Islamic economic system

Economic (prosperity) is a means rather than an end. The shariah allows ownership and protects the autonomy of an individual but not at the expense of the autonomy of society. Hence, the shariah has set limits, ethical guidelines and permits intervention when the natural course of the market is impeded.

Economic

By Shaykh al-Islam Mufti Muhammad Taqi Usmani
Takmilah Fath al-Mulhim, vol. 1, pp. 293-305 – 1404 AH / 1983 CE
Translated by Ml. Zameelur Rahman in Deoband – 16 January 2013

[In this] short study in which we explain some of the economic principles based on which the Shari‘ah operates, and which have become the foundations of Islamic economics, because ignorance of them often leads to terrible ideological errors, especially in this time of ours which has made livelihood and economics its greatest concern and the limit of its knowledge and the peak of its ambition, such that the topics of economics have become a stimulus for inquiries and a battleground between the modern theories of capitalism and communism.

Preamble 1: Wealth is a mean, not an end

Before discussing the forms of livelihood and economics, a point distinguishing Islamic economics from other economic theories must be kept in mind, and that is that although Islam opposes monasticism in terms of its abstention from worldly amenities and its abhorrence of indulging in the acquisition of sustenance, and it [i.e. Islam] deems human activity in the field of economics permissible, rather it often regards it as favourable or obligatory; nonetheless, despite all of this, Islam does not regard economics as a fundamental concern for humanity, just as it does not deem economic advancement as the objective of human life.

And by this, the great and fundamental divide between Islamic economics and materialistic economics becomes evident, which is that materialistic economics regards livelihood as a foundation for humanity, and it opines that wealth and pleasure are the desired objective and the foundational goal for all of what a human being does in this worldly life, and he has no other goal besides bringing pleasure to himself or pleasure to other children of Adam.

As for Islamic economics, it recognises on the one hand, that seeking a livelihood and acquiring sustenance is from that which humanity cannot do without; but on the other hand, it does not allow him to make seeking a livelihood his greatest concern or the limit of his knowledge or the peak of his ambition. This is why we see that the Qur’an, on the one hand, condemns monasticism and enjoins seeking the bounty of Allah, and refers to trade as “seeking the bounty of Allah” and wealth as “goodness” and nutrition as “the pure things of sustenance” and dress as “the adornment of Allah” and shelter as “tranquillity,” but on the other hand we see that it refers to the worldly life as “the tool of deception” and it condemns the material world in many of its verses.

This is not a contradiction or inconsistency at all. Rather, the secret behind this is that the Qur’an regards all means of livelihood as stages through which humanity passes in his path towards the objective which he aims towards, which is the virtuous traits which pave the way towards the pleasure of Allah and eternal happiness in the afterlife. There is no doubt that the real concern for humanity and his desired objective boils down to the acquisition of this happiness; and since it is not possible without passing through the thorny paths of the material world, it is necessary to acquire everything that we are in need of from the worldly life.

Thus, as long as the means of livelihood occupy the place of a bridge in a person’s life which he adopts as a crossing-point to his true destination, they represent the properties of “the bounty of Allah” and “goodness” and “adornment of Allah” and “tranquillity.” But, when a human being loses his way and the glitter of this life attracts him and he falls prey to dreams and fantasies, and he adopts the means as an end and he forgets his fundamental objective, these [very] means transform into a “tool of deception” and “temptation” and “enemy” just as the Noble Qur’an states.

Allah (Glorified is He) expressed this meaning in His (Great and Exalted is He) statement: “And seek with what Allah has given you the Latter Abode, and do not forget your share of the material world.” (Qur’an 28:77)

Preamble 2: All wealth is given by Allah

The second fundamental issue which carries great importance in the topic of Islamic economics is that whatever form wealth takes, it is but the creation of Allah and His property, and that which human beings own is an endowment from Allah to him. Allah (Glorified is He) says: “And give to them from the wealth of Allah which He has given you.” (24:33)

And indeed the Noble Qur’an has alluded to the reason for this in another place, and that is that humanity is not able to obtain anything more than expending his efforts in eliminating obstructions. As for his efforts bearing fruits and bringing about results, it is not possible but with the command of Allah, since it is not in the capacity of humanity but to sow the seeds in the earth and to remove from it stones and other hurdles. As for making the seeds sprout and transforming them into a plant and then a tree, it is not possible but with the power of Allah (Glorious is He). Allah (Glorified and Exalted is He) says: “Have you seen what you sow? Is it you that causes it to grow or are the Ones Who cause it to grow?” (56:63-4) And He says: “Do they not see that We have created for them, of what Our hands have created, cattle, and then they becomes their owners?” (36:71)

These verses shed brilliant light on the fundamental axiom regarding the reality of wealth and its ownership, which is that whatever form wealth takes, it is owned exclusively by Allah (Glorified and Exalted is He) and it is His provision to humanity, and since wealth is the property of Allah, humanity do not have autonomy in this ownership but through the specific path He has instituted in the Islamic Shari ‘ah, and since Allah (Glorified is He) is the One Who bestows humanity the right of disposition therein, humanity must submit in his dealings to the laws of Allah. This is why humanity owns things and disposes therein, but he does not have complete freedom in his disposition of it and his usage thereof, but it is necessary for him to submit to the law of Allah and His command and stop at His boundaries and follow His laws. Thus, he may not spend this wealth but in accordance with what Allah has commanded, and he must withhold from what He has forbidden. Allah (Glorified is He) has clarified this in His statement: “And seek with what Allah has given you the Latter Abode, and do not forget your share of the material world. And do good as Allah did good to you, and do not seek corruption in the earth.” (Qur’an 28:77).

This verse explains the philosophy of ownership in Islam. The following principles can be derived from it:

  1. All that humanity possesses of wealth is purely Allah’s bestowal to him.
  2. Man must not forget his destination, which is the afterlife, when dealing with it.
  3. And since wealth is from that which Allah has given him, he must dispose of it in accordance with the commands of Allah, and that is in two ways:
    1. firstly, that Allah has commanded him to give his wealth to others, and this is a command which must be obeyed, because Allah (Glorified is He) has done good to him in His bestowal of ownership over His wealth, thus it is His prerogative to order him to do good to others;
    2. and secondly, that He forbids him from any dealings with this wealth, and that is because He does not permit him to spend the wealth in a matter which leads to societal corruptions or corruption in the earth.

This is the manifest particularity of ownership in Islam, which distinguishes it from capitalism and communism in terms of ownership. It is known that the foundation of capitalism is based on materialism, in reality and in practice, and it believes that humanity has monopoly over his wealth and his fortune without another power sharing with him in its disposition and usage, and he has every right to do with it whatever he pleases. The Noble Qur’an has condemned this idea where it points to what the people of Shu‘ayb would say to him: “Does your prayer command you that we should leave what our forefathers worshipped, or that we should cease doing what we like with our property?” (11:87)

Since they believed that wealth is their property in actuality without there being one who provided it to them, they unqualifiedly used the word “our property,” and they asserted therein their disposition and ownership in their statement “doing what we like with our property” and this is a necessary consequence of this ideology.

This ideology announced by the people of our master, Shu‘ayb (upon him be peace), is the basic spirit of capitalism, and indeed the Qur’an demolished this ideology of capitalism by changing the thinking which ascribes wealth to man to an understanding which announces that wealth is the property of Allah.

And that is followed by His statement: “which He has given you” (24:33) to strike at the foundations of communism which rejects individual ownership and does not concede it in any situation.

It will now be possible for us to distinguish between Islam and capitalism and communism and to designate each of these three by that which distinguishes it from the other; thus we say:

Capitalism creates individual ownership which is free from all restrictions and limitations.

Communism rejects individual ownership (at least in the means of production) and it does not concede it in any situation.

Islam recognises individual ownership but it does not free it of all restrictions and limitations, and it does not loosen its rein such that it causes corruption on the earth.

Comparison of Modern Economic Systems

After laying down these two introductory principles, we wish to explain the foundational difference between Islam and modern economic theories, and comment on the foundations of these systems and the extent of their error in the viewpoint of Islam.

General principles of Economics

Know that the primary questions of economics for every economic system are four, which every system must solve. In the convention of the economists, they are:

  • the question of selecting [what to produce]
  • the question of [which] resources to use
  • the question of distributing the wealth
  • the question of growth

As for the question of selection, they mean thereby organising the desired products according to the needs of the society and the extent of their requirements, because every country owns lands for cultivating which are suitable for a variety of different types of yields and a range of natural resources which are capable of being used for a variety of products. Thus, every country must select some products over others in accordance with their needs and the requirement of those products, so that it uses its land for the required yields and its factories for the required products. One country, for example, can produce wheat and rice and it can also produce coffee and tobacco, thus it must prioritise these things and give preference to some of them over others in accordance with their needs, which will be more beneficial for the society.

As for the question of [which] resources to use, they mean the distribution of resources to produce the required things to a suitable extent, as it is necessary for every country – when it desires success in economics – to employ these resources according to what it has decided in the [process of] selection, and to divide its resources according to the various products in a manner that will be most beneficial and produce the most profit for the society, so it must specify how much land should be occupied in producing wheat? And how much should be used in cultivating rice? And how much in cultivating sugarcane? And how many factories should be erected to manufacture clothes? And how many to manufacture sugar and how many to produce pharmaceuticals? And other such [questions]. And that must be in accordance with the requirements of the society and in accordance with the priorities which it specified in the first question, so that it does not waste resources in producing something that is not required.

As for the question of [how to] distribute the wealth, they intend thereby, how should we distribute the range of material wealth that we acquire after employing the natural recourses to the citizens [of the country]? And what is the measure of distribution amongst them?

As for the question of growth, they intend thereby the need of every society to not stop at a limit in the work of production; instead, it must increase in this work such that it becomes possible for it to invent new things and devise beneficial techniques in every aspect of material crafts; thus, there should be a system which intrinsically encourages growth and stimulates novelty in the country.

These are the four elements of every economic system, and the contemporary theories differ in the method of solving these questions, and we will refer to these four questions as “economic organisation” in our following discussion.

The Theory of Capitalism

As for capitalism, it states that there is no route to economic organisation unless we give each individual from the individuals of society complete autonomy in acquiring a livelihood, in order that he struggles to acquire the most that he can in terms of profit and wealth, and when we do that these four problems will naturally be resolved, and economic organisation will be achieved automatically.

The explanation of this, according to what the capitalists describe, is that there are two natural forces on which economic organisation rests, and they are supply and demand. As for supply, it is the trader taking his goods to the market to sell them, and demand is the buyer coming to the market to purchase them. And from the well-known laws of economics is that every time supply is more than demand, prices decrease, and every time supply is less than demand, prices increase. Hence, when there are a thousand garments of one type in the market, for example, and there are only seven hundred who wish to buy it, the price of the garment will certainly decrease because the supply is high and the demand is low. But when the buyers are more than a thousand, the price of the garment will naturally increase because the demand is more than the supply.

Therefore, whenever man has complete autonomy in acquiring his livelihood, he will not bring to the market except what has high demand, so that he can acquire as much profit [as possible], because if he brings to the market goods that have little need, he will not be able to sell it for a high price and his profit will be low. This is why every man in society is forced to produce what the society needs and refrain from what the society does not need, and that is by the very nature of the forces of supply and demand.

Thus, the capitalists say that these two forces arrange all the economic activities, and the questions of selection, and the questions of employing resources, are solved thereby; for whenever the question of selection arises, for example, the man who enjoys complete autonomy in acquiring as much as possible in terms of profit will not select for production except what has highest demand and the most need, and when the question of employing resources arises, the man will not employ his resources except in the production of what has most profit, and something will not have more profit unless its demand is high and its demand will not be high unless the society is in need of it.

So, for example, when he manufactures more shoes with respect to the demand, their prices will decrease, and they may drop below the cost of production, and when the situation is such, some of the producers may stop production, and because of that the supply will drop and the prices will begin to rise; and when a large number of producers stop producing, the prices may increase to high levels such that it drives some producers outside the industry to enter into the industry again, and this process will continue until it reaches an equilibrium, where the supply of shoes in the market will be at the same level as its demand; and this is the objective.

As for the question of the distribution of wealth, the forces of supply and demand also organise distribution in the view of the capitalists. That is because only the elements of production – which are land, money, work and investment – are entitled to wealth. Thus, the land is entitled to hire, and money is entitled to interest, and work is entitled to wages and investment is entitled to profit. The quantity of hire or interest or wages or profit is not determined except by the forces of supply and demand, since when the demand of land is more than its supply it will be leased more, and when its demand is less it will be leased less; similarly, if the demand of wealth is more than its supply, the value of interest will increase and when it is the reverse, its value will decrease, and work is similar to this also, so if the demand of work – meaning, the demand of wages – is more than the number of available workers, wages will increase, and if its demand is less, it will decrease.

In similar fashion, the forces of supply and demand organise the distribution of wealth.

As for the question of growth, it is resolved in a similar way, and that is because since every person is free to acquire the most that is possible in terms of profit and fortune, he will strive to innovate new things, and invent novel instruments, in order that interest in them increases and their prices rise. Hence, the objective, which is growth, is acquired.

This is the basic philosophy of capitalism, and if you wish to summarise the principles of this philosophy, it is clear that it stands on the following foundations:

  1. Autonomy of ownership, whereby the individuals own all commodities, whether produced or consumed, with a full and complete autonomy, without responsibilities and obligations.
  2. Economic autonomy: Individuals have the right to establish their own projects and invest their own wealth without intervention of the state. Hence, the market is the operator, organiser and controller, and competition between the force of production and its elements on the one hand, and competition between the consumers in the path of acquiring commodities which they desire on the other hand, is manifestly what distinguishes a free economy, and it is at the same time what guarantees the organisation of the market and realisation of the interests of all.
  3. The autonomy of profit: Profit in capitalism is recompense for a person of work and for an organiser, with respect to their work and their planning. Thus, it is not possible for the state to restrict this autonomy, because capitalism considers the instrument of prices and the forces of supply and demand as though they were operators that control [the market] which direct economic activity automatically, so there is no need for government intervention.
The Theory of Communism

As for communism, it opposed capitalism and says, we should not entrust the matter of economic organisation to the forces of supply and demand which have no mind and no understanding, as they are blind forces, and we will not achieve by means of them an equilibrium but after economic crises and great harm; while these two forces do not have in their hand an electronic switch by which the work of production will stop by switching it off or will restart by switching it on. Rather, altering the conditions of production is an effect that takes a long time, and during this long period of time resources will be lost in needless [ventures]. So when we wish for economic organisation according to the needs of society, we must not allow anyone to own the means of production with a personal ownership. Rather, the means of production should all be in the ownership of the state, and the state will put economic planning into action and it will decide the needs of the society and the extents of that need, and then it will organise the means of production to employ them in fulfilling those needs. Hence, every stage in the stages of production will be in accordance with this plan. Thus, the state is what determines the priorities, and it is what organises the resources, and it is what specifies the wages of the workers, because once all the resources are in the hands of the government, nothing remains for the people besides work. In lieu of it, they will be given wages in accordance with their work, so there is no need for profit, or interest, or leasing. Rather, wealth will be distributed between the populace in the form of wages, and profit, interest and leasing are all prohibited in the philosophy of communism because the price of goods according to them is only the price of work. As for what the seller or the leaser demands in a capitalist market above the value of the work in the form of profit, interest or rent, it is called “surplus value” according to them which is absolute injustice in their view.

Critique of Communism

As for communism, it has erred in the first step of its thought, and that is because such societal issues are not resolved by a plan from the government, and indeed entrusting them to a government plan is against human nature, as man’s volition in the economic sphere is something related to his natural aptness and his innate affinity, and if it was made to be compelled by governments, it would become something forced, against his nature and his disposition.

And this is, just as we see in every country, marriage occurs between a number of young men and women according to their personal suitability and the affinity of some of them to others, and often we see that this sporadic system of marriage leads to disagreements between them. However, a sane person will never think of blocking these disagreements by means of a government plan, so the government specifies that so-and-so boy will only marry so-and-so girl, and that so-and-so girl will not marry but so-and-so boy, and if the government were to do that, it would be something opposed to human nature; and this system only operates on the basis of suitability and affinity in which the government has no say, and there is no plan from the outside.

Similarly, economic organisation should operate in this way, and must not follow an external plan, because in that are the following corrupt consequences:

Firstly, it requires that all means of production are in the hands of the government, and the government is not made up of angels nor of infallible human beings, but is comprised of a small group of people who have the same emotions, desires and ambitions we find in the hearts of other people, so if this group wanted to employ these many resources to follow their desires and they pay no attention to the welfare of the populace, great corruption will appear on earth.

Secondly, this plan – however precise are its methods and innovative are its styles – can never guarantee the real needs of the society, as the needs change from day to day, and a plan is only made once or twice in a year, so how can this plan guarantee to fulfill the needs which arise during the year? And indeed knowledge of these changing needs and acting according to them requires a long time also, so the same objection which communism produced against capitalism falls back on them.

Thirdly, this planned system will not operate and cannot operate ultimately except by force from the government, for often it entails burdening the individual with what he does not approve, and forcing him into a service that he does not agree with; so as a result, conflict will arise between the interests of the individual and the interests of the plan.

Critique of Capitalism

As for capitalism, although it is correct in its foundational principle, nonetheless, it has erred in the application of this principle. As for its foundational principle, it is that economic stability is not achieved by planning, but is achieved only by the two natural forces of supply and demand. This is a natural law which we do not deny. However, it applies this principle by granting the individual complete autonomy in acquiring the most that is possible in terms of profit or fortune, and it does not place limits on this autonomy with any stipulation or restriction, and it is ignorant that this complete autonomy will lead to restricting the forces of supply and demand and will corrupt thereby the natural order which is determined by its foundational principle.

The explanation of this is that whenever an individual is completely free in acquiring the most that is possible in terms of profit and fortune, interest, gambling, hoarding (ihtikar), speculative transactions, and every path leading to acquiring more profit is open to him, so it is possible for the rich to take control of the market and control the prices therein, so there is no price in the market except what these affluent people approve, and there is no wages for the workers except what they stipulate, because they are the owners of the market and control it, due to their fortune, and they cause the forces of supply and demand to become paralysed, because these two forces only operate in the free market where the traders compete therein with full autonomy, and the buyer has a choice therein between buying an item from this [seller] and that [seller]. But when a single individual or a single company has monopoly over the market, there is no path for the buyer to this [freedom], as it determines the price, such that it makes the forces of supply and demand redundant in determining the prices.

This only arises due to complete autonomy, the flag of which capitalism raises with full pride, because man in this freedom acquires riches by whatever means he wishes, of interest, gambling, hoarding, or speculation, and by these riches, he establishes great industries and huge factories by which he takes control of the market, and he does not allow any of the small businessmen to reach his position, and even if another besides him reaches this level he will make a trade agreement with him so that the traders of a single commodity have consensus, and the buyers and consumers will no longer have a choice in using the force of their demand in determining the prices. So where is the free market in the capitalist system? And where is supply and demand? And where is the force of competition? These words in capitalism have only become ideas placed in the insides of pages, no trace of them is seen in practical life and no report of them is heard.

So it is clear that capitalism has applied it foundational principle with an application which ultimately puts an end to this very principle, and makes the forces of supply and demand redundant and weak, inoperative except in a very short area, as a result of which many corruptions arise:

Firstly, a small number of people begin to dominate the circulating wealth, and these small numbers of people do not remain restricted in their place. Rather, they transform and become a global force, and they begin to contribute to the external banks and the international companies, and by means of these companies and what they posses of the force of wealth, these small numbers begin to intervene in international politics, just as this small number begins to control the various media, until its financial transgression is employed in the path of influencing ideological currents and in directing them towards the interests of capitalism.

Secondly, individual autonomy in this system is a right only for the owners of wealth, and as far as the poor are concerned, they have nothing in this system but to submit to the laws of the owners of wealth.

Thirdly, production in this system is not directed towards what is for the good of society, and it is only directed towards what is best for most profit, so if there is more profit in erecting theatres and places of dance it will have most priority in terms of employing the resources for them, even if at the same time some necessary needs are neglected.

Islamic Economic System

As for Islam, it follows a balanced methodology in economics that is free from this excess and that neglect; and since the expressions of “economic organisation” and the “forces of supply and demand” and “the role of the market” are modern expressions, we do not find any of these phrases in the Noble Qur’an or the Prophetic Sunnah. However, that which is derived from a study of the Qur’an, Sunnah and jurisprudence is that Islam is far removed from planning in economic organisation, and it posits that economic organisation has been entrusted by Allah (Glorified is He) to some natural forces. Thus, Allah (Glorified is He) says: “We have allocated among them their livelihood in the worldly life, and have raised some of them over others in ranks, so that some of them may put some others to work.” (43:32) Thus, Allah (Glorified is He) ascribed differences in livelihood to Himself (Great and Exalted is He). And this is something that proves that economic organisation is in the hand of Allah (Glorified is He), and there are some natural forces which organise the livelihoods of people, and we may refer to these natural forces as the forces of supply and demand, as Allah (Glorified is He) is the One Who connects the needs of some people with the needs of others. Thus, the seller is in need of the buyer and the buyer is in need of the seller, and each of them cannot do without the other. And Allah (Glorified is He) alluded to this by His statement: “so that some of them may put some others to work”

Likewise, we find in the hadiths of the Messenger of Allah (Allah bless him and grant him peace) what strengthens this, as Anas (Allah be pleased with him) narrated, he said: “The people said: ‘O Messenger of Allah! The price is high so fix the price for us.’ The Messenger of Allah (Allah bless him and grant him peace) said: ‘Verily, Allah is the One Who constricts, the One Who expands, the One Who provides. Verily I hope that I meet Allah while none of you will demand from me [the recompense of] an oppression [I committed] in [his] blood or wealth.’” Abu Dawud, al-Tirmidhi, Ibn Majah and al-Darimi transmitted it, all of them in Buyu‘, and al-Tirimidhi declared it sahih. Ahmad also transmitted it in his Musnad (3:156, 286), and al-Hafiz said in al-Takhlis (no 1158, 14:3): “Its chain is on the condition of Muslim.”

In a narration of Abu Hurayrah according to Abu Dawud in Bab al-Tas‘ir – and the wording is his – and Ahmad in his Musnad (2:337, 373), a man came and he said: “O Messenger of Allah! Fix the prices.” He said: “Rather, I will supplicate,” and then another man came and he said: “O Messenger of Allah! Fix the prices.” He said: “Rather, Allah lowers and raises [the prices], and verily I hope that I meet Allah while no oppression issued from me.” Its chain is hasan as mentioned in al-Talkhis of al-Hafiz (3:14).

In a narration from Abu Sa‘id al-Khudri (Allah be pleased with him), he said: “The price was high in the time of the Messenger of Allah (Allah bless him and grant him peace), and they said to him: ‘If you were to fix for us our prices.’ He said: ‘Verily, Allah is the One Who fixes the price. Indeed I hope that I part from you while none of you demands from me [the recompense of] oppression [I committed] in [his] wealth or life.” Ahmad transmitted it in his Musnad (3:85) and its chain is hasan, as al-Hafiz stated in al-Talkhis(3:14, no. 1158).

And in the narration of al-Asbagh ibn Nabatah from ‘Ali, he said: “It was said: ‘O Messenger of Allah! Fix the price for us.’ He said: ‘Verily, the highness and lowness of prices are in the hands of Allah. I wish that I meet my Lord while no one demands of me recompense for an injustice I did to him.’” Al-Bazzar transmitted it in his Musnad as in Kashf al-Astar from Zawa’id al-Bazzar (2:85 no. 1263) and al-Asbagh was declared trustworthy by al-‘Ijli although the imams declared him weak as mentioned in Majma‘ al-Zawa’id (4:99), and this hadith of his is strengthened by what has passed of corroborants.

The Messenger of Allah (Allah bless him and grant him peace) attributed pricing in these hadiths to Allah (Glorified is He). So this proves that the organisation of prices does not happen by a government plan, rather it is a matter governed by none besides Allah. And it is apparent that the intent of Allah (Glorified is He) fixing the prices is that He is the One Who created this natural system which specifies the prices automatically. Thus the hadith proves Islam accepts the market which is regulated by the forces of supply and demand, and that intervention in the market is against the natural course of the laws which Allah has put in place in this life, and that every intervention of this category is regarded as injustice by Islam, whether the intervention is from the government or from the traders working in the market.

This is also proven by another hadith, which is what Jabir (Allah be pleased with him) narrated, he said: The Messenger of Allah (Allah bless him and grant him peace) said: “A townsman should not sell on behalf of a villager. Leave people, Allah will sustain some of them by means of others.” Muslim, al-Tirmidhi and others transmitted it. The master of the eloquent ones (Allah bless him and grant him peace) clarified in this hadith that Allah (Exalted is He) sustained some people by others, meaning that He sustains the seller by means of the buyer and He sustains the buyer by means of the seller. Thus it is not permissible for anyone to intervene in this divine system and have monopoly over the prices therein. Thus, the hadith alludes to the system of the market being a natural system which must not be altered.

Hence, the first hadith – the hadith of fixing the price – prevents the intervention of the government in the market and the second hadith – the hadith of Jabir – prevents the intervention of some traders in the market in a way that will alter its natural course. Thus both of them are forbidden.

Thus it is apparent that Islam is the only system which makes it possible for the market to run its natural course, with nothing appearing therein that will block this course.

However, this natural course is not possible by allowing all possessors of wealth to be free to do whatever they wish, because such absolute autonomy will create monopolies that will corrupt the system of the market as we have stated previously. Rather, it will only be possible when their dealings are conditioned by limits and stipulations. Islam has placed these limits and conditions so that the autonomy of individuals does not have preference over the value of the free market and the freedom of the society, as is the reality of capitalism. Rather the individuals are considered secondary to the laws that guarantee the freedom of the market and the freedom of the society.

From these laws is the prohibition of interest, gambling and speculation, because all of these means lead to the accumulation of wealth in the hands of the rich alone. History has proven that the transgression of capitalism only arose out of these causes, because they hoard heaps of wealth by these means, and take control of the market in a way that makes its natural forces paralysed.

And from these laws is the prohibition of hoarding and multiplying middle-men and a townsman being an agent for a villager and all corrupt or invalid sales, because they tend towards an alteration in the condition of the market and a negation of the forces of supply and demand, and a specific group having monopoly over the prices.

Al-Bazzar, Ahmad, Abu Ya‘la and al-Tabrani transmitted from Ibn ‘Umar from the Prophet (Allah bless him and grant him peace), he said: “Whoever hoards food, he has freed himself of Allah and Allah is free from him.” And he said: “If a man from the Muslims becomes hungry amongst the people of a land, the protection of Allah is released from them.” See: Kashf al-Astar ‘an Zawa’id al-Bazzar (2:106, no 1311) and Majma‘ al-Zawa’id(4:100).

And from these laws is the prohibition of an economic agreement from the traders, as this agreement also puts the specification of prices in the hands of a few traders and contravenes its natural system, so the jurists have clarified that the traders are not to be left to conspire amongst themselves to control the prices. See Kitab al-Qismah from al-Hidayah. Whenever they take control of the prices it is allowed for the Islamic government to intervene in the market by fixing the price so that it returns to its original condition, as the jurists have determined in their books.

And from these laws are the laws of Zakah, charity, sacrifice, compensation, maintenance and inheritance, because they divert the flow of wealth from the owners of wealth to the poor from society. In this way, the doors of monopolisation are closed in Islam and the doors of spending are opened. And the wisdom behind this is what the Noble Qur’an alludes to where it says: “so that it may not circulate only between the rich among you” (59:7)

In sum, Islam observes the autonomy of the individual to a limit, but prefers the autonomy of society over him, and it wishes to employ the natural forces of supply and demand, and allow the free market to take its natural course and it puts a barrier to monopolies which place the rein of the market in the hands of a specific group and nullifies the actions of supply and demand, and it legislated for this laws prohibiting a variety of types of dealings, and it allowed the Islamic government to intervene in the market whenever it sees monopolies occurring.

We can summarise the school of Islamic economics in this respect, that it does not regard the freedom of acquisition as an absolute freedom in the way we find in capitalism.

Rather, it institutes three types of interventions in these economic activities:

  1. The intervention of religion: thus, it is not permissible for any trader to acquire wealth by a means that is illegal like interest, gambling, speculation and all corrupt or invalid sales and dealings.
  2. Intervention of government: Islam does not allow for the government to intervene in the market when it follows its natural course, as has preceded in the discussion on pricing, but when an individual wishes to take control of the market or have monopoly over it, it is permissible for the government to intervene in that case, as is established in jurisprudence. That is because of what Ma‘qil ibn Yasar narrated from the Prophet (Allah bless him and grant him peace), he said: “Whoever interferes in any of the prices of the Muslims in order to increase its price for them, it is a duty on Allah to throw him into the greater portion of the Fire while his head is at its bottom.” Al-Hakim, al-Bayhaqi, al-Tabrani, Ahmad and others transmitted it as in Kanz al-‘Ummal(4:56) Bab al-Ihtikar. And ‘Umar (Allah be pleased with him) ordered Hatib ibn Abi Balta‘ah to increase his price and he said to him: “Either you increase the price, or you leave our market.” Malik, ‘Abd ibn Humayd and al-Bayhaqi transmitted it as in al-Kanz(4:104, no. hadith 882). This proves the permissibility of government intervention when it sees what will corrupt the system of the market.
  3. Intervention of ethics: furthermore, the ethical rules are not separated in Islam from economics, because acquiring the most that is possible in terms of profit and fortune is not from the foundational goals of man as we have stated earlier. And this is why Islam nurtures in the souls of the Muslims that they interact well with others, and they give them preference over themselves even if they have a need, and they compete in spending and do not compete in acquiring profits and fortunes. Such rules are plenty in the Qur’an and Sunnah, and this is not the place to exhaust them. Thus, whenever Islam is established with all of its rules and its teachings, there will not remain any trace of the evil effects of capitalism, and there will then be no need for a communist or populist system, and economics will begin to take a moderate path free from oppression, cruelty and selfishness. And Allah (Glorified is He) grants accordance.

The minimum mahr

Allah Almighty has ordained that when a man marries a woman, he must give her something. Is there a minimum? The Ahnaf state ten dirhams, the Malikiyyah state 1/4 of a dinar and the others state no minimum so long as it is of some value.

By Mulla Ali Qari al-Harawi
Fathu Bab al-Inayah v.2 pp. 51-52
Translated by F. Miah & Z. Mahmud – 3 Rabi I 1438 | 3 December 2016

The minimum mahr, according to [the Ahnaf], is ten dirhams; it should weigh [ten dirhams] in silver coins, nuggets or be equal in value to 10 dirhams in price or property.

Imam Muhammad [b. Hasan Shaybani] (may Allah Almighty have mercy upon him) states in Asl, ‘We learnt that the minimum of mahr is ten dirhams from Ali, Abdullah b. Umar, Amir and Ibrahim (may Allah Almighty be pleased with them all)’.

Imam Malik (may Allah Almighty have mercy upon him) mentions in Muwatta, ‘I do not consider that a woman be married with less than a quarter of a dinar.’ This is the threshold for theft according to him.

Imams Shafi’i and Ahmad (may Allah Almighty have mercy upon them) state that everything that has a price can be mahr’.

Imams Daraqutni and Bayhaqi in Sunan Kubra narrate via multiple sources, albeit da’if, from Jabir (may Allah Almighty have mercy upon him) that the Prophet (peace be upon him) said, ‘There is no mahr less than ten dirhams’. Daraqutni and then Bayhaqi narrate in their Sunans from Dawud al-Awdi [who narrates] from Sha’bi [who in turn narrates] from Ali (may Allah Almighty be pleased with him) who says, ‘Do not cut the hand for [theft on] less than ten dirhams. The mahr should not be less than ten dirhams’. Imam Ibn Hibban (may Allah Almighty have mercy upon him) declared al-Awdi to be da’if. Imam Daraqutni narrates from Juwaybir, who narrates from Dhahhak, who narrated from Bazzal b. Sabrah, who narrates from Ali who mentions [the same]. Juwaybir is weak. He narrates through another source via Dhahhak but in the sanad there is Muhammad b. Marwan Abu Ja’far. Imam Zahabi (may Allah Almighty have mercy upon him) says, ‘He is not closely to being known’1.

It is accepted that multiple sources raises [a narration] to the rank of hasan. This is sufficient for evidence.

As for what is mentioned in the Sahihayn2 from the statement of the Prophet (peace be upon him), ‘Request! Even if it is a ring made of iron’. What is in Tirmidhi and Ibn Majah from Abdullah b. Amir b. Rabi’a from his father that the Prophet (peace be upon him) permitted marriage to a woman [in exchange] for a pair of shoes [as mahr]. What is in Sunan Abu Dawud from Jabir that the Prophet (peace be upon him) said, ‘He who gave in mahr for the wife a handful of stalk or dates, then it is halal for him (to consummate)’. However, in this sanad there is Ishaq b. Jabir b. Jibril. Abdul Haq says, ‘That which is linked through him cannot be trusted’. Imam Zahabi states, ‘He is not known and Azdi has declared him da’if.’

All [of these ahadith] refer to [the portion of the mahr] that which is immediately due. It was common practice amongst them that part of the mahr was given immediately before consummation. So much so that it reported that Ibn Abbas, Ibn Umar, Zuhri and Qatada (may Allah Almighty be pleased with them) [held] that the man should not consummate until she has been given something [of the mahr]. [This is] based on the Prophet (peace be upon him) stopping Ali from consummating [his marriage] to Fatimah (may Allah Almighty be pleased with them both) until he has given her something. He said, ‘O Prophet of Allah! I have nothing.’ [The Prophet] responded, ‘Give her your armour’. So, he gave her his armour and then consummated the marriage. It is known that the mahr was four hundred dirhams of silver.

Nevertheless, the preferred view is that it is allowed [for a woman to go to her husband] before [he gives her] anything. This is due to what is in Sunan Abi Dawud from Aisha (may Allah Almighty be pleased with her) who says, ‘The Prophet of Allah (peace be upon him) commanded me that I allow a woman to consummate her marriage with her husband before he gave her anything.’ So the stoppage mentioned [before] will be deemed mustahab. It is mustahab to give something before consummating to make her happy and create amity.

As this is the established custom, it is necessary to base that which oppose what we have narrated to it to combine between the ahadith. as it is the custom and it is Waajib to place it in contrast to that which was reported against us. Similarly, the command of the prophet (peace be upon him) to request for an iron ring will be taken to mean advancing something to create amity. Do you not see that he commanded the man to give what was in his hand; it is possible the mahr remained in debt. So, we understand, the meaning was to pay immediately what was in his possession. When he was unable, [the Prophet] said, ‘Stand and teach her twenty ayats and she is your wife. This is narrated by Imam Abu Dawud. This is the meaning of the narration, ‘I marry you to her in exchange of that which you have of the Quran.’ This is not contradictory and combines the narration.

The is how some muhaqqin have answer and Allah Almighty knows best.

 

—————————————–

[1] Nothing much is known about him.

[2] Bukhari and Muslim

Sadr Shariah – The author of Nuqayah, Sharh Wiqayah and Tawdih

By Muhammad Saifur Rahman Nawhami
2 Jumada I 1437 | 12 February 2016

He is the great scholar faqih, and master of usul, Sadr al-Shariah (al-asghar) Ubayd Allah b. Mas’ud b. Taj al-Shariah Mahmud b. Sadr al-Shariah al-Akbar al-Mahbubi al-Bukhari (d. 747). When Sadr al-Shariah is said without any prefix it refers to him. Amongst others, he acquired knowledge from his grandfather, the great scholar and the author of the monumental fiqh text Wiqayah,  Taj al-Shariah Mahmud.

His expertise expanded to many fields including Hadith, Fiqh, Usul, Aqa’id, logic, grammar, rhetoric and poetry. He researched assiduously and wrote meticulously. His knowledge was vast and incisive through which he was able to summarise many important and difficult topics succinctly. Allm. Abd al-Hayy Lacknawi writes that all the works of Sadr al-Shariah are accepted by the reliable scholars amongst the fuqaha.

His books Nuqayah, Sharh Wiqayah, and Tanqih wa Tawdhih are considered classics which summarises Hanafi fiqh and usul fiqh.

For further detail, read Muhammad Saifur Rahman Nawhami’s article, ‘Sadr al-Shariah (al-Asghar) – d. 747′. Islamic Studies Bulletin (DIBAJ), Issue 2. Available at http://uloom.com/dibaj/article/130820501

Mu’in al-Fara’idh #4: Impediment

murder

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 29 Rabi II 1437 | 10 February 2016

Those eligible to inherit, sometimes due to a certain causes can be impeded (mahrum) from inheriting. These causes are known as ‘Mawani’ al-Irth’. There are four such causes: Riqq (slavery), Qatl (homicide), Tabayun Din (religion), and Tabayun Darayn (nationality). The details are mentioned below.

(1) Riqq refers to full or partial slavery such as a slave, mudabbarmukatab or umm walad. The reason being, these people do not fully own themselves or anything in the possession. Hence, if any relative of theirs dies, they will not be eligible to get anything from the tarkah. Furthermore, they cannot impede others from inheriting either.

(2) Qatl [in this case refers to homicide] which necessitates qisas or kaffarah. The homicide which impedes the killer from inheriting are three types: Qatl ‘Amad,, Qatl Shibh ‘Amad (voluntary manslaughter) and Qatl Khata’ (involuntary manslaughter).

(a) Qatl ‘Amad (murder) is the purposeful killing of an innocent human life with a lethal weapon such as a sword, sharp stone, canon, gun and fire. This results in sin and qisas but not diyyat or kaffarah.

(b) Qatl Shibh Amad (voluntary manslaughter) is the purposeful killing of an innocent human life with a non-lethal item such as ordinary stone or wood piece. This results in diyyat, sin and kaffarah but not qisas.

(c) Qatl Khata’ (involuntary manslaughter) is the accidental killing of an innocent human life such as a hunter who shot at a target but accidentally hit a person due to which he died. This results in diyyat and kaffarah but not qisas and sin.

As there is qisas in ‘amad and kaffarah in shibh ‘amad and khata’, all these forms killing will impede inheritance.

(3) Tabayun Din refers to when from the deceased and the heir, one is a Muslim and the other is a non-Muslim. This difference (tabayun) in their religion impedes the heir from inheriting. Yes! amongst non-Muslims (disbelievers) regardless of how much difference [between them], they will be considered as one religion under the principal of ‘kufr millatun wahidah‘ (kufr is all one religion). Hence, non-Muslims of different religions will not be impeded [from each other].

(4) Tabayun Darayn refers to when non-Muslims live in two different nations. This is a cause of them being impeded. This is irrespective if the difference is real such as one is harbi and the other is zimmi or if the difference is assumed such as one is zimmi and the other is musta’min or both are from two separate dar al-harb. Muslims being of different nations does not impede them [from inheriting].

Mu’in al-Fara’idh #3: Succession

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 28 Rabi II 1437 | 9 February 2016

The estate which remains after shroud, burial, payment of debts and fulfilment of bequest will be distributed amongst the heirs in accordance to the Quran, sunnah of the Prophet of Allah (peace be upon him) and ijma.

There are three types of heirs (waratha): Zawil Furudh, ‘Asabat, and Zawil Arham. Their order of priority will be mentioned below.

(4)  Zawil Furudh: They are those who have been fixed a specific share in the Quran, Sunnah of the Prophet (peace be upon him) and through ijma. From the inheritors, the zawil furudh are the first to be given their fixed shares. After their share, if any amount remains, it is given to the eligible ‘asabat.

(5) ‘Asabat: They are those who if alone take the entire tarkah and if with a zawi al-furudh take all that remains tarkah after their share. These ‘asabat are of two types:

(a) ‘Asabat Nisabi: They are those who are related to the deceased [by blood] such as father, father’s father, son, son’s son. The details will come in the ‘asabat section.

(b) ‘Asabat Sababi: They are those who freed the deceased or the ‘asabat of those who freed [the deceased]. As in the deceased was a slave who was freed by his owner. If this free person dies and there is no heir from the above category to inherit, the master who freed or if unavailable the master’s ‘asabah nisabi will be inherit. Note! If the master is not alive, only the male relatives may inherit – not the females. The reason being, females can only inherit [as ‘asabah] from their freed slave or the freed-slave of their freed slave – they cannot inherit [as ‘asabah] from the freed-slave of their relatives.

(6) Radd bi Zawil Furudh: Give the fixed share to the zawil furudh and thereafter if any amount remains give it to the ‘asaba nisabi and if they are unavailable give it to the ‘asaba sababi. However, if the deceased has neither of the ‘asabat, redistribute the remaining amount amongst the zawi al-furudh according to their proportions. This is called radd which we will discuss in detail in the radd section. Here, just remember that radd is only done to zawi al-furudh nisabi and not zawi al-furudh sababi (spouse).

(7) Zawil Arham: All relatives other than zawil furudh and ‘asabah are classed zawil arham such as the daughter’s son and daughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, mother’s brother, and mother’s father etcetera. If there is no one from the above mentioned categories, the tarkah (estate) of the deceased will be given to the zawil arham. The detail will come in the zawil arham section. If from the zawil furudh there is only the spouse and there are no ‘asabah, give the remaining amount to the zawil arham.

(8) Mawla Muwalat: They are those who the deceased formed a pact of fealty. As in the deceased had no known family and so made a pact,

You are my mawla and after I die, you will receive my money. However, if a crime occurs on my part due to which I must pay diyyat (blood money), you shall fulfil it.

If after forming the pact, this person with no known family dies and leaves no eligible heirs from the above categories, the estate will be given to this mawla muwalat with whom the pact was made whilst alive. Hence, if the spouse is alive but after their share there is no heir from the above groups, the remaining amount will be given to the mawla muwalat with whom the pact was made.

(9) Muqirr lahu bi al-Nasab ala al-Ghayr: They are those regarding whom the deceased admitted to being related. However, the relationship could not be established by admittance alone as it entails including them in the lineage of another. For example, the deceased admitted a stranger to be his brother or uncle. As this entail this stranger being included in his father or grandfather’s lineage, the relationship will be established so long as the father or grandfather do not confirm. The mere admittance will not be sufficient be establish the person as his real brother or uncle. However, If the one remains adamant on their claim till death and after dying there is no one from the above categories or they have a spouse and there is no one from the above categories to receive the remaining amount, the muqir lahu bi al-nasabi ala ghayr will be given the remain estate.

(10) Musa lahu bi Jami’l Mal: They are those to whom the deceased bequeathed their entire estate. However, in accordance to the shariah, they were given a third and two-thirds was held for others who may be eligible. But on further investigation it was discovered there is no one eligible of the two-thirds from the above mentioned categories. Consequently, the remaining amount will be given to this musa lahu bi jami’l mal.

(11) Bayt al-Mal: If no one from the above mentioned categories, the estate will be given to the bayt al-mal (Muslim treasury) which then should be spent on [the needy who are destitute and have no one].

(12) Radd bi Zawjayn: If there no one from the above mentioned categories, the general books of fiqh state that the tarkah of the deceased be given to the bat al-mal. However, when the later scholars have seen that in our time there is no bayt al-mal or [if there is] they do not spend it in an Islamic cause, they deemed that if there is a spouse and for the remain amount there is no one from above mentioned categories, the spouse should be given the remaining amount.

Mu’in al-Fara’idh #2: Payment schedule

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 28 Rabi II 1437 | 8 February 2016

(1) Shroud and burial: First and foremost, pay the shroud and burial expenses from the deceased’s estate even if it requires that the entire estate be spent. You should be moderate in the funeral expenses. For example, the shroud should be of the standard which the deceased may have worn in jumua, the two Eids or when meeting friends.

(2) Debt payment: [Secondly,] repay [recognised] debts which are owed to people from the estate which remains after the payment of [necessary] funeral expenses even if it requires that the entire estate be spent.

If the estate is insufficient to repay all the debts, give priority to the payment of strong debts over weak debts. For example, debts incurred whilst the deceased was healthy or debts which are proven conclusively will be given priority over debts admitted (without any verifiable proof) whilst the person was dying . If multiple debts of equal standing have accumulated, divide the estate amongst the creditors according to their proportions.

Arrears of zakat and kaffarat are written off as a debt in this world. The reason being, it not associated with the rights of the people rather it is the right of Allah Almighty. Of course, the inheritors or someone else may give it from their own wealth as a form of compensation if they please. If the deceased at the time of their demise bequeathed that it be paid, it would be classified as a bequest.

(3) Bequest: [Thirdly,] fulfil the bequest (wasiyyat) of the deceased from one third of the estate (tarkah) which remains after the payment of [recognised] debts.

Wasiyyat (bequest) refers to the asset which the deceased expressed that it be given to a particular person or cause [upon their death].

In fulfilling the bequest, it is a requisite that (1) it not be more than a third, (2) it not be given to an heir automatically inheriting when the deceased died and (3) it not be a cause which contravenes the shari’ah.

If it is more than a third or the bequest was for an heir, it may not be fulfilled without the consent of the remaining heirs.

——–

Keyword: Mal (estate: all the money and property owned by a person), Tarkah (the net asset of the deceased), Dayn pl. Duyun (debts), Wasiyyah (bequest).

Note: This schedule of payment which occurs before any heir receives their share is known as muqaddamah ‘alal irth.

Mu’in al-Fara’idh #1: Introduction

By Mufti Mahmud Hasan Ajmeri
Translated by Muhammad Saifur Rahman Nawhami – 25 Rabi II 1437 | 5 February 2016

We praise Allah Almighty and send salutations to His noble Prophet.

Before starting any subject the introductory matters are mentioned so that the student may find it easy to learn and understand. Hence, before starting ilmul fara’id, we shall write the definition (ta’rif), subject matter (mawdu’), objective (ghard wa ghayat), some keywords and technical terms so that you may find learning this subject easy.

Definition: This is the knowledge of the rules and cases of fiqh which if known one will be informed of (1) the legal heirs of the deceased and (2) the legal principals of how to determine the shares of their inheritance.

Subject matter: The deceased’s estate (tarkah) and the eligible heirs (waratha).

Aim and objective: The aim of this knowledge is to discover the eligible heirs of the deceased’s estate and their share.

Etymology:  Fara’idh (فرائض) is derived from faridhah (فريضة) which means to fix. This knowledge is called ilmul fara’idh as the shares that are stated for the heirs, their amount are fixed by Allah Almighty himself.

Virtue: The Prophet of Allah (peace be upon him) says, ‘Knowledge is of three and all else is a bonus: the clear ayat, established sunnah and the fair share’ (Abu Dawud). The Prophet (peace be upon him) also said, ‘Learn inheritance and teach it’ (Ibn Majah). In another narration, [he says], ‘It is the first thing which will be taken from my ummah‘ (Majma’ al-Anhur).

قال رسول الله صلي الله عليه وسلم العلم ثلاثة، و ما سوي ذلك فهو فضل: اية محكمة، أو سنة قائمة، أو فريضة عادلة رواه أبو داود و قال صلي الله عليه و سلم أيضا تعلَموا الفرائض و علّموها، فإنها نصف العلم رواه ابن ماجة و في رواية أخري في مجمع الأنهر و هو سنتي و هو أول شئ ينزع من أمتي.

In consideration of these narrations, the importance and virtue of this knowledge over other subjects is apparent. Furthermore, before commencing on this subject, it is important that the student know mathematics in addition to sarfnahw and the masa’il of fiqh.

Tarkah: Any asset or property (be it real or owed) which remains after a person has died minus any asset associated with the rights of another person. For example, the asset of the deceased which the deceased has placed as a security of a loan or an asset which was bought but not paid and the buyer dies before taking possession of the asset. In these cases, as the lender or sellers right is associated with the asset, it will not be included within the tarkah.

Keywords: Mayyit (the deceased person), Tarkah (the net asset of the deceased), Warith pl. Waratha (heirs: a person entitled to inherit the asset of the deceased person), Fara’id (inheritance)

[Mu’in Fara’id is a standard primer for mirath which is taught before or in conjunction with Siraji]

How to study Hidayah

hidayah_sample

By B. Shu’ayb
16 Rabi II 1437 | 27 January 2016

This is a summary of The path to Hidayah1 which outlines a guide on how to study Hidayah2.

Introduction

Hidayah is the commentary of:

# Bidayah al-Mubtadi = Quduri + Jami’ al-Saghir

Hidayah shows the way forward for beginners and provides a summary for the experts.

If you can read Hidayah, you can read:

# al-Ikhtiyar (commentary of al-Mukhtar) by Allm. Mawsuli
# al-Wafi (summary of Kanz) by Allm. Nasafi

N.B: these are equivalent to Hidayah but more refined

How to study Hidayah

Prepare

To learn the core masa’il in advance study:

Mukhtasar Quduri
Wiqaya (+ summary: Nuqayah)

N.B: Reading these will make way to: Kanz al-Daqa’iq, al-IkhtiyarMajma Abhur, Majma al Bahrayn, and Tuhfatul Fuqaha.

Read

To understand the core text use:

# Binayah
# Hashiyatu Laknawi

Advance

To delve further, you must know usul and follow one of the two path:

Muhaddithins’ Path:

# Nasb al-Rayah (+ Dirayah)
# ‘Inayah
# I’la al-sunan

Usuliyyins’ Path:

# Fath al-Qadir
# Radd al-Muhtar
# Badai’ al-Sanai’

—————–

16 Rabi II 1437 AH
27 January 2015 CE

[1] Nawhami, Muhammad Saifur Rahman. (2012). The Path to Hidayah. Islamic Studies Bulletin (DIBAJ), Number 1. Available at http://uloom.com/dibaj/article/120426501. Accessed 27 January 2015

[2] This is the monumental work of Allm. Marghinani on the Hanafi fiqh.

Praying salah without wudu

Salah will not be accepted without cleanliness so what should one do if they were stuck in a plane with no way of doing wudhu or tayammum? This issue is known as faqid al-tahurayn.

Metal-Sub

By A. Rahman
14 Rabi II 1437 | 25 January 2016

The prophet of Allah (peace be upon him) said, لاَ تُقْبَلُ صَلاَةٌ بِغَيْرِ طُهُورٍ (trans. salah will not be accepted without cleanliness). This was reported in Tirmidhi and Muslim. The sanad  is sahih. The scholars are unanimous that salah is not permitted without cleanliness and consider a severe sin if one prays without wudhu or tayammum.

So here is the conundrum. What is the ruling if salah time comes and one has no water or soil available with which they may gain cleanliness through wudhu or tayammum respectively?

The schools are differed on this matter. This case is called faqid tahurayn (a person who has no access to water or soil).

قضاء اداء امام
لا لا مالك
نعم نعم شافعي
لا نعم احمد
نعم لا أبو حنيفة

Imam Malik (may Allah almighty have mercy upon him): Both ada and qadha are not wajib as the person is ‘ajiz (incapacitated). So salah is dropped similar to how it is dropped for a woman on her haydh.

Imam Shafi’i (may Allah almighty have mercy upon him): The person should read salah even though he is not tahir (clean), but they will have to do qadha when they have sufficient water. This is also one of the views of Imam Ahmed bin Hanbal.

Imam Ahmed bin Hanbal (may Allah almighty have mercy upon him): Ada is wajib even though the person is not tahir. They do not need to do qadha later.

Imam Abu Hanifa (may Allah almighty have mercy upon him): Ada is not wajib, but the person must do qadha later when water is available. Imam Abu Yusuf (may Allah almighty have mercy upon him) asserts that if possible the person should imitate those praying salah  (do the actions but not read anything) and then do qadha later. This is generally the preferred view amongst the ahnaf.

Note! Here ada means to read on time and qada means to read after the alloted time for salah has expired.

—–

14 Rabi II 1437
25 January 2016

Buyu’ terminology chart

The chart below illustrates the terminologies in buyu’ (business). Click on the image to enlarge.

Buyu's terminology chart
illustrator: Abdul Qadir Ja’far

Note! Use the chart as a guide but not as the source of your answer for which you should turn to the book. Some of the masa’il stated may not be representative of the position of all the schools or it may be an over generalisation. For example, there is differed opinion on the selling of guard dogs.

The principle of blocking the means

Blocking the means (sadd al-zara’i) or closing the ‘floodgate’ is a legal principle used as a device to stop the future occurrence of sin.

By Allamah Zafar Ahmad Uthamani
Ahkam al-Qur’an v.1 pp.54-46 – Hakim al-Ummat Ml. Ashraf Ali Thanwi (Editor)
Translated by Ml. Zameelur Rahman in Deoband – 18 December 2011

The ummah have agreed that when an abomination is attached to a permissible or desirable action and it becomes a means to disobedience or innovation, even though that is not the intention and objective of the doer, it is obligatory to remove this disobedience whatever it may be. Thereafter, they differed:

Some of them said: This desirable act should be totally abandoned in order to block the means to disobedience and to sever the substance of innovation in the religion.

And some of them said: This abomination is removed, and a recognised desirable act is not abandoned for its sake.

The Hanafis, Malikis and Hanbalis have inclined to the first [view]. Their proof is in His (Exalted is He) statement: “O you who believe, do not say ra‘ina, but say unzurna,” (Qur’an 2:104), as Ibn Kathir said in his Tafsir:

Allah Almighty forbade His servants from resembling the disbelievers in word and deed, and that is because the Jews would keep in mind the allusion in the speech with the objective of degrading [the Prophet (upon him blessings and peace)] – may the curses of Allah be upon them. Thus, when they intended to say: “Listen to us,” they would say: “Ra‘ina” (observe us) with the hidden meaning of “stupidity” (ru‘unah). [This is] as He (Exalted is He) said: “Among the Jews there are some who distort the words against their contexts, and say, ‘We hear and disobey,’ and, ‘Hear. May you not be made to hear,’ and, ‘Ra‘ina,’ twisting their tongues and maligning the religion.” (Qur’an 4:46)

Al-Baydawi said:

“Twisting their tongues,” twisting and turning with [their tongues] the speech into what resembles an insult, since they used ra‘ina, which resembles what they would use to insult one another, in place of unzurna.

It is not hidden that the sanctity of the Sahabah (Allah Almighty’s pleasure be on them all) is far removed from them [ever] alluding as the Jews would allude, or twisting their tongues as they would twist [them], yet despite this, you see they were forbidden from this word. This is not but from the door of blocking the means to abomination, and severing resemblance with the disbelievers. This is an elementary principle, from which uncountable branches derive.

From this the meaning of “relative innovation” (al-bid‘ah al-idafiyya) which ‘Allamah al-Shatibi discussed in his book al-I‘tisam is understood, and we will quote here a beautiful passage from it. He said:

Often an original practice is lawful but it falls onto the pattern of an innovation through the door of means…The reason for the inclusion of innovation here is that all that the Messenger of Allah (Allah bless him and grant him peace) performed continuously of optional prayers and which he displayed openly in congregations, they are Sunnah, so acting on optional activities which are not Sunnah in the way a Sunnah is practiced equates to removing the optional act from its place stipulated in the Shari‘ah. Then a consequence of this is the laypeople and the ignorant believe that it is a Sunnah. This is a great evil! Because believing what is not a Sunnah [to be a Sunnah], and acting upon it within the remit in which a Sunnah is practiced equates to changing the Shari‘ah, just as if it were believed that an obligation is not an obligation or that that which is not an obligation is an obligation, and then practice in accordance with this belief – For, this is ruinous! So, granted, the action is originally valid, but its extraction from its remits [stipulated in the Shari‘ah] in belief or practice equates to ruining the laws of the Shari‘ah.

From this the justification of the righteous Salaf in their intentional avoidance of Sunnahs becomes manifest – so that the ignorant person doesn’t believe that it is from the obligations, like the sacrifice (udhiyah) and other than that, as has preceded. This is why most of them also forbade tracing the relics [of pious people], as al-Tahawi, Ibn Waddah and others transmitted from Ma‘rur ibn Suwayd al-Asadi, he said: “I attended the [Hajj] season with the commander of the believers, ‘Umar ibn al-Khattab (Allah be pleased with him). When we turned back to Medina, I went back with him. When he had prayed with us the Morning Prayer and recited therein alam tara kayfa fa‘ala (Sura 105) and li’ilafi Quraysh (Sura 106), he then saw people taking a path, so he said: ‘Where are these people going?’ They said: ‘They are going to a mosque here wherein the Messenger of Allah (Allah bless him and grant him peace) prayed.’ He said: ‘Those before you were destroyed because of this! They traced the relics of their Prophets and adopted them as churches and monasteries. Whoever [unintentionally] catches the prayer in any of these mosques in which the Messenger of Allah (Allah bless him and grant him peace) prayed, then he should pray in them, otherwise he should not intentionally proceed to them.’”

Ibn Waddah said: I heard ‘Isa ibn Yunus – the Mufti of the people of Tartus – say:

‘Umar ibn al-Khattab ordered the cutting of the tree under which the Prophet (Allah bless him and grant him peace) was pledged allegiance. He cut it because the people would go and pray under it, so he feared temptation for them.

Ibn Waddah said:

Malik ibn Anas and other jurists would dislike going to those relics of the Prophet (Allah bless him and grant him peace) with the exception of Quba’ alone.

Malik would dislike all innovations even if it was [done] in goodness. All of this is a means to not take as a Sunnah what is not a Sunnah, or to consider as part of the Shari‘ah what is not recognised. Malik would dislike going to the Bayt al-Maqdis for fear that that would be taken as a Sunnah, and he would dislike going to the graves of the martyrs and he disliked going to Quba’ for that very fear – despite the reports that have come on encouragement towards this, but since the ‘ulama feared the consequence of that, they avoided it.

Ibn Kinanah and Ashhab said: We heard Malik say when he came to [the grave of] Sa‘d ibn Abi Waqqas: “I wish my legs were paralysed and I did not do this!”

Sa‘id ibn Hassan said: I used to read [hadiths] to Ibn Nafi‘, and when I read the hadith of spending generously [on one’s family] on the night of ‘Ashura’, he said to me: “Burn it!” I said: “Why is that O Abu Sa‘d?” He said: “For fear that it will be taken as a Sunnah.”

Hence, these are permissible or desirable activities, but they disliked their performance for fear of innovation, because taking them as Sunnah by continuously practicing upon them with open display of them – which is the nature of Sunnah – and when it falls on the pattern of Sunnahs, they turn into innovations without doubt. (End of abbreviated quote from al-Shatibi)

I say: This is the position of our Hanafi Imams (Allah Almighty have mercy on him). It is according to this [principle,] al-Halabi said in Sharh al-Munyah under “The Prostration of Gratitude and what is Done after the Prayer”: “It is disliked because the ignorant believe it is Sunnah or obligatory, and every permissible act leading to this is disliked.” Al-Shami said in the “Undesirable Acts of Prayer” of Radd al-Muhtar (1:43): “When a ruling wavers between Sunnah and innovation, avoidance of Sunnah is given priority.” The same [passage] is found in the Funerals [section] of Fatawa ‘Alamgiriyya and in it there is the addition: “That which wavers between obligatory and innovation, it should be practiced with caution.” Al-Tibi and al-Sayrafi said in their marginalia to Mishkat al-Masabih under the hadith of Ibn Mas‘ud, “None of you should make any part of his prayer for the devil by believing that it is duty-bound on him to turn to his right, for indeed I have seen the Messenger of Allah (Allah bless him and grant him peace) many times having turned to his left,”: “[The principle] behind this is that one who persists on a recommended act and has resolve on it, and does not act on a concession, then the devil has afflicted him, so what about the one who persists on innovations or abominations?” These [quotations] are found in Majmu‘at al-Fatawa al-Laknawiyyah (2:295).

In brief, blocking the means and cutting off resemblance with the disbelievers is a wide door in the religion on which is premised uncountable branches and rulings; and the basis of all of this is what is contained in this noble verse of a clear indication to this.

The Miqat

Miqat is the set boundary beyond which a Muslim intending to do hajj or umrah is not allowed to cross without ihram.

In essence there are two sets of boundaries. The outer boundary and the inner boundary. The first (marked red) highlights the point before which a person must start Ihram for those living beyond it. The second (marked blue) highlights the boundary of the haram and requires those living within to go beyond it and initiate ihram if they wish to do umrah such as the case of Hadrat Aysha (may Allah almighty be please with her) who whilst in Makkah was sent to Tan’im to put on her ihram for umrah.

Ml. Saharanpuri on Shami and Badai’

Ml.Khalil Ahmad Saharanpur advises that to create an affinity to fiqh one should read Shami (Radd al-Muhtar) and Badai’ al-Sanai’ comprehensively.

By Mawlana Ashiq Ilahi Mirati
Tazkirat al-Khalil pp. 351-352
Translated by Muhammad Saifur Rahman Nawhami Bulletin #151228501 – 18 Rabi I 1437

When writing a fatwa, Hadrat [Ml. Khalil Ahmad Saharanpuri] would often check Shami. If [Allm. Shami] would report a view [of an authority], he would consider it evidence but if it was the opinion of the author, he would not consider it evidence [in of itself]. Rather, he would critically analyse and research. He would say, ‘we are of one time –  they are men and we are men. His opinion is not evidence against us until his opinion is not supported by the view of the salaf’.

In his free time, he would often check Badai’. I have heard on many occasions Hadrat [Saharanpuri] make a lot of duas for its author [Allm. Kasani]. He would say, ‘For sure, this man is a faqih and Allah almighty has created him for fiqh’.

Ml. Zafar Ahmad Sahib once asked, Hadrat [Saharanpuri] to suggest a solution which will create an affinity to fiqh. He responded,

It is the habit of muftis that they revise the book only when a request for a fatwa is made. This is insufficient and results in the answer containing many errors. The reason being, they write an answer in a hurry after checking it in one place despite the fact that in this matter there is more detail in another place which changes the ruling for the given query. Hence, to create an affinity with fiqh one should read Shami and Badai’ comprehensively. Our Hadrat Gangohi read Shami fully multiple times but [then again] at that time Badai’ was not available in print. Now I consider it necessary to review also along with Shami. The reality is that Badai’ is an amazing book. Once he said, although Shami has more derivative edicts but the principles and the why of fiqh is more in Badai’. If one creates a familiarity to [Badai’], they will get to grips with fiqh.

Looking at a woman

It is prohibited to look at a woman’s face or hand with desire. This is undisputed. The same is the case if there is fear that it may lead to mischief. In the absence of desire or fear, the fuqaha are divided. The Hanafis and Malikis permit whilst the Shafi’is and Hanbalis still prohibit.

By Shaykh al-Islam Mufti Muhammad Taqi Usmani
Takmilah Fath al-Mulhim, vol. 4, pp. 225-234
Translated by Ml. Zameelur Rahman

As for the positions of the fuqaha on the permissibility of looking at the face of a woman and her hands, the fuqaha have agreed on the impermissibility when it is with the intention of gratification (taladhdhudh), or if there was a fear of temptation inviting the man to be alone with her. There is no dispute in the prohibition of looking at the face of a woman and her hands in this case. As for when the man is safe from temptation and does not desire gratification by looking there is disagreement over its permissibility. The position of the Hanafis and the Malikis is the permissibility of looking at the face and hands in this case and this is the position of many of the Shafi’is and few Hanbalis. However the preferred [view] according to the Shafi’is and the Hanbalis is absolute impermissibility even if safe from desire and temptation.

The Hanafi position

Shams al-A’immah al-Sarakhsi said in al-Mabsut (10:152), “It is permissible to look at the area of apparent adornment of women and not the hidden [adornment] due to His statement Most High, ‘they should not display their ornaments except what appear thereof’ (24:31). ‘Ali and Ibn ‘Abbas (Allah be pleased with them) said, ‘what appears thereof’ is kohl and the ring. ‘A’ishah (Allah be pleased with her) said one of her two eyes and ‘Abdullah Ibn Mas’ud (Allah be pleased with him) said her shoes (khuff) and shroud (mula’ah) … The prohibition of looking is for fear of temptation and the greater part of her attractiveness is in her face, the fear of temptation in looking at her face is greater than it is when looking at other parts. ‘A’ishah reasoned similarly but she said, ‘if she finds no escape from walking on the road, then it is necessary that she opens her eye to see the road. So it is permissible for her to uncover one of her eyes due to this necessity, and what is established by necessity should not go beyond the scope of the necessity.’

“However, we [Hanafis] adopt the view of ‘Ali and Ibn ‘Abbas (Allah be pleased with them) since reports have been transmitted giving a dispensation to look at her face and hands. From these reports is what was narrated that a woman offered herself [for marriage] to the Messenger of Allah (Allah bless him and grant him peace), and he looked at her face and did not desire her.

“And when ‘Umar (Allah be pleased with him) said in his sermon, ‘Know that you may not go in excess in the dowries of women’ and a woman with flushed cheeks said, ‘Are you expressing [a view] using your [personal] opinion or did you hear this from Allah’s Messenger (Allah bless him and grant him peace), for indeed we find in the Book of Allah Most High the opposite of what you say…?’ Hence, the narrator mentioned that she had flushed cheeks, and this contains a clarification that her face was unveiled.

“And Allah’s Messenger (Allah bless him and grant him peace) saw the hand of a woman that was not dyed with henna and he asked, ‘is this the hand of a man?’

“And when Fatima (Allah be pleased with her) gave one of her two children to Bilal or Anas (Allah be pleased with them), Anas said, ‘I saw her hand and it appeared as if a half-moon.’

“It is thus proven that there is no harm in looking at the face and hands. Furthermore, the face is the site of kohl and the hand is the site of the ring … Moreover, there is no doubt that it is permissible to look at her garment, and fear of temptation is not considered in this, and looking at her face and hands is the same. Al-Hasan ibn Ziyad narrated from Abu Hanifah that it is permitted to look at her foot also, as was mentioned by al-Tahawi, because just as she is tried with showing her face in working with men and showing her hand in receiving and giving, she is tried with showing her feet when walking barefooted or wearing sandals, and she may not find shoes on every occasion [when she goes out]. It is mentioned in Jami’ al-Baramika, it was narrated from Abu Yusuf that it is permissible to look at her forearm also because in baking and washing clothes she is tried with showing her forearms also. It was said, ‘similarly, it is permitted to look at her front teeth also, because that appears from her when talking to men.’

“All of this is when looking is not with desire (shahwah). If one knows that if he looks, he will become desirous, then it is not permissible for him to look at any part of her because of his statement (Allah bless him and grant him peace), ‘whoever looks at the beauties of a foreign woman with desire, [melted] lead will be poured into his eyes on the Day of Resurrection’ and ‘Ali (Allah be pleased with him) said, ‘do not follow up a glance with another glance for indeed the first is [permissible] for you and the second is against you’, meaning by the second that one does it intentionally with desire … And similar is the case if his preponderant opinion is that if he looks he will become desirous, because preponderant opinion in that thing the reality of which cannot be known [with certainty] is just like certainty.”

The Maliki Position

As for the Malikis, their position is what was mentioned by al-Kharshi in his marginalia on Mukhtasar Khalil (1:347): “The ‘awrah of a free-woman before a foreign man is her entire body, even her loose hair and forelock, with the exception of the face and hands, the outside of them and their inside. Furthermore, looking at them (the face and hands) without gratification and without fear of temptation and without a reason, is permissible, even if it is a young woman. Malik said, ‘a woman may eat with a non-near-relative (ghayr dhi mahram) and with her male servant, and she may occasionally eat with her husband and others of those with whom he dines’. Ibn al-Qattan said, ‘this contains proof of the permissibility of the woman showing her face and hands to a foreign man, since it is not conceivable to eat except in this manner [i.e. by showing the face and hands].’” An equivalent [passage] is [found] in Sharh al-Muwaq of al-Hattab (1:499) in more detail.

‘Alish said in Minah al-Jalil (1:133), “Thus, it is permissible for her to uncover them [i.e. the face and hands] before a foreign man, and he may look at them if he does not fear temptation. If temptation is feared then Ibn Marzuq said, ‘the well-known position of the madhhab is the obligation to conceal them.’” An equivalent [passage] is [found] in Mawahib al-Jalil by al-Hattab (1:399, 500).

The Shafi’i Position

The position of the Shafi’is is what was mentioned by al-Nawawi in Kitab al-Nikah from al-Minhaj in his statement, “It is prohibited for a mature male to look at the ‘awrah of a mature foreign free woman, and similarly [it is prohibited to look at] her face and hands when one fears temptation, and also when safe from temptation according to the correct opinion.”

Al-Khatib al-Shirbini said below his statement, “according to the correct opinion”, “and Imam [al-Juwayni] reasoned that the Muslims are in agreement on banning women from emerging while their faces are unveiled, and [he reasoned] that looking is the act in which one would most expect temptation and the stirring of desire … And the second view is that it is not prohibited, and Imam [al-Juwayni] attributed this to the majority (jumhur) [of the Shafi’is] and the two shaykhs (al-Nawawi and al-Rafi’i) attributed it to most (aktharin).

“[Al-Isnawi] said in al-Muhimmat that: It is the correct view because most have adopted it. Al-Balqini said, ‘giving weight (tarjih) [to one opinion] depends on the strength of reason, and the verdict (fatwa) is given according to what is in al-Minhaj‘… That which the Imam transmitted regarding agreement on banning women, i.e. the rulers banning them, [from emerging while their faces are unveiled], conflicts with what al-Qadi ‘Iyad related from the ‘ulama that it is not obligatory on the woman to conceal her face along her path and that it is only a good practice (sunnah), and it is [obligatory] on men to lower their gaze from them because of the verse [i.e. 24:30]. The author (al-Nawawi) related this in Sharh Muslim and approved of it. One of the latter-day scholars said there is no conflict in that, rather their being banned from that is not because concealing [the face] is obligatory on them in its essence, rather because there is general benefit in it, and in leaving [the ban] is an infringement of honour (muru’ah). [Here] ends [the statement of al-Isnawi]. The outward purport of the statement of the two shaykhs is that concealing [the face] is obligatory in itself, so [the need for] this reconciliation does not arise, and the statement of al-Qadi is weak.” See Mughni al-Muhtaj (3:128, 129). An equivalent [passage] is [found] in Nihayat al-Muhtaj (6:184, 5).

The Hanbali Position

The position of the Hanbalis is what was mentioned by Ibn Qudamah in al-Mughni (6:558,9) in Kitab al-Nikah in his statement, “As for men looking at a foreign woman without a reason, it is prohibited entirely according to the apparent statement of Ahmad … and al-Qadi [Abu Ya’la] said, ‘it is prohibited for one to look at anything besides the face and hands because this is ‘awrah, and it is permitted for him to look at her with reprehensibility (karahah) when safe from temptation and the look is without desire. This is the position of al-Shafi’i … [In support] of our view is Allah’s statement Most High, “And when ye ask of them anything, ask it of them from behind a veil” (33:53) … As for the hadith of Asma, if it is authentic, it is possible that it was before the revelation of [the verses of] hijab, so we understand it as such.’”

Summary

By considering these four positions it is clear that they all agree on the prohibition of looking at the face of a woman with the intention of gratification or when there is fear of temptation. The preponderant view in the madhhab of the Shafi’is and the Hanbalis is its prohibition when safe from temptation also. The Hanafis and Malikis only allow it with the condition of safety from temptation and the intention of gratification. Meeting this condition is very difficult, particularly in our age in which corruption has become prevalent, to the degree that it has become a condition that almost cannot be met in most situations, and for this [reason] the latter-day scholars from the Hanafis prohibited it absolutely.

Its reprehensibility was transmitted in Al-Durr al-Mukhtar: “If one fears desire or has doubts, looking at her face is prohibited. Thus, the permissibility of looking is conditional on the absence of desire and otherwise it is prohibited. This was in their time. As for our time, Quhustani and others prohibited looking at [the face of] young girls except when looking is due to a need, like when a judge and a witness judge and witness over her…”

Al-Haskafi said in Shurut al-Salah, “and it is prohibited for a young woman to uncover the face among men, not because it is ‘awrah, but for fear of temptation.” And he said in Bab al-Ta’zir, “the master may reprimand his slave, and the husband his wife if she doesn’t beautify [herself]” to his statement “or she uncovers her face before a non-close-relative.”

Imam Abu Bakr al-Jassas said in Ahkam al-Qur’an (4:458) under His statement Most High, “they should cast their jilbabs over their [persons]”, “in this verse is an indication that the young woman is commanded to conceal her face from foreign men and to display the concealment and modesty when going out so that suspicious people do not desire them.”

My father, ‘Allamah Mufti Muhammad Shafi’ (Allah have mercy on him), said in his Ahkam al-Qur’an (3:469), “and by this explanation we offered, the texts and narrations that are apparently contradictory are in agreement. As you know from what we cited to you of the verses and narrations that some of them allow uncovering the face and hands, either with certainty and conviction like the hadith of al-Fadl ibn ‘Abbas according to al-Bukhari and the hadith of Asma bint Abi Bakr in [Abu Dawud’s] al-Sunan and the hadith of the one who offered herself [for marriage] according to al-Bukhari and [other narrations] like them; and some [of the verses and narrations] allow it as a possible interpretation due to the disagreement that occurred between the Companions (Allah be pleased with them) in the explanation of His statement Most High ‘except what appear thereof’, the details of which have passed.

“And some [of the verses and narrations] prohibit uncovering the face and hands, and foreign men looking at them, like His statement Most High ‘and stay in your houses’ (33:33) … and His statement Most High ‘ask it of them from behind a veil’ (33:53) and His statement ‘they should cast their jilbabs over their [persons]’ (33:59) according to the explanation of the majority of the Companions and His statement Most High ‘except what appear thereof’ (24:31) according to the explanation of ‘Abdullah Ibn Mas’ud …

“Thus, these texts of the Book and narrations of the Sunnah apparently conflict and contradict and in what we have mentioned to you, with the help of Allah Most High, this problem is resolved, for when you realise what we said, you will understand that all of these texts are in agreement in meaning, well-coordinated in the rulings, and all of them are in effect (muhkam) and are not abrogated, but a [particular] ruling is preconditioned by conditions, so wherever the conditions are met, it is made permissible, and wherever they are not, then it is not [permissible] …

“All of this is when the reality of the difference between the explanations of Ibn ‘Abbas and ‘Abdullah Ibn Mas’ud is conceded. Our teacher, the noblest of teachers, Ashraf ‘Ali al-Thanawi (Allah illuminate his resting place), said in a volume devoted to this subject called Ilqa’ al-Sakinah fi Tahqiq Ibda’ al-Zinah that there is no difference between their explanations upon an in-depth and close examination, since the phrase ‘what appears’, although it was explained [by Ibn ‘Abbas] as the face and hands, but what is cited as the exception [in the verse] is on the [morphological] pattern of zuhur (passive appearance) not izhar (active showing). This clearly indicates that the objective [of the verse] is making an exception of what cannot be concealed. Rather, [it is an exception] when adornment appears upon exertion and work, without an intention to show it, because harm may be inflicted upon them by concealing [the face and hands] upon exertion and work. In this case, the exception would also be in accordance with the explanation of Ibn ‘Abbas (Allah be pleased with him) which is the face and hands may appear due to a need, and this does not contradict the statement of ‘Abdullah Ibn Mas’ud (Allah be pleased with him). I say: and this meaning is supported by what Ibn Kathir said in his explanation of His statement Most High, ‘they should not display their ornaments except what appear thereof’, ‘i.e. they should not reveal any part of their adornment to foreign men except what they are unable to conceal.’”

The upshot is that a woman is commanded in the Noble Qur’an to stay in her house and not emerge except when there is a need. Moreover, if she were to emerge due to a need, then she is commanded to conceal the face by donning the jilbab or burqa’ and in [a manner] that she does not unveil her face. Yes, there are two situations that are exceptions to this: first, the situation of needing to show the face because concealing it will inflict harm upon her as in a [large] crowd or for another need like providing testimony. Second, her face becomes exposed unintentionally during exertion and work. Men are commanded in these two situations to lower their gaze. And Allah Most High knows best.

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This translation was first published in Deoband.org on the 10th June 2010 entitled ” The Hijab of Women and its Boundaries”. The original translation has been split into two parts; (1) The boundaries of hijab and (2) Looking at a woman.

The boundaries of hijab

Hijab is prescribed in the shariah. This is a fact. However, the level of coverage differs depending on circumstance. This article highlights three boundaries which dictate the extent to which a woman must cover.

By Shaykh al-Islam Mufti Muhammad Taqi Usmani
Takmilah Fath al-Mulhim, vol. 4, pp. 225-234
Translated by Ml. Zameelur Rahman

Abu Bakr ibn Abi Shaybah and Abu Kurayb narrated to us. They said: Abu Usamah narrated to us: from Hisham: from his father: from ‘A’isha (Allah be pleased with her): she said:

Sawdah (Allah he pleased with her) went out [in the fields] in order to relieve her need after the hijab had been prescribed upon her. She had been a bulky lady, physically taller than other women, and she could not conceal herself from one who had known her. ‘Umar ibn al-Khattab (Allah be pleased with him) saw her and said, ‘O Sawdah, by Allah, you cannot conceal [yourself] from us. Therefore, be careful when you go out.’” ‘A’isha said: “She turned back. Allah’s Messenger (Allah bless him and grant him peace) was at that time in my house having his evening meal and there was a bone in his hand. Sawdah entered and said, ‘O Messenger of Allah, I went out and ‘Umar said to me so and so.’” ‘A’isha said: “Revelation came to him, then it was lifted from him and the bone was [still] in his hand and he had not put it [down]. He then said, ‘Permission has been granted to you that you may go out for your needs.’ (Sahih Muslim)

The subject of the hijab of women has, today, become a significant issue, on which discussion and debate has been ongoing, so we wish to produce an outline of the [correct] view on this [issue]. And Allah Most High gives success and is the Helper.

Writings on the topic of the veiling and unveiling of women have proliferated in our time. The best that I have seen on this subject is a treatise by my late father Shaykh Mufti Muhammad Shafi’ (Allah have mercy on him) which he called Tafsil al-Khitab fi Tafsir Ayat al-Hijab, which is a section from his Ahkam al-Qur’an (3:393-483), in which he examined the verses and hadiths cited on the subject and exhausted the positions of the fuqaha (jurists) and the statements of the exegetes regarding the limits of hijab and its description. The sum of what he concluded after an extensive study is that the hijab that is legislated and commanded in the Book and the Sunnah has three levels, each above the other in hiddenness and concealment. All of them are mentioned in the Book and the Sunnah and none of them have been abrogated, but they have been prescribed for different circumstances.

They are:

[1] Hijab of the persons (ashkhas) of women in houses and walls, private quarters and howdahs, whereby foreign men do not see any part of their persons, garments or external or internal adornment, or any part of their body, including the face, the hands and the remainder of  the body.

[2] Hijab with burqa’ and jilbab, whereby nothing from the face and hands, the rest of the body and the clothing of adornment are shown, so nothing is seen besides their concealed persons from above the head to the foot.

[3] Hijab with jilbabs and items of clothing that resemble them, while exposing the face, the hands and the feet.

The first boundary

The default rule in the hijab of women is hijab of the first level which is that she is concealed in the house and does not emerge, except for a need, the explanation of which is to come. This is proven by the statement of Allah Most High, “and stay in your houses” (Qur’an 33:33). It is apparent that this command is not specific to the purified wives because none of the preceding and succeeding rules in this verse are specific to the Mothers of the Believers (Allah be pleased with them) by consensus. Likewise [this is proven by] His statement Most High, “And when ye ask of them anything, ask it of them from behind a veil” (Qur’an 33:53). This verse was revealed during the walimah (wedding feast) of Zaynab (Allah be pleased with her), whereupon a veil was drawn between her and the men.

Furthermore, this is proven by the following hadiths:

[1] It was narrated from ‘Abdullah Ibn Mas’ud (Allah be pleased with him) that Allah’s Messenger (Allah bless him and grant him peace) said, “The woman is ‘awrah. When she emerges [from her house] Satan looks at her.” Al-Tirmidhi transmitted it and said, “The hadith is hasan sahih (sound and authentic), gharib (uncommon)”. Ibn Khuzaymah and Ibn Hibban transmitted it in their Sahihs with this wording and added, “and the closest that she is to the Face of Her Lord is when she is in the depth of her home.” See al-Targhib by al-Mundhiri (1:136).

[2] It was narrated from Jabir (Allah be pleased with him), he said: “Allah’s Messenger (Allah bless him and grant him peace) said, “The woman advances in the shape of Satan and retires in the shape of Satan.” Muslim transmitted it (1:129).

[3] The hadith of the chapter transmitted by the compiler (Imam Muslim) as Allah’s Messenger (Allah bless him and grant him peace) said therein, “permission has been granted to you that you may go out for your needs,” since this indicates that the permission to go out is restricted to [times] of need and in [times] other than need a woman stays in her house.

[4] It was narrated from ‘Abdullah Ibn Mas’ud (Allah be pleased with him) that Allah’s Messenger (Allah bless him and grant him peace) said, “The prayer of a woman in her house is more virtuous than her prayer in her room and her prayer in her chamber is more virtuous than her prayer in her house.” Abu Dawud transmitted it and al-Hakim transmitted it in al-Mustadrak from Umm Salamah (Allah be pleased with her) as [mentioned] in Kanz al-‘Ummal (8:259). Ibn Khuzaymah transmitted it in his Sahih, as [mentioned] in al-Targhib by al-Mundhiri (1:135).

[5]  It was narrated from Umm Humayd, the wife of Abu Humayd al-Sa’idi, that she came to the Prophet (Allah bless him and grant him peace) and said, “O Messenger of Allah, I love to pray with you.” He replied, “I know that you love to pray with me. However, your prayer in your storage room is better than your prayer in your bedroom; your prayer in your bedroom is better than your prayer in your courtyard; your prayer in your courtyard is better than your prayer in the mosque of your people; and your prayer in the mosque of your people is better than your prayer in my mosque.” [The sub-narrator] said, “She requested that a prayer area be built for her in the deepest and darkest part of her house, and she prayed therein until she met Allah Most High.” Ahmad transmitted it in his Musnad (6:371) and Ibn Hajar in al-Isabah attributed it to Ibn Abi Khaythamah through this route, and this is an authentic chain. Al-Shawkani transmitted in Nayl al-Awtar (3:161) from Ibn Hajar that he said, “Its chain is sound (hasan).” Al-Mundhiri mentioned it in al-Targhib (1:135) and said, “Ahmad narrated it, as did Ibn Khuzaymah and Ibn Hibban in their Sahihs”.

[6] It was narrated from Ibn ‘Umar (Allah be pleased with them both) in marfu’ form, “Women do not have a share in leaving [the home] except in [times of] need.” Al-Tabrani transmitted it as [mentioned] in Kanz al-‘Ummal (8:263).

These hadiths prove with clarity that the default rule for the woman is that she is hidden in her house, her person is concealed from foreign men and she does not leave her house except for a need.

The second boundary

However, a woman may need to emerge for her natural needs. It will then be permissible for her to emerge in these kinds of situations while concealed in a burqa’ and jilbab whereby no part of her body is shown. This is the second level of hijab, and indeed this level has been commanded in the Noble Qur’an where Allah Most High said, “O Prophet! Tell thy wives and daughters, and the believing women, that they should cast their jilbabs over their [persons]” (33:59) and it is apparent that by casting the jilbab over the woman is meant concealing her entire body even her face.

Jilbab according to what was narrated from Ibn ‘Abbas (Allah be pleased with them both) is that which covers from top to bottom. Ibn Hazm said in al-Muhalla (3:217), “Jilbab in the language of the Arabs, in which Allah’s Messenger (Allah bless him and grant him peace) spoke, is that which covers the entire body, not a part of it.” Ibn Jarir, Ibn al-Mundhir and others transmitted from Muhammad ibn Sirin, he said: “I asked ‘Abidah al-Salmani about this verse ‘they should cast their jilbabs over their [persons]’ so he lifted the blanket [draped] around him, concealed his face with it and covered his entire head until it reached the eyebrows and covered his face, then he took out his left eye from the left side of his face”. This was [mentioned] in Ruh al-Ma’ani (22:89).

Ibn Jarir transmitted in his Tafsir (22:46) from Ibn ‘Abbas in the explanation of this verse, “Allah commanded the believing women [that] when they emerge from their houses for a need, they [must] cover their faces from above their heads with jilbabs and reveal [only] one eye.” It was also narrated from Ibn ‘Abbas and Qatadah, “[the woman] twists the jilbab above the forehead and tightens it, then she folds it unto the nose even if her eyes are exposed; nonetheless, she conceals the chest and most of the face.” Al-Alusi [mentioned] it in Ruh al-Ma’ani (22:89). In sum, this verse proves that the woman is commanded to cover her face when she emerges at her [time of] need.

Furthermore, this is proven by His statement Most High, “Such elderly women as are past the prospect of marriage, there is no [blame] on them if they lay down their garments” (24:60), since Allah Most High made it permissible for old women in this verse to lay down their garments and it is clear that the intended meaning of laying down the garments here is not laying down all clothes. The intended meaning of it is only to lay down the jilbab or shroud from the external garments, the laying down of which will not lead to exposing the ‘awrah. For this [reason] ‘Abdullah Ibn Mas’ud (Allah be pleased with him) explained garment in this verse as jilbab and shroud, and a similar [interpretation] was narrated from Ibn ‘Abbas, Ibn ‘Umar, Mujahid, Sa’id ibn Jubayr, Abu l-Sha’tha’, Ibrahim al-Nakha’i, al-Hasan, Qatadah, al-Zuhri, al-Awza’i and others as mentioned in Tafsir ibn Kathir. Hence, this verse proves that laying down the jilbab which necessitates exposing the face is specific to old women who have no prospect of marriage, and that it is not permissible for young women to lay down their jilbabs and expose their faces before foreign men.

It is clear that when the female Companions left for their needs they would go out concealed in jilbabs and hidden in shrouds and would not uncover their faces before foreign men. From the [narrations] that prove this are the following hadiths:

[1] Abu Dawud transmitted in Kitab al-Jihad, Bab Fadl Qital al-Rum from Qays ibn Shammas (Allah be pleased with him), he said: “A woman called Umm Khallad came to the Prophet (Allah bless him and grant him peace) while she was veiled (wearing a niqab) enquiring about her son who was killed. One of the Companions of the Prophet (Allah bless him and grant him peace) said to her, ‘You have come to ask about your son while you are veiled?’ She said, ‘If I am afflicted with the loss of my son I will never suffer the loss of my modesty.’ Then Allah’s Messenger (Allah bless him and grant him peace) said, ‘He has the reward of two martyrs.’ She asked, ‘And why is that O Messenger of Allah?’ He said, ‘Because he was killed by the people of the book.’”

[2] It was narrated from Umm ‘Atiyyah that Allah’s Messenger (Allah bless him and grant him peace) would bring out the unmarried women, old women, the women in the private quarters and the menstruating women in the two ‘Ids. As for menstruating women they would keep back from the place of prayer and would witness the supplication of the Muslims. One of them said, “O Messenger of Allah! If one does not have a jilbab?” He said, “Let her sister cover her with her jilbab.” This hadith was transmitted by a number of collectors of authentic [narrations], and this is the wording of al-Tirmidhi (no. 539), Bab Khuruj al-Nisa’ fi l-‘Idayn, and al-Tirmidhi said, “this hadith is hasan sahih.”

[3] Al-Bukhari transmitted [something] similar to it (no. 980 in Kitab al-‘Idayn) from Hafsah bint Sirin and its wording is: “so she said, ‘O Messenger of Allah, is there harm for any of us when she does not have jilbab that she not come out?’ He said, ‘Her companion should cover her with her jilbab.’”

[4] ‘Abd al-Razzaq and a group transmitted from Umm Salamah, she said, “When this verse ‘they should cast their jilbabs over their [persons]’ was revealed, the women of Ansar came out as if there were crows on their heads, from the tranquillity, and [draped] over them were black clothes that they would wear.”

[5] Ibn Mardawayh transmitted from ‘A’ishah, she said, “Allah Most High bless the women of the Ansar. When ‘O Prophet! Tell thy wives and daughters, and the believing women …’ was revealed they tore their thick outer garments and made veils from them, and they prayed behind Allah’s Messenger (Allah bless him and grant him peace) as if there were crows on their heads.” See Ruh al-Ma’ani (22:89) for the two narrations.

[6] It was narrated from ‘A’ishah, she said, “Riders would pass us when we accompanied the Messenger of Allah (Allah bless him and grant him peace) while we were in ihram. When they came by us, one of us would let down her jilbab from her head over her face, and when they had passed on, we would uncover our faces”. Abu Dawud transmitted it in Kitab al-Hajj (no. 1833).

These hadiths clarify that the female Companions (Allah’s pleasure be on them) would, after the revelation of the [verses of] hijab, adhere strictly to covering their bodies with jilbabs and draw them over their faces when going out. The last hadith proves that this importance of hiddenness does not cease to continue even in the state of ihram in which it is prohibited for a woman that a piece of clothing touches her face.

The third boundary

The third level of hijab which is that women go out concealing the bodies from head to foot while uncovering the face and hands, at the time of need, is with the condition of safety (amn) from temptation (fitnah). This is proven by His statement Most High in Surah al-Nur, “And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their ornaments except what appears thereof.” The exegetes have differed over the explanation of “what appears thereof”. It was narrated from Ibn ‘Abbas, Ibn ‘Umar and ‘A’ishah (Allah be pleased with them) that they explained it as the face and hands, and this is the view of ‘Ata’, ‘Ikrimah, Sa’id ibn Jubayr, Abu l-Sha’tha, al-Dahhak, Ibrahim al-Nakha’i and others. And it was narrated from ‘Abdullah Ibn Mas’ud (Allah be pleased with him) that he interpreted “what appears thereof” as the shroud and jilbab. Hence, the verse according to the first explanation proves that the woman can uncover her face and hands at the time of need and this is further supported by the following hadiths:

[1] It was narrated from ‘A’ishah (Allah be pleased with her) that Asma’ bint Abi Bakr (Allah be pleased with them both) entered upon the Prophet (Allah bless him and grant him peace) while wearing thin clothing, so he turned away from her and said, “O Asma! Indeed when a woman reaches [the age of] menstruation, it is not proper that anything should be shown except this and this”, and he pointed to his face and hands. Abu Dawud transmitted it, but Abu Dawud and Abu Hatim al-Razi said: “it is mursal, Khalid ibn Darik did not hear from ‘A’ishah”.

[2] It was narrated from ‘Ali (Allah be pleased with him) in the event of the Messenger of Allah (Allah bless him and grant him peace) returning from al-Muzdalifah that he (Allah bless him and grant him peace) made al-Fadl ibn ‘Abbas (Allah be pleased with him) his riding companion. He came to the pillars to throw pebbles at them and then came to the place of sacrifice (manhar). It is mentioned therein: a young slave girl from Khath’am sought a verdict from him and said, “Indeed my father is an old man and the obligation to Allah to perform Hajj has reached him. Is it permissible for me to perform Hajj on his behalf?” He said, “Perform Hajj on your father’s behalf.” ‘Ali said: “he turned the neck of al-Fadl, and al-‘Abbas asked, ‘Why did you turn the neck of your cousin?’ He said, ‘I saw a young man and woman [in such a situation] that they are not safe from Satan.’” Al-Tirmidhi transmitted it in Bab ma Ja’a anna ‘Arafata kullaha Mawqif (no. 885).

Abu Ya’la transmitted from al-Fadl ibn ‘Abbas, he said: “I was riding behind Allah’s Messenger (Allah bless him and grant him peace) and a Bedouin with whom was a beautiful daughter began presenting her to Allah’s Messenger (Allah bless him and grant him peace) in the hope that he would marry her”. He said, “I began to glance at her, and the Messenger of Allah (Allah bless him and grant him peace) took hold of my head and turned it.” Al-Haythami mentioned it in Kitab al-Nikah in Majma’ al-Zawa’id (4:277) and he said, “its narrators are the narrators of authentic [narrations].” Either this was another incident, or one of the narrators erred in the explanation that the girl belonged to a Bedouin. And the hadith of al-Tirmidhi is clear in that her father was not with her. And Allah knows best.

[Further] detail of this event was transmitted by al-Bukhari in Kitab al-Isti’dhan (no. 6228) from ibn ‘Abbas (Allah be pleased with him) and its wording is: Al-Fadl ibn ‘Abbas rode behind the Prophet as his companion rider on the back of his she-camel on the Day of Sacrifice (yawm al-nahr) and al-Fadl was a handsome man. The Prophet (Allah bless him and grant him peace) stopped to give the people verdicts. In the meantime, a beautiful woman from the tribe of Khath’am came, asking the verdict of Allah’s Messenger (Allah bless him and grant him peace). Al-Fadl started looking at her as her beauty attracted him. The Prophet (Allah bless him and grant him peace) looked behind while al-Fadl was looking at her; so the Prophet held out his hand backwards and caught the chin of al-Fadl and turned his face to the other side in order that he should not gaze at her, [to the end of] the hadith.

This slave girl’s face was uncovered as is clear from the context of the hadith of Ibn ‘Abbas since he said therein that she was beautiful and al-Fadl was attracted to her beauty. The hadith explains that the Prophet turned the face of al-Fadl away from glancing at her and he did not command the slave girl to cover her face because she was in the state of ihram, and he (Allah bless him and grant him peace) probably feared she would collapse or something else if she was required to conceal her face in such severe crowding, so he did not command her to [do] this. This is a proof that it is permissible for a woman to uncover her face according to a need when the rest of her body is concealed.

[3] It was narrated from Sahl ibn Sa’d that a woman came to Allah’s Messenger and said, “O Messenger of Allah, I have come to give you myself in marriage.” Allah’s Messenger (Allah bless him and grant him peace) looked at her. He looked at her carefully and fixed his glance on her and then lowered his head, to the end of the hadith. Al-Bukhari transmitted it in Bab al-Nazr ila l-Mar’ati qabla l-Tazwij (no. 5125). It is clear in this event that the woman’s face was uncovered at this time, and al-Sarakhsi adduced this as proof in al-Mabsut (10:152) that the face of a woman is not ‘awrah.

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This translation was first published in Deoband.org on the 10th June 2010 entitled ” The Hijab of Women and its Boundaries”. The original translation has been split into two parts; (1) The boundaries of hijab and (2) Looking at a woman.