this is called taweel. The Dhahiris do not make taweel at all and they stick to the obligation always. The last thing we did was to see what an Amr means if it comes after the al Nahi. One possible case is where Prophet (pbuh) would say that ‘I used to forbid you such and such and now you are allowed to do so’. So such prohibitions are dependent on the circumstances and once the circumstances are not there anymore than the Amr is looked at as permissible. For example, forbidding to one’s business during the Jumuah prayers, where after the prayer it states in Amr to go back and seek Allah’s bounty however most Ulema think that it is permissibility.

However based on other evidences, it can be mubah, mandoob or obligatory. For example for the visiting of the grave, Prophet (pbuh) said that ‘I used to prohibit you to visit the graves...’ and then later he allowed it. From the Qareena in the hadith, it looks like imperative means either mubah or mustahab. Based on other evidence we can conclude that it is mandoob.

Important questions that need to be tackled about Amr

There are still some important questions about Amr that we will tackle this quarter. Suppose there is an Amr, the following two questions will be answered in this quarter:

#1 Are you required to do the act repeatedly throughout your life or just once during your life

#2 Are you required to do the act immediately or can you take your time to perform the act.

Amr after seeking permission

Hadith: A woman came to the prophet after her mother died. Her mother had made a vow to fast and she asked can she fast on her behalf?

Ibn Abbas (Allah be pleased with them) reported:

A woman came to the Messenger of Allah (may peace be upon him) and said: Messenger of Allah, my mother has died and there is due from her a fast of vow; should I fast on her behalf? Thereupon he said: You see that if your mother had died in debt, would it not have been paid on her behalf? She said: Yes. He (the Holy Prophet) said: Then observe fast on behalf of your mother. [Sahih Muslim]

وَحَدَّثَنَا إِسْحَاقُ بْنُ مَنْصُورٍ، وَابْنُ أَبِي خَلَفٍ، وَعَبْدُ بْنُ حُمَيْدٍ، جَمِيعًا عَنْ زَكَرِيَّاءَ، بْنِ عَدِيٍّ - قَالَ عَبْدٌ حَدَّثَنِي زَكَرِيَّاءُ بْنُ عَدِيٍّ، - أَخْبَرَنَا عُبَيْدُ اللَّهِ بْنُ عَمْرٍو، عَنْ زَيْدِ، بْنِ أَبِي أُنَيْسَةَ حَدَّثَنَا الْحَكَمُ بْنُ عُتَيْبَةَ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، عَنِ ابْنِ عَبَّاسٍ، - رضى الله عنهما - قَالَ جَاءَتِ امْرَأَةٌ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَتْ يَا رَسُولَ اللَّهِ إِنَّ أُمِّي مَاتَتْ وَعَلَيْهَا صَوْمُ نَذْرٍ أَفَأَصُومُ عَنْهَا قَالَ ‏"‏ أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ فَقَضَيْتِيهِ أَكَانَ يُؤَدِّي ذَلِكِ عَنْهَا ‏"‏ ‏.‏ قَالَتْ نَعَمْ ‏.‏ قَالَ ‏"‏ فَصُومِي عَنْ أُمِّكِ ‏"‏ ‏.‏

Prophet used an analogy of debt and then in the form of Amr said to her, fast on behalf of your mother.

Hadith: A woman came to the Prophet and asked a similar question about Hajj.

Abdullah bin Buraidah narrated from his father who said:

"A woman came to the Prophet and said: 'My mother died and she did not perform Hajj should I perform Hajj on her behalf?' He said: 'Yes, perform Hajj on her behalf.'" (Sahih)

حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ الأَعْلَى، حَدَّثَنَا عَبْدُ الرَّزَّاقِ، عَنْ سُفْيَانَ الثَّوْرِيِّ، عَنْ عَبْدِ اللَّهِ بْنِ عَطَاءٍ، ‏.‏ قَالَ وَحَدَّثَنَا عَلِيُّ بْنُ حُجْرٍ، حَدَّثَنَا عَلِيُّ بْنُ مُسْهِرٍ، عَنْ عَبْدِ اللَّهِ بْنِ عَطَاءٍ، عَنْ عَبْدِ اللَّهِ بْنِ بُرَيْدَةَ، عَنْ أَبِيهِ، قَالَ جَاءَتِ امْرَأَةٌ إِلَى النَّبِيِّ صلى الله عليه وسلم فَقَالَتْ إِنَّ أُمِّي مَاتَتْ وَلَمْ تَحُجَّ أَفَأَحُجُّ عَنْهَا قَالَ ‏ "‏ نَعَمْ حُجِّي عَنْهَا ‏"‏ ‏.‏ قَالَ أَبُو عِيسَى وَهَذَا حَدِيثٌ حَسَنٌ صَحِيحٌ ‏.‏

Narrated Ibn `Abbas:

A woman from the tribe of Juhaina came to the Prophet (pbuh) and said, "My mother had vowed to perform Hajj but she died before performing it. May I perform Hajj on my mother's behalf?" The Prophet (pbuh) replied, "Perform Hajj on her behalf. Had there been a debt on your mother, would you have paid it or not? So, pay Allah's debt as He has more right to be paid." [Sahih Bukhari]

حَدَّثَنَا مُوسَى بْنُ إِسْمَاعِيلَ، حَدَّثَنَا أَبُو عَوَانَةَ، عَنْ أَبِي بِشْرٍ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، عَنِ ابْنِ عَبَّاسٍ ـ رضى الله عنهما ـ أَنَّ امْرَأَةً، مِنْ جُهَيْنَةَ جَاءَتْ إِلَى النَّبِيِّ صلى الله عليه وسلم فَقَالَتْ إِنَّ أُمِّي نَذَرَتْ أَنْ تَحُجَّ، فَلَمْ تَحُجَّ حَتَّى مَاتَتْ أَفَأَحُجُّ عَنْهَا قَالَ ‏ "‏ نَعَمْ‏.‏ حُجِّي عَنْهَا، أَرَأَيْتِ لَوْ كَانَ عَلَى أُمِّكِ دَيْنٌ أَكُنْتِ قَاضِيَةً اقْضُوا اللَّهَ، فَاللَّهُ أَحَقُّ بِالْوَفَاءِ ‏"‏‏.

Prophet replied in Amr, yes make hajj on her behalf. These are couple of examples where Amr is in response to an individual asking a specific question. So how are we to understand this Amr?

So for those individuals asking the question, do they have to perform the actions as obligatory or are they recommendation?

If the Prophet had just replied “Yes” in response to the above questions, then we would have understood it to be permissibility of doing an act on behalf of others. But he answered more than just “Yes”.

Here the Prophet is giving an explanation, a qareena, so would this alleviate the Amr to be more than just a recommendation?

If your parent dies and they died in debt, what happens to that debt? Before any inheritance can be taken, the debt must be paid. But if there is not enough money to pay the debt, what should happen? Is it obligatory upon the relatives to fulfill the debt?

You don’t want to meet Allah swt with debt. It is not obligatory upon the relatives but it is a recommendation. So what does it mean for the two hadith that we are discussing.

Scholars have few opinions about Amr after seeking permission.

Qadi Abu Ya’la famous hanbali scholar says that it implies permissibility. Another view says that Amr implies obligation, this is the view of Fakhruddin Ar-Razi (Shafi scholar) says that it is obligation as opposed to what our scholars say. He says that Amr goes back to the default ruling of obligation. The Waqafites have suspended judgement or decision??? and they as usual claim that they do not know.

The default ruling for Amr is that of obligation, and if we say that the act of seeking permission is strong enough Qareena to say that because you asked for permission, the Amr now becomes less than obligatory, they say why does seeking permission makes Amr a special case?

Razi would ask you question why does this act of asking permission would make it a special case?

When you ask a question, you are seeking a rukhsa or permission. Here the questioner is seeking permission.

If you survey questions asked to the Prophet (pbuh), you would see that it implies permissibility. A number of contemporary scholars have written about it and say that Amr after seeking permission implies permissibility.

Fasting on behalf of others

Opinion #1: Majority of the scholars are of opinion that one cannot fast on behalf of someone else.

The evidences that are presented for this are general evidences, verse from the Quran which says that one soul shall not have burden of another soul.

قُلْ أَغَيْرَ اللَّهِ أَبْغِي رَبًّا وَهُوَ رَبُّ كُلِّ شَيْءٍ ۚ وَلَا تَكْسِبُ كُلُّ نَفْسٍ إِلَّا عَلَيْهَا ۚ وَلَا تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَىٰ ۚ ثُمَّ إِلَىٰ رَبِّكُم مَّرْجِعُكُمْ فَيُنَبِّئُكُم بِمَا كُنتُمْ فِيهِ تَخْتَلِفُونَ

Sahih International

Say, "Is it other than Allah I should desire as a lord while He is the Lord of all things? And every soul earns not [blame] except against itself, and no bearer of burdens will bear the burden of another. Then to your Lord is your return, and He will inform you concerning that over which you used to differ."

Another hadith says that you feed on the behalf of others from Tirmidhi. Ibn Umar says no one should fast or pray on another person’s behalf.

Opinion #2 Second view on the question of fasting that it is permissible

Bayhaqi and Al Nawawi, Hasan Al Basri and others say that it is ......

It is based on the hadith that if somebody dies and has some fasts to make up, then his wali should make up.

Opinion #3 Third view is half and half

You fast on their behalf and hope .....

[i could not find these narrations...]

What is the default ruling for performing acts on behalf of the others?

Is it not permissible unless there is evidence pointing to it or is it that of permissibility? This is a big question since in various Muslim cultures you will find people doing all sorts of deeds on behalf of their deceased relatives.

The strongest opinion is that it is permissible to fast on behalf of your dead relatives only for fasts that are promises made by the deceased and not the obligatory missed fasts of Ramadhan.

And the action is obligatory???? and not a recommended act????

We will not discuss the act of performing Hajj on behalf of others.

2013-04-08 Class Notes

The expression of ‘La Harj’ in Arabic

The expression in Arabic La Haraj, means no worries, no harm. Does this mean that an action is permissible. Suppose I give you a command, do it and there is no harm. What do you understand from it?

There is a hadith that has this expression. What is its impact on the imperative. During the farewell hajj, somebody came to the Prophet and said that he slaughtered the animal before the stoning of the devil, he replied stone the devil and there is no harm. Somebody else came to him .....

'Abdullah Ibn ‘Amro bin al-’As (RAA) narrated that the Messenger of Allah (pbuh) stood in Mina during the Farewell Hajj, while the people asked him questions and he answered them.

A man asked, ‘O Prophet of Allah! I was not alert and I shaved my head before slaughtering my animal?’ The Prophet (pbuh) said: “There is no harm, go and slaughter your animal."

Another man asked, ‘l slaughtered the animal before I threw the pebbles? Prophet (pbuh) said: “There is no harm, go and throw your pebbles."

The narrator said: "Whoever asked the Prophet (pbuh) about anything done before or after the other he told him "No harm done. Go and do (whatever you missed)." Agreed upon.

وَعَنْ عَبْدِ اَللَّهِ بْنِ عَمْرِوِ بْنِ اَلْعَاصِ رَضِيَ اَللَّهُ عَنْهُمَا

أَنَّ رَسُولَ اَللَّهِ ‏- صلى الله عليه وسلم ‏- وَقَفَ فِي حَجَّةِ اَلْوَدَاعِ, فَجَعَلُوا يَسْأَلُونَهُ,

فَقَالَ رَجُلٌ: لَمْ أَشْعُرْ, فَحَلَقْتُ قَبْلَ أَنْ أَذْبَحَ.

‏ قَالَ: " اِذْبَحْ وَلَا حَرَجَ  "

فَجَاءَ آخَرُ, فَقَالَ: لَمْ أَشْعُرْ, فَنَحَرْتُ قَبْلَ أَنْ أَرْمِيَ,

قَالَ: " اِرْمِ وَلَا حَرَجَ  "

فَمَا سُئِلَ يَوْمَئِذٍ عَنْ شَيْءٍ قُدِّمَ وَلَا أُخِّرَ إِلَّا

قَالَ: " اِفْعَلْ وَلَا حَرَجَ  "

مُتَّفَقٌ عَلَيْهِ.‏ 1‏ .‏

‏1 ‏- صحيح.‏ رواه البخاري ( 83 )‏، ومسلم ( 1306 )‏.‏

If’aal wa La Harj  اِفْعَلْ وَلَا حَرَجَ

Here we have two things that seem contradictory. La Harj is a sign of permissibility and if’aal is a sign of an imperative, so how do we reconcile these two indicators?

Is there some fidya (atonement) of the sin involved due to the wrong order of the actions?

If somebody did those actions out of order intentionally, what conclusion could you derive from this hadith. The different madhabs interpreted this hadith in different ways.

Shafiee madhab say that La Harj is a sign of permissibility. The ifaal is not a sign of an imperative, but it is showing that there is no harm in their actions that are out of sequence.

There is an opinion based on this hadith, if you shave your head before stoning the devil, either intentionally or unintentionally, there is no harm. This opinion is from Mujahid and Tawuus (two students of Imam Malik) and also the opinion of Imam Shafiee.

Imam Ahmad is of opinion that if someone does this by mistake then he does not have to have any atonement.

Ibn Abbas and others have a third opinion, they say that the person must pay fidya, regardless of whether the action is intentionally or unintentionally. They say that if somebody does it unintentionally then there is no harm (harj), but if you do it intentionally then you have to pay fidya. This is also the opinion of ibn Masud.

Ibn Abbas’s opinion is explicit, since you were not aware of the proper sequence of actions, so there is no harm, but you have to pay the fidya.

This is the only hadith that has the expression, “if’aal wa la harj”  (اِفْعَلْ وَلَا حَرَجَ

Which of the above three opinions is the strongest in your view? This is the problem with negation, what exactly are you negating?

They are saying that amr does not mean obligation. - In response to a question from the classroom.

Repeated actions implied by Amr

Is there anything in the Amr which says that it should be repeated or is Amr just for one time? The lawyers consider laws to be permanent reality, so does it apply here to Amr?

Do you have to be good to your parents as long as you live, in response to the following verse of the Quran:

وَإِذْ أَخَذْنَا مِيثَاقَ بَنِي إِسْرَائِيلَ لَا تَعْبُدُونَ إِلَّا اللَّهَ وَبِالْوَالِدَيْنِ إِحْسَانًا وَذِي الْقُرْبَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينِ وَقُولُوا لِلنَّاسِ حُسْنًا وَأَقِيمُوا الصَّلَاةَ وَآتُوا الزَّكَاةَ ثُمَّ تَوَلَّيْتُمْ إِلَّا قَلِيلًا مِّنكُمْ وَأَنتُم مُّعْرِضُونَ

Sahih International (2:83)

And [recall] when We took the covenant from the Children of Israel, [enjoining upon them], "Do not worship except Allah ; and to parents do good and to relatives, orphans, and the needy. And speak to people good [words] and establish prayer and give zakah." Then you turned away, except a few of you, and you were refusing.

Suppose a slave owner were to ask his slave to go and buy bread, how many times should he buy bread? Should he just buy it just once?

If you make tayammum for salat dhuhr because you don’t have access to water, and now it is the time for Asr and you still do not have access to water, should you repeat the tayammum. Remember the command is that if you don’t find water make tayammum. If you were in state of tahara, do you still have to repeat the tayammum?

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ ۚ وَإِن كُنتُمْ جُنُبًا فَاطَّهَّرُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُم مِّنْهُ ۚ مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَٰكِن يُرِيدُ لِيُطَهِّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International

O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles. And if you are in a state of janabah, then purify yourselves. But if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and do not find water, then seek clean earth and wipe over your faces and hands with it. Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful.

Suppose you are a judge and an unmarried man confesses to you for committing zeena twice (unlawful sexual relationship), how many times would you apply the punishment?

This question of repeated actions in response to the amr, specifically the last two cases.

If there is evidence that action needs to be repeated then you follow that evidence. If there is evidence that you only need to do an action once in your lifetime, then you should follow that evidence.

Why do we perform hajj only once a lifetime? Suppose you have means to make hajj every year, do you still perform it once?

Prophet after he explained that hajj is obligatory, he said, Allah has made hajj obligatory for you so make hajj, a person asked him, should we perform it every year, the prophet was silent, and the person asked three times, the prophet replied that if I were to say yes then it would be obligatory ....

Bulugh al-Maram > The Book of Pilgrimage > Hadith permalink

... Ibn 'Abbas (RAA) narratedThat the Messenger of Allah (P.B.U.H.) once addressed us and said, “O People! Hajj has been prescribed for you." Al-Aqra’ bin Habis stood up and asked, ‘O Prophet of Allah! Are we to perform Hajj every year?” The Messenger of Allah (P.B.U.H.) said, “Had I said ‘yes’, it would have become a (yearly) obligation. Hajj is obligatory only once in one’s lifetime. Whatever one does over and above this is supererogatory (a voluntary act) for him." Related by the five Imams except for at-Tirmidhi. ...

وَعَنْهُ قَالَ: خَطَبَنَا رَسُولُ اَللَّهِ ‏- صلى الله عليه وسلم ‏-فَقَالَ: {

" إِنَّ اَللَّهَ كَتَبَ عَلَيْكُمُ اَلْحَجَّ "

فَقَامَ اَلْأَقْرَعُ بْنُ حَابِسٍ فَقَالَ: أَفِي كَلِّ عَامٍ يَا رَسُولَ اَللَّهِ?

قَالَ: " لَوْ قُلْتُهَا لَوَجَبَتْ, اَلْحَجُّ مَرَّةٌ, فَمَا زَادَ فَهُوَ تَطَوُّعٌ "

} رَوَاهُ اَلْخَمْسَةُ, غَيْرَ اَلتِّرْمِذِيِّ 1‏ .‏

And this is the evidence for us to perform hajj only once in your lifetime.

What is the evidence for praying five times a day until you die? The actions of the Prophet, we know he prayed five times a day until he died.

Indicators of repeated actions

In the imperative, is there some indication or meaning that implies that you have do the action repeatedly?

The first opinion is that amr is a qualifier (by its nature) for a life long action except if the act is non repeatable. This is the opinion of the Hanbali school. It is the view of Muzni, a student of Imam Shafiee. This is also attributed to Imam Shafiee and Imam Malik????  The reason why we say that it is attributed, because it is retroactively understood from the actions of the Imams but not explicit statements.

Second opinion is amr is qualifier for doing actions, the question of doing it once or repeated lies outside the scope of the amr. These scholars say that it could be repeated, but it is not related to the actual meaning of the amr. The central meaning is for the act to be done, whether once or repeated.

This is the view of leading Shafiee usooliyeen such as Baydawi, Shuknowi and others. It is the view of majority of the Hanafis. It is the view of leading Maliki scholars. View of ibn Qudamah from the Hanbalis. And it has been attributed to Imam Ahmad.

The third opinion is the Amr implies single time action and does not require life long repetition. It is view of Mutizilte scholar Abu Hussain al Basri (not to be confused with Abu Hasan al Basri) and since it was one of early books in Usul al fiqh so it got carried into later books on this topic.

The fourth opinion is by Waqafites which says we cannot be sure whether it is once or requires repetition. Keep in mind the Waqafite position is only a theoretical position and cannot be a permanent position. Imam al Haramayn held this fourth opinion and some of the Asharite also had this opinion.

From the hadith on Hajj it looks like that default of Amr is for sure supporting the first opinion. We will continue from here next time inshaAllah.

2013-04-15 Class Notes

Let’s take a look again at the hadith of the Hajj again. Does this hadith tell us that obligation is once or it is to be repeated.

Abu Huraira (Allah be pleased with him) reported:

Allah's Messenger (may peace be upon him) addressed us and said: O people, Allah has made Hajj obligatory for you; so perform Hajj. Thereupon a person said: Messenger of Allah, (is it to be performed) every year? He (the Holy Prophet) kept quiet, and he repeated (these words) thrice, whereupon Allah's Messenger (may peace be upon him) said: If I were to say" Yes," it would become obligatory (for you to perform it every year) and you would not be able to do it. Then he said: Leave me with what I have left to you, for those who were before you were desroyed because of excessive questioning, and their opposition to their apostles. So when I command you to do anything, do it as much as it lies in your power and when I forbid you to do anything, then abandon it.

وَحَدَّثَنِي زُهَيْرُ بْنُ حَرْبٍ، حَدَّثَنَا يَزِيدُ بْنُ هَارُونَ، أَخْبَرَنَا الرَّبِيعُ بْنُ مُسْلِمٍ الْقُرَشِيُّ، عَنْ مُحَمَّدِ بْنِ زِيَادٍ، عَنْ أَبِي هُرَيْرَةَ، قَالَ خَطَبَنَا رَسُولُ اللَّهِ صلى الله عليه وسلم فَقَالَ ‏"‏ أَيُّهَا النَّاسُ قَدْ فَرَضَ اللَّهُ عَلَيْكُمُ الْحَجَّ فَحُجُّوا ‏"‏ ‏.‏ فَقَالَ رَجُلٌ أَكُلَّ عَامٍ يَا رَسُولَ اللَّهِ فَسَكَتَ حَتَّى قَالَهَا ثَلاَثًا فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏"‏ لَوْ قُلْتُ نَعَمْ لَوَجَبَتْ وَلَمَا اسْتَطَعْتُمْ - ثُمَّ قَالَ - ذَرُونِي مَا تَرَكْتُكُمْ فَإِنَّمَا هَلَكَ مَنْ كَانَ قَبْلَكُمْ بِكَثْرَةِ سُؤَالِهِمْ وَاخْتِلاَفِهِمْ عَلَى أَنْبِيَائِهِمْ فَإِذَا أَمَرْتُكُمْ بِشَىْءٍ فَأْتُوا مِنْهُ مَا اسْتَطَعْتُمْ وَإِذَا نَهَيْتُكُمْ عَنْ شَىْءٍ فَدَعُوهُ ‏"‏ ‏.‏

Given that the Sahabi understood it to be possibly repetitive shows that this hadith can be used to support the opinion which says that Amr is to be repetitive. Ibn al Qayyim is of this opinion and one of the piece of evidence used is that if we look at the Quran and Sunnah then we see that all the Amr are meant to be repeated over and over, whether they are actions of the heart or limbs.

For example,

قُلْ أَطِيعُوا اللَّهَ وَالرَّسُولَ ۖ فَإِن تَوَلَّوْا فَإِنَّ اللَّهَ لَا يُحِبُّ الْكَافِرِينَ

Sahih International

Say, "Obey Allah and the Messenger." But if they turn away - then indeed, Allah does not like the disbelievers.

It means that we should obey Allah and the Messenger repeatedly. However, this is not a conclusive evidence and opposition presents the evidence that Prophet (pbuh) used to make Wudu for each salat but one the year (or occasion) of the fath of Makkah he prayed many prayers with one Wudu. Umar (ra) noticed it and asked Prophet (pbuh) if he (pbuh) did this to show us that it is allowed to pray many prayers with one Wudu. Prophet (pbuh) affirmed that it was the case so people may know that they can pray many prayers with one wudu. So this is showing that Amr means repetition unless shown otherwise.

Similarly the Amr itself is not time limited i.e. it is understood to be unrestricted in time. Whose side is this being strengthened by this argument.

Everyone agrees that Nahi is perpetual so why not Amr should be perpetual. However the premise here is that Amr is same as Nahi but in reality this is not the case. ??

Another group says that safer opinion is that Amr should be taken to be perpetual.

The group which says that the Amr is just request, makes the argument that in Arabic the verb comes from the verbal noun. Verbal Noun (Masdar) implies the doing of the act at least once and not more than once. The word ‘Adhrab’ is Amr which means to strike and nothing in the language shows that it should be repeated. If I tell you that “Pray once” versus “Pray repeatedly”, then both sentences make sense.

Lets take the example of Tayammum. Generally in the matter of the ibadat we do not make the Qiyas so when we are given the commandment to make Tayammum in absence of water then we do not treat Tayammum as Wudu. Many Shafis and Malikis are of opinion that Amr al Mutlaq means one time so one cannot pray two obligatory prayers with one Tayammum (although one can pray as much Nawafil with the Tayammum that one made to pray the obligatory prayers). They say that if one prayed with Tayammum then one has to go out and look for water. If does not find water then one must make Tayammum again since one did not find water. They make exception that if you are making Qada of missed prayer then one can do them all with one Tayammum.

Hanafis do not accept the idea that Amr requires repetition. For Abu Hanifa when you enter the state of Tayammum then you have entered the full state of purity and for Shafi and Hanbali you enter only a temporary state of purity. The Dhahiris agree with Hanafis here on this issue. Let’s look at the ayah:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ ۚ وَإِن كُنتُمْ جُنُبًا فَاطَّهَّرُوا ۚ وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُم مِّنْهُ ۚ مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَٰكِن يُرِيدُ لِيُطَهِّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ

Sahih International (5:6)

O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles. And if you are in a state of janabah, then purify yourselves. But if you are ill or on a journey or one of you comes from the place of relieving himself or you have contacted women and do not find water, then seek clean earth and wipe over your faces and hands with it. Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful.

One group is emphasizing what actions require Wudu and Tayammum while the other group is emphasizing not finding the water. So for the latter group the Tayammum has to be repeated for each obligatory salat. The verse completely shows you that Tayammum brings one in complete state of purity, otherwise one cannot pray the salat.

2013-04-22 Class Notes

Amr as a Statement of Fact

In the Surah Taubah verse 82, Allah swt is speaking about those people who remained behind during the battle of Tabook and made excuses for not participating in the battle.

فَلْيَضْحَكُوا قَلِيلًا وَلْيَبْكُوا كَثِيرًا جَزَاءً بِمَا كَانُوا يَكْسِبُونَ

Sahih International

So let them laugh a little and [then] weep much as recompense for what they used to earn.

What is the importance of this verse for our class?

We had examples of khabar (statements of fact) that implied Amr. Whereas this verse is an Amr but it is rather a statement of fact. This is from the balagha of the Quran. Arabic grammar deals with parts of speech, but balagha captures rhetoric and the impact of the words on the listener.

In this verse, it captures the indelible nature of what will happen to them. In another verse which describes the day of judgement, it captures the reality of what will happen to us.

How would you translate the above verse? Would you try to capture the form of Amr or just simply translate it as a statement of fact? Does “let them laugh a little” capture the essence of Amr?

Pickthall says let them laugh a little but they will weep much.

Another example of Amr as statement of fact is Surah Maryam verse 75:

قُلْ مَن كَانَ فِي الضَّلَالَةِ فَلْيَمْدُدْ لَهُ الرَّحْمَٰنُ مَدًّا ۚ حَتَّىٰ إِذَا رَأَوْا مَا يُوعَدُونَ إِمَّا الْعَذَابَ وَإِمَّا السَّاعَةَ فَسَيَعْلَمُونَ مَنْ هُوَ شَرٌّ مَّكَانًا وَأَضْعَفُ جُندًا

Sahih International

Say, "Whoever is in error - let the Most Merciful extend for him an extension [in wealth and time] until, when they see that which they were promised - either punishment [in this world] or the Hour [of resurrection] - they will come to know who is worst in position and weaker in soldiers."

Does Amr imply repetitive action or not?

We have been discussing the implications of Amr and whether the complying with Amr should be done only once in your lifetime or should it be done repetitively?

According to most of the scholars, there is nothing in the nature of Amr itself that will tell us whether it means one time or whether it means repetitively.

Conditional Amr

If there is a condition or attribute tied into the Amr, and if this condition or attribute holds true, then does it mean that the Amr must be done repetitively?

Hadith of the Prophet about offering two prayers of the masjid, does it mean that every time you enter the masjid you have to pray two rakahs? Is this prayer obligatory?

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

"When any one of you enters the Masjid, let him pray two Rak'ahs before he sits down."

أَخْبَرَنَا قُتَيْبَةُ، قَالَ حَدَّثَنَا مَالِكٌ، عَنْ عَامِرِ بْنِ عَبْدِ اللَّهِ بْنِ الزُّبَيْرِ، عَنْ عَمْرِو بْنِ سُلَيْمِ، عَنْ أَبِي قَتَادَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏ "‏ إِذَا دَخَلَ أَحَدُكُمُ الْمَسْجِدَ فَلْيَرْكَعْ رَكْعَتَيْنِ قَبْلَ أَنْ يَجْلِسَ ‏"‏ ‏.‏

Is this hadith Amr or Nahi? In this hadeeth it is Amr.

So whenever the condition is met, you have to establish this Amr. So whenever you enter the masjid, you pray two rakah before you sit down.

What about verse of the Quran that says “establish the prayer at the declining of the sun”.

أَقِمِ الصَّلَاةَ لِدُلُوكِ الشَّمْسِ إِلَىٰ غَسَقِ اللَّيْلِ وَقُرْآنَ الْفَجْرِ ۖ إِنَّ قُرْآنَ الْفَجْرِ كَانَ مَشْهُودًا

Sahih International (17:78)

Establish prayer at the decline of the sun [from its meridian] until the darkness of the night and [also] the Qur'an of dawn. Indeed, the recitation of dawn is ever witnessed.

The conclusion is that whenever the condition is met, you have to establish the action required by the Amr.

What if the master tells the slave that when you enter the market then buy the bread. Should he buy bread each time he enters the market?

This condition that under certain contexts the Amr does not mean the repetition of the act, is not something those scholars discuss who think that Amr as repetition. There is a difference between the illa and shart.

Repeated Amr: Illa’ and Shart of the Amr

What does it mean that this is the illa’ for the ruling or the Amr? What are its ramifications? And what is the difference between illa’ and the condition for the Amr?

Illa’ is a sufficient condition. Footnote: Remember we have necessary or sufficient conditions. A sufficient condition implies that the amr becomes obligatory, for example when the sun crosses the meridian then Dhuhr prayer becomes obligatory.

An example of a condition for marriage is that the couple is not related to one another (forbidden to marry one another).

So this highlights the difference between illa and shart. However if you are talking about the condition (shart) then it does not mean that each time condition is fulfilled then one has to do the act.

To answer the question about slave and owner, the condition is that he enters the market, but that is not the illa’, here the action does not become obligatory.

A number of scholars say that Amr that is related to shart or shifa does not imply repeated actions. Much of their evidence is related to the language, since the language distinguishes between illa and shart. They give many examples of slave and their masters, because they lend themselves very well to discussing Amr.

Give Zaid a dirham when the sun sets. In this case one gives it only once. If the statement is that give Zaid Dirham each time sun sets then we have illa that this is to be done repeatedly.

Scholars who say that Amr always applies repetition, their evidence is that most of the Ahkam implies repetition. However their weakness is that they don’t distinguish between what is illa and what is the condition or shart.

Al Amadi says that repetition is not the result of the Amr, neither it is the result of the condition either, he also says that confluence of Amr and condition also does not signify repetition. He says you need external evidence for repetition. But as a scholar, he did distinguish between illa and the shart.

Repetition of Salat al Nabi everytime we mention the Prophet’s name

When we mention the name of the Prophet, we usually make salat of the nabi? Is this obligatory and should it be done everytime we mention his name?

Did the Prophet say that make salat al nabi everytime you mention my name? No he did not say that.

In the Quran, Allah swt says,

إِنَّ اللَّهَ وَمَلَائِكَتَهُ يُصَلُّونَ عَلَى النَّبِيِّ ۚ يَا أَيُّهَا الَّذِينَ آمَنُوا صَلُّوا عَلَيْهِ وَسَلِّمُوا تَسْلِيمًا

Sahih International (33:56)

Indeed, Allah confers blessing upon the Prophet, and His angels [ask Him to do so]. O you who have believed, ask [ Allah to confer] blessing upon him and ask [ Allah to grant him] peace.

Is this an Amr? Yes it is an Amr. However it does not say that everytime you hear the name of the Prophet, ask Allah to confer his blessing upon him. So would it suffice to say it just once in my lifetime?

There are four opinions on this question of salat al nabi.

Opinion #1: It is obligatory to say it once in your lifetime. The evidence for it is the verse of the Quran, since the Amr is not conditional based upon you hearing the name. This is the opinion of jamhur al umma (the majority of the ummah), this includes Abu Hanifa, ......

Opinion #2: The obligation is during Tashahhud during the Salat. This is the opinion of Imam Shafiee and Imam Ahmad.

Opinion #3: Obligation is once in a gathering (assuming the name is mentioned more than once).

Opinion #4: Obligation is every time his name is mentioned. This is the  opinion from Abu Jafar al Tahawi and abu Abdullah ibn al Haleemi.

Opinion #5: The Tabari view is based on 33:56 where he takes the Amr to be recommendation and not an obligation (and he mentions that there is Ijma on this point and when Tabari has different definition of Ijma. He uses it when lots of people have an opinion and this definition is different from how many scholars use it).

Footnote: The adhan is proof that you do not have to say salat al nabi every time, since the Muadhin does not say it everytime he says the name of the Prophet.

Ibn Qayyim has book titled ..................... and he presents number of evidence to show that salat is obligatory every time the Prophet’s name and then he shows a great number evidences that salat is not obligatory. Then in the end he says that each group has responses to each other’s opinion and each opinion has strength. We will not go into details but student can read the book on their own and see the arguments.

Shaykh Jamaal thinks that sending Salam on Prophet (pbuh) each time is at least recommended.

2013-05-06 Class Notes

Last week’s class (2013-04-30) was cancelled since Sh Jamaal was not feeling well.

Scenarios about when the obligations of Amr are supposed to be completed

Suppose you are just graduated from college and you have a job lined up later and you have money in your bank. And that year Hajj is during the summer vacation. There is nothing preventing you from going to Hajj and you have never performed Hajj before. So is Hajj obligatory for you that year?

Suppose you have some missed fasts of Ramadan to make up. When should you complete this obligation, as soon as possible or anytime before the next Ramadan?

What about the time for prayer starts, are you supposed to pray earlier in its timeslot? And if you delay it, are you being negligent in your prayers?

Why are some of the amr obligations treated differently than others?

The obligation of Amr always has some relationship to time. The amr is asking you to perform a deed and there is a time limit for when the Amr has to be completed by.

The imperative is obliging an act that must be done by some time. Since you cannot do an act independent of time.

Categories of Waajib with respect to their relationship to time

When you analyze the text of the Shariah, either the text is going to restrict the time for us or it is going to leave it open for us.

Waajib Al Muwaqqat - Time constraints on the obligation

If there are some time constraints on the obligation, it is known as Waajib Al Muwaqqat which means time restricted obligation.

The Waajib Al Muwaqqat has two types, Al Waajib Al Mudhayyir which means a constricted requirement.  Al Waajib Al Muwassir which means there is flexibility.

Waajib Al Mutlaq - Unrestricted time restriction on the obligation

If there is no time restriction, then it is known as Waajib Al Mutlaq. Mutlaq means unrestricted.

During the day of Ramadan there is restriction to perform that one deed which is the fasting of Ramadan you cannot perform any other deed of fasting during that time.

Whereas during the time for Asr, you can pray sunnah or other voluntary prayers in addition to the prayer of Asr.

The command to fast Ramadan, do you have flexibility to perform the fast at any time at your leisure? No this question does not make sense. You have to perform the fast during the month of Ramadan.

When you have to make up the fast of Ramadan, it is possible for you to fast for some other reasons other than the intention of making up the fast of Ramadan.

Subcategories of Waajib Al Muwassir - Flexibility wrt performing the act

Waajib Al Muwassir itself also has two types. When there is no specific evidence whether you have to perform the deed immediately or not is one category of Waajib al Mutlaq. The other category is that you have some evidence for it.

So the case of Waajib al Muwassir (flexible) with no specific evidence for performing it immediately, then we have to resort to the default case.

What are the obligations for which there are no specific evidence for performing it immediately?

These are student’s answers. Hajj, Jihad might be Mutlaq. Whereas expiation for breaking an oath might be the default case under flexible waajib.

Al Waajib al ..... - No sin if you delay them and do not perform it

So there are obligations that you can delay without committing sin.

Earlier we had discussed whether Amr implies repitition or not. Some scholars said that Amr implies repetition. And some scholars say that it simply calls for an action without specifying that it needs to be repeated or not.

Opinions of Scholars about when Amr should be done

When you go and analyze the opinions of Imam Abu Hanifa or Imam Shafiee, you have to be careful, because you are analyzing their opinions to determine how they came to this conclusion and then categorizing them in one of the above categories.

Opinion #1: Obligation must be fulfilled immediately

Dhahiri opinion is that Amr implies immediate obligation. It is also opinion of Malikis, some say that it is opinion of Imam Malik but we have to be careful about it. Imam Ahmad also had this opinion, he said that once you have ability to perform Hajj, you should do so immediately.

Hanafis are split on this opinion. Al Maturidi and Jassas say that you have to fulfill it immediately.

Opinion #2: Amr does not imply immediate obligation

This is the view of the majority of the Shafiees and some of the Mutazillah and also Abu Yusuf who has student of Abu Hanifa.

A subset say that you dont have to perform it immediately, but you should have the determination to fulfill that immediately. So when the time for Asr comes you have determination to do it immediately.

Opinion #3: Amr in itself does not have any indication whether it must be done immediately or over time

They say Amr is simply calling people to do the Act. And whether it needs to be done immediately or over time is independent of the Amr itself. You have to look for some external evidence. But it must be one of the two choices.

This is the opinion of the Shafi legal jurists and also some contemporary scholars.

Opinion #4: Waqafite opinion is that of suspended judgement

Imam Al Harayman is the leader of the Waqafite opinion. They say that there is no way to know and they suspend judgement. However this is not a practical approach. So when it comes to practice, you have to decide what to do.

Evidences for Opinion #1

Allah swt tells us in various places in the Quran, Be quick to perform good deeds, race to get forgiveness from your Lord. So these verses are telling us that we should not delay the performing of good deeds.

Are these evidences relevant?

You are putting the cart before the horse. How do you get forgiveness from your lord, by obeying your lord. Then you should follow it in the way that is pleasing to Allah swt. So if you delay performing Hajj you are not committing a sin and obeying your Lord.

... lost notes due to intermittent streaming issues ....

Discussion of the disobedience of Shaytan, not only did he not fulfill the Amr but his intention was to never fulfill the act.

Homework: Try to think of proofs for your position and try to convince the classroom with your evidences.

2013-05-13 Class Notes

When does Amr become obligatory or how soon should you respond to an Amr?

We discussed four opinions last time about when does an Amr become obligatory.

#1 Waajib Ala Faur????? (Obligation occurs Immediately)

One of the opinions is that the Amr implies immediate implementation. All of the scholars who say that Amr implies repeated obligation, they say that it becomes obligatory right away.

#2 Waajib Ala Tarakhi (Free to implement whenever as long as have intention to fulfill it)

The second opinion is that Amr does not imply immediate obligation, the individual is free to implement it whenever they feel like it, however they should have the intention to fulfill it.

#3 Amr does not indicate its time obligation

The third opinion says that there is nothing in the nature of the Amr itself that tells us that you have to do immediately or over time. This is similar to the issue of repeatable nature of the Amr, whether Amr itself is repeatable or not.

#4 Suspended judgement aka Waqafite opinion

The fourth opinion is that of Waqafite, they have suspended judgement about the obligation to implement it immediately or not.

Evidences for Opinion #1 about the immediate nature of Amr

The scholars for opinion #1 quote the following verse from the Quran: What prohibited you from prostrating to Adam?

From a linguistic perspective, Amr implies immediate obligation. When a person from a higher authority asks you to do something, then a response is expected immediately, you cannot wait for days or weeks to respond.

They also say that anyone can die before the obligation, so what kind of obligation is it? This implies that there is some type of obligation and they say that the only time limit that is obvious is that it should be done immediately.

Ibn Hazm is the leading proponents that Amr has to be responded to immediately. One of the examples that he gave was regarding the Hajj. Prophet came to Ayesha, he was very upset. He told Ayesha, I ordered the people to do something and they were hesitating. According to ibn Hazm this clearly shows that the Amr must be responded to immediately.

Does prohibition or nahi require immediate implementation? Yes. So isnt Amr on the other side of Nahi. However you cannot come to a conclusion based on what is required for Nahi should also be held true for Amr.

Classroom discussion about the different opinions and their evidences.

Evidences for Opinion #2 about the immediate nature of Amr

There isn’t enough strong evidence for the second opinion. If someone makes an oath, that by Allah I will do such and such, then he will be considered to fulfill his oath even if he takes a long time to do so.

Due to the treaty of Hudaybiyyah, the sahaba were blocked from entering the house... Abu Bakr said in response to a question, that Allah swt has promised us victory??? but not when.   

Sh does not feel that this evidence is strong. In fact there is no real evidence.

Evidences for Opinion #3 about the immediate nature of Amr

If I were to say to you, respond immediately, does this command make sense? How about, response at your leisure, does this command make sense.

So both of those make sense. It is common speech. Amr could mean something to be done immediately or at your leisure, but the Amr itself does not necessarily capture whether the action has to be done immediately or not. It is mustarab. And you have to specify whether Amr should be done immediately or at leisure.

When you hear Amr, the immediate response is one thing that could come to your mind, but that is not the only thing.

So how do followers of this opinion actually implement the Amr, since it could mean either.

In practice you cannot take the Waqafite position, and this opinion is close to the Waqafite position, so how are you going to decide what to do?

They will look for qareenah or external evidence. They say that since immediate or over time implementation are close to one another, so they will consider any evidence is sufficient to tilt the scales either to immediate implementation or over time. If you don’t find evidence, then keep on looking. If you dig hard enough you will find some evidence to tilt the scale.

The first opinion has the most number of evidences. Do students still hold to their original opinion since last time?

Issues surrounding immediate implementation or over time of an Amr

In a class, we emphasize the difference of opinions which have fiqh ramifications.

Issue #1: Missed days of Ramadan, should it be ala faur (immediate) or ala tarakhi (over time)

The command to make up missed days is khabar but in fact it is Amr. So can you delay it until the next Ramadan?

Issue #2: If you have days to make up of Ramadan, can you make voluntary fasts before you make up the days of Ramadan?

Ibn Hazm and some of the Hanbali who follow opinion #1, says that you have to make up the days of Ramadan immediately and that you cannot perform voluntary fasts until you finish the days of Ramadan.

Issue #3: Do you have to make up the days of Ramadan before the start of the next Ramadan?

If you delay it after the next Ramadan, are you sinful? What do you do if the next Ramadan begins, do you still make up those days?

Hanafis who say that you can delay the obligation for years, followers of the second opinion. Many Hanafis do not like this view.

The middle view is that you have to make up the days before the start of the next Ramadan, this is the view of Shafies, Malikis, majority of Hambalis  and a number of Hanafis. And if you don't fulfill the missed days before the next Ramadan, then you are sinful. If you don't make up the fast, then you have to feed one poor person for each day of the missed fast. This expiation of the sin is not based on any evidence from the sunnah of the Prophet. It is based on fatwa of a sahabi and they consider opinion of sahabi as hujja. This opinion is considered ala faur and not ala tarakhi.

So the qareenah for the followers of opinion #3 is the fatwa of the Sahabi that says that you have to make up the missed days of Ramadan before the start of the next Ramadan.

There is an authentic narration that Ayesha was not able to make up the missed days of Ramadan until Shaban, but it was because of her obligations to the Prophet. However if there are no hurdles such as sickness or any other reasons you should make up the missed days of Ramadan as soon as possible.

Issue #4: Missed sunnah prayers of Dhuhr

At one time, the Prophet was busy with an expedition in order to make dawah, he then prayed two rakah of missed Dhuhr sunnah, after the Asr prayers. So can you make up missed sunnah prayers? Is it permissible to pray after Asr prayers? This hadith is from Bukhari and .... it is authentic. In summer when the sun is high, it is permissible to pray after Asr, when the sun goes down low, then it is prohibited to pray after Asr prayers. Before sunset is the strong prohibition, and after Asr is the weak prohibition in order to keep us from making the prayer at sunset.

Issue #5: If you have the ability to perform Hajj and there are no obstacles and you have never performed Hajj, then does it become obligatory for you to perform Hajj? Is it waajib ala faur or waajib ala tarakhi?

We will discuss this issue in the next class.

2013-05-20 Class Notes

Is Amr of performing Hajj given that you have no obstacles, is it ala faur or ala tarakhi?

If you say that it is ala faur and if they do not go to perform hajj, are you saying that they are committing a sin? If so what is your evidence for it?

Classroom discussion about the evidence, most of the evidence provided by the students was a rational argument.

Scholars opinion about the obligation of Hajj

Opinion #1 Ala Faur

Opinion of Abu Hanifa (one narration) and his student Abu Yusr. From among other Hanafis, Zaraqshi .... It is also the view of the majority of the Hanbalis. And also the view of Imam Malik and ibn Hazm.

Opinion #2 Ala Tarakhi

This is the opinion of Mohammed Hasan al Shibani, one of the students of Abu Hanifa, the view of the majority of the Shafiees, .... also the view of Imam Ahmad. It is also narrated by Ibn Abbas, Jabr and a number of earlier scholars

Opinion #3

Narrated from Imam Malik, he says that Hajj is waajib ala Tarakhi, as long as you fear that you will not pass away, and if you fear then it is waajib ala Faur.

Evidences for ala Faur

If you start with the premise that Amr implies ala Faur, then you will assume that it is ala Faur and try to find evidence that shows it otherwise.

Evidence #1 Quran: ...

This is Khabr but it is Amr

Evidence #2 Quran: Complete Hajj and Umrah for the sake of Allah

This is an Amr. Is Umrah also obligatory?

For the Hanbalis, Umrah is also obligatory based on this evidence and they say that Umrah is also waajib ala Faur as soon as you have means to perform it.

These verses are also used as evidence for waajib ala Tarakhi. So these Amr verses are not going to help us out too much.

Evidence #3 Hadith: Prophet said, Whoever has the sustenance and the means to perform hajj and he does not make Hajj to the House of Allah, then it doesn’t matter whether he dies as a Jew or a Christian.

This seems to be strong evidence, however it is a weak hadith. There is difference in the wording of the hadith.

Wording #1: Whoever possesses the means to come to Makkah and then immediately (fa) if he does not make it .....

Wording #2: ........ there is no faa .... it says that he never makes Hajj .....

It does not matter since both of them are weak. There are no scholars who say that this is not a weak hadith.

Evidence #4 Hadith from Musnad Ahmad: Go immediately to perform Hajj, since something might happen to you ...

This hadith is graded Hasan, by al Arnaut and others.

All scholars agree that it is mustahabb to do hajj immediately.

Evidence #5 Hadith: Prophet said, whoever is intending to make Hajj, must do so right away, since the person might get sick, or lose his way, or some incident might occur to him.

This hadith is Hasan li ghairihi. Some say it is weak

Evidence #6 Hadith: Prophet said, unless a tyrant ruler or some trying need that keeps you from making Hajj, then if you die without performing Hajj, it doesn't matter if you died as a Jew or Christian

It is a weak hadith.

Evidence #7 Logical Argument: This event occurs once a year and you should take all means to perform it.

If you say that evidence is Ala Faur, you have to show it that this obligation is Ala Faur

Evidences for Ala Tarakhi

When was Hajj made obligatory? How many Hajj took place before the Prophet made Hajj?

Hajj was made obligatory either in the 6 Hijri or 8 Hijri according to tafseer from Qurtubi.

In the 8 Hijri, Prophet sent a delegation led by .... to perform Hajj.

in the 9 Hijri, the Prophet went out to Tabouk and this year he sent Abu Bakr as the head of the Hajj delegation, while himself and his wives did not make Hajj. Based on this fact, Imam Ahmad says that it is waajib ala tarakhi, even though this is not a well known opinion of his madhab.

By the time of the Hajj, the Prophet was back in Madinah, and he had the means to perform the Hajj, but he did not do so.

Those who say that Hajj is waajib ala Faur, this evidence is very strongly opposing their opinion. They say that the reason why he did not perform Hajj was because he did not want to observe the munkar that was being performed by the mushrikeen at the Hajj. Does this sound like a sound argument?

Some  say that there might be some reason that kept the Prophet busy from performing Hajj. They say he was in the defensive mode and worried about other tribes attacking the Muslims, and that is the reason why he was kept from performing Hajj. So the safety of the Prophet could have been the reason that kept him from performing the Hajj in 9 Hijri. Not many sahaba performed Hajj during this year.

When the Prophet performed Hajj in 10 Hijri, then a large number of sahaba did accompany him.

These are the evidences provided by the both sides.

Classroom discussion about the evidences

The fact that the Prophet sent delegations to make Hajj, even though it was not safe to do so, might show that the Hajj is ala Faur.

Those who say it is ala tarakhi and they die without performing Hajj even though they had the means to perform it, then are they sinful?

Sometimes the consequences of the opinion is more difficult to ascertain.

Are you sinful if you delay performing Hajj and die before doing so? There are three opinions from scholars who say it is ala tarakhi.

Opinion #1: They are not sinful, since they say it is ala tarakhi and they have not committed a sin by delaying it.

Opinion #2: They are sinful

Opinion #3: If the person fears poverty, old age in the future and if he does not perform it and dies then he is sinful, but if he dies before poverty or old age overcomes him, then he is not sinful.

Neither side has really dominating evidence, those who say that it is neither ala faur or ala tarakhi put themselves in a difficult position, because they do not have a default ruling for amr.

Issue: Obligation of prayer times

Is prayer obligation which is limited during the time to perform or is it flexible wrt the timings?

Whenever you have obligation that can be performed ...... unlike fasting of Ramadan where only one action of that type is valid, then it is considered flexible.

Let us consider the timing of the prayer of Dhuhr, does it matter when you pray, early in its timeslot or late in its timeslot?

The hadith has two wordings, Salaat in its prayer time and another wording is that Salaat in its early prayer times.

There are many hadith that says that it is preferable to pray early in the timeslot, except for Isha prayers.

Are you being negligent or committing sin if you do not pray early?

If your boss tells you get this work done by 5:00 PM, and he gave you this command at 8:00 AM, even though it takes you 30 minutes to do the work, is it okay if you start the work at 4:30 PM?

Do various madhabs distinguish between the different times? Have you heard for waqt al ..., waqt al ....., waqt al awwal, waqt al akhtiari.

What about the examples of Dhuhr or Asr, does it matter

Hanbalis are the strictest about the prayer timings. They say waqt al awwal is the first, waqt al ... is the waqt al dharuri which is necessary. If you delay the prayer until the final part of the time, then you are being sinful.

Malikis say that as long as you finish one rakah during the waqt al akhtiari, then you are not sinful.


Some Hanbalis distinguish between the different prayers. Sh bin al Baaz says that Dhuhr is all waqt al akhtiar since there is no time to avoid for prayers, but for Asr there is waqt al dharuri, Maghrib all of it is waqt al akhtiari, and for Isha it is better to delay the Isha. If someone prays the Isha after half its night, then it will be in its time, but he will be sinful. For Fajr all of it is waqt al ikhtiyyar.

Br Waleed hopefully you will fix my Arabic errors??????????

2013-05-27 Class Notes

Obligatory prayer times

We are discussing whether the obligatory prayers within its timings are waajib ala faur or waajib ala tarakhi. Ada means that you performed the prayers on the time, but you could still be sinful.

Among the Hanbalis, they divide the time slot for the obligatory prayers into different categories such as the virtuous time and .... The most virtuous time which is the earliest time except for Isha prayers which you should always delay and on some occasions when salat Dhuhr should be delayed such as days of extreme heat (which we no longer do).

Malikis divide the time slot into the preferred time and the necessary time. If you pray one rakah of the salat in the preferred time and then complete the prayers in the necessary time then you have not committed a sin, however if you complete the entire prayers in the necessary time, then you have committed a sin.

For the Hanafis and Shafis in general, they do not consider what is preferred time or not. They worry about if the time of the prayers is coming to an end and one is still performing the salat or has not performed the salat. So here one should go with Ala al Faur since even though it is time for salat even then the delaying is not good.

Shafis are the classic case of the opinion that obligatory prayers are waajib ala tarakhi.

Even if you have default case of faur or tarakhi, but if you have evidence otherwise, then you follow that evidence.

Evidences for the obligatory prayer times

What is the strongest opinion about timings for the prayer? If you have time for Dhuhr prayers from 1:00 PM to 5:00 PM and you delay it for no reason, is that a sin or not?

Some scholars might consider it a sin, but what is the strongest opinion for this unnecessary delay of the obligatory prayers. By default is Amr ala al faur or ala al tarakhi?

Also what is the correct evidence for the strongest opinion? And on what basis do we take this lackadaisical approach to the obligatory prayers.

Hadith: Somebody came to the Prophet (saws) and asked him about the timings of the prayers. The Prophet (saws) asked him to stay with him for a few days and showed him the different timings for the prayers. And then the Prophet told him you could pray in between the times that you have seen.

Humaid narrated from Ans that a man came to the Prophet (saws) and asked him about the time of the Subh prayer. The following morning he commanded that the Iqamah for prayer be said when dawn broke, and he led us in prayer. The next day when there was light he commanded that the Iqamah for prayer be said and he led us in prayer. Then he said:

"Where is the one who was asking about the time for prayer? (It is) between these two times."

أَخْبَرَنَا عَلِيُّ بْنُ حُجْرٍ، قَالَ حَدَّثَنَا إِسْمَاعِيلُ، قَالَ حَدَّثَنَا حُمَيْدٌ، عَنْ أَنَسٍ، أَنَّ رَجُلاً، أَتَى النَّبِيَّ صلى الله عليه وسلم فَسَأَلَهُ عَنْ وَقْتِ صَلاَةِ الْغَدَاةِ فَلَمَّا أَصْبَحْنَا مِنَ الْغَدِ أَمَرَ حِينَ انْشَقَّ الْفَجْرُ أَنْ تُقَامَ الصَّلاَةُ فَصَلَّى بِنَا فَلَمَّا كَانَ مِنَ الْغَدِ أَسْفَرَ ثُمَّ أَمَرَ فَأُقِيمَتِ الصَّلاَةُ فَصَلَّى بِنَا ثُمَّ قَالَ ‏ "‏ أَيْنَ السَّائِلُ عَنْ وَقْتِ الصَّلاَةِ مَا بَيْنَ هَذَيْنِ وَقْتٌ ‏"‏ ‏.‏

So is this evidence for the Hanafi and Shafi view?

Hadith: Angel Jibreel came and showed the Prophet the different timings of the prayers and he led the prayers.

Narrated Ibn Shihab:

Once `Umar bin `Abdul `Aziz delayed the prayer and `Urwa bin Az-Zubair went to him and said, "Once in 'Iraq, Al-Mughira bin Shu`ba delayed his prayers and Abi Mas`ud Al-Ansari went to him and said, 'O Mughira! What is this? Don't you know that once Gabriel came and offered the prayer (Fajr prayer) and Allah's Messenger (saws) prayed too, then he prayed again (Zuhr prayer) and so did Allah's Apostle and again he prayed (`Asr prayers and Allah's Messenger (saws) did the same; again he prayed (Maghrib-prayer) and so did Allah's Messenger () and again prayed (`Isha prayer) and so did Allah's Apostle and (Gabriel) said, 'I was ordered to do so (to demonstrate the prayers prescribed to you)?'" `Umar (bin `Abdul `Aziz) said to `Urwa, "Be sure of what you Say. Did Gabriel lead Allah's Messenger (saws) at the stated times of the prayers?" `Urwa replied, "Bashir bin Abi Mas`ud narrated like this on the authority of his father." `Urwa added, "Aisha told me that Allah's Messenger (saws) used to pray `Asr prayer when the sunshine was still inside her residence (during the early time of `Asr).

حَدَّثَنَا عَبْدُ اللَّهِ بْنُ مَسْلَمَةَ، قَالَ قَرَأْتُ عَلَى مَالِكٍ عَنِ ابْنِ شِهَابٍ، أَنَّ عُمَرَ بْنَ عَبْدِ الْعَزِيزِ، أَخَّرَ الصَّلاَةَ يَوْمًا، فَدَخَلَ عَلَيْهِ عُرْوَةُ بْنُ الزُّبَيْرِ، فَأَخْبَرَهُ أَنَّ الْمُغِيرَةَ بْنَ شُعْبَةَ أَخَّرَ الصَّلاَةَ يَوْمًا وَهْوَ بِالْعِرَاقِ، فَدَخَلَ عَلَيْهِ أَبُو مَسْعُودٍ الأَنْصَارِيُّ فَقَالَ مَا هَذَا يَا مُغِيرَةُ أَلَيْسَ قَدْ عَلِمْتَ أَنَّ جِبْرِيلَ نَزَلَ فَصَلَّى، فَصَلَّى رَسُولُ اللَّهِ صلى الله عليه وسلم ثُمَّ صَلَّى فَصَلَّى رَسُولُ اللَّهِ صلى الله عليه وسلم ثُمَّ صَلَّى فَصَلَّى رَسُولُ اللَّهِ صلى الله عليه وسلم ثُمَّ صَلَّى فَصَلَّى رَسُولُ اللَّهِ صلى الله عليه وسلم ثُمَّ صَلَّى فَصَلَّى رَسُولُ اللَّهِ صلى الله عليه وسلم ثُمَّ قَالَ ‏ "‏ بِهَذَا أُمِرْتُ ‏"‏‏.‏ فَقَالَ عُمَرُ لِعُرْوَةَ اعْلَمْ مَا تُحَدِّثُ أَوَإِنَّ جِبْرِيلَ هُوَ أَقَامَ لِرَسُولِ اللَّهِ صلى الله عليه وسلم وَقْتَ الصَّلاَةِ‏.‏ قَالَ عُرْوَةُ كَذَلِكَ كَانَ بَشِيرُ بْنُ أَبِي مَسْعُودٍ يُحَدِّثُ عَنْ أَبِيهِ‏.‏ قَالَ عُرْوَةُ وَلَقَدْ حَدَّثَتْنِي عَائِشَةُ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم كَانَ يُصَلِّي الْعَصْرَ، وَالشَّمْسُ فِي حُجْرَتِهَا قَبْلَ أَنْ تَظْهَرَ‏.‏

Based on these ahadith we can say that there are different times for the prayers.

When does zakat become due?

Do you have to pay it as soon as it becomes obligatory or can you delay it. So if you have wealth in excess of the amount of nisab for over a year, then you have pay it waajib ala al faur?

What happens if you lose your wealth after the zakat has become due and are unable to pay it, then are you sinful? If it is waajib ala al tarakhi then he is not sinful for paying it when he had the wealth.

The Prophet send people to collect zakat but there is no evidence on whether it is ala al faur or ala al tarakhi.

The Hanafi school has three view and all of them have been attributed to Abu Hanifa.

The first opinion among the Hanafis is that you may delay in giving zakat and there is no sin in doing so, it is based on the general principle that amr does not imply ala al faur. However at the same time, if the person delays paying zakat until death, when he has not choice to delay it any more, then it is waajib ala al faur, and if he doesn’t pay it, then he is sinful. Footnote: This is a very difficult opinion to digest.

The second opinion among the Hanafis is that it is obligatory ala al faur and one is sinful if he does not do it ala al faur. This is opinion of Al Karkhi, however it does not help us since Al Karkhi was of opinion that every obligation is ala al faur.

The third opinion among the Hanafis is that it is waajib ala al faur because of other evidence or qareena

(قرينة) and not because of the default ruling of the amr. The external evidence they use is that the poor are in need of the money. The goal of zakat is to help the needy, then you must turn it over to them as soon as it is due.

What do you think about this evidence of making zakat waajib alal al faur instead of waajib ala al tarakhi? This is based on maslaha or need. From the usooli point of view, this elevating of the amr is shaky.  

There is a fourth opinion also attributed to Abu Hanifa that you can delay it as long as it is not demanded of you. So if the Islamic gov’t is collecting zakat and as long as they have not requested it, you can delay it.

The Malikis, Shafiees and the Hanbalis are all in agreement that zakat must be paid ala al faur. If the individual does not pay ala al faur and something happens to that wealth then the person is responsible to make up for this loss to the imam or community.

For the Shafiees to hold this view, it goes against the norm, since their default for amr is that it is waajib ala al tarakhi.

What happens if the wealth is lost after the zakat has become due?

If the owner delayed in paying the zakat, then he has to make up for that amount. However if he took the money out of his wealth (such as sheep or property or something else) and in the process of converting it into money, it is lost, then he does not have to make it up.

Maliki and Shafiee differ on another point. Suppose the property is damaged not due to negligence but in the process of going to pay it, the wealth gets destroyed. Say you had two sheeps and in the process of going to the collector and a wolf came along and ate both of them. What can the owner say? I was on the way and I had the intention to pay and I was on time, so I have fulfilled the obligation. If he was delayed two months then both Maliki and Shafiee agree that the person is sinful and responsible for the destroyed wealth.

What should the person on whom zakat is due in case he loses the amount set aside for zakat on his way to pay the zakat and it is lost and it is not due to his negligence?

The Malikis say that he has fulfilled his obligation. The Shafis say that he has to look at his nisab and see if it is still over the amount that is due for zakat, then he has to pay it.

The Hanbalis they do not care whether the money is lost due to negligence or any other reason. They look at the amount due to zakat as a type of debt (dayn). For example, if you owe somebody money and on the way to repay him, it was stolen from him, it does not matter, he still has to pay the amount. They say that zakat is the debt that you owe to Allah and the poor (فقرآء). They say how can you say the debt was paid when it was not yet paid.

The Hanbalis believe that Amr is waajib ala al faur. Ibn Qudamah says the reason why it is waajib ala al faur, it is because of the need of the poor. He quotes Imam Ahmad when someone asked him that can I pay it overtime, and Ahmad ibn Hanbal said ‘no’. This is again close to the maslaha argument.

Discussion of the four examples about Amr and when does it become obligatory

So far we have discussed four examples related to Amr, whether it is waajib ala al faur or is it waajib ala al tarakhi. Can we derive some conclusions from these four examples. The four examples were : Missed fast of Ramadan, Hajj, Salat, and Zakat

Classroom discussion about the examples:

Shaykh’s opinion is that the default ruling for Amr is that it is waajib ala al faur based on the examples we have discussed so far.

Examples of Amr from Hadith of the Prophet

Hadith: The Prophet said that when one of you wake from his sleep, he should not immerse his hand into a vessel or container until he washes it three times, because he does not know where his hand spent the night.

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

"When any one of you wakes from sleep, let him not put his hand into the vessel until he has washed it three times, because he does not know where his hand spent the night."

أَخْبَرَنَا إِسْمَاعِيلُ بْنُ مَسْعُودٍ، وَحُمَيْدُ بْنُ مَسْعَدَةَ، قَالاَ حَدَّثَنَا يَزِيدُ بْنُ زُرَيْعٍ، قَالَ حَدَّثَنَا مَعْمَرٌ، عَنِ الزُّهْرِيِّ، عَنْ أَبِي سَلَمَةَ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏ "‏ إِذَا اسْتَيْقَظَ أَحَدُكُمْ مِنْ مَنَامِهِ فَلاَ يُدْخِلْ يَدَهُ فِي الإِنَاءِ حَتَّى يُفْرِغَ عَلَيْهَا ثَلاَثَ مَرَّاتٍ فَإِنَّهُ لاَ يَدْرِي أَيْنَ بَاتَتْ يَدُهُ ‏"‏ ‏.‏

Is this an Amr and why?

There is another narration of this hadith recorded in Sahih Bukhari, that says ..... he should wash his hands before putting it for ablution....  Is this an Amr?

It was narrated from Abu Hurairah that the Prophet (saws) said:

"When any one of you wakes from sleep, let him not dip his hand in (the water he uses for) his Wudu' until he has washed it three times, for none of you knows where his hand spent the night."

أَخْبَرَنَا قُتَيْبَةُ بْنُ سَعِيدٍ، قَالَ حَدَّثَنَا سُفْيَانُ، عَنِ الزُّهْرِيِّ، عَنْ أَبِي سَلَمَةَ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ النَّبِيَّ صلى الله عليه وسلم قَالَ ‏ "‏ إِذَا اسْتَيْقَظَ أَحَدُكُمْ مِنْ نَوْمِهِ فَلاَ يَغْمِسْ يَدَهُ فِي وَضُوئِهِ حَتَّى يَغْسِلَهَا ثَلاَثًا فَإِنَّ أَحَدَكُمْ لاَ يَدْرِي أَيْنَ بَاتَتْ يَدُهُ ‏"‏ ‏.‏

Abu Huraira said that Prophet (saws) said:

When anyone amongst you wakes up from sleep, he must not put his hand in the utensil till he has washed it three times, for he does not know where his hand was during the night.

وَحَدَّثَنَا نَصْرُ بْنُ عَلِيٍّ الْجَهْضَمِيُّ، وَحَامِدُ بْنُ عُمَرَ الْبَكْرَاوِيُّ، قَالاَ حَدَّثَنَا بِشْرُ بْنُ الْمُفَضَّلِ، عَنْ خَالِدٍ، عَنْ عَبْدِ اللَّهِ بْنِ شَقِيقٍ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ النَّبِيَّ صلى الله عليه وسلم قَالَ ‏ "‏ إِذَا اسْتَيْقَظَ أَحَدُكُمْ مِنْ نَوْمِهِ فَلاَ يَغْمِسْ يَدَهُ فِي الإِنَاءِ حَتَّى يَغْسِلَهَا ثَلاَثًا فَإِنَّهُ لاَ يَدْرِي أَيْنَ بَاتَتْ يَدُهُ ‏"‏ ‏.‏

This is a third person indirect Amr, should wash. What is the implication of this amr, is it waajib, mustahab, mubaha, or irshaad?

Is it waajib to wash your hand before putting it into the water container after you wake up? Could it be other than waajib?

Majority of the scholars say this action is mustahab and not waajib. Some scholars say that if you sleep during the day then it is not waajib, but it is waajib after you wake up from the night sleep.

2013-06-03 Class Notes

Edit: This is the last class for the quarter.

Final examination about Amr

The topics were: The form of imperative, Meaning of the imperative, Miscellaneous Amr, Amr and Repitition, Amr Tarakhi or Faur, Anything goes, Off the wall.