THE RIS¬LA


Treatise on M‚likÓ Law
of
`Abdall‚h Ibn-abÓ-Zayd al-Qayraw‚nÓ
(922-996)

an annotated translation by
Joseph Kenny, O.P.

Islamic Education Trust
Minna, Niger State, Nigeria
1992

CONTENTS

Foreword
Translator's preface
Prologue
1: Dogmas
2: Defilements requiring wu≤û' or ghusl
3: Purity of water, place and clothing
4: Istinjâ', istijmâr, and wu≤û'
5: Ghusl (ritual bathing)
6: Tayammum (sand ablution)
7: Wiping boots
8: Times of daily ™alât
9: Adhân (call for ™alât) and iqâma
10: How to do ™alât
11: The function of an imâm
12: Miscellaneous questions on ™alât
13: Prostrations during recitation of the Qur'ân
14: Shortening ™alât while traveling
15: The ™alât of Friday afternoon (jumu`a)
16: Communal ™alât during fear of an enemy
17: The ™alât of the two `îds (feast days)
18: ņalât on an eclipse (khusûf)
19: ņalât in request of rain (istisqâ')
20: Care and burial of the dead
21: ņalât over the bier (janâza)
22: Burial of a child
23: Fasting (™iyâm)
24: Retreat in the mosque (i`tikâf)
25: Zakât (religious tax)
26: Zakât on livestock
27: Head zakât on `îd al-fi≥r
28: Pilgrimage
29: Immolation and ritual slaughtering, `aqîqa immolation, hunting & circumcision
30: Jihâd (holy war)
31: Oaths and vows
32: Marriage and forms of divorce
33: `Idda and istibrâ' periods, and support
34: Selling and other business transactions
35: Bequests and freeing of slaves
36: Property rights
37: Crimes, conviction, and punishments
38: Judgements: procedure and cases
39: Inheritance portions (farâ'i≤)
40: Legal status of miscellaneous practices
41: Points of decorum
42: Eating and drinking etiquette
43: Norms of speech, prayer, travel
44: Treating men and animals
45: Dreams and leisure
Epilogue
Appendix: Legal categories
Index of Arabic technical terms

FOREWORD


The Risâla of Ibn-abî-Zayd al-Qayrawânî has for already one thousand years enjoyed immense popularity in North and West Africa. It summarizes the principal elements of Sharî`a in a way that beginners can learn and masters can refresh their knowledge.

The book has a simple style, and a first reading can give the beginner a good idea of Sharî`a, but its simplicity hides an immense complexity that larger books explain in detail. Hardly a word does not have some technical overtone which needs to be understood if the reader wishes to have the precise meaning and not just a general idea.

This translation is the best attempt I have seen in presenting the precise technical meaning of the text, in an English style that can easily be read and understood.

It may be surprising that the translator is a Christian, a Catholic priest. In this age when people of different religions no longer live isolated in separate enclaves every kind of relationship emerges: violence, indifference and friendship. Writing and statements about other religions range from disdain, distortion to sympathy and objectivity. If we want peace we must begin by trying to understand our neighbours who are not of our faith, and encourage every effort in that direction.

I have known Fr. Kenny for over 20 years and know how he has persisted over these years in studying commentaries and asking advice to perfect this translation in every detail. No doubt scholars will quibble about many a point, but on the whole I find it a masterful piece of work.

I highly recommend it for all who are seeking a deeper knowledge of Islam, and of Sharî`a in particular.

Justice Sheikh Ahmed Lemu

TRANSLATOR'S PREFACE

General background

Ibn-abî-Zayd al-Qayrawânî's Risâla can be appreciated only in context of the development of Islamic Law up to the time of its composition in the year 938.

Unlike secular civil law or even the Canon Law of the Catholic Church, Sharî`a, for the Muslim community, means a legal system that is divinely ordained. Yet Sharî`a is not contained in one or even a few books. It is God's will as recognized first in Qur'ânic revelations and secondly in the Sunna, the pronouncements and precedents attributed to MuĆammad as the Prophetic leader of the Muslim community. The Qur'ân and Sunna, however, are not a systematic code, but scattered regulations. These regulations, moreover, do not cover every matter of life which requires decision, and they are sometimes open to various interpretations; so that human reason must come into play. The human effort to understand and interpret revealed law is known as fiqh.

For the first 150 years of Islam, fiqh was a very free adaptation of Islamic principles to new circumstances. Existing customary law was retained as far as possible, and Muslim jurists made new decisions on the basis of their considered personal opinion, or ra'y. In this way legal custom was evolving and, through common acceptance or agreement (ijmâ`), even taking on the name and authority of sunna. Sunna concretely means "straight" or "beaten path", but commonly refers to an "established norm" or "set example". (1)

The human element in the early development of Islamic law, to say nothing of the strife and civil wars of this period, naturally resulted in divergent legal practice. The peace established by `Abdalmalik (685-705) permitted the studied formation of these practices in regional schools of law. The earliest schools arose in Medina, the first political capital of Islam, and Kufa in Iraq, which was the principal Arab military base outside Arabia. Soon Basra, Damascus and Mecca also became centres of legal thought. Each of these towns developed its own Sunna or ijmâ` reflecting local practice and/or the ideals propounded by the scholars of these towns. (2) The confusion and anarchy prevailing during the last years of Umayyad rule led to further diversity among the different schools of law. When the `Abbâsids gained power they found a situation of intolerable legal fragmentation, so that al-Man™ûr (754-775) decided to ask Mâlik ibn-Anas to compile his Muwa≥≥a' to uniformize legal practice. (3)

Al-Man™ûr did not succeed in eliminating the differences of the schools, yet Mâlik's work prompted a shift in legal opinion from local geographical loyalty to personal loyalty to an acknowledged scholar. The Medinans turned to Mâlik ibn-Anas (d. 796) and the Iraqis to Abû-•anîfa (d. 767). Other schools came into being purely as a result of the personal leadership of certain men. Such a man was AĆmad ibn-•anbal (d. 855), whose chief rallying point was the rejection of any philosophical reasoning about the faith, or any analogical reasoning about God's law. He would accept as legitimate authority only the letter of the Qur'ân or authentic Sunna of the Prophet.

A fourth school formed posthumously around ash-Shâfi`î (d. 820), a man who had a deep and permanent impact on all of Sunnî thought. His principle was the total sovereignty of God and his revealed will, so that any purely human law was seen as a competition with God's authority. Ash-Shâfi`î's conclusion and rallying point therefore was the rejection of ra'y or any form of human reasoning as a source of law, and the demand that every point of Sharî`a be founded on a Qur'ânic prescription or on a Sunna that can be authentically ascribed to the Prophet through a chain of witnesses, called an isnâd.

Sunna, in strict Shâfi`ite terminology, became equivalent to •adîth, or traditions about the Prophet. As a result of its new importance a massive movement of •adîth gathering took shape. Of the hundreds of thousands of •adîth reports, most were rejected as spurious from a critique of their isnâds, not from any internal reasons. The remainder were embodied in the commonly accepted "authentic" (ņaĆîĆ) collections of al-Bukhârî (d. 870), Muslim ibn-al-•ajâj (d. 875), Abû-Dâ'ûd (d. 888), at-Tirmidhî (d. 892), an-Nasâ'î (d. 916), and Ibn-Mâja (d. 886).

As for the authenticity of these collections of Prophetic Traditions, traditional Muslim scholarship has accepted the bulk of the authentic (™aĆîĆ) collections, while questioning on occasion individual Ćadîths. Joseph Schacht is of the opinion that the collections represent the customary law of the conquered lands or of Muslim jurists and are only projected back to MuĆammad to claim his authority. (4) Although in general agreement with Schacht, Noel Coulson is prepared to recognize the substantive (though not verbatim) authenticity of many Ćadîths, (5) and Fazlur Rahman thinks that these collections are at least faithful to the spirit of MuĆammad, in that his companions and their successors adopted as Sunna what he would have said or done in new circumstances. (6)

Ash-Shâfi`î scored another more radical point in the debate about Sunna by decisively asserting the principle, which beforehand was not clearly accepted by everyone, that the Prophet's legal decisions were divinely inspired. (7) To substantiate his point he interpreted Qur'ânic verses (e.g. 2:129) referring to "the Book and the Wisdom (Ćikma)" given to the Prophet to mean "The Qur'ân and the •adîth". Before this time the Prophet was recognized as the most qualified to interpret the Qur'ân, but still as a human interpreter. Therefore scholars like Mâlik held that his rulings could be rejected when better reasons were advanced. Such wavering regarding the Prophet's absolute authority was ended through the influence of ash-Shâfi`î. Thereafter Muslims generally accepted the principle that the Qur'ân and the Sunna of MuĆammad (as presented in the collections of •adîth) are the only possible sources of Sharî`a, while the Sharî`a could be interpreted and applied to new cases through analogical reasoning (qiyâs) and consensus ( ijmâ`).

Independent reasoning, however, found its way back into the final formulation of Islamic jurisprudence in the 10th century through the re-introduction of the principles of istiĆsân or isti™lâĆ. These make "equity" and "public interest" an intention of God which jurisprudence must bear in mind in cases where the Qur'ân and Sunna are silent, rather than follow analogical reasoning blindly, whatever the consequences. (8)

Four schools of law have been noted: the Mâlikî, the •anafî, the •anbalî and the Shâfi`î. There were others which died out, and there was a completely different development of law in Shî`ism which we pass over. The fact of divergence in laws which claim to represent the will of the one God was a scandal at first, and the different schools engaged in severe recrimination of one another for some time. The general acceptance, however, of ash-Shâfi`î's theory of the sources of law made the rivalry die down, and a Ćadîth was discovered to say that differences of opinion come from God's mercy (ikhtilâf al-umma raĆma). (9)

According to ash-Shâfi`i's peace formula, only the least common denominator about which all were in agreement (ijmâ`) was indubitably binding as God's will. Other laws were a matter of conjecture (Ļ ann). Such a principle, we might think, opens the door for all kinds of diversity in Sunnî Islam, but soon after ash-Shâfi`î's time the principle of ijmâ` (consensus or agreement) was invoked to tolerate only those differences which were in circulation among the four schools at the time of ash-Shâfi`î. No new opinions contradicting these positions would be allowed. Within such limits the scope of human reason in applying Sharî`a by analogical reason, qiyâs, or more generally by ijtihâd, the "effort" of one's own judgement, quickly spent itself, and by the early 10th century jurists recognized that the "door of ijtihâd was closed". Ijmâ` thereby became the all inclusive authority in Islam. It guaranteed the authenticity of the Qur'ân as the Word of God and the authenticity of Tradition or •adîth, and set limits to the variations of opinion in Islamic law and theology. (10) A student thereafter had only to repeat or imitate (by taqlîd) the teaching of his predecessors. So writers of legal treatises kept to either condensing earlier long works or to versifying or expanding condensed works. The Risâla of al-Qayrawânî is important because it is perhaps the earliest example of condensation in the Mâlikî school, and because of its lasting popularity.

The life and times of al-Qayrawânî

Ibn-abî-Zayd, as he is often simply called, is named al-Qayrawânî from the city where he spent most of his life. Qayrawân, in the center of modern Tunisia, was the first Arab base in the Maghrib and remained its Islamic intellectual centre even when political and military power was distributed elsewhere.

From the outset Mâlikism was the predominant legal school in the Maghrib. Shâfi`ism had some influence, while •anifism had the support of the Aghlabid aristocracy. (11) The Aghlabids ruled over the eastern third of the Maghrib under the nominal suzerainty of the `Abbâsid caliphs in Baghdad from 800 until their overthrow by the Fâ≥imid propagandist Abû-`Abdallâh in 909. The latter in 910 handed over power to `Ubaydallâh, introducing him as the Mahdî, or divinely guided heir to the authority of `Alî, the designated successor of MuĆammad according to Shî`î belief. `Ubaydallâh then built the town of Mahdiyya, on the Mediterranean, as his capital. The Fâ≥imids engaged in active propaganda as well as persecution to win the people to their teachings. The •anafî entourage of the Aghlabids consequently rallied to the Shî`î cause, leaving all opposition in the hands of Mâlikî scholars, located mainly in Qayrawân. (12)

In this environment al-Qayrawânî was born in 922. Before his death in 996 Fâ≥imid power once was nearly wiped out by a Khârijite revolt in 944. This was put down, and in 969 al-Mu`izz added Egypt to the Fâ≥imid domains and founded Cairo as his new capital. Moving from the Maghrib in 972, he left Buluggîn ibn-Zîrî as governor. Buluggîn was very loyal to the Fâ≥imid caliph, but his son al-Man™ûr (984-996) paid only lip service to the caliph, while laying the foundations of an independent Zîrid dynasty. In the pursuit of his ambitions al-Man™ûr found it politic to make concessions to the Mâlikîs, paving the way for the eventual repudiation of Fâ≥imid Shî`ism and the triumph of Mâlikî Sunnism in the Maghrib.

Ibn-abî-Zayd grew up among the Qayrawân defenders of Mâlikî law and Sunnî practice against the Fâ≥imid regime. Many Mâlikîs even refused to pray behind an imâm who mentioned the name of the Fâ≥imid caliph in the Friday prayers. (13) Yet the regime tolerated Mâlikî activities as long as they were carried out quietly and in private.

ņ ûfî prayer gatherings were one such activity the Fâ≥imids frowned on. Our author took part in ņ ûfî meetings, but opposed the claims of some members to visions of God while they were awake and to supernatural powers to work miracles. A controversy ensued, giving rise to al-Bâqillânî's (d. 1013) acclaimed distinction between a mu`jiza, a miracle adduced as evidence of prophesy, confounding any attempt to imitate it, and a karâma, a wonder or extraordinary work of God produced at the prayer of a holy man but not as evidence of a prophetic mission. (14)

Theologically, the Qayrawân school very early adopted the Kalâm of al-Ash`arî (d. 935). (15) Disputes with Mu`tazilites on the definition of faith, the creation of the Qur'ân and on free will versus determinism (qadar) sharpened the Qayrawânians for disputes with the Fâ≥imid missionaries over the comparative merits of `Alî and other early companions of the Prophet. (16) Ibn-abî-Zayd adheres to a strict Ash`arism in the first chapter of his Risâla, even on points where most later Sunnî theologians departed from al-Ash`arî.

In legal matters Ibn-abî-Zayd was acclaimed in his lifetime as "Mâlik the Younger". (17) Even in the narrow limits of Mâlikî fiqh he exhibited a certain original genius in grasping the point of legal texts and presenting a reasonable solution without slavishly conforming to the letter, as many of his contemporaries did; this is especially true of his commentary on the Mudawwana of his master SaĆnûn (d. 854). (18) The voluminous Mudawwana is a collection of questions answered by SaĆnûn's master `AbdarraĆmân ibn-al-Qâsim (d. 806), who was a direct student of Mâlik ibn-Anas. The chief early expositions of Mâlikî law, then, are the Muwa≥≥a', a collection of •adîth related by Mâlik and recorded by his students, SaĆnûn's Mudawwana, and finally al-Qayrawânî's popularization of this teaching in the Risâla.

The Risâla

Al-Qayrawânî wrote the Risâla - also known as Bâkûrat as-sa`d (the beginning of happiness) and Zubdat al-madhhab (cream of the Mâlikî school) - in 938 at the age of 17, and later revised it somewhat for public diffusion. (19) Being a book of fiqh, or systematic understanding of Islamic revealed law (sharî`a) as taught in the Qur'ân and collections of •adîth, the Risâla touches on the whole range of Islamic life, from dogmas of faith to details of table etiquette. As a summary of much longer works, it leaves much unsaid and has therefore been the subject of many commentaries. Yet in its conciseness it served its purpose well. It was designed primarily as a propaganda work of Mâlikism against government propagated Fâ≥imism, but subsequently enjoyed unabated popularity as a treatise of Mâlikî law made simple.

Brockelmann's Geschichte der arabischen Literatur (20) gives little indication of the vast number of copies of the Risâla in sub-Saharan African libraries. For centuries it has been a basic introductory text for Islamic legal studies in West Africa. It is mentioned in the Mahram of Umme Jilmi of Borno (d.c. 1097), (21) and is referred to over and over again among the texts studied by West African scholars whose biographies appear in AĆmad Bâbâ's Nayl (1596), (22) as-Sa`dî's Ta'rîkh as-Sûdân (1655), (23) Ibn-al-Mukhtâr's Ta'rîkh al-Fattâsh (1664), (24) and MuĆammad a™-ņ iddîq's FatĆ ash-shukûr (1799). (25) `Abdallâh Ń an Fodiye mentions it six times in his autobiographical Îdâ` an-nusûkh (1812). (26) His brother `Uthmân Ń an Fodiye frequently mentions it in his many writings, such as Bayân wujûb al-hijra `alâ l-`ibâd, (27) •i™n al-afhâm, (28) and IĆyâ' as-sunna. (29)

Because of the customary and official position of Sharî`a in the northern states of Nigeria, the Risâla is still widely studied and forms part of the syllabus of government Arabic colleges. Numerous manuscript copies are to be found in the many public and private libraries of the country. Besides the abundant Egyptian and locally printed Arabic editions in circulation, Gaskiya Corporation of Zaria published in 1970 the Arabic text with a facing Hausa translation. While this edition was awaiting publication, the Arabic-English edition of Bello Muhammad Daura appeared (Gaskiya Corp., 1983).

Western studies on Mâlikî law

In contrast to •anafî and Shâfi`î law, Mâlikî law has received very little attention in English. Background information can be found in general works, such as Joseph Schacht's The origins of Muhammadan jurisprudence (Oxford: Clarendon, 1950) and An introduction to Islamic law (Oxford: Clarendon, 1964), and Noel Coulson's A history of Islamic law (Edinburgh U. Press, 1964) and Conflicts and tensions in Islamic jurisprudence (U. of Chicago Press, 1969). For long the fullest description of the particulars of Mâlikî law in English was the second-hand work of F.H. Ruxton, Mâlikî law, being a summary from French translations of the Mukhtasar of Sîdî Khalîl with notes and bibliography, published by order of the Governor General of Nigeria, Sir F.D. Lugard (London: Luzac, 1916, reprinted in 1980). For reliable works there are only a few articles or monographs on particular questions. Among them should be noted three works of Alexander David Russell and Abdullah al-Ma'mûn Suhrawardy: First steps in Muslim jurisprudence, consisting of excerpts from Bâkûrât as-sa`d of Ibn-Abû-Zayd (London: Luzac, 1906, reprinted in 1963), which contains the major parts of the chapters on marriage, `idda and inheritance and short excerpts of other chapters of the Risâla; "A manual of the law of marriage" from the Mukhta™ar of Sîdî Khalîl (London, 1911); and An historical introduction to the law of inheritance (London, n.d.). Note also J.N.D. Anderson's The Mâlikî law of homicide (Zaria: Gaskiya, 1959) and sections of his other books and articles, as well as Noel Coulson's Succession in the Muslim family (Cambridge U.P., 1971). Numerous articles particularly of Nigerian interest have appeared in the Journal of Islamic and Comparative Law, published by the Centre of Islamic Legal Studies, Ahmadu Bello University, Zaria. A version of this very preface was first published in Hamdard Islamicus, 6:3 (1983), pp. 63-71.

In French, studies on Mâlikî law abound. Note in particular the works of R. Brunschvig, H.R. Idris, J. Lepanne-Joinville, and G.H. Bousquet. In Italian the work of J. Guidi and P. Santillana is important. There are two complete French translations of the Risâla, one by E. Fagnan, La Risâla, ou traité abrégé de droit malékite et morale musulmane (Paris, 1914), and another by Léon Bercher, La Risâla, ou Epitre sur les éléments du dogme et de la loi de l'Islam selon le rite mâlikite (Algiers, 1945, and fifth edition 1968).

Guidelines for this translation

This translation is based on a comparison of several printed Arabic texts. There are many variations, but all of them inconsequential, and the reading that seemed to give best sense was chosen. Needless to say, commentaries were indispensable. The fullest and the one most relied on is that by AĆmad ibn-Ghunaym ibn-Sâlim ibn-Muhannâ an-Nafrâwî (d. 1708), al-Fawâkih ad-dawânî, 2 vols. (Cairo: Mu™≥afâ al-Bâbî al-•alabî, 1955). Reference was also made to ņ âliĆ `Abdassamî` al-Âbî al-Azharî, ath-Thamar ad-dânî fî taqrîb al-ma`ânî (Cairo: Ma≥ba`at al-Masjid al-•usaynî, n.d.), and Abû-l-•asan al-`Adawî, Kifâyat a≥-≥âlib `alâ r-Risâla (Cairo, n.d.). Naturally the translation was influenced by the commentators, and represents to a certain extent their later and more fixed Mâlikism. But the notes to this translation pass over their long digressions on the detailed implications of the law, and only take what is necessary for understanding the text and what might be of interest in an African setting.

It is questionable whether the Arabic titles to the chapters are the work of al-Qayrawânî. In any case they are either too long or do not adequately indicate the contents of the chapters. Therefore I have revised them to be as brief and informative as possible, and have also added subtitles within the chapters for quicker reference. The only other liberty I have taken was to omit translating the blessings after the names of God and the Prophet, since such parentheses, when frequent, are clumsy in English; they are translated in the prologue and epilogue, where one would like to capture the style of the original; elsewhere a compressed Arabic blessing for the Prophet is used.

Arabic technical terms used in the text are too numerous to put in italics. Only titles of Qur'ân sûras or prayer formulas are set off in italics.

The pages of the Arabic used in the English and Hausa translations (Zaria) and a separate Arabic edition (Kano) are indicated within braces: { }.

Finally, I want to indicate my indebtedness to many friends for valuable elucidations of difficult points, legal, medical, historical and linguistic. Particular thanks are due to Sheikh Ahmad Lemu for his valuable detailed criticisms explanations and suggestions. Yet I take sole responsibility for all deficiencies. {2}

PROLOGUE

In the name of God the merciful and kind. God bless our master MuĆammad, his family and companions, and give them peace.

Abû-MuĆammad `Abdallâh ibn-abî-Zayd al-Qayrawânî God be pleased with him and give him pleasure says:

Praise be to God who created man by His favour, formed him in the womb by his wisdom, brought him forth to enjoy the blessings He put at his disposal, and taught him what he did not know. God's favour to man was great: He stimulated his mind by the imprints of His workmanship and made him accountable [for carrying out his Law by communicating it] through the tongues of messengers, the elite of His creation. God guided those He had destined by His favour, and made those wander whom He had abandoned by his justice. He made the way easy for believers and opened their hearts to recollection. So they believed in Him, as they acknowledged Him with their tongues, were sincere with Him in their hearts, and grasped what His messengers and books told them. They learned what He taught them and stood within the limits he set for them. Possessing what he declared lawful for them, they had no need for what He forbade them.

Then God aid us all to take care of {3} the things He has deposited with us and guard the revealed laws he has entrusted us with you asked me to write for you a brief account of: 1) the obligatory matters of religion which the tongue speaks, the heart believes, and the bodily organs perform, 2) the sunnas which are connected with these obligatory matters, including those sunnas which are undisputed, supererogatory, and desirable, (30) 3) some of the obligations and sunnas pertaining to good manners and 4) the principles and details of jurisprudence according to the system and way of the imâm Mâlik ibn-Anas God the most high show him kindness including explanations of difficult points by legal authorities and experts, in order to facilitate the material.

You asked me this because of your desire to teach these matters to children, as you teach them the letters of the Qur'ân, so that an understanding of God's religion and his revealed laws will enter their hearts, spread its blessing there, and produce a praiseworthy result. I answered your request, because of the reward which I do hope both of us will receive, the reward of those who have taught or called men to the religion of God.

Know this, that the choicest heart is one which God has inspired to good, and the heart most inclined towards good is a heart which evil has never entered. The best thing any giver of advice can be concerned with or any seeker for reward can desire is to instill goodness in the hearts of believing children that it may take firm root there, and to help them appreciate the teachings of {4} religion and the limits set by revealed law, that they may know those religious teachings which their hearts must believe and their bodily organs perform. For there is a Ćadîth that teaching young children the Book of God quenches the anger of God, and that teaching someone while he is small is like engraving on rock. (31)

I have portrayed for you such matters as will God willing do children good to memorize, do them honour to know, and make them happy to believe and perform. There is another Ćadîth that at seven years children are to be commanded to do their prayers, at ten they are to be beaten for not doing them, and at that age they are to be separated from sleeping under one cover; (32) likewise they are required to be taught before puberty the words and deeds which God has enjoined upon his servants, so that their souls will be at rest with them, and their bodily organs will be at ease with what they do. (33) For God has enjoined upon the heart the work of believing, and on the outward bodily organs the work of obeying.

What I have promised you to discuss I will take up chapter by chapter, so that God willing it will be easy for learners to understand. We seek goodness and help from him. There is no force or power but in God the Exalted the Mighty. God bless our master and His prophet MuĆammad, together with his family and companions, and give them abundant peace. {5}



CHAPTER 1 (34)
DOGMAS

1.01 God

Among obligatory matters of religion are faith from the heart and profession from the tongue that: Allâh is one God; there is no deity besides Him; there is none like Him and none equal to Him; He has no child nor parent nor woman companion nor associate. (35) There is no beginning to His being first, and no end to His being last. No one can describe what He is like in His inner-being, nor can intellectuals sound out what pertains to Him; they can only speak about His signs, and cannot think of what His Essence is; they grasp His Knowledge only in so far as He wishes.

God's throne embraces the heavens and the earth, and taking care of these cause Him no trouble. (36) He is Exalted, Mighty, Knowing, Aware, Disposing, Powerful, Hearing, Seeing, Exalted and Great. He is upon His glorious throne by His essence, yet is in every place by His knowledge. He created man, knows what he whispers inside himself, and is nearer to him than his jugular vein. (37) He knows whenever a leaf falls, or a grain drops into the dark earth, or a fresh or dried fruit falls down; it is all in a clear book. (38) He mounted the throne (39) and took possession of power. He has the beautiful names (40) {6} and the exalted attributes. He is never without any of his attributes or names it is far beneath Him that any of his attributes should be created or any of his names should have come into being. He spoke to Moses with his Speech which is an attribute of His essence, not something created by Him. He appeared to the mountain, and it was crushed by His majesty. (41)

1.02 The Qur'ân

The Qur'ân is the Speech of God. It is neither a created thing, such as can perish, nor an attribute of something created, such as can come to an end. (42)

1.03 Determination (qadar)

Also a matter of faith is determination, whether of good things or bad, of sweet things or bitter; God our Lord has determined all this. The measures of things are from Him, and their origin is from His decree. He knows everything before it exists, and it comes into being according to His decree. Every word and every deed of His servants He has decreed and foreknown. "Does He not know, He who created, who is Unfathomable and All-aware?" (Q. 67:14). He makes err whomever he wishes, abandoning him by his justice; He guides whomever He wishes, giving Him success by his favour. (43) He makes everything easily reach the pleasant or unpleasant outcome He knew and willed beforehand it is far beneath Him that there should be anything in His kingdom which He does not will, or that anything should not be in need of Him, or that anything should create something but He, the Lord of his servants, the Lord of their works, the Determiner of their movements and their deaths.

1.04 Messengers and MuĆammad

God sent messengers to men to take away any excuse from them. He sealed the offices of messenger, warner and prophet with MuĆammad {7} His prophet, and made him the last of those sent, an announcer of good things, a warner, one calling to God by His permission, and an illuminating torch. He sent down to him His book of wisdom, by which He explained his solid religion and gave guidance onto the right path.

1.05 Resurrection and judgement

The hour is coming, without any doubt. (44) God will raise up those who die, and they will return as he had made them.

For his believing servants, God multiplies their good works, wipes away the big sins they repent of, forgives their small sins if they have avoided big ones, and decides as He wishes the fate of those who do not repent of big sins.

God does not forgive making something an associate with Him in divinity (shirk), but forgives anything less than that to whom He wishes.

Those He will punish by fire God will bring out of it because of their faith, and bring them into Paradise. "Anyone who has done an atom's weight of good will see it" (Q. 99:7). Also because of the intercession of the Prophet God will bring out of the fire anyone of his people who is guilty of a big sin and the Prophet intercedes for him.

1.06 Reward and punishment

God has already created Paradise (janna) and prepared it as an eternal dwelling for his saints. He will honour them in it with the vision of his kind face. (45) This is the Paradise from which God sent Adam, his prophet and vice-gerent, down to the earth, as he foreknew.

God created Hell fire, and prepared it as an eternal dwelling for those who do not believe in Him and are skeptical of His signs, books and messengers. {8} He will screen such people from seeing Himself.

1.07 Concomitants of the resurrection

God will come on the day of resurrection with His angels in array to put peoples on display, together with their accounts, their punishments and their rewards.

The scales will be set up to weigh the works of men; (46) whoever's balance is heavy has done well. Men will also be given sheets (™uĆuf) listing their deeds: Those who are given their scrolls in their right hands will have a light reckoning; those who are given their scrolls behind their backs shall face Hell fire. (47)

The path (sirâ≥) is real. (48) Men will pass over it at different speeds, according to the measure of their works, being saved from the fire of Hell. But some will fall into the fire because of their works.

Another matter of faith is the basin (Ćaw≤) of the Messenger of God, from which his people drink. (49) Someone who drinks from it will never thirst. Excluded from it will be anyone who substituted or changed [his beliefs].

1.08 Faith (îmân)

Faith is speech on the lips, faithfulness in the heart, and deeds in the bodily organs. It increases with the increase of works, and decreases with a decrease of works; thus there is a decrease or increase in faith according to works. (50) The speech of faith is not perfect without works, and speech and works are not perfect without an intention; and speech, works and intention are not perfect without following the Sunna. (51)

None of the People of the qibla (52) are made unbelievers by committing a sin.

Martyrs are living with their Lord and enjoying blessing. (53)

The spirits of those who possess happiness survive {9} and enjoy delight until the day they are risen. The spirits of those who possess unhappiness are tormented until the day of judgement.

Believers are tested and questioned in their graves; God strengthens those who believe with a solid answer in this life and the next.

1.09 Angels

Men have guardian angels who record their deeds; none of these deeds escapes the knowledge of the Lord.

The angel of death, by the permission of the Lord, takes spirits.

1.10 Authorities

The best century is the century of those who saw the Messenger of God and believed in him. The next best is that of those who followed them, then that of those who followed these.

The best of the Companions are the orthodox, right-guided caliphs, first Abû-Bakr, then `Umar, then `Uthmân, then `Alî. (54) None of the companions of the Messenger are to be mentioned but with the highest respect, avoiding mention of the quarrels between them. They are the men most worthy to have the best explanation sought for what they did and the best opinion thought of their policies.

Obligatory too is obedience to the leaders (imâms) of Muslims, that is, those who have charge of their affairs and their learned men. Also obligatory is following the worthy scholars of early times, imitating them and begging pardon for them; also avoiding hypocrisy and argumentation about religion, and avoiding the innovations some people have produced.

{10} God bless our master, His prophet MuĆammad, together with his family, his wives and children, and give them abundant peace.



CHAPTER 2
DEFILEMENTS REQUIRING WUŃÛ' (ABLUTION)
OR GHUSL (BATHING)

(55)

2.01 Wu≤û'

Wu≤û' is obligatory in the case of what comes from either of the two openings, such as urine, excrement or gas; in the case of distillation from the penis it is obligatory to wash the entire penis from it. Distillation (madhy) is a fine clear liquid which comes out on the occasion of a pleasurable erection during play or thinking. Wady is a thick clear liquid which comes out after urinating; the rule for this is the same as that for urine. Manî (56) is a gushing liquid which comes out [of a man] on the occasion of the greatest pleasure in intercourse, and smells like a date palm blossom; in the case of a woman it is a fine and yellow liquid. Purification from manî is obligatory; moreover the whole body must be purified [by ghusl], just as after menstruation.

Wu≤û' alone is obligatory while menorrhagia (istiĆâ≤a) lasts. Both for menorrhagic bleeding and uncontrollable urination, to do wu≤û' before every ™alât is only desirable, not obligatory.

Wu≤û' is obligatory after loss of consciousness from a deep sleep, fainting, intoxication or an attack of insanity.

Wu≤û' is obligatory after petting, bodily embracing {11} or kissing for he sake of pleasure, likewise for petting one's penis. Opinions differ on whether wu≤û' is obligatory in the case of a woman petting her sexual part.

2.02 Ghusl

Purification [by ghusl] is obligatory after the pleasurable flow of the thick liquid mentioned above, no matter if it happens in sleep or when awake, or to a man or a woman. It is also obligatory after the stopping of the bleeding of menstruation, menorrhagia or afterbirth, and after the penetration of the penis into the vagina, even if there is no ejaculation. Penetration of the penis into the vagina makes ghusl obligatory. It also makes obligatory the fixed punishment [for illicit intercourse], makes giving a dower [to the wife] obligatory, makes the spouses maritally restricted (muĆ™an), (57) makes a woman who was repudiated by three pronouncements legitimate to the one who repudiated her, (58) and invalidates a Ćajj pilgrimage or a fast.

When a woman sees the clear liquid [coming after menstruation], she is to purify herself [by ghusl]. Likewise, if she sees that the menstruation stops, she is to purify herself by ghusl at once, whether she sees this a day or two days or an hour later. If the bleeding returns, or she sees a yellow or dark liquid, she is to omit ™alât; but if this ceases, she is to do the ghusl and resume doing ™alât. But a bleeding which stopped and resumed is regarded as one menstruation period as far as the `idda and istibrâ' are concerned, (59) so that only a bleeding after a break of eight or ten days is a new menstruation. A woman whose bleeding continues beyond fifteen days is menorrhagic; she is to purify herself [by ghusl], fast and do ™alât, and her husband can have relations with her.

If the bleeding of one who gave birth ceases, {12} even if this happens shortly after her delivery, she is to do the ghusl and do ™alât. If the bleeding continues, she is to compute sixty nights and then do the ghusl; thereafter she is considered menorrhagic, and may do ™alât, fast, and have intercourse.



CHAPTER 3
PURITY OF WATER, PLACE AND CLOTHING

3.01 Purity of water

Someone who is doing ™alât is communing with his Lord, and must prepare for this by doing Wu≤û', or ghusl if ghusl is obligatory for him. (60) He must do so with pure water unpolluted by filth (najâsa), (61) and not with water whose colour is changed by salt, mire, or other substances which were in the ground from which the water was taken. The water of rain, springs, wells and the sea is good and pure, and purifying from filth as well.

If the water's colour, [taste or smell] is affected by something pure settled in it, this water is pure, but not purifying for doing wu≤ û' or ghusl or removing filth. Water whose colour is changed by filth is neither pure nor purifying; moreover a little water is made foul by a little filth even if the water is not changed.

3.02 Amount of water

A sparing use of water in ritual bathing is a sunna, while an over-use of water is extravagance and {13} an illicit innovation. The Messenger of God used to do the wu≤û' with one muddu this is the weight of one and one third ri≥l and he did the ghusl with one ™â`, which is the equivalent to four muddus of his standard. (62)

3.03 Purity of place and clothes

Purity of the place for ™alât is binding, likewise purity of one's clothes. One opinion is that this binds as an obligation, but another is that it only binds as an established sunna.

It is forbidden to do ™alât in the resting place of camels, in a right of way, on top of the sacred house of God, (63) inside public baths the purity of which is not certain, on a garbage heap, in a slaughtering place, and in a cemetery of polytheists or in their places of worship.

3.04 Clothing required

The least amount of clothing a man should have on to do ™alât is a covering cloth such as a throw-over (dir`) or a wrapper (ridâ'); a dir` is a kind of tunic. It is disapproved to do ™alât in clothing which does not cover the shoulders at all; if someone does so, however, he need not repeat his ™alât.

The least amount of clothing a woman should have on to do ™alât is a moderately thick and ample dir` which covers the top of her feet and a shawl which covers her. (64) But she places her hands directly on the ground in the prostration, just as a man.



{14}

CHAPTER 4
ISTINJÂ', ISTIJMÂR, AND WUŃÛ'

4.02 Istinjâ'(washing private parts)

Istinjâ' is not a necessary part of Wu≤û' nor one of its sunnas or obligations, but, like istijmâr, is for the purpose of removing filth, so that it will not remain on a person's body while he does his ™alât. Istinjâ' can be done without making an intention (niyya), as is true also for washing filth off clothes.

To do istinjâ', a person begins by washing his hands, then he washes the opening for urine, wipes away the offensive matter with soil or other material or with his hand, rubs his hand on the ground, washes his hand, and then does the istinjâ' washing [of his private parts] with water, which he pours continuously. After pressing wide his anal orifice, he rubs it until it is clean.

A person should not wash the inside of either of the openings, nor do istinjâ' because of passing gas.

4.02 Istijmâr (wiping with stones)

To do istijmâr a person wipes himself with three stones. If the last stone comes away clean, that is sufficient.

To use water, however [by istinjâ'] is better for cleanliness and, in the opinion of scholars, preferable.

4.03 Washing hands before wu≤û'

Someone who has not urinated or defecated, and is doing Wu≤û' only because of a minor defilement (Ćadath) or because of sleep or some other reason which necessitates washing, must wash his hands before dipping them into the jug.

4.04 Sunnas and obligations of wu≤û' (65)

The sunnas of wu≤ û' are: 1) washing {15} one's hands before dipping them into the jug, 2) rinsing one's mouth, 3) inhaling and exhaling water in the nose, and 4) wiping one's ears. The other observations are obligations.

4.05 How to do wu≤û'

If someone gets up from sleep or has any other reason to do wu≤û', scholars say he should first call on the name of God but some think that this is not commanded. The jug should be on the person's right for easier access.

The person begins by washing his hands three times before putting them into the jug, and if he urinated or defecated he cleans the remains off before doing wu≤û'.

Next he puts his hand into the jug, takes water, and rinses his mouth three times, from one or three dips of water, as he wishes. If he brushes inside with his finger, this is good.

Next he inhales and exhales water through his nose three times, placing his hand on his nose as when blowing it.

It is sufficient to rinse one's mouth and inhale water fewer than three times and to do both actions with one dip of water, but the full process is better.

Then the person takes water, with his two hands together if he wishes, or with just his right hand but then holding the water by both hands together. He raises the water and pours it on his face, washing it with both hands from the top of his forehead, that is, his hairline, to the bottom of his chin, and all around his face from the ends of his jawbone to his temples, {16} making sure to get into the crevices of his eyelids, the lines of his forehead, and under the soft outer part of his nose. He washes his face this way three times, taking water to do it and moving his beard with his palms as he washes, in order to get the water into it and have the hair inside get wet; but in the opinion of Mâlik, one need not run his fingers through his beard in wu≤û', but only rub his hands over it to the tip.

Next the person washes his right hand two or three times, pouring water over it and rubbing the fingers of each hand between those of the other. Then he washes his left hand in the same way. He does up to and inclusive of the elbows although one opinion is that the inclusion of the elbows is not obligatory, but is only an extension to avoid being concerned with locating the exact limit.

Then he takes water with his right hand, pours it into his left palm, and with both hands wipes his head, beginning with the front at the hairline, with all the finger tips joined in a row but the thumbs on the temples. He proceeds wiping backwards with his hands until the end of the hair of his head bordering the nape of his neck, then returns forward to where he began, starting with his thumbs behind {17} his ears and moving back to the temples. But any way he wipes suffices, provided he does his whole head, although the way described here is best. Even if he only moistens his hands in the jug and wipes his head with them, that suffices.

Then he pours water on his index fingers and thumbs, or dips them into the water if he wishes, and rubs his ears outside and in.

A woman wipes with water as we have described, rubbing over her locks, but not on her bows. She puts her hands under her braids in the return wiping movement.

Then the person washes his feet, pouring water with his right hand onto his right foot and rubbing it with his left hand little by little until he goes over it this way three times. If he wishes, he may go in between his toes; to omit this is not wrong, but to include it is better for him. He should rub his heels and back-tendons and any tough or split areas where the water has not quickly penetrated, rubbing hard while pouring the water, because of the Ćadîth: "Woe to the [unwashed parts of the] heels in the fire!"; the heel of something is its extremity and last part. Then he does the same with his left foot.

The setting of the number of washings as three for each part of the body is not a command, so that a lesser number would be insufficient, but it is the most that is done. If someone completes the job in fewer than {18} three times, that is sufficient, provided he has done it properly; not all men are equal in doing this.

The Messenger of God said: "If anyone does wu≤û' and does it well, then lifts up his eyes to heaven and says, 'I testify that there is no deity but God alone without associate, and I testify that MuĆammad is his servant and messenger,' the eight gates of paradise are opened to him, and he can enter by whichever one he wishes."

According to some learned men, it is good to say after doing wu≤û': "O God, make me one of the repentant; make me one of those who keep themselves clean."

4.06 Intended purpose of wu≤û'

In doing the wu≤û', a person is obliged to have the motive of gaining the favour of God, since He commanded him to do it, hoping at the same time that God will receive it, reward him, and purify him thereby from his sins. He should be aware that the wu≤û' he does is to prepare himself and make himself presentable to address his Lord, to stand before him carrying out his precepts, and to show him submission by bowing and prostrating. Therefore he should do wu≤û' with sureness and concern, since the perfection of any work is from the good intention in doing it.



CHAPTER 5
GHUSL (RITUAL BATHING)

(66)

The purification for a major sexual defilement ( janâba), (67) for menstruation, and for after-birth is all the same. If someone purifies himself by ghusl alone and omits doing wu≤ û', that suffices, but it is better {19} for him to do wu≤û'. After cleaning the offensive matter from his sexual part or his body, he does wu≤û' as it is done before ™alât. He can wash his feet then if he wishes, or leave them until the end of his ghusl.

The person then dips his hands into the jug, raises them without scooping any water with them, and runs them over his scalp. Next he pours three handfuls of water onto his head, washing his head with the water. A woman does likewise, and rubs her hair, but she need not undo her braids.

The person next pours water on the right side of his body, then on the left, rubbing with his hands after pouring the water, until he does his whole body. Wherever he is not sure the water has touched he pours more water on that spot and rubs with his hand, until he covers his whole body.

After this he does the inside of his navel, between his chin and throat, inside the hair of his beard, his armpits, between his buttocks and upper thighs, behind his knees, and the lower parts of his feet. He washes between his fingers, and at the end washes his feet if he had postponed doing so, including them in his ghusl in order to complete both his ghusl and his wu≤û'.

He should be careful not to rub his penis with his palm while he is scrubbing himself. If he does that after completing his ghusl he must repeat his wu≤û', but if he does so at the beginning of his ghusl and after {20} having washed the parts where wu≤û' is done, he should run water over these parts again with his hands in the manner required, together with making the intention.



CHAPTER 6
TAYAMMUM (SAND ABLUTION)

When to do it

Tayammum is obligatory: 1) for someone who has no water while traveling and has no hope of finding any in time, 2) when there is water, if the person, whether traveling or not, cannot touch it because sickness prevents him, 3) if the sick person can touch water, but has no one to bring it to him, or 4) if a traveler comes near water but is kept back by fear of thieves or wild animals. 5) If a traveler is sure of finding water within the time of ™alât, he should postpone doing tayammum up to the limit of the time allowed, but (= 1) if he has no hope of finding it, he should do tayammum at the beginning of the time. 6) If he does not know if there is water, he should do tayammum at the middle of this time; 7) so also should someone who fears he will not reach water in time, although he hopes to reach it in time.

6.02 Validity after finding water

Any of these people who do tayammum and then find water in time, but after doing ™alât, [should repeat their ™alât]. This applies to 1) a sick person who had no one to bring him water, 2) the person who was afraid of wild animals or a similar danger, and 3) the traveler who feared he would not reach water in time, even though he hoped to reach it in time. No one besides these three should repeat his ™alât.

{21} 6.03 Frequency

Neither should any of the former seven [of the first paragraph] do two ™alâts with only one tayammum, except a sick person who cannot touch water because of a sore on his body. One opinion is that tayammum should be done before every ™alât. But it is reported from Mâlik that someone who remembers several ™alâts [that he missed] should do them with one tayammum.

6.04 How to do it

Tayammum should be done on a clean surface. This is soil, sand, rocks or salt deposits which protrude on the surface of the earth.

The person taps the earth with his hands; if anything sticks to them he shakes them lightly, then wipes his whole face well. He taps the earth again with both hands, and wipes his right hand with his left, putting the finger tips of his left hand against those of his right hand, and running his fingers over the surface of his [right] hand and arm, with his fingers bent until he reaches the elbows. Then he puts the palm of his left hand on the inside of his [right] arm at the bend of his elbow, pressing against it until he reaches the wrist of his right hand. Then he runs the inside of this [left] thumb against the outside of his right thumb.

Next he wipes his left hand and arm with his right in the same way. When he reaches the wrist, he wipes his right hand with his left until the end of his finger tips. If he wipes his right hand with his left and his left hand with his right in any way he wishes that is easy for him and is complete, {22} that suffices.

6.05 After a major defilement

Those who have had a major sexual defilement (janâba) or menstruation and cannot find water to purify themselves with amy do tayammum and then do their ™alât. If they find water they should do the ghusl, but not repeat their ™alât.

If a woman's menstruation or afterbirth bleeding has stopped and she has purified herself by tayammum, her husband is not to have intercourse with her until he finds water for his wife to bathe with, moreover enough for them both to bathe with.

There are some other questions on tayammum in the chapter "Miscellaneous questions on ™alât". (68)



CHAPTER 7
WIPING BOOTS

A person may wipe his boots [instead of his feet in Wu≤û'], whether traveling or not, as long as he does not take them off and put them on again after having washed his feet in a Wu≤û' permitting ™alât. Only such a person, and no one else, may wipe his boots while doing Wu≤û' for a minor defilement.

To wipe his boots, a person puts his right hand over [his right] boot at the end of the toes, and his left hand on the underside. Then he runs his hands to the end of his ankles. He does the same for his left foot, except for putting his left hand above and his right hand below. He is not to wipe his hands over mud or animal dung on the bottom of his boot until he had scraped or washed it off.

According to another opinion, one begins by wiping the bottom from the ankles to the ends of the toes, {23} to prevent the moisture of any filth that he wiped from his shoes from reaching the heel of his boot. If there is any mud on the bottom of the boot, he should not wipe his boot until he has removed the mud.



CHAPTER 8 (69)
TIMES OF DAILY ņALÂT

8.01 ņubĆ (morning ™alât)

The ™alât of ™ubĆ {the "middle ™alât according to the people of Medina} is the ™alât of dawn (fajr). Its time starts from the break of dawn, when light is spread from the extreme east at the qibla (70) to the opposite end of the horizon, thus covering the whole sky.

The end of the time is the bright radiance (isfâr) which gives way directly to the appearance of the aureole of the sun. The time between these terms is long, but the preferred time is as the beginning.

8.02 Ňuhr (early afternoon ™alât)

The time of Ļuhr begins when the sun declines from the zenith of the sky and a shadow begins to grow. It is desirable in the summer to wait until the shadow of a thing reaches a quarter of its length, exclusive of the [north-south] shadow which existed when the sun began to decline. One opinion is that this delay is desirable only for mosques, so that people can get there on time for the ™alât; but for a man by himself the beginning of the time is preferable. Another opinion is that in the intensity of the heat it is preferable to do the ™alât when it is cooler, even if one is {24} alone, because the Prophet said: "Do your ™alât when it is cool, because the intensity of heat is from the flames of Hell."

The end of the time is when everything's shadow becomes as long as itself, exclusive of the [north-south] shadow of midday.

8.03 `A™r (late afternoon ™alât)

The time of `a™r begins with the end of the time of Ļuhr.

The end of `a™r is when everything's shadow is twice as long as itself, exclusive of the [north-south] shadow of midday. (71)

One opinion is that if you turn your face towards the sun, standing straight without tilting or bending your head, and you see the sun with your eyes, then the time [of `a™r] has begun; if you do not see the sun with your eyes, the time has not yet begun; if it has gone down from your sight, the time certainly has come. (72) The description of Mâlik is that the time for this ™alât is as long as the sun has not begun to turn yellow.

8.04 Maghrib (early evening ™alât)

The time for [the ™alât of] maghrib {also called the ™alât of one who is present (73) or stationary, because a traveler does not shorten this ™alât on a journey, but does it like one who is stationary} begins with the setting of the sun. When it disappears over the horizon, ™alât is obligatory and is not to be postponed. This ™alât has only one time, and is not to be postponed.

8.05 `Ishâ' (late evening ™alât)

The time for the ™alât of `atama, (74) which is the ™alât of `ishâ' the more proper name begins with the vanishing of twilight. Twilight is the redness remaining in the evening [sky] from the remaining rays of the sun. If no yellowness or redness remains in the {25} evening [sky], the time of obligation has begun. The whiteness of the sky in the evening is not considered.

The time lasts for the first third of the night, for those who wish to postpone the ™alât because of some work or other excuse. But to do the ™alât right away is better. There is no harm for those responsible for mosques to postpone it a little so that the people can gather.

Sleeping before this ™alât is disapproved; so also is talking after it for no utility.



CHAPTER 9
ADHÂN (CALL FOR ņALÂT)
AND IQÂMA (CALL TO BEGIN ņALÂT)

9.01 Adhân

Adhân is obligatory in mosques and constituted assemblies. If a man is by himself and does the adhân, that is good, but he must not omit the iqâma. If a woman does the iqâma, that is good, but if she does not, there is no harm done.

The adhân should not be called before time, except for the ™alât of ™ubĆ. For this there is no harm in calling the adhân in the last sixth of the night.

The adhân is: "God is most great; God is the most great! I testify that there is no deity but God; I testify that there is no deity but God. I testify that MuĆammad is the Messenger of God; I testify that MuĆammad is the Messenger of God."

Then you repeat the credal statements in a louder voice than the first time, saying: "I testify that there is no deity but God; I testify that there is no deity but God. I testify that MuĆammad is the Messenger of God; I testify {26} that MuĆammad is the Messenger of God. Come to do ™alât; come to do ™alât. Come to prosper; come to prosper."

If you are calling the ™alât of ™ubĆ, you should add here: "Doing ™alât is better than sleeping; doing ™alât is better than sleeping;" but this is not said only for the ™alât of ™ubĆ.

Finally you say: "God is most great; God is most great! There is no deity but God." The last sentence is said only once.

9.02 Iqâma

The iqâma is a formula without repetitions: (75) "God is most great; God is most Great! I testify that there is no deity but God. I testify that MuĆammad is the Messenger of God. Come to do ™alât. come to prosper. It is time for ™alât. God is most great; God is most great! There is no deity but God." The last sentence is said only once.



CHAPTER 10
HOW TO DO ņALÂT

10.01 For each ™alât, especially ™ubĆ (76)

To place yourself in the consecrated state (iĆrâm) of ™alât, you say "Allâhu akbar" (God is most great) no other formula suffices while you raise your hands in front of your shoulders or lower.

Next you recite aloud, if you are doing the ™alât of ™ubĆ the opening sûra of the Qur'ân, but you do not begin this sûra or the sûra you recite afterwards with "Bi-smi llâh r-raĆmâni r-raĆîm" (In the name of God the merciful and kind). After you say the final words "wa-lâ ≤-≤âllîn", you say "âmîn", whether {27} you are alone or following an imâm. You say the "âmîn" quietly; the imâm does not say it when he is reciting aloud, but does if he is reciting quietly, although according to a different opinion he says it even when reciting aloud.

Next you recite one of the longer sûras of the Mufa™™al (separate section) of the Qur'ân. (77) If you recite a longer sûra than one of these, that is good, depending upon the length of time before sunrise. This sûra is to be recited aloud.

When you finish reciting this sûra, you say "Allâhu akbar" while bending down for the bow (rukû`). To do the bow, you hold your hands on your knees and make your back level, neither lifting nor bowing your head, and keep your upper arms away from your sides. You should have a conviction of submission in your bowing and prostrating, but while bowing you do not make any request; only say, if you wish: "With honour and praise to my great Lord." There is no fixed number of times to say this, nor any fixed time to be spent [bowed down].

Then you lift your head, saying: "God hears the one who praises him," and "God, our Lord, praise is yours." You say both of these if you are alone, but an imâm does not say the second expression. Someone following him does not say "God hears the one who praises him," but only answers "God, our Lord, praise is yours."

Then you stand up straight, calmly and leisurely, and drop for the prostration (sujûd) without sitting. While lowering yourself for the prostration, you say "Allâhu akbar". To prostrate you put your forehead and nose against the ground, likewise the palms of your hands, {28} flattening your hands level towards the qibla and placing them opposite your ears or lower. This can be done in any number of ways, but do not spread your arms on the ground or place your upper arms against your sides, but hold them out a little. During the prostration keep your feet up, with the under part of your toes against the ground. If you wish, while prostrating you can say: "Glory be to you, my Lord; I have wronged myself and done evil; forgive me," or some other prayer. You can make requests (du`â') during your prostration if you wish, and there is no time set for the length of that. The least required is for your joints to pause and hold still.

Next you lift your head while saying "Allâhu akbar", and sit (julûs). While sitting between the two prostrations, bend your left foot down, but keep your right foot up, with the bottoms of its toes against the ground. Take your hands off the ground and put them on your knees.

Then you do a second prostration just as you did the first.

Next, bracing yourself with your hands, you stand up. Do not first return to a sitting position and then stand up, but directly, the way you came down. While standing, you say "Allâhu akbar", and then recite [from the Qur'ân the opening sûra and another] of the same length as before or shorter. You do everything as before, {29} except that you say the qunût after bowing or, if you wish, before bowing, after reciting from the Qur'ân. (78)

10.02 The qunût

The qunût is: "O God, we seek your help and your forgiveness. We believe in you and trust in you. We submit ourselves to you and cast off and leave whoever disbelieves in you. O God, only you do we worship, we do ™alât and prostrate before you, we come eagerly to serve you, we hope for your mercy and fear your severe punishment; for your punishment certainly lays hold of unbelievers."

Then you do the prostrations and sit as has already been described.

10.03 The final sitting (julûs), tashahhud, and "as-salâmu `alaykum" (79)

When you sit after these two prostrations, straighten your right foot up with the bottoms of its toes on the ground. Bend your left foot, and put your left thigh on the ground without sitting on your left foot. If you wish, you can let your right foot bend as it stands, placing the side of its toe towards the ground. But this can be done in any number of ways.

In this position you say the tashahhud, which is:

Salutations to God, pure works to God, good works to God, performances of ™alât to God! Peace and the kindness and blessings of God be upon you, O Prophet; peace be upon us and on the righteous servants of God. I testify that there is no deity but God, him alone without associate. I testify that MuĆammad is his servant and Messenger.

If you say "as-salâmu `alaykum" immediately after this, that suffices, but you may first add if you wish:

I testify that what MuĆammad communicated is real, {30} that Paradise is real, that the Fire is real, that the hour is coming without any doubt, that God will raise those who are in the graves. O God, bless MuĆammad and his family; show kindness to MuĆammad and his family; prosper MuĆammad and his family: just as you blessed, showed kindness to and prospered Abraham and his family throughout the world; for you are praiseworthy and majestic. O God, bless your angels, saints, prophets, messengers and all those who obey you. O God, forgive decisively myself, my parents, our imâms and believers who lived before us. O God, I ask you for all the good that your prophet MuĆammad asked of you, and I seek your protection from all the evil that your prophet MuĆammad asked your protection from. O God, forgive us our sins, both past and future, secret and public, and those which you are more aware of than we. O our Lord, give us good in this world and good in the next; protect us from the torment of the Fire. I seek your protection from the trials of life and death, from the trials of the grave, from the trials of the anti-Christ, from the torment of the Fire and an evil end. Peace and kindness and blessings of God be upon you, O Prophet; peace be upon us and the righteous servants of God.

Next you say "as-salâmu `alaykum" once to {31} your right; that is, you begin by looking ahead and then turn your head a little to the right. An imâm and someone by himself do it this way. But someone following an imâm says "as-salâmu `alaykum" once while turning a little to the right, says it again facing the imâm in front of him in answer to his salâm, and says it a third time in answer to the person on his left who had wished him salâm. But if no one had wished him salâm [from his left], he says nothing in return.

During the tsahahhud the person places his hands on his thighs and clenches all the fingers of his right hand but his index finger, which he sticks out and points with, lifting the side of the finger towards his face. There is a difference of opinion on whether to wave the finger. One opinion is that [merely] pointing with it indicates belief that God is one deity. Those who wave the finger interpret this as a way of suppressing Satan. I interpret waving the finger as a reminder to the person of this ™alât, in order to prevent him God willing from mistakes and distractions. The person should keep his left hand flattened on his left thigh without waving or pointing with it.

10.04 Supererogatory prayer and ™alât

After ™alât, dhikr (80) is recommended; that is to say "SubĆân Allâh" (Glory be to God) thirty-three times, "Al-Ćamdu li-llâhi" thirty-three times, "Allâhu akbar" thirty-three times, and to round off the number to one hundred by saying: "Lâ ilâha illâ llâh, waĆda-hu, lâ sharîka la-hu, la-hu l-mulk, wa-la-hu l-Ćamd, wa-huwa `alâ kulli shay'in qadîr" (There is no deity but God, him alone without associate; his is the kingdom and the praise, and he is all powerful). (81)

After the ™alât of ™ubĆ it is desirable to prolong {32} the dhikr, asking for pardon, praising and petitioning until sunrise or near to it; but this is not obligatory.

Also recommended is to make two dawn rak`as before the ™alât of ™ubĆ but just after dawn. (82) In each rak`a is recited quietly the opening sûra of the Qur'ân.

10.05 Ňuhr

The recitation for Ļuhr, like that of ™ubĆ, consists of one of the longer sûras or one slightly shorter, but is not done aloud. In the first and second rak`as the opening sûra of the Qur'ân and one other are recited quietly; in the last two rak`as only the opening sûra of the Qur'ân is recited, and that quietly.

In the first sitting, [after the first two rak`as], the tashahhud is said as far as "I testify that MuĆammad is his servant and messenger." Then the person stands, but does not say "Allâhu akbar" until he is completely upright. An imâm and a person by himself do this, but someone following an imâm stands after the imâm says "Allâhu akbar", and when he is standing upright repeats "Allâhu akbar".

As for the remaining actions of this ™alât, such as bowing, prostrating and sitting, he does exactly as was described for the ™alât of ™ubĆ.

It is desirable also to do four supererogatory rak`as after the ™alât of Ļuhr, saying "as-salâmu `alaykum" after every second rak`a.

10.06 `A™r

Four supererogatory rak`as are likewise desirable before the ™alât of `a™r.

The ™alât of `a™r is done as that of Ļuhr; only in the first two rak`as {33} the opening sûra of the Qur'ân is recited together with one of the shorter sûras, such as Wa-≤-≤uĆâ (93) or Innâ anzalnâ-hu (97).

10.07 Maghrib

For the ™alât of maghrib the recitations of the first two rak`as are aloud and, in each rak`a, consist of the opening sûra of the Qur'ân and one of the shorter sûras. But in the third rak`a only the opening sûra of the Qur'ân is recited. The tashahhud and "as-salâmu `alaykum" are said.

It is desirable to make two supererogatory rak`as afterwards, and better to do even more; six extra rak`as is a good number. [In a word,] supererogatory ™alât between the ™alâts of maghrib and `ishâ' is desirable.

Besides these directions, the ™alât of maghrib is performed just as the other ™alâts.

10.08 `Ishâ'

`Ishâ' is the last ™alât, and is the same as `atama, but the name `ishâ' is more proper and better. The recitations of the first two rak`as are said aloud, and consist of the opening sûra of the Qur'ân and another sûra which is a little longer than such as was recited as `a™r. In the last two rak`as only the opening sûra of the Qur'ân is recited, and that quietly.

Other directions for the performance of this ™alât are as described for the other ™alâts. Sleeping before it and talking after it for no necessity are disapproved.

10.09 Volume of recitation and rules for women

All the recitations of the Qur'ân during ™alât which are to be done quietly include movement of the tongue. To recite aloud means to let oneself and the person next to him hear, even if one is alone. When a woman recites aloud she speaks a little softer than a man.

A woman {34} follows the same order of ™alât as a man, except that she keeps her limbs joined and does not open her thighs or upper arms; she keeps her limbs huddled close while she sits, prostrates, or takes any other position.

10.10 Supererogatory ™alât in the night

After `ishâ' one does the ™alâts of shaf` and of witr. (83) [The recitations in these are] aloud. Thus it is desirable to recite aloud in the supererogatory rak`as of night, but quietly in those of the daytime. But if someone recites aloud in his daytime supererogatory rak`as, this is allowed.

The minimum number of rak`as for the ™alât of shaf` is two. It is desirable to recite in the first rak`a the opening sûra of the Qur'ân and SabbiĆ ism rabbi-ka l-a`lâ (87), and in the second rak`a the opening sûra of the Qur'ân and Qul yâ ayyuhâ l-kâfirûn (109). The person then says the tashahhud and "as-salâmu `alaykum", and continues with the witr.

The witr is one rak`a, in which are recited the opening sûra of the Qur'ân and Qul huwa llâhu aĆad (112) and the Mu`awwidhatân (113 & 114).

If the shaf` rak`as are multiplied, the witr is placed at the end of them. The Messenger of God used to do 12 rak`as in the night and then the witr of one rak`a; but some say he did only ten rak`as before the witr of one rak`a.

The best part of the night is its end, at rising time. It is better to defer the supererogatory rak`as and the witr until the end of the night, except for someone who is likely to forget; he should do the witr and any other supererogatory rak`as he wishes at the beginning of the night. Then if he rises towards the end of the night he can do any other supererogatory rak`as he wishes, two at a time, without repeating the witr.

Someone who oversleeps and misses doing {35} this ™alât during the night can do it between the time he wakes up and the break of dawn or even the beginning of the sun's radiance (isfâr). Then he does the witr and the ™alât of ™ubĆ. The witr is not to be made up if one remembers it after doing the ™alât of ™ubĆ.

10.11 On entering a mosque

If someone enters a mosque and has done wu≤û', he should not sit down before doing a ™alât of two rak`as if there is time for this. If he has not done the two supererogatory rak`as of dawn before entering, he may do them when he enters, and they count for the two which are done before sitting. But if he already did the dawn rak`as at home before coming to the mosque, there is a difference of opinion: One opinion is that he should do two rak`as before sitting; the other is that he should not do them, since no supererogatory ™alât should be done between dawn and sunrise but the two rak`as of dawn. (84)



CHAPTER 11 (85)
THE FUNCTION OF AN IMÂM

11.01 The office of imâm

The most virtuous and learned of men should be their imâm. A woman cannot be an imâm, whether for obligatory or supererogatory ™alât, and whether before men or women.

A person recites with the imâm whatever he says quietly, but does not recite with him what he says aloud.

11.02 Late-comer's making up missed ™alât

Whoever arrives in time for one rak`a or more has a part in the common ™alât, and should make up after the " as-salâmu `alaykum" of the imâm whatever he missed. In doing so, he follows the order of the imâm regarding the recitations, (86) but as for standing and sitting he does his ™alât by himself, building upon what he did with the imâm. (87)

11.03 Repeating privately done ™alât in community

Someone who has done ™alât by himself may repeat it in community (jamâ`a) if he has the occasion, {36} because ™alât done in community has a special excellence; (88) the one exception is the ™alât of maghrib, which he should not repeat.

Someone who has arrived in time for one or more rak`as of a ™alât done in community should not repeat this ™alât in [another] community. But if he arrived only for the tashahhud or sitting [in the first community], he may repeat the ™alât in [another] community.

11.04 Positions behind an imâm

One man with an imâm should stand on his right, but two more men should stand behind him. If a woman is present, she stands behind the men. If a man and a woman are present with the imâm, the man stands on the right of the imâm and the woman behind them. If a man does ™alât with his wife, she stands behind him. If a minor boy is doing ™alât with one man behind an imâm, the man and the boy stand behind the imâm if the boy has enough sense not to go away and leave the man he is standing with.

11.05 An imâm's single ™alât in community

If a constituted (râtib) imâm does ™alât by himself, he has the status of doing it in community.

In any mosque which has a constituted imâm it is disapproved to have the same ™alât done in community twice.

Anyone who has already done his ™alât should not repeat it acting as an imâm.

How to follow and imâm

If the imâm makes a mistake and prostrates for it, (89) those behind him should follow him in prostrating, even if they did not make the mistake with him.

No one should lift his head before the imâm does, nor do anything until after he does it. The follower should open the ™alât [with "Allâhu akbar"] after him, rise from the two rak`as after he rises, and say "as-salâmu `alaykum" after he says it. It is allowed to do anything besides these things simultaneously with the imâm, but afterwards is better.

Responsibility for any mistake made by someone following an imâm is taken by the imâm, {37} except for [missing] a rak`a, a sitting, the ["Allâhu akbar"] of iĆrâm, or the intention to fulfill an obligation.

Once the imâm has said "as-salâmu `alaykum", he should not remain in his place, but move away, unless he happens to be at home, where this rule need not be followed.



CHAPTER 12

MISCELLANEOUS QUESTIONS ON ņALÂT

12.01 Clothing

The least a woman may wear during ™alât is a moderately thick and ample dir`, or tunic, which covers the top of her feet, and a moderately thick veil.

For a man doing ™alât one garment is enough. He should not cover his nose or face during ™alât, nor bind up his clothes or fasten his hair.

12.02 Prostration for a mistake and repairing it

Someone who mistakenly adds something in his ™alât should make up for it by doing two prostrations after the " as-salâmu `alaykum". Each prostration includes a tashahhud and the greeting " as-salâmu `alaykum".

Someone who mistakenly omits something should make up for it by doing two prostrations, but before the " as-salâmu `alaykum" if he has finished the tashahhud; afterwards he repeats the tashahhud and says " as-salâmu `alaykum". Another opinion is that the tashahhud should not be repeated, and that the prostrations should be made before saying " as-salâmu `alaykum" when the mistake was by both omission and addition [in the same ™alât].

If someone forgets to prostrate after saying " as-salâmu `alaykum", he should prostrate when he remembers, even if this is a long time later. If someone forgets a prostration that was to have been done before saying " as-salâmu `alaykum", he should prostrate if he remembers close at hand, but if he remembers some time afterwards he should do his ™alât over from the beginning, unless his mistake was only a small omission, such as not saying another sûra after the {38} opening sûra of the Qur'ân, or omitting the "Allâhu akbar" twice, (90) or the two tashahhuds, or similar things; such small omissions do not require repeating one's ™alât.

The prostration for a mistake, however, does not supply for the omission of a rak`a or a prostration, or for reciting nothing from the Qur'ân in two rak`as of a ™alât, or not reciting anything in one of the rak`as of the ™alât of ™ubĆ. There is a difference of opinion concerning the omission of all recitation in one rak`a of one of the other ™alâts: One opinion is that the prostration for a mistake before saying "as-salâmu `alaykum" suffices; another opinion is that such an omission voids the rak`a, which must be repeated; a further opinion is that one should prostrate before saying "as-salâmu `alaykum", and repeat not the rak`a but the whole ™alât, to be safe. The latter is the best opinion, God willing.

If someone omits saying one "Allâhu akbar" or "God hears the one who praises him" or the qunût, he does not have to make a prostration for this.

If someone breaks off his ™alât and then remembers that he did not finish, he should do the part he did not finish if he remembers shortly afterwards. He should first say "Allâhu akbar" once to enter the state of consecration (iĆrâm), then do the part of the ™alât that remained to be done. If considerable time has elapsed, or he has gone out of the mosque, he should begin his ™alât over. Likewise, someone who forgot to say "as-salâmu `alaykum" [should repeat his sitting with the tashahhud and "as-salâmu `alaykum".] Someone who does not know whether he did three or four rak`as of his ™alât should build upon what he knows for certain, and do the ™alât of which he is in doubt, in this case the fourth rak`a, adding a prostration after saying "as-salâmu `alaykum". Someone who talks out of distraction should prostrate after the "as-salâmu `alaykum". Someone who does no know {39} whether he said "as-salâmu `alaykum" or not should say it, without doing a prostration for this.

Someone who is obsessively doubtful about whether he made a mistake should shake off the doubt. No reparation obliges him, but he should only do a prostration after the "as-salâmu `alaykum". Such a person who has excessive doubts and is not sure whether he mistakenly added or omitted something should only prostrate after the "as-salâmu `alaykum". Someone who is sure of having made a mistake should prostrate after repairing his ™alât. But if his mistakes are many and they disturb him much, he should amend his ™alât without prostrating for his mistakes.

Someone who is getting up from a second rak`a [and realizes he has not sat for the tashahhud] should return [and sit] as long as his hands and knees have not left the ground. But if they have left the ground, he should continue without returning, and prostrate before the "as-salâmu `alaykum".

12.03 Making up missed ™alât

If someone remembers having missed a ™alât, he should do it when he remembers it according to the way it was to have been done; (91) then, if he has already done the ™alât for the time at hand, he should repeat it.

If someone has many ™alâts to make up, he should do them at any time of the night or day, even during the rising or setting of the sun, whatever way is easy for him. If he has few ™alâts to make up, less than those of a day and a night, he should begin with these, even if he misses doing on time the ™alât prescribed from the time at hand. But if the ™alâts to be made up are many, he should begin with the ™alât for the time at hand if he would otherwise miss doing it on time.

If someone is in the middle of doing a ™alât and remembers another ™alât he missed, the one he is doing is void. Someone who laughs during ™alât should repeat his ™alât, but not the wu≤û'. {40} If he is with an imâm he should continue to the end and then repeat his ™alât. But if a person merely smiles he does not have to do anything for it. Blowing during ™alât is like talking; doing it deliberately voids the ™alât.

Someone who was mistaken regarding the direction of the qibla should repeat his ™alât if its time has not passed. The same applies to someone who has done ™alât with filthy clothes or on a filthy place, or has done his wu≤û' with water which in the opinion of some is filthy. (92) But someone who has done his wu≤ û' with water which has changed colour, taste or smell must always repeat his ™alât and wu≤û'.

12.04 Joining ™alâts (93)

There is a privilege permitting the joining of the ™alâts of maghrib and `ishâ' on a rainy night or when there is slush and an overcast sky. In such a case the adhân is called outside the mosque at the beginning of the time for maghrib; then, according to Mâlik, after a short wait one says the iqâma and does the ™alât of maghrib inside the mosque. Next the adhân for `ishâ' is called inside the mosque, one says the iqâma and does the ™alât of `ishâ' and all go away while there is still the brightness of twilight.

To join the ™alâts of Ļuhr and `a™r in the afternoon at `Arafa (94) is an established sunna; the adhân and iqâma are said before each ™alât. The same applies to joining the ™alâts of maghrib and `ishâ' at al-Muzdalifa, (95) if one arrives on time.

Likewise a traveler on a urgent journey may join the ™alâts of Ļuhr and `a™r at the end of the time for Ļuhr and the beginning of the time for `a™r, and join in the same way the ™alâts of maghrib and `ishâ'. But if {41} he is traveling at the beginning of the time for Ļuhr or maghrib, he should join Ļuhr with `a™r or maghrib with `ishâ' at this time.

Likewise a sick person who is afraid that he will lose consciousness later on should join the ™alâts of Ļuhr with `a™r at the beginning of the afternoon, and those of maghrib with `ishâ' at sunset. But if joining these ™alâts is merely for greater ease on his stomach or for a similar reason he should do together the ™alâts of Ļuhr and `a™r in the midst of the time for Ļuhr, [just before the time for `a™r,] and those of maghrib and `ishâ' just as twilight is disappearing.

12.05 ņalât missed because of an impediment

Someone who has fainted should not make up the ™alât whose time elapsed while he was unconscious, but he makes up the ™alât if he wakes up and there is still time to do a rak`a or more of this ™alât. (96)

The same holds for a woman who bathes after menstruation: If the amount of daytime left after she purifies herself without dallying permits five rak`as, she should do the ™alâts of Ļuhr and `a™r. (97) If the time left of the night permits four rak`as, she should do the ™alâts of maghrib and `ishâ'. But if the time left of the day or night is less than that, she should do the last ™alât only.

By the same supposition, if the woman begins to menstruate she should not make up the ™alât of the time when she began to menstruate. If she begins to menstruate when there is enough daytime left [before sunset] for four rak`as or even one, or enough time in the night [before daybreak] for three rak`as or even one, she should make up only the first of the [remaining] two ™alâts of the daytime or of the night, [i.e. Ļuhr with its four rak`as or maghrib with its three.] There is a difference of opinion as to what she should do if she has time for four rak`as in the night: One opinion is that she does just as above when she had time for only three rak`as; another opinion is that since she began to menstruate in the time for both maghrib and `ishâ' she should not make up either one. (98)

12.06 Defects in wu≤û'

Someone who is sure of having done wu≤û', but is in doubt about whether he has since had a minor defilement, should repeat his wu≤û'.

{42} Someone who forgets an obligatory part of his wu≤û' and remembers shortly afterwards should repeat that part and what follows. If much time has elapsed he should repeat the part he missed only. But if he omitted that part deliberately he should begin his wu≤û' over again, even if much time as lapsed.

If someone has done ™alât after omitting an [obligatory] part of his wu≤û' by forgetfulness or deliberately he must always repeat his ™alât and his wu≤û'. But if he only remembers having missed something like rinsing his mouth, inhaling water into his nose, or wiping his ears, and not much time has passed, he should do what he missed and not repeat [the rest of the wu≤û' and the ™alât] which follow. If much time has passed, he should do the [non-obligatory parts of the wu≤û'] he omitted for the sake of the ™alât he is about to do, (99) and not repeat the ™alât he has already done.

Someone who does ™alât on the clean part of a mat which has some filth on another part is not obliged to do anything about it. If a sick person is on a filthy bed it is all right for him to spread a clean thick cloth over it and do his ™alât upon it.

12.07 ņalât done by the sick

A sick person who is unable to stand up should do his ™alât sitting with his legs crossed if he can. If he cannot he should sit any way he can. If he cannot prostrate he should indicate the bowing and prostrating with a nod, nodding more deeply for a prostration than for a bow. If the person cannot sit at all, he should do his ™alât on his right side, nodding [for the bows and prostrations]. If he can do the ™alât only on his back he should do so.

A sick person should not postpone his ™alât if he is in his senses, and should do it in the way he is able. If he cannot touch {43} water because it would hurt him or because he has no one to bring it to him, he should do tayammum. If he has no one to bring him sand he should do tayammum using the wall at his side if it is made of [dry] mud or has mud on it, but not if it is of plaster or lime.

12.08 ņalât on a beast

If a traveler has no place to do his ™alât because he finds himself in an area of slushy mud at the time of ™alât, he should get off his beast and do the ™alât standing in the place and nodding deeper for a prostration than for a bow. If he cannot get off in the place he should do ™alât on his beast, facing the qibla.

A traveler may do supererogatory ™alât on his beast while moving along, whichever way he is facing, if his trip is one in which ™alât should be shortened. He may do the witr on his beast if he wishes. But everyone, even a sick person, should do an obligatory ™alât only on the ground. Yet if a sick person could only do his ™alât sitting and nodding were he to get off, he may do his ™alât on the beast after it is stopped for him and turned towards the qibla.

12.09 Impediments of nosebleed and a minor defilement

Someone who has a nosebleed while doing ™alât with an imâm should go out and wash away the blood, then build upon the ™alât he did, as long as he has not talked or walked on some filth while away. He should not build upon a rak`a if he has not completed its two prostrations, but should cancel it in that case. He should not leave his place because of a little bit of blood, but should wipe it off with his fingers, unless it is flowing or dripping.

One should not build upon an unfinished ™alât after vomiting or having a minor defilement. Someone who has a nosebleed after the imâm says "as-salâmu `alaykum" should return the greeting and go away. {44} If he has the nosebleed before the imâm says "as-salâmu `alaykum", he should go away, wash off the blood, return, sit and then say "as-salâmu `alaykum". Someone suffering from a nosebleed should complete his ™alât at home if he has no hope of getting back in time for the rest of the ™alât with the imâm, except for the Friday afternoon (jumu`a) ™alât, when he should complete his ™alât only in the central mosque.

If a little blood has fallen on the person's clothing he should wash it away, and not repeat his ™alât unless the blood was much. but a spot of filth other than blood, whether large or small [must be washed off]. A person is not obliged to wash away the blood of lice unless it is excessively repulsive.



CHAPTER 13
PROSTRATIONS DURING RECITATION OF THE QUR'ÂN

13.01 Verses where prostration is made

There are eleven places in the Qur'ân where a prostration is indicated. These indispensably require a prostration, and none of them are in the Mufa™™al of the Qur'ân. (100) The passages are:

1. at the end of sûra Alif lâm mîm ™âd [= al-A`râf], where God says, "They celebrate his glory and prostrate" (7:206). When someone prostrates at the recitation of this while doing ™alât, he should then rise and recite from sûra al-Anfâl (8) or another one which is convenient for him. Then he does the bowing and prostration [of the ™alât].

2. in sûra ar-Ra`d, where God says, "their shadows too, in the morning and evening" (13:15).

3. in sûra an-NaĆl: "They fear their Lord who is above them and do what they are commanded" (16:50).

4. in sûra Banû-Isrâ'îl [= al-Isrâ']: "And they fall down on their faces weeping, and this adds to their humility" (17:109)

5. in sûra Maryam: "They fell down prostrating and weeping" (19:58).

6. at the beginning of sûra al-•ajj: {45} "Someone God abases, none can give him honour. For God does what he wishes" (22:18).

7. in sûra al-Furqân: "Shall we prostrate to what you command us And it adds to their aversion (25:60).

8. in sûra al-Hud'hud [= an-Naml]: "God, there is no deity but he, the Lord of the mighty throne" (27:26).

9. in sûra Alif lâm mîm tanzîl [= as-Sajda]: "They celebrate the praise of their Lord, and they are not proud" (32:15).

10. in sûra ņâd: "Therefore he sought the forgiveness of his Lord, and fell down bowing, and repented" (38:24). Another opinion is that the prostration comes at the words, "a near place and an excellent resort" (38:25).

11. in sûra •â mîm tanzîl [= Fu™™ilat]: "Prostrate before God who created them, if you are servants of his" (41:37).

13.02 How the prostration is done

The prostration during recitation should be made only when one has done wu≤û'. "Allâhu akbar" is to be said [going down and coming up]. "As-salâmu `alaykum" is not said afterwards. One may omit the "Allâhu akbar" while getting up, but in our opinion to say it is better.

13.03 When to do or omit the prostration

Someone who recites these verses should make the prostration whether he is doing an obligatory or a supererogatory ™alât. When reciting the verses after doing the ™alât of ™ubĆ, a person should prostrate as long as the sun has not yet taken on a yellow glow.



CHAPTER 14
ņALÂT WHILE TRAVELING

14.01 Travel which requires shortening ™alât

Someone who travels a distance of four barîds, which is equivalent to forty-eight miles, (101) should shorten his ™alât to two rak`as, except that of maghrib which he should not shorten. Also he should not shorten his ™alât until he has passed beyond the houses of the city and they are behind him, with no houses before him or beside him. He should not begin to do the full ™alât until he comes back again {46} to habitation, or is nearer than a mile away.

If a traveler intends to stay in a place four days or where he would do twenty ™alâts, he should do complete ™alâts until he moves from that place.

14.02 Leaving and arriving towards the end of the ≤arûrî time of Ļuhr and `a™r

If someone leaves and has not done the ™alâts of Ļuhr and `a™r, and there remains enough daytime to do three rak`as, he should do them in the shortened way of a traveler. (102) But if there remains only time enough to do one or two rak`as, he should do Ļuhr in the full way of a non-traveler and `a™r in the shortened way of a traveler. (103)

If the person returns from travel having forgotten to do the ™alâts of Ļuhr and `a™r, and there is daytime enough to do five rak`as, he should do them both in the full way of a non-traveler. (104) But if there is only enough daytime to do one to four rak`as, he should do Ļuhr in the shortened way of a traveler and `a™r in the full way of a non-traveler.

14.03 Leaving and arriving towards the end of the ≤arûrî time of maghrib and `ishâ'

If a traveler arrives at night and there is time for one or more rak`as before down, and he has not yet done the ™alâts of maghrib and `ishâ', he should do the three rak`as of maghrib and `ishâ' in the full way of a non-traveler.

If the person goes out, and enough nighttime remains to do one or more rak`as, he should do maghrib and then `ishâ' in the shortened way of a traveler.



CHAPTER 15
THE ņALÂT OF FRIDAY AFTERNOON (JUMU`A)

To hurry to the jumu`a ™alât is obligatory from the time the imâm takes his seat on the minbar and the mu'adhdhins begin the adhân. It is an ancient sunna for them to go to the top of the minaret at this time to call the adhân. From this time selling is forbidden as well {47} as doing anything that prevents attending the jumu`a ™alât. This second adhân was introduced by the Umayyads. (105)

The jumu`a ™alât is obligatory in cities and where there is a crowd. It is also obligatory to have a sermon (khu≥ba) before the ™alât. During it the imâm leans on a bow or a staff, and sits at the beginning during the adhân and during [the pause at] the middle. When he has finished, ™alât is begun. The imâm does two rak`as, reciting the Qur'ân passages aloud. In the first rak`a he reads sûra al-Jumu`a (62) or a similar one; in the second he reads sûra al-Ghâshiya (88) or a similar one.

Those who are in the city or within three miles of it are obliged to come to the jumu`a ™alât, but travelers, those who are in Minâ [throwing pebbles during the Ćajj pilgrimage], slaves, women and minors are not obliged. But if slaves or women are present, they are to do this ™alât, the women standing behind the rows of men. A girl is not to go out [of her house] in order to attend the jumu`a ™alât. (106)

While the imâm gives his khu≥ba, the people should listen to and face him. Ritual bathing (ghusl) is obligatory for the jumu`a ™alât. It is good to come early for the ™alât, but not at the beginning of the day. A person should perfume himself for it and put on his best clothes. It is preferable, in our opinion, to depart after it is over, and not stay to do supererogatory ™alât in the mosque. If the person wishes, he may do supererogatory ™alât before the jumu`a ™alât, but the imâm should not do so; he should mount the minbar as soon as he enters. {48}



CHAPTER 16 (107)
ņALÂT DURING FEAR OF AN ENEMY

During a journey when an enemy is feared, the imâm begins the ™alât, as done in time of fear, with one group, leaving the other group to face the enemy. The imâm with his group does one rak`a; then he stands while the group does another rak`a by themselves, says " as-salâmu `alaykum", and takes the place of their comrades. Their comrades then come and say the " Allâhu akbar" of iĆrâm after the imâm. When the imâm has done his second rak`a with them and said the tashahhud and " as-salâmu `alaykum", they make up the rak`a which they missed and go away.

The same pattern applies to all the obligatory ™alâts but maghrib. For this the imâm does two rak`as with the first group and one with the second.

When people are not traveling, but in extreme fear, the imâm does two rak`as of Ļuhr, `a™r and `ishâ' with each group.

Each ™alât has an adhân and an iqâma. If the fear is very great, they can do their ™alât individually, according as they are able, on foot or riding, walking or running, facing the qibla or not.



CHAPTER 17
THE ņALÂT OF THE TWO `ÎDS (FEAST DAYS)

17.01 How to do the ™alât

The ™alât of the two feast days is an established sunna. The imâm and the people go out to do it {49} at ≤aĆwa (just after sunrise), so that they can arrive at the ™alât grounds in time for the ™alât.

There is no adhân or iqâma. The imâm does two rak`as with the people, in each reciting aloud the opening sûra of the Qur'ân and [in the first rak`a the sûra] SabbiĆ isma Rabbi-ka l-a`lâ (87) or a similar one, and [in the second rak`a the sûra] Wa-sh-shams wa-≤uĆâ-hâ (91) or a similar one. In the first rak`a he says "Allâhu akbar" seven times, including the "Allâhu akbar" of iĆrâm, before the recitation. In the second rak`a he says "Allâhu akbar" five times, not counting the "Allâhu akbar" of rising [to begin the rak`a]. He does two prostrations in each rak`a, and then says the tashahhud and the "as-salâmu `alaykum".

Next the imâm mounts the minbar and addresses the people, sitting at the beginning and at [the pause in] the middle of his khu≥ba, and then departs. It is desirable for him, as well as for the people, to return by a different road than that by which they came.

17.02 On `Îd al-a≤Ćâ

On `Îd al-a≤Ćâ (festival of immolation) [10 Dhû-l-Ćijja] the imâm should go out to the ™alât grounds (mu™allâ) bringing his animal of sacrifice, and slaughter it or [in the case of a camel] pierce its throat, so that the people will know that he has done so. Then they slaughter their sacrifice animals after him. (108)

17.03 Dhikr on way to ™alât grounds

On `Îd al-fi≥r (festival of breaking fast) and `Îd al-a≤Ćâ the people should recall God aloud from the time they leave their houses until they reach the ™alât grounds. When the imâm enters to do the ™alât they should break off the dhikr. They should answer "Allâhu akbar" when the imâm says it during his khu≥ba, and otherwise listen to him.

17.04 Saying "Allâhu akbar" on the days of Minâ (109)

On the days of immolation the people should say "Allâhu akbar" after their ™alâts, beginning with Ļuhr of the [first] day of sacrifice, and ending with ™ubĆ on the fourth day, {50} which is the last of the days of Minâ. On that day they say "Allâhu akbar" after the ™alât of ™ubĆ, and then stop doing so.

"Allâhu akbar" is said three times after these ™alâts. It is good to add to the "Allâhu akbar" (takbîr) a declaration of God's unity (tahlîl) and a declaration of his praise (taĆmîd), saying "Allâhu akbar, Allâhu akbar; lâ ilâha illâ llâh; Allâhu akbar, Allâhu akbar; wa-li-llâhi l-Ćamd". Both this formula and the first [shorter] formula are related from Mâlik; either way is acceptable.

The "known days" (110) are the three days of slaughtering (naĆr); the "numbered days" (111) are the three days of Minâ, namely the three days after the [first] day of sacrifice.

17.05 Preparing for the ™alât

It is good, but not obligatory, to do ghusl for the two feasts. It is also desirable to put on perfume and good clothes and, on `Îd al-fi≥r, to eat before the morning [gathering at the ™alât grounds].



CHAPTER 18
ņALÂT ON AN ECLIPSE (KHUSÛF)

18.01 On an eclipse of the sun

The ™alât of an eclipse is an undisputed sunna. When the sun is eclipsed the imâm goes to the mosque and begins the ™alât with the people without an adhân or iqâma. He recites a long passage quietly, such as sûra al-Baqara (2), then makes a long bow taking nearly as long, and lifts his head to say "God hears the one who praises him". Next he recites a passage shorter than the first one, bows for near the length of time of his second recitation, {51} lifts his head to say "God hears the one who praises him", and then makes two complete prostrations.

Then he stands up, recites a passage shorter than the previous one, bows for about the length of time he took for the recitation, lifts his head as before, then recites a yet shorter passage, bows for a similar length of time, lifts his head again, and makes two prostrations as before. Then he says the tashahhud and "as-salâmu `alaykum".

Anyone who wishes to do this ™alât in his house in the same way may do so.

18.02 On an eclipse of the moon

For the eclipse of the moon there is no ™alât in community, but people should do their ™alât individually on such an occasion. The recitations during it are aloud, as are any other supererogatory rak`as.

18.03 Preaching after the ™alât on an eclipse of the sun

At the end of the ™alât at the eclipse of the sun there is no determined sort of khu≥ba, but it is not bad for the imâm to preach to and admonish the people.



CHAPTER 19
ņALÂT IN REQUEST OF RAIN (ISTISQÂ')

ņ alât to pray for rain is a practiced sunna. An imâm goes out to do it at ≤ aĆwa (just after sunrise), as he does for the two feasts. He does two rak`as with the people, reciting aloud [in the first rak`a the sûra] SabbiĆ ism Rabbi-ka l-a`lâ (87) and [in the second rak`a the sûra] Wa-sh-shams wa-≤uĆâ-hâ (91). He makes one bow and two prostrations in each rak`a, then says the tashahhud and " as-salâmu `alaykum", faces the people, and sits down. When the people are settled, he stands, leaning {52} upon a bow or a staff, and addresses them. He sits down [in the middle] and then rises to finish his khu≥ba.

When the imâm has finished the khu≥ba, he faces the qibla and rearranges his wrapper, placing what was on his right shoulder on his left and vice-versa, but not turning it upside down. The people should do as he does, except he stands while they sit. Then he prays in this position, and when he goes away the people go away.

The "Allâhu akbar" is not said in this ™alât or in that for an eclipse, except the "Allâhu akbar" of iĆrâm, and for going down and rising up. Neither is there an adhân or an iqâma in this ™alât.



CHAPTER 20
CARE AND BURIAL OF THE DEAD

(112)

20.01 Attendance at death

It is desirable to turn the dead person to the qibla (113) and to close his eyes once he has expired. It is better, if possible, for the person as well as his clothing to be clean. It is desirable that no menstruating woman or someone with a major sexual defilement should come near him.

Some scholars permit the recitation of sûra Yâ sîn (36) at the head of the person, but according to Mâlik this should not be done.

There is no harm in weeping and shedding tears at this time, but to maintain well one's composure and endurance is better for those who can do so. It is forbidden, however, to shriek and lament.

20.02 The ghusl bathing

There is no set number of times to do the ghusl {53} for the deceased; it only matters that he be clean. The ghusl, however, should be done an uneven number of times with water and lotus leaves (sidr), while camphor is used the last time. His private parts should be covered. His nails are not to be manicured, nor his hair cut. But his stomach should be pressed lightly.

It is good, but not obligatory, to wash the dead person according to the Wu≤û' of ™alât. It is better to place him on his side while the ghusl is being done, but to sit him up is permitted.

It is not bad for a person to do the ghusl for his dead spouse, although this is not necessary. If a woman dies on a journey and there are with her no women and no man of an unmarriageable relationship to her, (114) another man should wipe her face and hands as in tayammum. If the dead person is a man, and there are no men around to wash him and no women of an unmarriageable relationship to him, the women should wipe his face and arms up to the elbows as in tayammum. If there is a woman of an unmarriageable relationship to him she should do the ghusl for him with his private parts covered. But if a man is of an unmarriageable relationship to a dead woman he should do the ghusl for her over a cloth covering her entire body.

20.03 Shrouding

It is desirable for the dead person to be shrouded in an uneven number of cloths: three, five or seven. The wrapping, tunic and turban which are put on him are counted as an uneven number of cloths. The Prophet was shrouded in three white suĆûl (115) cloths. Yet there is no harm in putting a tunic and a turban on the dead person.

The person must {54} be treated with balm. It should be placed between the winding sheets, in his body [apertures], and on the points of [his body which touched the ground during] prostration [in ™alât].

20.04 Martyrs, suicides, and executed criminals

For a martyr killed in battle the ghusl is not to be done. No ™alât is to be made for him, and he is to be buried in his own clothes. (116)

ņ alât is to be made for someone who has killed himself, and also for one whom the imâm has executed by way of a fixed penalty (Ćadd) or a retaliatory measure (qawad), but the imâm himself should not do the ™alât for him.

20.05 Bringing to the grave

The dead person is not to be followed with a censor. It is better to walk in front of the bier in procession.

The person should be placed in the grave on his right side. Olibanum is poured on him, and the following prayer is said:

"O God, our companion has taken his dwelling with you; he has left the world behind him and heeds what you have for him. O God, steady his speech when he answers the question [of the two angels], and do not afflict him in the grave with what he cannot bear. Let him join his prophet MuĆammad."

20.06 Monuments

Building [monuments] or plastering over graves is disapproved.

20.07 Burying an unbelieving father

If the father of a Muslim is an unbeliever, the son should not ritually bathe him or put him into the grave unless he fears the body would be lost. In that case he should inter him. (117)

20.08 Niche in grave

Scholars prefer digging a side niche to digging a crevice at the bottom for the body. A niche means digging out a space for the body under the rim of the grave in the qibla side wall of the trench. This should be done if the ground is hard and does not pour or cave in. This is the way the Messenger of God was buried. {55}



CHAPTER 21
ņALÂT OVER THE BIER (JANÂZA)

21.01 How to do the ™alât

The " Allâhu akbar" is said four times over the bier. (118) [All] lift their hands for the first, and it is not bad if they do so each time. If they wish, they may make intercessions after each of the four "Allâhu akbar"s and then say "as-salâmu `alaykum". Or, if they wish, they may say "as-salâmu `alaykum" right after the fourth "Allâhu akbar" in place of the intercession.

The imâm stands by the mid-section of a dead man, and by the shoulders of a dead woman. (119)

The single "as-salâmu `alaykum" after the ™alât over the bier is said softly by the imâm and those following him.

21.02 Reward for the ™alât and attendance

There is one measure of reward for doing ™alât for the dead, and another measure for being present at his burial. The greatness of this reward can be compared to the hill of UĆud. (120)

21.03 The first three prayers (du`â')

There are no fixed intercessions for the dead, and any variety of prayers may be said. One recommended prayer is to say: "Allâhu akbar", and then:

Praise be to God who causes death and brings to life; praise be to God who brings the dead to life. To him be greatness, might, rule, power and praise, for he is all powerful.

O God, bless MuĆammad and his family as you gave blessing, mercy and favours to Abraham and his family; for you deserve praise and honour.

O God, this person is your servant and a son of your servant and handmaid. You created him and endowed him; {56} you caused him to die and will bring him again to life. You know best what he did in secret and openly. We have come to you to intercede for him; accept our intercession.

O God, we ask you to hold him close in your protection; for you keep your promises and give protection.

O God, protect him from the ordeal in the grave and from the torment of Hell.

O God, forgive him, show him mercy, wipe away his offenses, and give him well-being; give him an honourable place to live; make the chamber he enters wide, wash him with water, snow and hail; purify him from sins and offenses as a white cloth is purified of stains; give him a better home in exchange for his [former] home, a good family in exchange for his [former] family, and a better wife in exchange for his [former] wife.

O God, if he has done good, increase his [credit for] doing good. If he has done evil, pass over it.

O God, he has taken his dwelling with you and you are the best one to dwell with; he has come in need of your mercy, and you have no need of punishing him.

O God, steady his speech when he answers the question [of the angels], and do not afflict him in the grave with what he cannot bear.

O God, do not deprive us of the reward [of ™alât and sorrow] for him, and do not put us to trouble after him.

The same prayer is said after the second and third "Allâhu akbar".

21.04 The fourth prayer

After the fourth "Allâhu akbar" there is said:

O God, forgive those of us who are living and those of us who are dead, those of us who are present and those of us who are absent, those of us who are young and those of us who are old, those of us who are male and those of us who are female; for you know what transpires in our hearts.

Forgive also our parents and those who have gone before us with faith, Muslim believers both men and women, whether living or dead.

O God, make the new lives you create {57} among us live in faith, and make those you cause to die die in Islam; give us also the happiness of being joined to them. Prepare us to meet death well, and prepare death to meet us well; make us peaceful and joyful at it.

Then you say "as-salâmu `alaykum".

21.05 Prayer for a woman

If the dead person is a woman, you say in the prayer, "O God, she is your handmaid..." and continue to refer to her in the feminine.

You do not say "Give her a better husband in exchange for her husband," since in Paradise she may be the wife of the husband she had in this world. For the women of Paradise are restricted to their husbands and do not desire an exchange. A man in Paradise may have many wives, but a woman will not have many husbands.

21.06 ņalât over several dead at once

It is not wrong to do one ™alât over several dead together. If there are women among the dead they are placed after the men in relation to where the imâm stands. Among the men the most distinguished should be placed nearest to he imâm. After the men come the women, but boys first after the men; all face the qibla. There is no harm in laying all in a single line [from east to west] with the most distinguished nearest to the imâm.

If many are to be buried in one grave, the most distinguished are placed on the qibla side.

21.07 Making up omitted ™alât

If someone is buried without ™alât being made for him, but was simply put in the ground, ™alât should be made at his grave.

If ™alât was already done for a dead person it should not be repeated.

ņalât should be made over a body if most of it is at hand. There is a difference of opinion whether to do ™alât over something as little as a hand or a foot. {58}



CHAPTER 22
BURIAL OF A CHILD

22.01 The first three prayers

After praising God and blessing his prophet MuĆammad, you say:

O God, [this child] is your servant and the son of your servant and handmaid. You created him and endowed him; you caused him to die and will bring him again to life.

So for his parents, O God, make him like money placed on loan, a treasure, an earning held in reserve, and a remuneration. Make the scales of their [good deeds] heavy because of him; make their reward great because of him; do not deprive them or us of the reward [of ™alât and sorrow] for him, and do not put them or us to trouble after him.

O God, put him in the company of his holy believing forebears under the guardianship of Abraham. Give him a better home in exchange for his [former] home, a better family in exchange for his [former] family. Protect him from the ordeal in the grave and from the torment of Hell.

This you say after the first three " Allâhu akbar"s.

22.02 The fourth intercession

After the fourth " Allâhu akbar" you say:

O God, forgive our ancestors, forebears and those who have gone before us with faith. O God, make the new lives you create among us live in faith, and make those you cause to die among us die in Islam. Forgive Muslim believers both men and women, whether living or dead.

Then you say " as-salâmu `alaykum".

22.03 Still-borns

ņalât should not be made for a baby that did not cry out loud. He neither inherits nor gives in inheritance.

It is disapproved to bury a miscarriage at home.

22.04 Who should do the ghusl

There is no harm for a woman to do the ghusl for a small boy {59} six or seven years old.

Men should not do so for a small girl. But there is a difference of opinion [whether men may do so] for a girl who has not reached the age of sexual attractiveness. We prefer the first opinion, [that men should not do the ghusl for her].



CHAPTER 23 (121)
FASTING (ņIYÂM)

23.01 Time and days fasting is obligatory

Fasting during the month of Rama≤ân is obligatory.

The fasting begins with the sighting of the crescent, and normal eating resumes with the sighting of the next crescent, whether this takes twenty-nine or thirty days. If the crescent of Rama≤ân is not visible, a person should count thirty days for the previous month, and then fast. The same holds for resuming normal eating.

A person must form an intention of fasting at the beginning of the fast, and does not need to repeat the intention during the rest of the month.

A person should continue fasting until nighttime. It is a sunna practice to break one's fast immediately [after sunset] and to eat the pre-dawn meal (suĆûr) late. But if there is a doubt whether dawn has come, a person should not eat.

A person should not fast on the day of doubt (30 Sha`bân/ 1 Rama≤ân) and count it as [the beginning of] Rama≤ân. (122) If someone fasts on such a day, his fasting does not count [as fulfilling the Rama≤ân obligation], even if the day really happens to be [the beginning of] Rama≤ân. Yet he may fast voluntarily, [not as part of Rama≤ân], on this day if he wishes. If someone starts the morning without eating or drinking and then finds out that this day is in Rama≤ân, his fast does not count, (123) but he should abstain from food the rest of the day and make up [the day's] fast.

Both a traveler who comes in from a journey on a fast day in which he was eating and a woman who stops menstruating during a fast day may eat during the rest of the day.

Someone who undertakes an optional fast and breaks it either deliberately {60} or because of travel must make it up. But if he eats from forgetfulness he is not obliged to make it up; yet if the fast is obligatory he is obliged to make it up.

23.02 Things voiding or not voiding a fast

There is no harm for a person who is fasting to brush his teeth at any time of the day.

To have one's blood drawn is not disapproved unless it might cause danger.

If someone vomits during the Rama≤ân fast, he is not obliged to make up the fast, but if he makes an effort to vomit and vomits he must make up the fast.

23.03 Pregnant and nursing women

If a pregnant woman fears for the fetus she is carrying, she should eat and not give a food alms [in atonement], although according to another opinion she should give a food alms.

If a nursing mother fears for her child and cannot find anyone to hire to nurse the child, or if the child does not accept anyone but her, she should eat and give a food alms. (124)

23.04 The old

It is desirable for an elderly man who eats to give a food alms.

23.05 The minor atonement of food alms

A food alms in all these cases is a muddu for each fast day which must be made up.

A person must give a similar food alms if another Rama≤ân comes and he has not yet made up the fasting he missed in the previous Rama≤ân.

23.06 The young

Children are not obliged to fast. The obligation begins for a boy when he has wet dreams and for a girl when she menstruates. With puberty [religious] exercises of the body become obligatory for them, for God said: "When your children reach the age of puberty they should ask permission to enter" (Qur'ân 24:59).

23.07 Defilements

If a man has a major sexual defilement and has not purified himself by the time morning comes, or if a woman has stopped menstruating before dawn, and either of them has not ritually bathed until after dawn, their fasting on that day counts.

{61} 23.08 On feast days

Fasting is not permitted on `Îd al-fi≥r of `Îd a≤-≤uĆâ, nor may one fast on the two days following `Îd a≤-≤uĆâ, except someone who is combining the `umra and Ćajj pilgrimages by tamattu` and cannot find an animal for a gift sacrifice (hady). (125) On the fourth day no one should make an optional fast, but someone may fast to fulfil a vow or to resume a fast that was begun before.

23.09 Making up a fast

Someone who forgetfully eats during a day of Rama≤ân must make up the fast only. The same holds for someone who eats because sickness makes it necessary.

23.10 A traveler

Someone who makes a journey wherein his ™alât is shortened has a right to eat, even if there is no necessity to do so. He must merely make up the fast, but in our opinion it is preferable for him to keep the fast instead.

If someone travels less than four barîds (48 miles, 77 kilometers) and thinks that he is allowed to eat and does eat, he need not make atonement, but must merely make up the fast. In fact, anyone who eats because of a [wrong] interpretation does not need to make atonement.

23.11 The greater atonement (126)

Someone must make atonement (kaffâra) as well as make up his fast only if he deliberately eats, drinks or has sexual intercourse.

Atonement for this is to give a food alms to sixty destitute people, a muddu at the standard of the Prophet to each person. (127) This atonement is preferable in our opinion, but the person may alternatively make atonement by freeing a slave or by fasting two consecutive months.

Someone who deliberately eats while making up the fast of Rama≤ân need not make an atonement.

23.12 Unconsciousness at the beginning of day

If someone faints during the night and regains consciousness after sunrise, he must make up the fast [of that day], {62} but as far as ™alât is concerned, he makes up only what was due when he regained consciousness.

23.13 Other prohibitions during a fast

Someone who is fasting should guard his tongue and bodily organs, and respect what God gave respect to in Rama≤ân. (128)

A fasting person should not approach women by way of intercourse, embracing or kissing for the sake of pleasure during the day in Rama≤ân, but at night these things are not forbidden to him. There is no harm when morning comes for someone to be in a state of major sexual defilement because of intercourse, but if someone seeks pleasure during the day from embracing or kissing, and had distillation because of it, he must make up the fast. Moreover, if he does these things deliberately and ejaculates as a result, he must make atonement.

23.14 The tarâwîĆ ™alât (129)

Whoever rises for [the tarâwîĆ ™alât on the nights of] Rama≤ân with faith and in view of God's favour has all the sins he has committed forgiven. Moreover, someone who does only as much of this ™alât as is convenient for him can hope for God's favour and the atonement of his sins thereby.

This ™alât may be done in the mosque with an imâm or, if one wishes, at home. To do it at home is better for someone whose intention is stronger when he is alone. The righteous early Muslims used to do it in the mosques, making twenty rak`as, then three rak`as [for the shaf` and witr], saying "as-salâmu `alaykum" after the [two] shaf` rak`as and before the [last] witr rak`a. Later on their custom was to do thirty-three rak`as besides the shaf` and witr rak`as, but any number one chooses to do is permitted. Only the "as-salâmu `alaykum" is said after every second rak`a.

`Â'isha said: "In Rama≤ân or at any other time the Messenger of God {63} did not do more than twelve rak`as followed by a witr.



CHAPTER 24
RETREAT IN THE MOSQUE (I`TIKÂF)

Retreat, with the withdrawal it entails, is a supererogatory good work. A retreat does not count without fasting; it must be consecutive and done in a mosque, as God said: "...while you are in retreat in the mosques" (Qur'ân 1:187). If the person is to make a retreat in a town over a Friday he should make it only in the central mosque. But he may make it in another mosque if he has vowed days which do not include a Friday.

A retreat should preferably last at least ten days, in our opinion. (130) But if someone vows one or more days, this binds him. If he vows a night he is bound to observe a day and a night.

If someone deliberately breaks the fast during a retreat he must begin it over. So also must one who has sexual intercourse during it, whether at night or in the daytime and whether from forgetfulness or deliberately.

If the person gets sick he should go home, and when he gets well he should take up where he left off. The same holds for a woman who menstruates while she is on retreat. The sacredness (Ćurma) of being on retreat remains with the sick or menstruating person, and whatever hour of the night or day the menstruating woman is purified or the sick person gets well he or she should return to the mosque. (131)

Someone on retreat should not leave the mosque except to take care of nature.

{64} A person should enter his place of retreat before sunset of the night he wishes to begin his retreat. [During the retreat] he should not go out to visit the sick, to do ™alât over the dead, or to trade.

No conditions can be made on the fulfillment of a retreat one is about to undertake. There is no harm in a retreatant's being the imâm of the mosque. A retreatant may marry and conclude a marriage contract for someone else.

Someone who goes on retreat at the beginning or middle of the month may go off his retreat after sunset on the last day of his retreat. But if someone makes a retreat for a time which lasts up to `Îd al-fi≥r, he should spend the night before the `îd in the mosque until he leaves it in the morning for the ™alât grounds. {65}



CHAPTER 25 (132)
ZAKÂT (RELIGIOUS TAX)

25.01 Time of obligation

The zakât on money, farm produce and livestock is obligatory. The zakât on farm produce is due at harvest time, that on money and on livestock at the expiration of each year.

25.02 On farm produce

There is no zakât on grain and dates less than five wasqs, which is equivalent to six and one fourth qafîzes. A wasq is sixty sâ`s of the standard of the Prophet, and a sâ` is four muddus of his standard. (133)

Wheat, barley, and sult barley are taken together for zakât purposes. If their combined volume is five wasqs, the owner must pay zakât on them. Similarly taken together are different kinds of dates, different kinds of beans, and different kinds of raisins. But rice, millet and sorghum are each taken separately and not together. If different kinds of dates are growing in a garden, zakât should be paid for them all together, and should be taken from those of average quality.

Zakât is paid for olives when their volume reaches five wasqs; it is given in the form of oil [from the olives due]. Likewise tax is paid from the oil of sesame {66} and radish seed.

If the owner has sold the produce he may pay the zakât from its price God willing.

Apples and vegetables are not subject to zakât.

25.03 On money

Less than twenty dînârs (134) of gold is not subject to zakât. But if there are twenty dînârs, the zakât is one half dînâr, that is, 2.5 percent. What is over twenty dînârs is taxed at the same rate, even if the additional tax is less than one half dînâr.

Silver is not subject to zakât if it is less than two hundred dirhams, (135) that is, five ûqiyyas; an ûqiyya is forty dirhams when ten dirhams weigh the same as seven dînârs. But if the dirhams total two hundred, then there is a zakât of 2.5 percent, that is, five dirhams. The same percentage applies to sums in excess of two hundred.

Gold and silver are combined for zakât purposes. Someone who owns one hundred dirhams and ten dînârs must pay 2.5 percent of each.

25.04 On merchandise

There is no zakât on merchandise (`urû≤) unless it is for trading. If you sell goods a year or more after the day you got the money to pay for them or the day you paid zakât on this money you must pay the zakât of one year on the sale income, whether the goods were with you a year or over a year before the sale.

But if someone is engaged in transactional trade and doesn't hold onto the goods [for speculative profit], (136) he should estimate the value of his merchandise each year and pay zakât on that together with the money he possesses.

A year is reckoned to elapse for profit gained on capital the same time a year elapses for possessing the original wealth. {67} In the same way a year is reckoned to elapse for the offspring of livestock the same time a year elapses for possessing their mothers. (137)

25.05 If one owes a debt

If someone has possessions for which zakât is due and also owes a debt either equivalent to these possessions or which would reduce his estate below the level subject to zakât, he need not pay zakât, unless he has besides some property not subject to zakât, such as merchandise for his own use, a slave, animals for his own use, real estate, or some income which he could use to pay his debt. In that case he must pay zakât on his possessions [which are subject to zakât]. But if his personal effects are not enough to pay his debt, he should subtract the amount of his debt that remains from what he owns, and if the remainder is an amount subject to zakât he should pay zakât on it.

A debt, however, does not except a person from paying zakât on his grain, dates or livestock.

25.06 If one has claim to a debt

Someone to whom a debt is owed need not pay zakât on this amount until he receives payment, even if it was owed for many years. [The year] after he receives payment, he pays zakât only for one year.

The same holds for merchandise; [it is not subject to zakât] until it is sold. If a person inherits merchandise or a claim to a debt, he should wait a year after collection [before paying zakât on it].

25.07 Minors and slaves

Minors must pay tax for the money, farm produce and livestock they own, and also the zakât of `Îd al-fi≥r.

Slaves and those who are not yet fully freed do not pay any of these forms of zakât. A slave who is freed should mark a year from the day he was freed to pay zakât on what he owns.

25.08 Property for personal use

A person pays no zakât on his slave, servant, horse or house, nor on buildings or merchandise for his own use, or jewelry used for wearing.

{68} If someone inherits or is given any merchandise, or raises crops on his land, and has paid zakât on them, no more zakât is due until it is sold and a year has elapsed after collecting the price for it.

25.09 Mines

Zakât is due on gold and silver which has been mined if it amounts to twenty dînârs [of gold] or five ûqiyyas of silver; the tax is 2.5 percent, due the day it is mined. The same rate holds for what is mined from the same mine afterwards, even if it is less. But if the mine is abandoned and another opened, no tax is to be paid until the amount extracted [from the second mine] reaches a level subject to zakât.

25.10 Levies on non-Muslims

The jizya tax is collected from free adult men of the tolerated classes. It is not collected from their women, children or slaves. It is collected from the Magi (138) and from Christian Arabs. The jizya from the tolerated classes is four dînârs [of gold] or, from those who have silver, forty dirhams. For the poor this amount should be reduced, while their traders who go from one province to another should be charged 10 percent of their sales proceeds, even if they make several trading trips in one year. But if they bring food specifically to Mecca or Medina, they are to be charged only 5 percent of their sales proceeds.

Traders from non-Muslim lands should be charged 10 percent unless they cede something of greater value.

Someone who finds bars [of precious metal] {69} buried by people of the Jâhiliyya times must pay 20 percent.



CHAPTER 26
ZAKÂT ON LIVESTOCK

26.01 Camels

Zakât on camels, cattle, and sheep or goats is obligatory. There is no zakât on camels fewer than five dhawds, that is, five camels. (139) If there are from five to nine dhawds of camels, the zakât is one young sheep or goat whichever is the most common in the locale in its second year. (140)

If there are ten to fourteen dhawds, the zakât is two sheep or goats.

If there are fifteen to nineteen dhawds, the zakât is three sheep or goats.

If there are twenty to twenty-four dhawds, the zakât is four sheep or goats.

If there are twenty-five to thirty-five dhawds, the zakât is a female camel whose mother is pregnant, that is, a female in its second year. If there is no such young camel in the herd, then a male camel whose mother is giving milk [that is, a male in its third year] should be selected.

If there are forty-six to sixty dhawds, the tax is a Ćiqqa, that is, a female camel which can carry a burden on its back and can copulate with a male, in other words, one in its fourth year.

If there are seventy-six to ninety dhawds, the zakât is two female camels whose mothers are giving milk.

If there are ninety-one to one hundred and twenty dhawds, the zakât is two Ćiqqas. For any number of dhawds over {70} this a Ćiqqa is paid for every fifty; or for every forty a female camel whose mother is giving milk.

26.02 Cattle

There is no zakât on fewer than thirty cattle. If there are thirty to thirty-nine cattle, the zakât is a tabî`, that is, a young calf over two years old.

If there are forty cattle, the zakât is a female, and only a female, with its second teeth, that is, in its fourth year.

For any larger number of cattle the zakât is a female in its fourth year for every forty cattle, or for every thirty a tabî`.

26.03 Sheep and goats

There is no zakât on fewer than forty sheep and goats. If there are from forty to one hundred and twenty, the zakât is one young sheep or goat in its second year.

If there are one hundred and twenty-one to two hundred animals, the zakât is three sheep or goats.

For any larger number one sheep or goat is paid for each hundred.

26.04 computation of animals subject to zakât

There is no zakât for numbers of animals that are between two quotas (waqa™). For zakât purposes sheep and goats are taken together; buffalo are taken with cattle; and camels with two humps are taken with dromedaries.

Two owners of herds which are mixed together pay zakât jointly, and settle between themselves the share each must pay. But if the herd of one of them does not contain a number of animals subject to zakât, he is not obliged to pay any zakât.

When the yearly zakât is nearly due, animals which were mixed together are not to be separated, nor are those which were separate to be mixed, in order to escape paying the [full] zakât. If the zakât paid is less {71} because two herds were separated or mixed, the herds should be restored to their prior condition.

26.05 Prohibited forms of payment

A baby sheep or goat is not to be taken to pay zakât; nevertheless it is counted in numbering the owner's herd. Baby calves or camels may not be taken, although they are counted in numbering the herd. Also exempt from being taken as zakât are a billy goat, a skinny old female, a pregnant female, a stud male sheep or goat, a sheep or goat being fattened for slaughter, a mother nursing its offspring, or the best things a man owns.

For zakât on animals, one may not collect merchandise or the price of the animal in place of the animal. But if the collector forces the owner into having the price of the animal instead, that suffices for the owner's zakât God willing.

26.06 If a debt is owed

A debt does not exempt one from paying zakât on grain, dates or animals.



CHAPTER 27
HEAD ZAKÂT ON `ÎD AL-FI√R

Paying zakât on `Îd al-fi≥r (the feast of Breaking Fast) is an established sunna, prescribed by the Messenger of God for every Muslim, young or old, male or female, free or slave. Each person must give a sâ`, (141) at the standard of the Prophet, of the most common staple of the people of his locale, whether wheat, barley, sult, dates, cottage cheese, raisins, millet, sorghum or rice. One opinion is that `alas must be chosen if it is the food of the people; it is a small grain similar {72} to wheat.

A master pays the tax for his slave, and if a minor does not have enough wealth his father pays for him. A man pays the zakât on `Îd al-fi≥r for all his dependents and for any slave whom he has given a writ permitting him to pay for his freedom (mukâtab), even if he is not a dependent, since he is still his slave.

The preferred time to pay this zakât is at sunrise of `Îd al-fi≥r.

To take breakfast before going to the ™alât grounds is preferred on this day, but not on `Îd a≤-≤uĆâ. On both feasts it is preferable to go to the ™alât grounds by one way and return by another.



CHAPTER 28 (142)
PILGRIMAGE

28.01 Obligation of the Ćajj pilgrimage

To make the Ćajj to the sacred house of God in Mecca once in one's lifetime is an obligation binding every free adult Muslim who is able to get there. Being able to get there includes having a route open, provisions to reach Mecca, the power to arrive there, whether riding or on foot, and bodily health.

28.02 The iĆrâm (143)

Pilgrims must put themselves in a state of consecration (iĆrâm) only at set points (mîqât). (144) For the people of Syria, Egypt, and Northwest Africa, this is [when they reach] al-JuĆfa. (145) If they pass through Medina, it is better for them to put themselves in a state of consecration where the Medinan people do, at Dhû-l-•ulyafa. (146) For the people of {73} `Irâq the set point is when they reach Dhât-`Irq. For the people of Yemen it is Yalamlam. For the people of Najd it is Qarn. But if anyone of these people passes first through Medina, he must put himself in a state of consecration at Dhû-l-•ulyafa, since beyond it he will not meet another point where he may put himself in a state of consecration.

Someone puts himself in a state of consecration for the Ćajj or `umra pilgrimage after doing his prescribed or supererogatory ™alât. He says:

At your service (labbayka), O God, at your service. At your service; you have no associate; at your service. Praise, granting favours, and authority belong to you; you have no associate.

While saying this he makes the intention of doing the Ćajj or the `umra pilgrimage.

Before putting himself in the state of consecration, the person is required to do the ghusl and change his clothes, putting away clothes that are sewed in seams. It is desirable for him to do the ghusl again before entering Mecca. (147) He should continue to say the talbiya (148) after doing ™alât, when [coming over] any hill, and when meeting other companies. But he need not be importunate in saying it. When he enters Mecca he should stop saying the talbiya until he makes the circumambulation [around the Ka`ba] and the jog [between a™-ņafâ and al-Marwa]. Then he should resume the talbiya until sunset of the day of `Arafât, when he goes to the ™alât grounds of `Arafât.

28.03 Entering Mecca

It is desirable to enter Mecca by way of Kadâ', the pass above the city, and to go out by way of Kudâ. (149) But no harm is done if a person does not go by these two directions.

[Mâlik] said: "When [a pilgrim] enters Mecca, he should enter the Sacred Mosque." It is preferable to enter it through the gate of Banû-Shayba.

{74} 28.04 The ≥awâf

The pilgrim then kisses the black stone with his mouth if he can; if he cannot, he touches it with his hand and puts his hand to his mouth without kissing it.

Then, with the [Sacred] House on his left, he circumambulates (≥awâf) seven times, three times jogging and four times walking. He kisses the black stone each time he passes around it, in the way described above, or else says "Allâhu akbar". (150) As for the Yamânî corner, (151) he does not kiss it with his mouth, but only touches it with his hand and puts his hand to his mouth without kissing it.

When the pilgrim has finished doing the circumambulation, he makes two rak`as at the station [of Abraham], (152) and kisses the [black] stone again if he can.

28.05 At a™-ņafâ and al-Marwa (153)

Next he goes out to [the mound] a™-ņafâ and stands on top of it to make prayers of request (du`â'). Then he goes to al-Marwa, jogging in mid-course. When he comes to [the mound] al-Marwa, he stands on top of it to make prayers of request. Then he goes back to a™-ņafâ, making the course seven times, thus stopping four times on top of a™-ņafâ and four times on top of al-Marwa.

28.06 At Minâ, 8 Dhû-l-Ćijja (154)

Then, on the day of drawing water (tarwiya), the pilgrim goes to Minâ, where he does the ™alâts of Ļuhr, `a™r, maghrib, `ishâ' and ™ubĆ.

29.07 At `Arafât, 9 Dhû-l-Ćijja

Then the pilgrim goes to `Arafât, (155) saying the talbiya continuously until sunset of the day of `Arafât, when he enters the `Arafât mosque. He should purify himself [by ghusl] before entering, and combine the ™alât of Ļuhr and `a™r there with the imâm.

Then he goes with the imâm to the spot [Jabal ar-RaĆma] where [MuĆammad] stopped in `Arafât, and stays there with the imâm until sunset.

{75} 28.08 At al-Muzdalifa (156)

The pilgrim then pushes on with the imâm to al-Muzdalifa, where he does the ™alâts of maghrib, `ishâ' and ™ubĆ with him.

That morning [after ™ubĆ] he stops with the imâm at al-Mash`ar al-Ćarâm in al-Muzdalifa.

28.09 Back to Minâ, 10 Dhû-l-Ćijja

Near sunrise the pilgrim moves back to Minâ, hurrying his beast through Ba≥n-MuĆassir. When reaching Minâ, he throws seven pebbles like those shot with the fingers at the rock Jamrat al-`Aqaba, saying "Allâhu akbar" each time he hurls a pebble.

Then, if he has an animal, he slaughters it as a gift-immolation (hady), and shaves his head. (157)

28.10 Back to Mecca

The pilgrim then presses on to the Sacred House, where he circumambulates seven times (158) and does [two] rak`as.

28.11 To Minâ again, 11-13 Dhû-l-Ćijja

Next the pilgrim stays three days in Minâ, and in the afternoon of each day throws seven pebbles at the Jamra pillar which is nearest to Minâ, (159) saying "Allâhu akbar" each time he hurls a pebble. Then he throws pebbles at the other two Jamra pillars (160) in the same way, saying "Allâhu akbar" each time he hurls a pebble.

After throwing pebbles at the first and second Jamra pillars, he stops to make prayers of supplication. He does not do this at Jamrat al-`Aqaba, but departs right away. Thus after throwing pebbles on the third day, which is the fourth day of the time of sacrifice, he departs for Mecca, and his Ćajj is completed. But if he wishes he may shorten the days he spends at Minâ to two, and leave after throwing pebbles [on the second day].

28.12 Leaving Mecca

When leaving Mecca, the pilgrim should do the circumambulation of taking leave (≥awâf al-wadâ`) and [two] rak`as, and then depart.

28.13 The `umra pilgrimage

For the pilgrimage of `umra a person does as described above, up {76} to and including the jogging between a™-ņafâ and al-Marwa. Then he shaves his head, and his `umra is completed.

28.14 Hair cutting to terminate the iĆrâm

To shave one's head is better [after] both the Ćajj and the `umra pilgrimages, but a short haircut is sufficient. Yet a short haircut must include the whole head of hair.

For a woman it is a sunna to shorten her hair; she may not shave her head. she should cut a finger width's length from the end of all her hair, both where it is long and where it is short. A man, however, cuts his hair short measuring from the roots.

28.15 Requirements of iĆrâm (161)

It is not wrong for a person in the state of consecration to kill a mouse, a snake, a scorpion, or the like. He may also kill a mad dog and dangerous animals like wolves or lions. But he may kill only those birds which may cause damage, such as crows and kites. (162)

While making a Ćajj or an `umra pilgrimage, a man must avoid [sexual contact with] women, perfume, seamed garments, hunting, killing animals, and removing a blemish [from himself].

During the state of consecration the person should not cover his head or shave it unless for a necessity. In that case he should redeem what he did by fasting three days, or by feeding six destitute people two muddus each at the muddu standard of the Prophet or by slaughtering a sheep in reparation in any land he wishes.

A woman in the state of consecration should wear shoes and her [ordinary] clothes; otherwise she avoids such things a man avoids. The state of consecration for a woman shows in her face and hands, while that of a man shows in his face and head.

A man does not wear shoes while he is in the state of consecration unless he can find no sandals. [If he must wear shoes], he should cut them short below the ankles.

28.16 Combining the Ćajj and the `umra pilgrimages

To make the Ćajj by itself is better, in our view, than [joining it with the `umra by] tamattu` or qirân.

{77} If someone other than an inhabitant of Mecca follows either of he latter practices he must make a gift offering (hady) at Minâ by slaughtering it (dhabĆ) or [in the case of a camel] piercing its throat (naĆr); this is if he had stopped with it in `Arafât. But if he did not stop with it there he should slaughter it in Mecca, [or better], at al-Marwa, after bringing it in from outside the sacred territory.

If the pilgrim cannot find any sacrificial animal, he should fast three days during the Ćajj, that is, from the time he puts himself in the state of consecration until the day of `Arafât. but if he misses fasting three days during this time, he should fast during the [three] days of Minâ. The pilgrim should add seven more days of fasting when he returns [home]. (163)

28.17 By tamattu`

The way to [combine the `umra with the Ćajj by] tamattu` is first to put oneself in the state of consecration for the `umra, then to come out of the `umra state of consecration during the months of the Ćajj, and to make the Ćajj that same year before returning to one's country or any other distant country. Such a person may put himself in the state of consecration [for the Ćajj] starting in Mecca if he is there. (164) but someone who wishes to make the `umra and then go outside the sacred territory may not begin his state of consecration in Mecca.

28.18 By qirân

The way to [combine the `umra with the Ćajj by] qirân is to put oneself in the state of consecration for the Ćajj and the `umra together, beginning with the `umra when making the intention. If someone [puts himself in the state of consecration for] the Ćajj after [having done so for] the `umra and before making the circumambulation and the rak`as, that suffices for practicing qirân.

28.19 Particulars on tamattu` and qirân

The people of Mecca do not have to sacrifice an animal for the tamattu` or the qirân.

Someone who finishes the `umra before the months of the Ćajj and then does the vajj in the same year is not practicing tamattu`.

28.20 Atonement for hunting while in iĆrâm (165)

Someone who hunts and shoots an animal [while in the state of consecration] must make reparation in the form of livestock equivalent to what he killed, as two Muslim lawyers of good character shall determine. (166) The place to make the reparation is Minâ if {78} the person stopped with the animals in `Arafât; otherwise he makes it in Mecca, bringing the animal from outside the sacred territory.

The person is free to choose doing this or to make the atonement of feeding the destitute. If he chooses the latter, he takes food equivalent in value to what he shot and distributes it in alms.

Another choice is for him to make atonement equivalent to the food in fasting, that is, by fasting one day for each muddu he was to distribute and a whole day for any remaining portion of a muddu.

28.21 Going home

To make the `umra pilgrimage once in one's lifetime is an established sunna.

When departing from Mecca after making a Ćajj or an `umra pilgrimage it is desirable to say:

[We are] returning [to God in death], repentant, serving our Lord and praising Him. God was true to His promise, gave victory to his servant, and defeated the confederate enemies Himself alone.



CHAPTER 29
IMMOLATION AND RITUAL SLAUGHTERING,
`AQÎQA IMMOLATION, HUNTING & CIRCUMCISION

29.01 Animals for feast day and pilgrimage gift immolations

To make a feast day immolation (167) is an established sunna, binding anyone who can do so.

A sheep for immolation must be at least a year old, although another opinion holds for eight months, and another for ten months. A goat must have its second teeth, that is, it must have completed its first year and begun its second. Goats, cattle and camels must at least have their second teeth. For cattle this means one which has {79} begun its fourth year, and for camels one which has begun its sixth year.

For the feast day immolation of a sheep a breeding ram is preferred to a castrated one, while a castrated ram is preferred to a female, and a female to a male or female goat. Similarly a breeding male goat is preferred to a female, and a female goat to a camel or a bull. Yet for a gift immolation (hady), (168) a camel is preferred, then a bull, then a sheep, then a goat.

In any case, it is not permitted to select a one-eyed or a sick animal, nor a lame one whose ribs show, nor an emaciated one with no fat, nor one with any kind of defect. Neither is it permitted to select one with a slit ear, unless it is only slit a little; the same holds for one with part of its ear cut off. An animal with a broken horn is not permitted if it is bleeding, but if it is not bleeding it is permitted.

29.02 time of immolation

Using his own hand, a man should cut the throat of his animal for immolation after the imâm has cut or pierced the throat of his animal on the morning of `Îd al-a≤Ćâ. Anyone who slaughters his animal before the imâm does must immolate another animal. People who do not have an imâm should gauge themselves by the ™alât and slaughtering carried out by the imâm nearest to them.

If someone makes a feast day or a gift immolation at night, it does not count.

There are three days for immolation, and the animal's throat may be cut or [for a camel] pierced up to sunset of the last day. But the first day is preferred. {80} If someone misses doing it before sunset of the first day, the opinion of some scholars is that he should preferably wait until mid-morning (≤uĆâ) of the second day.

No part of the immolated animal is to be sold, neither the skin nor anything else.

29.03 Ritual of sacrifice

During the slaughtering the animal should be faced towards the qibla. The one slaughtering should say "Bi-smi llâhi wa-llâhu akbar". It is not bad if he also says, with reference to the immolation, "Lord, receive [this] from us" (Rabba-nâ taqabbal min-nâ). If someone forgets to say "Bi-smi llâhi" when slaughtering an animal as a feast day immolation or for any other purpose, it may be eaten. But if he deliberately omits the "Bi-smi llâhi", the animal should not be eaten. The same holds for sending out predatory animals to hunt.

29.04 Use of animals for various kinds of sacrifice

Meat from an animal immolated for a feast, or in honour of a child of eight days (`aqîqa), or for expiation should not be sold. Neither should the skin, the fat, the sinews or anything else.

A man may eat of his feast day immolation, but to give the meat out in alms is preferred, although not obligatory.

A man may not eat any part of an animal he slaughtered to expiate a wrong, or to make reparation for hunting [while in the state of consecration for Ćajj], or to fulfil a vow in favour of the destitute, nor any part of an animal slaughtered as a voluntary gift immolation if it was injured before the time of carrying out the slaughtering. Anything else he may eat if he wishes.

29.05 Ritual slaughtering (dhakât)

Ritual slaughtering is cutting the larynx and the jugular veins. Any incision less than this does not suffice.

If someone takes his hand away after cutting part way and then puts his hand back and finishes off the animal, it should not be eaten.

If someone continues cutting until he removes the head, he does wrong, but the animal may be eaten.

{81} If someone slaughters an animal by cutting from the back of its neck, it should not be eaten.

Cattle should be slaughtered by cutting their throats, but if their throat is pierced they may be eaten.

Camels should be slaughtered by piercing their throats; if their throat is cut they may not be eaten, although according to another opinion they may.

Sheep and goats should be slaughtered by cutting their throats, and should not be eaten if their throats are pierced, but there is a difference of opinion regarding this also.

The ritual slaughtering of an embryo is accomplished by the ritual slaughtering of its mother if its formation is complete and it has hair. (169)

29.06 Forbidden foods and animal by-products (170)

If an animal dies by being strangled with a rope or other material, by being hit by a club or by anything else, by falling, by being gored, or by being eaten by predatory animals, it may not be eaten. Neither may it be eaten if it is mortally wounded by any of these ways, even if it is ritually killed.

Yet it is not wrong for someone in necessity to eat a dead animal not ritually slaughtered. He may even eat to his fill and store up the meat. But if he no longer needs it he should throw it away. Neither is it wrong for him to make use of the skin of the animal if it is tanned. But he should not do ™alât on it or sell it.

It is not wrong to do ™alât on the skins of predatory animals or to sell them, if the animals were ritually slaughtered.

It is disapproved to make use of the tusks of an elephant, but there is a difference of opinion concerning this.

Melted fat, oil or honey in which a mouse dies should be thrown out and not eaten. It is not wrong to burn {82} this oil or other [spoiled material] in lamps other than in mosques. Yet one should be on guard against [touching] it. (171) If the fat or oil is hard, the dead mouse and surrounding fat or oil should be thrown out, while the rest may be eaten. SaĆnûn added: "unless the dead mouse was in it a long time; in that case all the fat or oil should be thrown out".

It is not wrong to eat food [prepared by] Jews or Christians or meat slaughtered by them, (172) but to eat fats [of animals slaughtered] by Jews is disapproved without being forbidden. Animals ritually slaughtered by the Magi should not be eaten, but meatless food prepared by them is not forbidden.

29.07 Hunting

Hunting for sport is disapproved, but if it is not for sport it is allowed. Any animal a trained dog or falcon is sent after to kill may be eaten. The same holds for an animal wounded in its vital parts by predatory animals before you could ritually slaughter it. Yet if you get to the animal before it is wounded in a vital part, it must be ritually slaughtered to be eaten.

Any animal you shoot with an arrow or a spear you may eat; but if you reach it and can ritually slaughter it, do so. If it dies by itself, eat it, as long as your arrow killed it and a night has not passed before you find it.

Another opinion is that prey killed by predatory animals and found only after a whole night may not be eaten, but an animal killed by an arrow found in its vital parts [after a whole night] may be eaten.

The conditions which permit the eating of a hunted animal do not apply to domestic animals.

29.08 `Aqîqa immolations

The `aqîqa immolation of a sheep (173) made {83} for a new born child on its seventh day is a desirable sunna. The sheep must be of the same age and be slaughtered in the same manner as is required for a feast day immolation, as described above. The day the child was born is not counted among the seven. The animal should be slaughtered at mid-morning (≤ aĆwa). The child should not be rubbed with any of its blood. Part of the animal is eaten and part is given in alms. Its bones are broken.

It is desirable and good to shave the hair of the child's head and give in alms the weight of the hair in gold or silver.

It is not bad for the child's head to be rubbed with perfume, instead of blood as the people of the Jâhiliyya used to do.

29.09 Circumcision (khi≥ân) (174)

Circumcision is an established sunna for males, and cliterectomy is respectable for women.



CHAPTER 30 (175)
JIHÂD (HOLY WAR)

30.01 How and when obligatory

Jihâd is an obligation which some people fulfil in place of others.

In our opinion, it is preferable not to fight the enemy until they are called to the religion of God, unless they precipitate [hostilities] towards us. When [they are called to the religion of God, they have the choice of] becoming Muslims or of paying the jizya; (176) otherwise war should be made on them. The jizya should be collected from them only if they live where our administration governs them. If they are far from us, no jizya should be collected from them unless they travel to our lands but war should be made on them.

Fleeing from the enemy is a major sin if they are twice the number of the Muslims or less. But if they are more than twice the number {84} of the Muslims it is not wrong to flee.

All governors, whether of good or evil character, should be followed in fighting the enemy.

It is not wrong to kill a non-Arab unbelieving prisoner, but no one is to be killed after being given a guarantee of safety (amân), and treaties with the enemy are not to be violated. Women and children are not to be killed; neither are monks or clergy unless they take part in the fighting. Likewise a woman may be killed if she takes part in the fighting.

The least [prominent] Muslim may give a guarantee of safety [binding] all other Muslims. So may a woman or a child, if she or he understands what a guarantee of safety is. Another opinion is that women and children may give a guarantee of safety only if the imâm permits them.

30.02 Booty (ghanîma) (177)

Of the booty Muslims take in the fray of battle the imâm should take one fifth and divide the other four fifths among the members of the army. it is better to make this division on the site of the battle. The apportionment of a fifth and the division of spoils applies only to what was looted in the actual fighting of a battle in which horses and riding camels were used. (178)

It is not wrong to eat some of the food taken as booty before it is divided, while fodder belongs to whoever needs it.

Booty is divided only among those who were present in the fighting or were absent because of service to the Muslims in the war effort.

Shares are allotted to one who is sick and to a horse with a foot wound. Two shares are counted for the horse and one for its rider. No share goes to a slave, a woman, or a minor, {85} except to a minor under the age of puberty who is capable of fighting, has the permission of the imâm, and actually enters the battle. In that case he receives a share. A mercenary receives no share unless he takes part in the battle.

If an enemy becomes Muslim and has in his possession something he had looted from Muslims, he may keep it. If someone buys from the enemy anything [looted from Muslims], the [rightful] owner may claim it only by paying its price. If anything which had been looted from Muslims [mistakenly] fell among the shares which were distributed, the owner has a right to claim the item by paying its price, but if the item is not yet distributed, the owner may claim it without paying anything.

No bonus (nafal) (179) should be given to anyone except what the imâm might award for valor from his own fifth part. It is not to be given before the loot has been secured. Personal effects despoiled from the enemy (salb) are included among bonus items.

30.03 Forts (180)

Forts (ribâ≥) at landing places are very advantageous, the more so as the local people are in greater fear and are taking more precautions against the enemy.

30.04 Raids

No one should go on a raid (ghazw) without permission from his parents. But if the enemy surprises a city and attacks its people, [all] are obliged to fight off the enemy, and permission from one's parents is not required.



CHAPTER 31 (181)
OATHS AND VOWS

31.01 Form of an oath (yamîn)

Someone who swears should swear by [the name of] God or keep silent.

Anyone who swears that if he does not keep his word he will dismiss his wife or free his slave should be punished, but this oath binds him. No escape clause (182) [in this oath] holds, and no atonement may be accepted [in place of fulfilling the oath], unless {86} the oath is made in [the name of] God or one of his names or attributes.

If someone adds an escape clause, he need make no atonement [for not fulfilling his oath] if: 1) he intended to make an escape clause, 2) he said "God willing" (in shâ' Allâh), and 3) he said this in continuation to his oath with no interval of silence otherwise the escape clause does not hold.

31.02 Kinds of oaths

Oaths made in [the name of] God are of four kinds. Two require atonement [for not fulfilling them]; these are to swear: 1) "By God, I will not do it", (183) or 2) [By God], certainly I will do it". (184) Two others do not require atonement: 3) One of these is a mistake (laghw) in the oath, that is, to swear to something thinking it is certainly so, and then find out that it is not so; no atonement is due for this, nor has any crime been committed. 4) The other is to swear to a statement while knowing that it is false, or while being in doubt of its truth. This is a crime, and is not atonable, but the person must repent of it to God.

31.03 Atonement (kaffâra)

To atone [for not fulfilling an oath] one may: (185)

1. feed ten free Muslim destitutes a muddu each at the muddu standard of the Prophet . In our opinion it is preferable to add another third or half to each muddu, as the fluctuating market price of the average food staple (186) permits. Even so, to give one muddu each suffices.

2. clothe ten free Muslim destitutes. To do so, the atoner should give a tunic to each man, and a tunic and a veil to each woman.

3. free a slave who is a believer.

4. If the atoner cannot do any of the previous things, he should fast three {87} consecutive days, yet his fast counts if the days are not consecutive.

A person may make atonement before or after breaking his oath, but in our opinion it is preferable to make atonement afterwards. (187)

31.04 Vows (nadhr)

Someone who vows to do something which God commanded must do it, but someone who vows to do something which God forbade must not do it, and is not held to make an atonement. If someone vows to give something belonging to another in alms or to free someone else's slave, he is not held to do so.

If someone [making an oath] says: "If I do such and such, then I am under vow to do such and such", specifying a good deed like ™alât, fasting, the Ćajj or `umra pilgrimage, or a stated alms, he is bound to do the good deed if he breaks his oath, just as he would be bound to do the good deed if he had simply vowed to do it without making it part of an oath. If the person does not specify the work he is under vow to do if he breaks his oath, he must make an atonement for breaking the oath.

31.05 Oaths and vows to do wrong

If someone vows to do something forbidden, such as killing a person or drinking wine, or something which God neither said to do nor forbade, he is not held to do it or to make atonement, but should ask God's forgiveness.

If someone, however, swears an oath by God to do something forbidden, he must make atonement for this oath, and not do what he swore to do. If he nevertheless goes ahead and does it he has committed a crime, but does not have to make atonement on account of his oath [to commit a crime].

31.06 Fulfillment or atonement for various oaths and vows

If someone says, while swearing an oath, "I am bound by the pact (`ahd) and the covenant (mîthâq) of God [if I do something], and breaks his oath, he must do two atonements. But if someone reinforces his oath and repeats it, yet swears only by one thing, he must do only one atonement.

If someone swears that if he does a certain thing he has taken other deities besides God or that he is a Jew or a Christian, {88} his oath does not hold, and he is bound only to ask pardon from God.

If someone [swears to] forbid himself something which God has permitted, his oath does not hold, except if he does so with reference to his wife. She thereby becomes [divorced and] forbidden to him until after she is married [to and divorced from someone else].

If someone [by oath or vow] promises to spend [all] his possessions in alms or gift sacrifices [to be made in Mecca], it suffices for him to pay a third.

If someone swears [or vows] to immolate his son at the station of Abraham, (188) he should slaughter an animal in Mecca as a gift immolation; a sheep suffices. But if [in his oath or vow] he did not mention the station of Abraham, he is not bound to do anything.

31.07 An oath or vow to go to Mecca (189)

If someone swears to walk to Mecca [if he does or omits something], and breaks his oath, he is held to go walking on a Ćajj or an `umra pilgrimage, as he chooses, starting from the place where he made the oath. If he is unable to walk he should ride. Then he should return on a second pilgrimage if he can, walking the stretches he had ridden before. (190) But if he knows that he cannot return, he should make a gift immolation instead, and stay home. `A≥â' [ibn-abî-RabâĆ] (191) said that even if the person is able, he does not have to return for a second pilgrimage, but may make a gift sacrifice instead.

If the person who swore to walk to Mecca is going for the first time, he should make this visit an `umra pilgrimage. When he has made the circumambulation and the jogging [between a™-ņafâ and l-Marwa] and has shortened his hair, he must then, at Mecca, put himself in the state of consecration to fulfil the obligation of the Ćajj pilgrimage, thus joining the two pilgrimages by way of tamattu`. Ordinarily it is better to shave one's head [after a pilgrimage], but, in our opinion, one who swore to walk to Mecca should preferably shorten his hair only, in order to leave some hair for the Ćajj pilgrimage.

Someone who vowed to walk to Medina or Jerusalem may ride to these places if he intended to do ™alât in their mosques. but if he did not make such an intention, he is not held to do anything.

If someone vows to go and do ™alât in any other mosque than these three, {89} he is not held to go, whether by walking or riding, but should do the ™alât where he is. (192)

31.08 Vow to service a fort (193)

If someone vows to service a fort at some landing place, his vow binds him.



CHAPTER 32
MARRIAGE AND FORMS OF DIVORCE

32.01 Constituents of marriage (nikâĆ)

No marriage is valid without a matrimonial guardian (walî), (194) a dower (™adâq), (195) and two witnesses of good character. If the witnesses were missing, the marriage may not be consummated until they witness the contract.

The minimum amount a dower can be is one quarter of a dînâr.

32.02 Power of matrimonial guardian

A father may give his unmarried daughter (bikr) (196) in marriage without her consent, even if she has reached puberty. But if he wishes, he may consult her. Someone other than her father, like a testamentary guardian (wa™î), may not give her in marriage until she has reached puberty and has given her consent. Her silence is taken as giving consent.

Neither a father nor anyone else may give in marriage a daughter of his who was married before (thayyib) (197) against her will; she must give her consent orally.

A lady may not be married without the permission of 1) her matrimonial guardian, or 2) a judicious person among her people, such as a man of her tribe, or 3) the sultan. There is a difference of opinion as to whether a woman of lower class may authorize a stranger to act as her matrimonial guardian. (198)

[As for precedence among matrimonial guardians of a previously married woman], her son comes before her father, and her father before her brother; thereafter whoever is nearest among her agnate relations has greater right. But if someone further removed gives her in marriage, the marriage is valid.

A testamentary guardian may give in marriage a minor boy in his charge, but not a minor girl, unless her father authorized him to do so.

{90} Only agnates, and not cognates, can be matrimonial guardians.

32.03 Competition among suitors

A man many not seek in marriage a girl already betrothed to another, just as he may not outbid another when the bargaining partners are satisfied and near agreement on a sale. (199)

32.04 Forbidden types of marriage

Forbidden are: 1) a shighâr marriage, that is, one in which a girl [in one man's charge] is given in exchange for a girl [in another man's charge without a dower], 2) a marriage without a dower, 3) a mut`a marriage, that is, one for a limited time, (200) and 6) a dower consisting of something which may not be sold.

A marriage which is invalid (fâsid) by reason of the dower is to be dissolved if the marriage has not been consummated. If it has been consummated, the marriage holds, but the man must pay a fitting dower.

If a marriage is invalid by reason of the contract and is dissolved after consummation, the woman must be paid the dower which had been fixed. Moreover, as a result forbidden relationships are established [with her relatives], just as is the case after the dissolution of a valid marriage; only this invalid marriage does not make a woman free to remarry a previous husband who had divorced her by three declarations, nor does it make the parties maritally restricted (muƙan). (201)

32.05 Forbidden degrees

God has forbidden marriage with seven classes of women because of blood relationship (qarâba), and seven more because of wet-nursing or marriage relationships. God said: "Forbidden to you are 1) your mothers, 2) your daughters, 3) your sisters, 4) your paternal aunts, 5) your maternal aunts, 6) your brother's daughters, and 7) your sister's daughters" (Qur'ân 4:23); these are blood relatives.

As for those related by wet-nursing or marriage, God added: "1) your mothers by wet-nursing, 2) your sisters by having had the same wet-nurse, {91} 3) your mothers-in-law, 4) your stepdaughters (rabîba) living in your house with whose mothers you have had sexual relations; but if you have not had relations with their mothers, the daughters are not forbidden to you. Also forbidden are 5) your daughters-in-law (Ćalîla), that is, wives of your physical [not adopted] sons, and 6) your wife's sister, unless you married her before [you became a Muslim] (202)" (Qur'ân 4:23).

The Prophet, moreover, forbade marriage with women of any blood relationship (nasab) to one's wet-nurse which would be forbidden if the wet-nurse were the person's real mother. he also forbade marriage with a woman together with her paternal or maternal aunt.

If a man has married a woman, even if he never touched her, it is forbidden by the very contract for his male ascendants or descendants ever to marry her. For the man's part, he may never marry her female ascendants, but her daughters [from a previous husband] are not forbidden to him until he has had intercourse or other sexual pleasure with her by right of marriage or ownership, even a putative marriage or ownership.

A woman a man may legitimately marry does not become forbidden because of his illicit intercourse (zinâ') [with her mother or daughter].

32.06 Intercourse with non-Muslim women

God forbade sexual intercourse with unbelieving women whether by right of ownership or of marriage, except if they are Jews or Christians (ahl al-kitâb). (203) Intercourse is permitted with Jewish or Christian women by owning them as slaves or by marrying them if they are free. But neither a free nor a slave Muslim man may marry and thereby have intercourse with a Jewish or Christian slave woman. (204)

32.07 Marriage to slaves and stepmother's children

A woman is not allowed to marry her slave nor the slave of her son or daughter. Neither is a man permitted to marry his slave woman or his son's or daughter's slave woman. But he may marry a slave woman belonging to his father or mother.

A man may marry the daughter to one of his father's other wives by {92} a different husband than his father. [Thus also] a woman may marry the son to one of her father's other wives by a different husband.

32.08 Number and condition of wives

A free man or a slave may marry four free women, whether Muslim Jewish or Christian. A slave may marry four Muslim slave women; a free man may do so also if he fears committing illicit intercourse (`anat) and cannot raise the dower to marry a free woman. (205)

32.09 A man's duties towards his wives

A man must practice equality with his wives, and give them maintenance (nafaqa) and lodging according to his ability.

A slave woman, even if she has borne her master a child, has no right to a regular turn at spending the night with him.

Support is not due until the man has had intercourse with his wife, or has been invited to do so and she is capable of intercourse.

32.10 A tafwî≤ marriage

A tafwî≤ marriage (206) is permitted. It is one which the parties contract without mentioning the dower. But the man may not have intercourse with the woman until he gives it to her.

If the man gives her a fitting dower (™adâq al-mithl) she must take it, but if the dower is less she has the choice of accepting it or not. If she refuses it the two are to be separated, unless he persuades her to agree or decides to give her a fitting dower. If he does so, she must accept it.

32.11 Effects of change of religion

If one party to a marriage abandons Islam, the marriage is dissolved by repudiation (≥alâq), although, according to another opinion, repudiation is not required for dissolution.

If two unbelieving parties to a marriage become Muslim, they should continue in their marriage. If only one of them becomes a Muslim the marriage is dissolved automatically, without repudiation. (207)

If a woman becomes a Muslim and her husband subsequently becomes Muslim during her `idda period, he has first claim to have her in marriage.

If a man becomes a Muslim and his wife is a Jew or a Christian, he should keep her. If she was a Magi and became a Muslim {93} right after her husband, they remain married, but if she delays (208) in becoming Muslim she must be separated from him.

If a polytheist becomes a Muslim and has more than four wives, he must choose four and dismiss the rest.

32.12 Various impediments

Someone who curses his wife for adultery shall never marry her again. The same holds for someone who marries and has intercourse with a woman during her `idda period.

A slave man or woman may not marry without the permission of his or her master.

No woman, or slave, or non-Muslim shall contract marriage for a woman.

A man is not permitted to marry a woman in order to make it legitimate for her former husband to remarry her after having repudiated her by three declarations, nor does such a marriage in fact make it legitimate for the former husband to marry her.

Someone in the state of consecration for pilgrimage shall not himself marry, nor shall he contract a marriage on behalf of someone else.

32.13 Sickness

A man who has a terminal illness may not marry. If he does so, the marriage should be dissolved. Yet if he has consummated it [and dies], his wife has a right to the dower for the disposable third of his estate in preference to his legatees, but she has no right of inheritance. (209)

If a [terminally] sick man divorces his wife he is bound by this action, but she retains the right of inheriting from him if he dies during this illness.

32.14 Repudiation (≥alâq) and its revocation (raj`a) (210)

If someone repudiates his wife by three declarations, he is forbidden to have relations with her again by right of ownership or of marriage, except after she has been married to [and divorced from] someone else.

To repudiate a wife by three declarations made at one time is an unwarranted innovation (bid`a), but holds if it is done.

To repudiate one's wife in accord with sunna practice is allowed (mubâĆ). (211) This means that the husband repudiates her 1) while she is in a state of purity [from menstruation] and 2) he has not approached her sexually during this period. 3) The declaration should be a single one, and 4) he should not make a second declaration of repudiation until her `idda period [following the first declaration] has transpired.

{94} If a woman has menstruations, her husband may revoke his epudiation of her (212) as long as she has not begun her third menstruation, in the case of a free woman, or her second, in the case of a slave woman.

If a woman is not menstruating for the time being, or has ceased altogether, her husband may repudiate her whenever he wishes. The same is true of a pregnant woman.

The repudiation of a pregnant woman may be revoked any time before she delivers. So may that of a woman who is observing an `idda period by months [rather than by menstruations], until the end of her `idda period. The word "qur'" (Qur'ân 2:228) (213) means the state of purity [between menstruations].

A man is forbidden to repudiate his wife while she is menstruating. If he does so he is bound by his act, but he should be compelled to revoke his repudiation as long as her `idda period has not transpired.

If a man has not had intercourse with his wife, he may repudiate her whenever he wishes.

One declaration suffices to put her away, while three make it forbidden for him to remarry her unless she is subsequently been married to someone else.

If a man says to his wife "you are repudiated" (anti ≥âliq), this is counted as one declaration unless he intended more than that.

32.15 Release (khul`) (214)

Release does not admit of revocation. It takes place even if the man does not mention the word repudiation, by the fact that his wife gives him something on the basis of which he releases her from [marriage to] himself.

32.16 Formulas of repudiation

If someone says to his wife "You are repudiated once and for all" (anti ≥âliq al-batta), this is taken as three declarations, whether he had intercourse with her or not.

If he says "You are free" or "set loose" or "forbidden [to me]" or "üou have free rein", this is taken as three declarations if he has had intercourse with her, but if he has not, [in order for his statement to be equivalent to three declarations], he must declare his having intended it to be so.

32.17 Rights of repudiated wives

A woman who is repudiated before her husband consummated the marriage has a right to half the dower, unless, having been married before (thayyib), she chooses to renounce it. If she was not married before (bikr), the choice of renouncing half the dower belongs to her father, or to her master if she is a {95} slave.

Someone who divorces his wife must give her a severance award (mut`a), (215) but is not to be forced to do so. If he has not had intercourse with her and has given her [half] the dower, he need not give her a severance award. Neither must he give a severance award to a woman who obtained a release (khul`) from him.

32.18 Rights of wives on death of husband in a tafwî≤ marriage

If a man dies leaving a wife for whom he has not paid the dower nor had intercourse with, she has a right to [a wife's portion of] the inheritance, but not to a dower. If he had intercourse with her, she receives a fitting dower (™adâq al-mithl), unless she had settled for another definite payment [which is lower].

32.19 Physical grounds for dissolution

A woman who is found to be demented, leprous with mutilation (judhâm) or whiteness (bara™), or having a genital ailment may be returned. If the man had intercourse with her not knowing her condition, he must pay her the dower, but may recover it from her father or her brother, if her brother gave her in marriage. But if a guardian not closely related to her gave her in marriage, the husband may not claim anything from him, and the woman is entitled only to one quarter of a dînâr.

If a man is impotent he should be given a year [to see if he gets better]. If he succeeds in having intercourse with his wife, [she must remain with him]; otherwise she may have a divorce if she wishes.

32.20 A missing husband

A missing husband (mafqûd) should be given four years [to reappear], beginning after his wife reports the matter and the search for him ends. Then she enters an `idda period the same as for a dead husband, and afterwards may marry if she wishes. But his estate is not given in inheritance until his presumed life-span has elapsed. (216)

32.21 During `idda period

A woman may not be betrothed during her `idda period. But it is not wrong for her to be courted with respectable language.

32.22 Newly weds

Someone who marries a previously unmarried woman (bikr) may spend seven nights with her to the exclusion of his other wives. If she was married before (thayyib), he may spend three nights with her.

{96} 32.23 Forbidden degrees among slave women (217)

A man may not have intercourse with two sisters whom he owns. If he wishes to have intercourse with the second one, he must put the first one in a forbidden relationship to himself by selling her, giving her a writ allowing her to purchase her freedom (kitâba), freeing her outright, or giving her any like status in which she is forbidden to him.

Someone who has had intercourse with a slave woman is forbidden to do so with her mother or her daughter. The woman is also forbidden to his male ascendants and descendants, in the same way as if he had married her.

32.24 Repudiation by a slave, a minor, or a wife

A slave may repudiate his wife without his master's say.

A minor boy may not repudiate at all.

A woman whom her husband has given the authority (tamlîk) or the option (takhyîr) [to declare a repudiation] may do so as long as the two are in the same session. (218)

The man may renege on having given her authority to do so, especially to make more than one declaration of repudiation.

If he gave her the option of declaring a repudiation, she may effect a divorce only by three declarations; after that he may not renege on the option he gave her.

32.25 An oath of abstinence (îlâ') (219)

Any husband who swears to leave off having intercourse for more than four months is an abstainer. He is subject to repudiation only after a determined period of abstinence has transpired. This is four months if the man is free, and two months if he is a slave. The sultan should then give him an ultimatum to resume having intercourse [or be divorced]. (220)

32.26 Declaring a wife forbidden (Ļ ihâr)

Anyone who declares his wife forbidden (221) may not have intercourse with her until he atones for this by freeing a believing slave girl who has no physical defect, is not partly owned by others, nor is in the process of being freed. If he cannot do this, he should fast two consecutive months. If he cannot fast, he should free sixty destitute people a muddu each.

The man may not have intercourse with her night or day until his atonement is completed. {97} If he does have intercourse with her before time, he must repent to God. If he has intercourse with her after doing part of his quota of feeding the destitute or fasting, he should start his atonement over again.

To atone for declaring one's wife forbidden there is no harm in freeing a one-eyed slave or a bastard. To free a minor also suffices, but in our opinion it is preferable to free one who does ™alât and fasts.

32.27 Cursing for adultery (li`ân (222)

A cursing for adultery shall take place between the spouses 1) when the man denies paternity for his wife's pregnancy, provided he claims separation from the time of ascertaining her menstruation (istibrâ') until her pregnancy, or 2) when the man sees his wife in the act of adultery [with her lover's penis in her vagina] as a kohl dying stick in its case. There is a difference of opinion on whether cursing for adultery on the basis of an accusation without evidence (qadhf) is allowed. (223)

If the couple is separated as a result of cursing for adultery they shall never marry each other again.

In cursing for adultery, the husband begins by testifying in the name of God against his wife four times; the fifth time he curses [himself if he does not speak the truth]. Then the wife curses by testifying to the contrary four times; the fifth time she invokes the anger of God [against herself if the accusation is true], as God instructed [in Qur'ân 24:6-9].

If the wife refuses to testify, she should be stoned provided she is free and maritally restricted (muƙan) by having had intercourse with this husband or a previous husband; if she is not maritally restricted, she should be given one hundred lashes.

If the man refuses to testify [after accusing his wife of adultery], he should be given eighty lashes, the number fixed for an accusation without evidence (qadhf) and the child is considered his.

32.28 Release (khul`) (224)

A woman may redeem herself from her husband by giving back her dower or a sum more or less than it, (225) unless her leaving is because of some harm done to her. In that case she may reclaim what she had given her husband, and he must still release her.

Release is a repudiation which does not admit of revocation, except after a new marriage which the woman has contracted of her own accord. (226)

32.29 Divorce of slaves

If a woman is freed from slavery and has had a slave husband, she has the {98} choice of remaining with him or separating from him.

If someone buys his slave wife, his marriage to her is automatically voided. (227)

A slave repudiates his wife [definitively] by [only] two declarations, while the `idda period of a slave woman is only two menstruations.

The atonements a slave must do are the same as those for a free man. But the fixed punishments for crime and the number of declarations required for a [definitive] divorce are not the same. (228)

32.30 Wet-nursing relationship (ri≤â`)

Any milk which reaches the stomach of a child during its two year nursing span makes marriage forbidden between the child and children nursed by the same woman during the same period, even if they were given only one suck. But marriage is not forbidden between him and children nursed after the two year period unless they were nursed closely after the two years, say by a month; another opinion holds for two months. If the child is weaned before two years, so that he eats food instead of being nursed, any milk he happens to suck thereafter does not cause an unmarriageable relationship [to other children the woman is nursing].

Nursing by pouring the milk into the child's mouth or nose effects the same prohibitions of marriage as normal nursing.

If a woman nurses a boy, her daughters and her [present] husband's daughters [by other wives], whether born before or after the boy, are his sisters, but his blood brother may marry them.



CHAPTER 33
`IDDA AND ISTIBRÂ' PERIODS, AND SUPPORT

33.01 `Idda for divorcees

The `idda period for a free woman, whether Muslim or Jewish or Christian, is three qur' periods. (229) For a slave woman or one in the process of being freed it is two qur' periods. The fact that the husband is free or a slave makes no difference. A qur' is the clean period between menstruations.

If the woman is not menstruating for the time being or has ceased altogether, {99} three months should be counted, whether she is free or a slave.

The `idda period after repudiation for a free or slave woman who is menorrhagic (mustaĆâ≤a) is one year.

The `idda period for a pregnant woman after her husband's death or after repudiation ends with her delivery, whether she is free or a slave, or Jewish or Christian.

A repudiated woman with whom her husband has not had intercourse is not held to an `idda period. (230)

33.02 `Idda for widows

The `idda period for a free woman after the death of her husband is four months and ten nights, no matter whether she is a minor or an adult, or whether her husband had intercourse with her or not, or whether she is Muslim, Jewish or Christian. (231)

For a slave woman or one in the process of being freed the period is two months and five nights, except for an older woman who wonders if her menstruation is delayed; in that case she should wait until she is sure of her condition. But if she does not menstruate because she is too young or too old, and her husband has had intercourse with her, she should not remarry until three months after her husband's death.

33.03 Mourning (iĆdâd)

Mourning done by a woman during her `idda period after the death of her husband means that she should not wear any decoration, such as jewelry, kohl etc. She must avoid all colours in her clothing but black, and all perfume. She may not dye herself with henna, or put on perfumed cream, nor may she comb into her hair substances that will exude fragrance.

Mourning is obligatory for both slave and free, minors and adults. There is a difference of opinion as to whether it is obligatory for Jewish or Christian widows.

Mourning does not oblige a woman who was repudiated.

33.04 `Idda for a Jewish or Christian wife

A free Jewish or Christian woman whose Muslim husband died or repudiated her should be compelled to observe the `idda period.

{100} 33.05 `Idda for an umm walad

The `idda period for a slave woman who has borne her master a child (umm walad) is one menstruation after his death or his setting her free. If she no longer menstruates, her `idda period is three months.

33.06 Istibrâ' (232)

The istibrâ' period for a slave concubine who changes ownership is one menstruation. Ownership may change by selling, giving away, capture, or any other way. If the woman menstruates after being taken possession of in advance by her new master, and then he buys her, she does not have to go through a period of istibrâ', provided she has not gone out in the meantime.

The istibrâ' period for a minor with whom her master has had intercourse in the preceding three months, and for a woman who no longer menstruates, is three months [after her sale]. There is no istibrâ' [for a minor] who has not yet had intercourse.

Someone who buys or otherwise gains possession of a woman who is pregnant by another man may not have intercourse with her or take any form of sexual pleasure with her until she delivers.

33.07 Lodging (suknâ) and maintenance (nafaqa) of ex-wives

A repudiated woman with whom her husband has had intercourse has a right to lodging, but not to maintenance, unless she was repudiated by fewer than three declarations or she is pregnant. If she is pregnant she has a right to maintenance no matter whether she was repudiated by one or three declarations.

A woman who departs by obtaining release (khul`) from her husband has no right to maintenance unless she is pregnant.

During her `idda period after her husband's death, a woman has no right to maintenance, but she has a right to lodging if the house belonged to the deceased or if he had paid the rent for it.

33.08 Confinement during `idda

A woman who is repudiated or whose husband dies should not go out of her quarters (bayt) until she finishes her `idda period, unless the owner of the house puts her out because she would not pay more than {101} the usual rent. In that case she should go out and stay in the place she moves to until her `idda period has expired.

33.09 Nursing (ra≤â`) and custody (Ća≤âna) of children

A woman who is attached to her husband by marriage (233) should nurse her child, unless women of her position do not do so. (234) A repudiated woman has the right to nurse her child for its father, and to take pay for nursing it if she wishes.

A repudiated woman has the right to custody of her sons until they reach puberty, and her daughters until they are married and their marriage is consummated. If the repudiated mother dies or remarries, the custody of her children falls first to their [maternal] grandmother and, that failing, to their maternal aunt. If there are no relatives on their mother's side, then the custody of the children devolves upon their [older] sisters and their paternal aunts. If there are none of these, then the agnate relatives take over.

33.10 Recipients of maintenance

A man owes maintenance only to his wife, whether she is rich or poor, to his parents if they are poor, and to his minor children if they have no wealth. His obligation to his sons lasts until they reach puberty, if they have no perduring disability, and to his daughters until they marry and their marriage is consummated. He does not owe maintenance to any relatives besides these.

If a man has the means, he should provide his wife with domestic help. He must also maintain his slaves.

33.11 Burial

If his slave dies, a man must provide for his burial.

There is a difference of opinion as to whether a man must provide for the burial of his wife. Ibn-al-Qâsim said she should be buried by her own money; `Abdalmalik said she should be buried by her husband's money; SaĆnûn said she should be buried by her own money if she is rich, {102} but by her husband's money if she is poor.



CHAPTER 34
SELLING AND OTHER BUSINESS TRANSACTIONS

34.01 Exchange of money

God declared selling (bay`) legitimate, but usury (ribâ) forbidden. (235)

Usury in the Jâhiliyya period concerned debts which were either paid [when due] or [postponed for] the payment of usury.

Besides usury for time loans (nasî'a), it is usury to sell silver for silver or gold for gold, in unequal amounts by direct transfer. It is not permitted to exchange gold for gold or silver for silver unless for equal sums by a direct transfer. To exchange gold for silver is usury except in direct transfers [of equal value].

34.02 Exchange of foodstuffs

It is not permitted to exchange grain, beans, or similar staples or condiments that can be stored for commodities of the same kind, unless for an equal measure by a direct exchange, nor is a postponement of payment permitted. Food may not be exchanged for food to be paid after a certain time, whether of the same kind or another kind, and whether it can be stored or is perishable.

It is not wrong to exchange apples, vegetables and other perishables for other food, even of the same kind, in unequal amounts, provided the exchange is made directly. But it is not permitted to exchange unequal amounts of dried apples and other condiments, foods and drinks which can be stored, except water only.

It is not wrong to exchange directly assortments of the preceding items {103} or of other grains, fruits and food in unequal amounts, but it is not permitted to do so with one kind of food by itself, except greens and apples.

Wheat, barley and sult barley are taken as one kind, as far as what is permitted or forbidden regarding them. All varieties of raisins are taken as one kind, as are all varieties of dates. The varieties of beans are taken as distinct kinds for purposes of selling, although Mâlik had different opinions about this. Nevertheless his opinion is clear that for zakât purposes beans of all varieties are taken as one kind. The meat of quadrupeds, whether domestic or wild, is taken as one kind; so are all fowl, and all aquatic animals or fish. Fat products from one kind of meat are classed with that kind of meat. yoghurt, cheese and butter are classed with the animals they are products of.

34.03 Selling goods not yet possessed

Someone who bought food may not sell it before taking possession of it, provided he bought it by weight, volume, or number, rather than in an undetermined quantity (juzâf). This holds for all foods, condiments and drinks except water alone.

Any medicament or crop from which oil cannot be extracted is not included among foods which are forbidden to be sold before taking possession of them or to be exchanged in unequal amounts if they are of one kind. Nor is it wrong to sell {104} borrowed food before taking possession of it.

There is nothing wrong with partnership buying (sharika), cost resale (tawliya) or reversal of sale (iqâla) before taking possession, in the case of food measured by volume.

34.04 Selling at a risk (236)

No contract of sale, hiring or renting is permitted if it concerns the exchange of something uncertain (kha≤ar) or risky (gharar) either in the price or in the thing exchanged or in the time it is to be delivered. Thus it is not permitted to sell something risky or undetermined (majhûl) or to be paid at an undetermined date.

34.05 Selling goods with hidden defects (237)

In selling it is not permitted to falsify or adulterate the commodity, to overrate or misrepresent it by smooth talk, to hide its defects, mix good things with bad, or conceal something about it which if known would make the buyer refuse the commodity or take it only at a lower price.

If someone buys a slave and finds a defect in him, he may keep him without compensation, or return him and receive his money back, unless the slave acquired another major defect while with his new owner. In that case the new owner may either [keep the slave and] claim the difference the previous defect would have made in the price he paid, or he may return the slave [and receive his money back] minus the depreciation caused by the new defect.

34.06 Selling merchandise on trial (khiyâr), a slave with a guarantee (`uhda) or a slave woman in seclusion (muwâ≤a`a)

Selling on trial is permitted if the two parties fix a short period to test the commodity or to get advice. To stipulate immediate payment is not permitted when the sale contract concerns: 1) an item bought on trial, 2) [a slave] with a three-day guarantee, 3) a slave woman in seclusion [to see if she is pregnant].

The maintenance of and responsibility for merchandise or slaves sold in any of these ways belong to the seller.

{105} Usually the only time a slave woman should be secluded for a eriod in order to see if she is pregnant (istibrâ') is when she is bought as a bed companion or when the seller acknowledges having had intercourse with her, even if she is of low class. The buyer may not exempt the seller from responsibility for her possible pregnancy, although he may exempt him from responsibility if she is obviously pregnant.

The buyer may exempt the seller of a slave from responsibility for any defects the seller does not know the slave to have at the time of sale.

The owner of a slave woman may not sell her separately from her child until the child grows its second teeth. (238)

34.07 Responsibility (≤amân) in an invalid sale

In an invalid (fâsid) sale the seller is responsible for the commodity, but if the buyer has taken possession of it he is responsible for it from the time he took possession.

Therefore, if the market price changes or the commodity is altered, the buyer may not return the commodity but must [validate the sale], paying the full price the commodity had the day he took possession. Yet if the commodity is measured by weight or volume, he should [nullify the sale] by returning an equal amount. Real estate too suffers nothing by the fluctuations there are of its market value, [and should be returned].

34.08 Capital loans for borrower's profit (salaf) (239)

It is not permitted to make a loan in return for some advantage, or to make receiving a loan a condition of selling some thing or some service (ijâra) or the use of property (kirâ').

Any possession may be loaned except a slave girl or silver ore.

34.09 Surrendering borrowed or sold property

The amount of a debt may not be reduced in order to collect it before it is due, nor may the time it is due be postponed for an increase of the amount to be collected.

A buyer may not be given a bonus to take advance possession of merchandise he has bought. (240)

There is nothing wrong with returning borrowed goods to the lender before they are due with an addition that is only qualitative. But there is a difference of opinion as to whether someone may return a trade loan (qar≤) with an additional amount after the term has expired, {106} if there was no condition, promise or custom to do so. Ashhab (241) allowed it, but Ibn-al-Qâsim disapproved, and would not allow it.

Anyone who, because of a sale or a trade loan, owes [gold] dînârs or [silver] dirhams to be paid at a certain time may pay back before that time. Likewise he may pay back borrowed goods or food before they are due, but someone who is selling goods or food may not deliver them before they are due.

34.10 Some risky things which may not be sold (242)

Fruit or grain may not be sold before it ripens, but it may be sold if only some of it is ripe, even the fruit of one palm tree among many.

Fish in rivers and lakes may not be sold, neither may a fetus in its [slave] mother's womb, nor fetuses in the wombs of other animals much less the offspring of future camel offspring nor the use of a male camel for breeding, nor a runaway slave, nor a stray camel.

34.11 Dogs

[MuĆammad] forbade selling dogs, but there is a difference of opinion regarding the legitimacy of selling dogs which are permitted to be kept. (243) At any rate, someone who kills a legitimately kept dog must compensate the owner for its value.

34.12 Muzâbana (244) exchange of the same kind of foodstuff, and usurious payment

It is not permitted to sell meat for an animal of the same kind.

Nor is it permitted to offer two sale options in one, that is, to oblige the buyer of an article to choose between paying five [dirhams] in a cash sale or ten after a certain period.

Selling dried dates (tamar) for ripe ones (ru≥ab) is not permitted, nor raisins for grapes, whether for a greater or an equal amount, nor any kind of fresh fruit or apples for dried fruit of {107} the same kind, since this is muzâbana selling, which is forbidden.

Thus also an undetermined quantity (juzâf) of one item may not be sold for a measured amount of the same item, nor may an undetermined quantity of the item be sold for another undetermined quantity of it, unless the difference in value between the two is clear and the item is of a kind which may be exchanged for something of the same kind at a profit.

34.13 Selling absent goods

There is nothing wrong with selling an absent article on description. Yet prepayment may not be stipulated unless it is located nearby or is non-movable, like a house, a plot of land, or a tree; prepayment may be made for these.

34.14 A guarantee (`uhda) in selling a slave

A guarantee may be made when selling a slave if the buyer demands it as a condition or if it is a local custom to make such a guarantee.

In a three-day guarantee the seller holds entire responsibility for the slave, but in a year's guarantee he holds responsibility only for madness and the mutilation or whitening of leprosy.

34.15 Sale with advance payment (salam)

There is nothing wrong with paying in advance to buy merchandise, slaves, animals, food and condiments when delivery is to be made later, provided the sale is made on the basis of: 1) a definite description of the item, 2) a set time of delivery, and 3) payment of the capital price (ra's al-mâl) (245) at the time of the contract or within two or three days; this delay in payment may even be made a condition of the contract. (246)

In our opinion, it is preferable to set the delivery date fifteen days [after the contract], or when the buyer collects the goods in another town, even two or three days away. According to more than one scholar, it is permitted to buy something and collect it after three days in the very town where the sale contract was made, but others disapprove of this.

{108} Something may not be paid for in advance if the capital price onsists of the same kind of goods as are being sold. Advance payment may not be made in the same or a similar kind of goods as are bought, but to loan something to be repaid with something of the same quality and quantity, with the borrower having the [exclusive] profit from what he borrows, is permitted.

34.16 Exchange of claims

To sell one claim (dayn) for another is not permitted.

An equivalent forbidden practice is to delay payment for goods sold for advance capital, making delivery a condition of payment, or even delaying payment [over three days] after the contract.

Neither is it permitted to void one claim by substituting another, such as if someone owes you something and you void his debt by letting him pay you something else at a later date.

34.17 Sale of goods not yet had

To sell something you do not have on condition that you make immediate delivery is forbidden. (247)

34.18 Reversal of sale on time

If you sell something which is to be paid for later, you may not buy it back paying less than you sold it for or taking a shorter time to pay for it than the original buyer was given. Likewise you may not pay more for it than you sold it for or take a longer time to pay for it than the original buyer was given. But to pay after the same length of time is permitted, since this is a fair exchange. (248)

34.19 Buying in undetermined quantities (juzâf)

There is nothing wrong with buying in undetermined quantities things which can be weighed or measured, except for minted [gold] dînârs or [silver] dirhams. Unminted gold or silver, however, may be bought in undetermined quantities.

Slaves, clothing, and things which can be counted without difficulty may not be bought in undetermined quantities.

34.20 Right to accessories of item sold

If a date palm is already pollinated when it is sold, its fruit belongs to the seller, unless the buyer bought the tree on condition of getting the fruit as well. The same holds for other kinds of fruit.

{109} Pollinating (ibâr) [for date palms and other fruit trees] is ertilizing [by tying pollen branches from the male tree onto the flower branches of the female tree. As far as the sale of land is concerned], pollination of crops is taken as their sprouting above the soil.

If someone sells a slave who has some possessions, these belong to the seller, unless the buyer stipulates otherwise.

34.21 Examining items

There is nothing wrong with buying commodities in sacks [without seeing the contents], on the basis of an exact written description.

It is not permitted, however, to buy cloth which is neither spread open nor described, or if it is a dark night when neither the buyer nor the seller can see the article or know what it is like. The same holds for buying an animal on a dark night.

34.22 Bidding (sawm)

No one should outbid another when the bargaining parties are satisfied and near clinching the sale. (249) But competitive bidding early in the bargaining is allowed.

A sale is contracted by word, [and binds] even if the parties have not parted.

34.23 Selling services by time (ijâra) or by job (ju`l), and selling the use of property (kirâ') (250)

Selling services by time is permitted if the two parties fix the length of time and the price.

Yet no time should be fixed in a job contract (ju`l) to catch a runaway slave or a lost camel, to dig a well, sell a garment, or do a similar job [which is uncertain to succeed]. In a job contract the employee is paid only upon completing the job.

If someone is hired by time to sell something by a certain date and has not sold it when the time expires, he must be paid his entire wage. But if he sells the item when the time is only half expired, he has a right to only half the wage.

Selling the use of property is like selling things, as far as what is permitted or forbidden is concerned. If someone rents a mount for a certain sum to go to a certain place, and the animal dies on the way, the rent for the rest of the journey is canceled. The same holds for a man employed by time who dies, or a house which collapses before the lease is up.

It is not wrong for a teacher of the Qur'ân [to agree to be paid when his student] has memorized it. Likewise it is permitted to {110} contract a physician's services with the condition that he will be paid only if he cures the patient.

The lease of an animal or a house does not end because of the death of the lessee, [and the heirs must pay the remaining rent]. Neither does the hiring of a shepherd end because the animals die, and the owner must [pay him in full or] give him other animals [to shepherd for the remainder of the time].

If someone rents a [definite kind of] mount to be assured by the owner, and the animal dies, the owner must provide another. If the rider dies, the lease is not voided, and his heirs must hire another rider in his place.

If someone rents a utensil or some other thing, he is not responsible for it if it perishes in his possession. He should be presumed to be giving a true story unless it is evident he is lying.

Artisans are responsible for things they lose, whether they are working for a salary or not.

The owner of a public bath (Ćammâm) is not responsible [for belongings lost there by his clients], nor is a shipowner [for cargo lost from or with the ship]. A shipowner has no right to his shipping charges until he delivers the cargo.

34.24 Partnership (sharika) of labour and capital

There is nothing wrong with a partnership in bodily labour if the two partners work in one place at one job, or different but related jobs.

A partnership in capital is permitted provided each partner receives the percentage of profit proportionate to the capital he invested and each partner works in proportion to the profit it was stipulated he should get. If the capital each partner has invested is different, it is not permitted to share the profit equally.

34.25 Trade loans (qar≤) (251)

The lending of dînârs and dirhams is permitted; this permission extends to unminted gold and silver as well.

Trade loans of merchandise are not permitted. [For merchandise], the borrower is the equivalent of an employee [and must be paid a commission] for selling the merchandise. [If he trades] with the price of the sale, this money is considered a trade loan, [and the profit should be shared proportionally]. (252)

{111} The borrower of a trade loan has a right to clothing and food while traveling with the money entrusted to him; yet clothing is to be provided only for a long trip.

The profit should not be divided [between the lender and the borrowing trader] until the capital is at hand in cash.

34.26 Leasing an orchard (musâqât)

The leasing of fruit trees is permitted, provided the parties agree on what proportion of the harvest goes to each.

All the labour must be done by the lessee. Besides caring for the trees, (253) no other work may be demanded of him, such as starting new projects in the orchard, unless the work is inconsequential, like sealing off the fence and repairing the reservoir but he is not to build them. Pollinating the trees is part of the lessee's work. In addition, the contract may stipulate that he should keep the irrigation apparatus in repair, clean the soaking area around the trees, clean the water source, and perform similar tasks.

A lease may not be contracted allowing the owner to remove the work animals that were in the orchard. If any of these die, the owner must replace them. But the lessee must maintain the work animals and employees.

The lessee must farm the arable portion of the orchard if it is small. (254) There is no harm in ceding to him the right to this portion; in fact, this is the more lawful course. If the arable land is very much it shall not be included in the lease of the orchard; to be included it must be a third or less of the total area.

34.27 Farming partnership

A farming partnership is permitted if both parties share in the profit and both provide the seed, {112} whether one owns the land and the other does the labour, or they share the labour and rent or own the land together.

A partnership in which both share in the profit is not permitted if one partner provides the seed and the other provides the land, whether the latter does the labour alone or both share the labour.

On the other hand, a partnership is permitted if the parties rent the land together and one provides the seed while the other provides the labour, if the value of the seed and labour are nearly equal.

Until it is actually irrigated, no payment may be made towards the rent of land which is not sure to receive irrigation water.

34.28 Liability for damage to crops sold and not yet claimed

If someone buys fruit still on the trees, and one third or more of it is destroyed by hail, locusts or frost, or in some other way, the value of it is to be reduced from the price the buyer pays. If less than a third is destroyed, the buyer takes the loss.

Nothing is to be reduced from the price the buyer pays in the case of unpreventable destruction of grain or of fruit bought after it is dried. (255)

If there is even a slight unpreventable destruction of vegetables the price should be reduced, although another opinion is that the price is reduced only if a third is destroyed.

34.29 Gift of fruit which can be dried (`ariyya) (256)

If someone gives a man the fruit of the palm trees of his garden, it is not wrong for him to buy back the [new] dates when the ripen with their measure [in dried dates]. When the bunches of the fruit are cut, [the donor] may exchange up to five wasqs. He may buy more than five wasqs only with money or merchandise. {113}



CHAPTER 35
BEQUESTS AND FREEING OF SLAVES

35.01 Bequests (wa™iyya, pl. wa™âyâ)

A man who has possessions to bequeath has the right to prepare a will. (257) No bequest may be made in favour of an heir. Bequests are to be made out of the disposable third of the estate. Any amount bequeathed in excess of the third is void unless the heirs approve it.

In disposing of the third, a bequest to free outright (`itq) a definite slave shall take precedence over other bequests. (258) A declaration a man made in full health that when he dies his slave shall be free (tadbîr) takes precedence over a bequest made during his final illness to free a slave or to provide for any other purpose, including the payment of outstanding zakât. A bequest to pay outstanding zakât is to be taken from the disposable third before ordinary bequests, but a declaration made in full health to grant a slave freedom at the owner's death takes precedence over it.

If the disposable third is not enough for all the bequests, those which do not have preference are to receive a proportionate settlement of what remains of the third.

A man may revoke a bequest he made to free a slave outright and any other bequest as well.

35.02 Freeing a slave at death (tadbîr) or at a certain date (ilâ ajal)

A declaration to grant a slave freedom at the owner's death is made by saying to the slave "You are free at my death". (259) Thereafter the owner has no right to sell the slave or give him away, but he has the right to his service until he dies, when the slave is freed. As long as the owner is not ill he may confiscate the possessions of such a slave, and if the slave is a woman he may have intercourse with her.

The owner, however, may not have intercourse with a slave woman whom he has promised freedom at a certain date, nor may he sell her, although he has a right to ask her service and to confiscate her possessions, as long as the date of her manumission is not near.

If a slave owner dies, a slave he promised freedom on his death is freed as part of the disposable third of the man's property, but a slave who was promised freedom on a certain date is freed as part of the total estate. (260)

35.03 Freeing a slave after installment payments (kitâba)

A slave with a writ permitting him to purchase his freedom {114} (mukâtab) is one who still owes something [before being freed]. A writ to purchase freedom kitâba] is permitted when made on the basis of a certain sum agreed upon by the master and the slave which the slave should pay to the master over a period of time, whether in many or few installments. (261)

If the slave is unable to make the payments he returns to full slave status, and the master may keep the payments he had already received. If the slave defaults in making payments and does not accept his master's declaration that he is insolvent, only the sultan may declare him insolvent.

35.04 Children and property of slaves

If a slave mother has a writ to purchase her freedom, or is to be freed at her master's death or after a certain time, or is pledged as a security, any child she bears [thereafter] shares her status. If a slave woman has had a child by her master, likewise any children she may have [thereafter] by another man are included in her status. (262)

A slave's possessions are his unless his master confiscates them. If the master frees him or gives him a writ allowing him to purchase his freedom and does not at the same time exclude the slaves possessions, he may not confiscate them.

If a slave woman has obtained from her master a writ to purchase her freedom, he may not have intercourse with her.

Any children a man or woman slave happens to have after obtaining a writ to purchase his or her freedom are included in the contract and are freed along with their parent.

35.05 Freeing a group by kitâba

Several slaves collectively may be given a writ to purchase their freedom, but they do not become free until the total sum is paid.

35.06 Restrictions on a mukâtab

A slave who has a writ to purchase his freedom may not free his own slaves or dispose of his possessions until he is set free. Neither may he marry or make a long journey without permission of his master.

35.07 Children of a deceased mukâtab

If a slave who has a writ to purchase his freedom dies leaving children, they take his place and are to pay from his estate the remaining amount, which becomes due [in its entirety at their father's death]. These children, who were to be freed with their father, inherit the remainder of the estate.

If there is not enough in the estate to pay the entire amount required for being set free, the children, if they are adults, should trade with what there is, and pay what is due in installments. If the children are minors {115} and the estate is not large enough to cover the installments until they are old enough to trade with the remainder, they should be put straight away into full slavery.

If the deceased had no children to be freed with him, the master inherits the deceased's estate.

35.08 A slave mother of her master's child (umm walad)

If a man has a child by a slave concubine, he may continue to have relations with her as long as he lives, but when he dies she is to be set free out of his undivided estate. He may not sell her or demand her service for himself or others. (263) But he may demand such service from a child she has by another man. (264) Such a child has the same status as its mother, and is set free when she is set free.

Any certified miscarriage had by a slave concubine makes her a mother of her master's child (umm walad). If the master admits having had intercourse with her, he cannot claim to have withdrawn [his penis before ejaculation] in order to deny paternity. But if he claims to have maintained a period of abstinence to test her pregnancy (istibrâ') and thereafter to have had no intercourse with her, he is not held to have fathered what she delivers.

35.09 Obstacle of slave's debts

It is not permitted to free a slave who owes debts.

35.10 Freeing part of a slave (bi-s-sirâya) (265)

If someone sets free part of his slave's [body], it is understood that he frees him entirely.

If someone else shares in the ownership of the slave, the value of his share should be charged to the party who is freeing the slave on the day the manumission is settled. The slave then goes free. But if the one who is freeing the slave does not have the money to pay his partner, the share of the other partner remains enslaved.

35.11 Freeing because of mutilation (muthla)

If someone mutilates his slave in an obvious way, such as by cutting off a limb, the slave goes free. (266)

35.12 Freeing because of relationship (qarâba)

If someone gains possession of his parents, a son or a grandson, a grandfather or grandmother, or a uterine, consanguine or full brother of his, such a slave goes free [automatically] at the owner's loss.

35.13 Freeing by concomitance (tab`iyya)

If someone frees a pregnant woman, the child she is carrying is freed with her.

{116} 35.14 Freeing because of an obligation

In freeing a slave to satisfy an obligation, (267) one may not free a slave who is already in the process of being freed, such as one who was promised freedom at the death of his master or who was given a writ to purchase his freedom. Neither may one choose a blind slave, one whose hand is cut off or is maimed in some such way, a non-Muslim, a young boy, or someone who is under guardianship [because of insanity].

35.15 Patronship (walâ') (268)

Patronship is a relationship to a former slave held by the one who set him free. Patronship cannot be sold or given away.

If someone frees a slave on behalf of another man, this man becomes the former slave's patron.

If someone receives another person's conversion to Islam he does not become the person's patron, but the Muslim community does. (269)

A woman retains patronship over a slave she has freed as well as over the slave's children and slaves whom she freed concomitantly. Yet she may not inherit the patronship of a slave freed by her father, her son, her husband, or anyone else.

The estate left by a slave who was set free without a patron (270) is inherited by the Muslim community.

Patronship over a slave is inherited by the nearest agnatic heir (`a™aba) of the deceased patron. If the deceased left two sons, they inherit the patronship of their father's client together. Then if one of the two dies, even leaving sons, the patronship reverts [in full] to his brother to the exclusion of his sons. If one of the brothers dies leaving one son, and the other dies leaving two sons, a third of the patronship goes to each of the three survivors.



CHAPTER 36
PROPERTY RIGHTS

36.01 Pre-emption (shuf`a) (271)

The right of pre-emption concerns only what is owned in common. {117} Thus there is no right of pre-emption to property which is divided into separately owned portions, or to a neighbour's property, to a roadway [into subdivided property], to the yard of a house divided into separately owned apartments, to [a co-owner's share in] a male palm tree if the female palm trees it serves are separately owned, or to [a co-owener's share in] a well if the land [it serves] is owned in separate portions. The right of pre-emption applies only to land and the constructions and trees on it.

The holder of the right of pre-emption loses it after one year [from the sale of the co-owner's share] if he was present [at the sale]. If he was absent he keeps his right, even if he is away a long time. (272) If someone else buys the property, he must guarantee (`uhda) the property [against any defects] should the pre-emptor decide to buy it. The pre-emptor may be foreced [in court] to decide between buying the property or giving up his right of pre-emption [before the year is up].

The right of pre-emption may not be given away or sold. If there are several co-owners, they share in the right of pre-emption [to any share of the property that is for sale] in proportion to the size of their own shares of the property.

36.02 Donations (hiba), alms (™adaqa), and foundations (Ćubus) in general

A donation, alms, or Ćubus takes full effect only upon possession. (273) If the donor dies before the recipients take possession of any of these, the property reverts to his estate, unless the grant was made during the deceased's final illness; in this case it is paid out of the disposable third, (274) provided it is not in favour of an heir.

36.03 Donations and alms (275)

A donation to someone related within a degree prohibiting marriage or to a poor person is like an alms in that it may not be taken back. (276) Thus a father who gives something in alms to a minor child of his may not take it back. Nevertheless he may take back something he gave a minor son or even an adult son as a donation, as long as the son did not use the donation to get married with or to give out a loan, and nothing happened to the donation to change its value.

A mother may take back a donation to her child as long as its father is alive, but she may not do so if he dies, since she may not take back a donation to an orphan, that is, a child who has lost its father. (277)

A father may retain possession of a donation he made to a minor son {118} of his, provided that he does not occupy [the building] or wear the garment he gave. Moreover, he may retain possession for his son only if the donation is a definitely identifiable article and the son is not yet an adult.

A man should not take back something he gave in alms; he can recover it only by inheriting it. It is not wrong for a man to [accept an offer to] drink the milk of an animal he gave in alms. Yet he may not buy back anything he gave in alms.

Someone who was given a donation for a counter-value expected in exchange must either recompense the donor with the value of the donation or return the donation. If the recipient no longer has the donation, he must return its value if he realizes that the donor was looking for a recompense from him.

It is disapproved for someone to give all his possessions as a donation to one of his children, (278) but to give one of them part of his possessions is allowed. On the other hand, it is not wrong for a man to give all his possessions in alms to the poor for the sake of God.

If a donee fails to take possession of a donation made to him until the donor falls ill or is bankrupt, he is then not entitled to take possession of it. If the donee dies [without having taken possession of the donation], his heirs may claim it, as long as the donor is in good health.

36.04 •ubus (279)

When someone puts his house in Ćubus, it may not be put to any other purpose if the beneficiary takes possession of it before the owner's death. If the Ćubus is established in favour of a minor son of his, the owner may hold the property for him until he reaches maturity. In this case he should rent it out and not occupy it himself. If he never moves out of the house before he dies, the Ćubus is void.

{119} If the beneficiaries of the Ćubus die off, (280) the nearest [poor] elatives of the founder of the Ćubus become its beneficiaries the day it reverts from the former beneficiaries. (281)

36.05 Life grants (`umra) (282)

If someone gives a person the use of a house for as long as the donee lives, the house returns to its owner once the beneficiary who occupies it dies. It likewise returns to the owner if he gave the use of the house to the deceased recipient's children and they die off. This rule of return is in contrast to what holds for a Ćubus.

If the one who gave the use of a house dies on the same day as the beneficiary, the ownership of the house goes to the deceased owner's heirs the day he dies.

36.06 More on Ćubus

If one of several beneficiaries of a Ćubus dies, his share goes to the remaining beneficiaries.

People in need of lodging or revenue are to be preferred as beneficiaries of a Ćubus. But if someone is living [in a building as the beneficiary of a Ćubus], he should not be put out for someone else [who is poor], unless there is a stipulation to that effect in the Ćubus charter; this must be carried out.

A building put in Ćubus may not be sold, even if it is dilapidated. But if a horse put in Ćubus becomes mad and useless, it should be sold and the money used to found another Ćubus or to help someone thereby.

There is a difference of opinion concerning whether one may substitute a building in good condition for one that is [in Ćubus] and is dilapidated.

36.07 Pledges (rahn) (283)

Giving something in pledge is permitted. The transaction is not accomplished until [the lender] takes possession of it. The witnessing of taking possession is valid only if the witness (284) has seen the transaction.

Responsibility for the pledged property lies with the party who takes it in pledge (al-murtahin) if it is an object which can be hidden. If the object cannot be hidden, he does not bear the responsibility for it. Thus responsibility for the pledged fruit of a palm tree belongs to the party who put it in pledge (ar-râhin). The same is true of housing rents pledged as a security.

If a slave woman bears a child after being given in pledge, her child is kept in pledge with her. The possessions of a [pledged] slave do not go into pledge with him unless they are so stipulated.

If the pledged property perishes while in the custody of {120} an agent [of the owner], the responsibility for it remains with the owner.

36.08 Loan for temporary use (`âriyya) (285)

A loan for temporary use is something given to be returned. The borrower is responsible for it if it is something which can be hidden, but not if it cannot be hidden, such as a slave or a mount, unless he abuses it.

36.09 Deposits (wadî`a) (286)

If someone who was given an object to guard says "I have returned what you gave me to guard", he is to be believed, unless he had taken possession of the object before witnesses; [then he must return it the same way]. If he says "It vanished", (287) he is to be believed no matter what [he accepted to guard and how he accepted it]. This is in contrast to someone who borrows the usufruct of an object (`âriyya) which can be hidden; he is not to be believed when he says he lost it.

If someone abuses an object he was given to guard he bears responsibility [for the damage]. If the object consisted of dînârs which were lost after he returned them in their purse, there is a difference of opinion whether the person who guarded them is responsible or not. (288)

It is disapproved for someone to trade with something placed in his safekeeping. But [if he does so] with a money deposit, the profit belongs to him. If the deposit sold was merchandise, the owner has the choice of taking either [the price for which it was sold] or the real value the merchandise had on the day of the infringement [of selling it] was committed.

36.10 Found property (luqa≥a) (289)

If someone finds a lost article [of value] he must announce it for one year in a place where such announcements are expected. (290) If the year expires and no one comes to claim it, the finder may put it in Ćubus for someone or give it away as alms. In the latter case, he is responsible for the [consumed] article to its owner if he comes.

If the finder makes use of the article he is responsible for it. If the article perishes before or after the year is up without his having mishandled it, he is not responsible for it.

If the claimant recognizes the pouch [containing money] and the string tying it, he may take it. A man may not claim a lost camel in the desert, but he may claim and eat a sheep or goat he finds in uninhabited wasteland.

36.11 Compensation for consumption of another's property

If someone {131} consumes merchandise [belonging to someone else], he must pay its value. But if the goods are valued by weight or measure, he must pay back an equivalent amount.

36.12 Usurpation (gha™b) (291)

A usurper is responsible for the loot he takes. If he returns it in the state in which he took it he is free from further obligation [to the owner]. But if it deteriorated by itself while in his possession, the owner has the choice of taking it back as it is or requiring the usurper to pay its original value.

If the usurper himself damaged the article, the owner has the choice of taking the article back with compensation for the damage [or requiring the usurper to pay its original value] although there is a difference of opinion concerning the legitimacy of [the first alternative].

The usurper has no right to the increment of what he took, and must return the increment accrued to him or [its value if] he consumed it. If he abducted a slave woman and had intercourse with her he must suffer the fixed punishment (Ćadd), (292) and if she bears him a son, the son becomes a slave of the owner of the woman.

It is not proper to let a usurper have the profit he made on the capital he appropriated before returning it to its owner. But according to some companions of Mâlik it is preferable for the usurper to give the profit away in alms. More is said on this question in the chapter on judgements. (293)



CHAPTER 37
CRIMES, CONVICTION AND PUNISHMENTS

37.01 Conviction for homicide

No one may be put to death for homicide unless he is convicted by 1) adequate testimony ( bayyina), or 2) his own admission, or 3) a sworn indictment ( qasâma) if that is necessary. (294) In the latter case, the representatives (walî, p. wulât) of the victim must swear [to the guilt of the accused] fifty times before they have a right to his blood. If the homicide was premeditated, at least two men must take part in the swearing. No more than one man may be put to death in consequence of a sworn indictment.

A sworn indictment is obligatory only if there exists: 1) a statement by the dying person that "Such and such shed my blood", or 2) a witness of the killing, or 3) two witnesses of the wounding, {122} if the wounded person lives long enough after being wounded to eat and drink.

If the claimants of the blood of one accused [of premeditated murder] refuse to swear, the representatives of the accused must swear [to his innocence] fifty times. If the accused cannot get any of his representatives to swear with him he should swear fifty times by himself. If a group of persons is accused of [premeditated] murder, each of them must swear [to his innocence] fifty times.

In demanding the blood of one accused [of premeditated murder], fifty representatives of the victim should swear a total of fifty oaths, [each one swearing once]. If they are fewer, they should each swear so many oaths as to total fifty oaths. A woman may not swear in the case of a premeditated murder.

For an accidental homicide, each male or female heir should swear [to the guilt of the accused] that fraction of the fifty oaths which is proportionate to his or her share in the blood rate (diya). If the number of oaths divides unevenly, the heir to whom the greater fraction falls swears the remainder. If only some of the heirs are present to swear in order to gain the blood rate for an accidental homicide, they may swear all fifty oaths, and if others come later these should each swear the number of times which is proportionate to his share in the inheritance.

The swearing should be done standing. People of the provinces of Mecca, Medina or Jerusalem should be summoned to their respective capital to swear the indictment. People of other provinces are not to be summoned [to a central mosque or similar place] unless they are within just a few miles of it.

A sworn indictment is not to be made when the victim was only wounded, or if the homicide victim was a slave or a Jew or a Christian, or if the [body of the] victim was found between the lines [of two contending Muslim forces] or in a place frequented by many people.

37.02 Clemency (`afw)

No clemency may be accorded to someone who murdered for money. (295) {123} In other cases of premeditated homicide the [mortally wounded] victim may spare the blood of his assailant. For an accidental homicide he may spare his assailant [payment of the blood rate] from the disposable third of his estate. (296)

If one of the sons of the murder victim spares the assailant, the latter shall not be put to death. But the other heirs have a right to their share of the blood rate. When there are sons, the daughters have no right to accord clemency.

Someone who is spared [being put to death] for a premeditated homicide should be lashed one hundred times and incarcerated for one year.

37.03 Blood rate (diya) (297)

The blood rate for an accidental homicide is, for owners of camels, one hundred camels. For owners of gold it is one thousand dînârs, and for owners of silver twelve thousand dirhams.

The blood rate for a premeditated murder, if accepted, consists, in camels, of 1) twenty-five Ćiqqas (females in their fourth year), 2) twenty-five jadha`as (females in their fifth year), 3) twenty-five females whose mothers are with milk (females in their third year), and 4) twenty-five menstruating females (in their second year).

The blood rate for an accidental homicide consists of five grades of camels, twenty of each of the four aforementioned ones, and twenty males whose mothers are with milk.

A heavier form of blood rate is to be exacted only in the case of a father who kills his son by throwing a piece of iron at him. (298) He is not to be put to death, but must pay in camels thirty jadha`as, thirty Ćiqqas, and forty khalifas, that is, pregnant camels. One opinion is that this is to be paid by his clan (`âqila); another that it is to be paid from his own possession.

37.04 Blood rate to other than Muslim men

The blood rate due to a woman is half that due to a man. A Jewish or a Christian man likewise receives half what would be paid to a Muslim man. A Jewish or a Christian woman, moreover, receives only half what her male counterpart would be paid.

A Magi man is paid eight hundred dirhams, and a Magi woman half of {124} that. The same proportions apply to indemnifications made to these women because of wounds inflicted on them. (299)

37.05 Blood rate for mutilation

The [full] blood rate is to be paid for [amputating] someone's hands or feet or [destroying] his eyes. Half the blood rate is due if only one of these parts are affected.

The [full] blood rate is due also for cutting off the flexible part of a person's nose, [destroying] his hearing or his sanity, breaking his back, [cutting off or crushing] his testicles, [cutting off] his penis, [cutting off] his tongue or even damaging it so that he cannot speak, for cutting off the breasts of a woman, and for [destroying] the eye of someone who had lost his other eye.

37.06 Indemnification for lesser wounds

For [deliberately] inflicting a mû≤ iĆa (open) wound, five camels are to be paid; the same is to be paid for [damaging] a tooth. Ten camels are to be paid for each finger or toe [cut off], three and one third for each finger or toe tip, and five camels for the tip of each thumb [or big toe].

Fifteen percent of the blood rate is to be paid for a munaqqila wound. A mû≤iĆa wound is one in which the bone is exposed; a munaqqila wound is one in which the bone [of the upper nose] is fractured and dislocated, but the fracture does not reach to the brain. If the fracture does reach to the brain, being a fracture of the fossa anterior of the skull (ma'mûna), one third of the blood rate must be paid. The same penalty holds for a visceral puncture (jâ'ifa).

For any wound lighter than a mû≤iĆa, and for other bodily wounds, there is no fixed penalty, but only what the judge decides. The indemnity for any wound is not to be paid until after it is healed. If a wound lighter than a mû≤iĆa heals without a scar, nothing is to be paid.

37.07 Talion (qi™â™) (300)

Talion is to be exacted for a deliberately inflicted wound, unless the wound can be fatal, such as a frontal skull fracture, a visceral puncture, a munaqqila wound, {125} [breaking] a thigh, [crushing] the testicles, [breaking] a back, etc. In all these cases the blood rate is to be paid.

37.08 Clan's obligation regarding blood rate

The clan (`âqila) is not responsible for paying the blood rate for a premeditated murder [by one of its members], even if he admits his guilt. But it may take upon itself the payment due for an accidental wounding if the amount is a third or more of the blood rate. If it is less than a third, the inflictor of the injury must pay it out of his own possessions.

In the case of a frontal skull fracture or a visceral puncture deliberately inflicted, Mâlik [on one occasion] said that the clan must pay [the third of the blood rate]. Elsewhere he said that the inflictor of the injury must pay it from his own possessions, unless he is without money, in which case the clan takes responsibility for the payment. (301) The same [question of responsibility] applies to indemnifications equaling a third of the blood rate for other injuries for which no talion is exacted because they may be fatal.

The clan does not pay any blood rate for someone who kills himself deliberately or accidentally. (302)

37.09 Indemnification to a woman

A woman is paid the same indemnification as a man as far as one third of the full blood rate a man would receive. Thereafter she receives the portion of a woman, [which is half that of a man].

37.10 Cases where the parties are unequal

If a group of people murder one person, all of them are to be put to death for this.

If a drunken man kills someone, he is to be put to death.

If an insane man kills someone, his clan must pay the blood rate.

If a minor commits a crime, indemnity is to be paid as if it were an accident. His clan pays it if it amounts to one third of the blood rate or more; if it is less, it is taken from his own possessions.

A woman is to be put to death for murdering a man, and vice versa. Likewise talion is to be exacted if either one injures the other.

A free man should not be put to death for murdering a slave, although a slave should be put to death for murdering a free man.

A Muslim should not be put to death for murdering an unbeliever, although an unbeliever should be put to death for murdering a believer. (303)

No talion should be exacted for a wound inflicted by a free man on a slave or vice versa, {126} or by a Muslim on an unbeliever or vice versa. (304)

37.11 Cases of no responsibility (hadar)

The man who is driving, leading or riding a beast is responsible for anything the beast tramples. But if the beast causes some damage without any of the man's doing, or while it is stopped and not incited, the damage is no one's responsibility.

If someone dies in a well or in a mine not as a result of anyone's doing, this is no one's responsibility.

37.12 When and to whom indemnities are due

The clan must pay the blood rate in installments over three years. If the indemnity owed is a third of the blood rate, it is to be paid within one year; if it is half it is to be paid within two years.

The payments due to a deceased person are due to his heirs according to their share in the inheritance.

37.13 Ghurra indemnification for causing miscarriage

For causing a free woman to have a miscarriage the indemnification is a ghurra, (305) that is, a slave boy or girl valued at fifty dînârs or six hundred dirhams. The ghurra indemnification is inherited by the heirs of the unborn child according to the proportions laid down in the Qur'ân. (306)

37.14 Killing a relative

Someone who deliberately murders a relative may not inherit his possessions or the blood rate. Someone who kills a relative by accident inherits his possessions, but not the blood rate.

37.15 Ghurra indemnification in case of a slave woman

For causing a slave woman who is pregnant by her master to have a miscarriage the indemnification is the same as for a free woman. If she was pregnant by another man, the indemnification is ten percent of the value of the mother.

37.16 Killing a slave

If someone kills a slave he must pay the value of the slave.

37.17 Collective killing

If a group of persons kills someone in banditry (Ćirâba) or for money (ghîla), they should all be put to death, even if only one of them did the killing for the rest.

37.18 Atonement for homicide

For killing someone accidentally atonement must be made by freeing a believing slave woman, or if this is impossible, by fasting two consecutive months.

If someone is spared being put to death for premeditated murder, he should make the same atonement; this is best for him.

37.19 Crimes against Islâm

A zindîq should be put to death as a matter of fixed penalty (Ćadd), and his repentance is not to be accepted. A zindîq is one who conceals his disbelief {127} and professes faith. (307)

Likewise a sorcerer (sâĆir) should be put to death without accepting his repentance.

An apostate (murtadd) should be put to death, unless he repents. (308) He should be given three days to repent. A woman apostate is treated the same as a man.

If someone does not apostatize, but recognizing [the obligation of] ™alât, says "I will not do ™alât", he should be given respite until the time for the next ™alât has expired, and then should be put to death as a matter of fixed penalty.

If someone refuses to pay his zakât, it should be collected from him by force.

If someone [is able and] omits going on the Ćajj pilgrimage, God is his judge.

Someone who omits doing ™alât out of spite for it (jaĆdan) is like an apostate, and should be given three days to repent. If he doesn't repent he should be put to death.

If someone speaks disrespectfully of the Messenger of God (sabb an-nabî), he should be put to death without accepting his repentance. If someone from a tolerated class (309) speaks disrespectfully of him, aside from simply expressing his disbelief, or speaks disrespectfully of God, aside from simply expressing his disbelief, he should be put to death, (310) unless he becomes a Muslim.

The estate of an executed apostate goes to the Muslim community.

37.20 Banditry (Ćirâba) (311)

A bandit may not be accorded clemency if he is caught. If he has murdered someone he must be put to death. If he has not murdered anyone, the imâm should decide upon a punishment which fits the crime and the length of time the man spent in banditry. He may put him to death, or crucify him first and then put him to death, or cut off his hand and his foot on opposite sides, or ban him to another town to be imprisoned there until he dies. (312)

If the bandit could not be caught, and turns himself in repentant, none of these penalties, which are God's right, may be exacted. (313) But the rights of men to his blood or possessions remain enforceable.

{128} Each bandit is singly responsible for the whole of what a gang of them robbed together. The whole gang, moreover, is to be put to death for murdering one person in banditry or for money, even if only one of the gang did the actual killing.

A Muslim is to be put to death for killing a person of a tolerated class in banditry or for money.

37.21 Illicit intercourse (zinâ') (314) by the maritally restricted

A free person restricted by marriage (muƙan) who has illicit intercourse should be stoned until he dies. (315)

A man becomes maritally restricted by marrying a woman validly and having valid intercourse with her. (316)

37.22 Illicit intercourse by the non-maritally restricted

If the person was not maritally restricted he should be lashed one hundred times and banned to another town to be imprisoned there for one year.

A slave man or woman should be lashed fifty times for illicit intercourse even if the man or woman is married; and they are not to be banned. Neither is a [free] woman to be banned.

37.23 Conviction for illicit intercourse

The fixed punishment for illicit intercourse is to be applied only if the accused person admits it, or is obviously pregnant, or if four free adult men of good character simultaneously see the [penis of the man in the vagina of the woman] as a kohl stick in its case. (317) If the testimony of one of the four does not match this description, the three others who gave testimony which did are to be given the fixed punishment [for slander].

37.24 Convicted minors

The fixed punishment is not to be given to a minor.

37.25 Illicit intercourse with a slave woman

A son is to be given the fixed punishment for having intercourse with a slave concubine of his father's, but not a father for having intercourse with a slave concubine of his son's. Yet he is to pay his son the amount of her value, even if she does not conceive.

One of two partners who own a slave woman is to receive a punishment decided upon by the judge (ta'dîb) if he has intercourse with her. If [she conceives and] he has the money, he is also held to buy at value his partner's share. But if she does not conceive, the wronged partner has the choice of {129} keeping his share or requiring the guilty partner to buy it at value.

37.26 Raped woman's proof of innocence

A pregnant woman who says she was raped is not to be believed, and must be given the fixed punishment, unless there is a witness that intercourse was forced on her all the while the rapist was with her, or if she screamed for help while being raped, or came away bleeding.

37.27 A Christian rapist

A Christian who abducts and rapes a Muslim woman should be put to death. (318)

37.28 Voiding conviction based on admission

If a man retracts an admission of illicit intercourse, he is to be let go.

37.29 Executor of the fixed penalty on slaves

A master should impose the fixed penalty for illicit intercourse on his slave man or woman if the slave woman becomes obviously pregnant, or if there is other proof, namely, four witnesses, or if the slave admits having committed the act. But if the slave woman has a husband who is free or the slave of someone else, [or the slave man is married to the slave woman of someone else], only the sultan may carry out the fixed penalty.

37.30 Homosexuality (liwâ≥)

If a man commits an act of homosexuality (319) with a consenting adult male, the two should be stoned to death, whether they are restricted by marriage or not. (320)

37.31 Slander (qadhf) (321)

A free person guilty of slander should be given eighty lashes. (322) A slave should be given forty lashes for slander and fifty for illicit intercourse. An unbeliever guilty of slander should be given the fixed penalty of eighty lashes.

The fixed penalty does not apply to someone who slanders a slave or an unbeliever. It does apply to someone who slanderously accuses a minor girl of illicit intercourse, if she is such as can have intercourse, but not to someone who slanders a minor boy, [accusing him of the same thing], nor to a minor who is guilty of slander or of illicit intercourse.

The fixed penalty does apply to someone who denies a man's parentage or who says something implying the same thing. It also applies to someone who calls a man a homosexual.

37.32 Multiplication of penalties

If someone slanders a group of people, a representative of the {130} group may exact the fixed penalty once. The rest may then exact nothing further from the guilty person.

If someone repeatedly drinks wine (khamr) (323) or has illicit intercourse, only one fixed penalty may be exacted for all these crimes. (324)

Likewise, if someone slanders a group of people and has other penalties, including the death penalty coming to him [for other crimes], the death penalty takes the place of all the penalties except that for slandering, which should be exacted before he is put to death.

37.33 Drinking intoxicants

Someone who drinks wine or an intoxicating liquor made from dried dates or raisins (nabîdh) (325) must undergo the fixed penalty of eighty lashes, whether he gets drunk or not, but he is not to be put in prison.

37.34 Administration of the fixed penalty

Someone who is to be lashed should be stripped, but a woman should be stripped only of what would shield her from the blows. The person is to be lashed sitting down.

A pregnant woman should not be given the fixed penalty until she delivers, nor may someone who is seriously ill until he gets well.

37.35 Bestiality

Someone should not be put to death for copulating with a beast, but he is to be punished.

37.36 The fixed penalty for stealing (sariqa)

If someone steals (326) from a place of custody (Ćirz) one quarter of a dînâr in gold, or goods worth three dirhams on the day they were stolen, or the weight of three dirhams in silver, [his right hand] is to be cut off. (327) But this penalty does not apply if the person took the goods out openly (khulsa). (328)

The penalty of cutting off [the right hand] applies to men, women and slaves. If the person steals a second time, his left foot is to be cut off. If he steals a third time, his left hand is to be cut off. If he steals a fourth time, his right foot is to be cut off. If he steals after that, he is to be flogged and imprisoned.

37.37 Voiding conviction based on admission

If someone admits to stealing, his hand should be cut off, but if he revokes his admission he should be let go.

37.38 Return of stolen goods

A thief must pay back what he stole if the goods are in his possession. If they are not, he is to be prosecuted for them. (329)

37.39 Mitigating factors

Someone who lifts something in custody may not be penalized with having his hand cut off unless he takes what he stole out of {131} the place of custody. The same holds for stealing something from a grave and going out of the mausoleum with it.

If someone steals something from a house he was given permission to enter, his hand should not be cut off.

Neither should someone's hand be cut off if he lifts something and goes out with it openly.

If a slave admits having committed a crime for which there is a penalty affecting his body, such as a fixed [number of lashes] or cutting off his hand, his admission holds good. But no admission of his is to be accepted if it concerns a crime for which his person which belongs to his master (raqaba) is jeopardized.

No one may have his hand cut off for stealing fruit hanging on a tree, for stealing a palm pith, or for stealing sheep or goats while they are grazing unless he stole them from their corral. Neither should anyone's hand be cut off for stealing fruit from a barn.

37.40 Intercession (shafâ`a)

No intercession [for the wronged party to reduce the penalty] is of any use once a case of stealing or illicit intercourse has been reported to the imâm.

There is a difference of opinion concerning the possibility of intercession at that stage if the crime was one of slander.

37.41 Pickpocketing and stealing public property

Someone's hand should be cut off for pickpocketing, also for stealing from the public granary, treasury, or collection of war loot. Regarding the collection of war loot, another opinion is that the thief's hand should be cut off only if he steals three dirhams more than his share.

37.42 Prosecution for stolen goods (330)

If a thief's hand has been cut off, he is to be prosecuted to have him return the value of the missing stolen goods, provided he is solvent. If he is not solvent he is to be prosecuted for an amount that does not warrant cutting off his hand.



CHAPTER 38
JUDGEMENTS: PROCEDURE AND CASES

38.01 Court procedure

It is up to the plaintiff or claimant ( mudda`î) to produce testimony (331) for prosecution, while it is up to the defendant to deny the charge under oath (yamîn). but no oath is to be required unless it is sure the parties have done business with each other or if the charge is plausible. This is the practice of the judges of Medina. Besides, `Umar ibn-`Abdal`azîz (332) said: "New judgements are made for {132} men to the extent that the commit new crimes." (333)

If the defendant refuses to take the oath, judgement is not given in favour of the claimant until the latter swears concerning what he alleged to know.

The oath is "By God, besides whom there is no other deity". The defendant swears it standing by the minbar of the Messenger [if in Medina and] if the case concerns [the value of] a quarter of a dînâr or more. Outside Medina the defendant swears his oath in the central mosque, at the most sacred spot in it. (334) An unbeliever should swear "By God" in a place sacred to him. (335)

If, after the defendant has sworn, the claimant finds he can provide additional testimony which he did not know of before, judgement may be given in his favour on the basis of it. But if he knew of its existence beforehand, this testimony is inadmissible although according to another opinion it may be accepted.

In cases of property ownership, judgement may be given on the basis of one witness (shâhid) and an oath. But this is not sufficient in cases of marriage, divorce, fixed penalties, premeditated wounding, or of homicide. A homicide case may be judged only on the basis of swearing the [fifty] qasâma indictments. There is another opinion that one witness and one oath suffice for a [premeditated] wounding.

38.02 Testimony of women

Women are permitted to testify only in cases of property ownership. A hundred women count no more than two women, and two women count as one man. (336) Judgement may be given on the basis of [the testimony of] the two women and of one man [without an oath by the claimant], or on the basis of the two women along together with an oath [by the claimant] in cases where one witness and an oath are permitted.

The testimony of two women alone is permitted for matters men do not observe, such as childbirth or whether a new born child cried [before dying]. (337)

38.03 Rejection of witness because of character or relationship

The testimony of an opponent or of someone whose testimony is suspect is inadmissible. {133} Only the testimony of persons of good character may be accepted. The testimony of someone who has been given a fixed punishment, or of a slave, a minor or an unbeliever is inadmissible. Yet if someone who was given the fixed punishment for illicit intercourse repents, his testimony may be accepted in cases other than those of illicit intercourse.

The testimony of a son in favour of his parents, or vice versa, is not admissible; neither is that of a husband in favour of his wife, or vice versa. But that of a man of good character in favour of his brother is.

Also inadmissible is the testimony of a habitual liar, someone who openly committed a major offense, someone who is seeking or protecting his self interest in offering testimony, or a testamentary guardian in favour of orphans in his charge. But a testamentary guardian may give testimony against his ward.

38.04 Testifying to the character of a witness

It is not permitted for women to testify to the god or bad character [of a witness].

The only acceptable form of testifying to the unimputability of a witness is to say "He is of good character and acceptable". A single witness to a person's good or bad character is not sufficient.

38.05 Testimony of minors

The testimony of minors may be accepted in charges of wounding if they have not yet dispersed [from the scene of the wounding] and no adult has entered their company.

38.06 Sale disputes

If the two parties of a business contract have a dispute, the seller should be asked to swear an oath [to what he maintains is right]; then the buyer may either accept [the terms of the seller] or swear to the contrary and be acquitted [of having to go through with the contract].

38.07 Ownership disputes

If two parties contend the ownership of something they possess in common, each should swear [on behalf of his claim], and the property should then be divided between them. But if the two present the testimony [of witnesses], judgement should be given in favour of the party supported by the witnesses of better character. If the witnesses are of equally good character, the parties should swear [regarding their claims], and the property should then be divided between them.

38.08 Revoked testimony

If a witness goes back on his word after judgement has been delivered, acknowledging that he committed perjury, (338) he must sustain the loss caused by his [false] testimony. This is the opinion of the companions of Mâlik.

38.09 Word of a deputy (wakîl)

If a deputy says "I have returned {134} to you what you deputized me [to pay]" or "to sell", [having been unable to deliver or sell it], or "I have paid you its price", or "have returned what you gave me to put in deposit" or "your loan", his statement is presumed to be true. But if someone says "I have delivered something to a certain person as you told me", and the person denies [having received it], the burden of proof is on the person who was to have delivered the thing; if he cannot prove having done so, he is responsible for the article.

38.10 Word of a guardian (walî)

Likewise, a guardian must be able to prove that he provided maintenance for his orphan wards, or handed over [their property] to them [upon their reaching maturity]. If the orphans are in his custody, he is to be believed when he says he made expenditures for their maintenance, provided appearances confirm this.

38.11 Amicable settlements (™ulĆ)

The amicable settlement of a claim is permitted, provided it does not involve doing something prohibited. It may concern a claim which is affirmed or an obligation which is denied.

38.12 Slave woman marrying on impression she is free

If a slave woman marries, deceitfully giving the impression that she is free, her master may take her back and claim [from the father in exchange for the freedom of any child she had in the marriage] the value of the child on the day judgement is awarded in his favour. (339)

38.13 Vindicating ownership of a slave woman

Anyone who vindicates ownership (mustaĆiqq) of a slave woman who has borne [her putative master] a child has a right to the amount she and her child are worth on the day judgement is awarded. Another opinion is that the rightful owner may take her back together with the amount her child is worth. A third opinion is that he has the choice of taking either the amount she alone is worth [from her possessor] or the price she was sold for from the party who abducted and sold her. (340) But if she is still in the possession of the kidnapper, the latter is to suffer the fixed penalty, and the child becomes a slave with its mother to her [rightful] master.

38.14 Vindicating ownership of land

If someone vindicates ownership of land which has been built on, he should either compensate [the builder] for the value of the building as it stands, or if he does not wish to do this the builder may buy the land, paying him the value of the empty plot. If [the would-be buyer] does not wish to do this, then the two hold the property in partnership in proportion to the share each has in it.

A usurper (ghâ™ib) of land is to be ordered to remove his constructions, crops and trees. But if the owner of the land wishes, he may compensate the {135} usurping party for foregoing the building debris and cut trees, while deducting he cost of hiring someone to clear the land. Yet the owner of the land need not pay anything for what has no value after it is removed or torn down.

38.15 Increment of usurped goods (341)

A usurper must return the increment of the goods he appropriated [together with the goods]. But no one but the usurper himself is obliged to return the increment, (342) except in the case of the offspring of an animal or of a slave woman unless the child is the son of

her [unrightful] master: The party who vindicates ownership of the mother may take the offspring from the party who bought her or otherwise [wrongfully] possesses her. If someone wrongfully takes possession of a slave woman and has intercourse with her, the child is a slave, and the usurper must suffer the fixed penalty.

38.16 Building regulations

The owner of a ground-floor flat is held to repair it if it is weak or collapsing, and to provide the ceiling wood and support joints for the rooms of the flat above as well, so that the whole building is made solid. He should be compelled to make these repairs or sell his flat to someone who will repair it.

An owner should not alter his building in a way that will annoy his neighbour, for example, by putting in a window adjacent to his neighbour's house from which he can peep at him, or by putting in a doorway directly in front of his neighbour's door, or by digging anything that will bother his neighbour, even if it is on his own property.

Judgement on the ownership of a wall between two houses is given in favour of the party whose house has wooden or masonry joints into the wall.

38.17 Water supplies

Excess water of someone's supply may not be denied to others in order to prevent their grazing their animals in the grass land round about. People who own wells for their livestock have the right to use these wells first. When their animals are watered, then anyone has as much right as anyone else to draw water.

Someone who has a spring or a well on his land may prevent others from using it, unless his neighbour's well has caved in, and he has crops which he is likely to lose; in that case he may not {136} deny his neighbour his excess water. There is a difference of opinion as to whether he may charge his neighbour the price of the water.

38.18 Another building regulation

A man should not forbid his neighbour to attach beams to the wall of his house; nor should his neighbour be charged for this.

38.19 Damage by animals

If livestock ruin crops or gardens in the night, the owners of the animals must pay for the damage. But they need not pay anything for damage done in the daytime. (343)

38.20 Bankruptcy claims

[If someone sold a commodity on credit and] the buyer is declared bankrupt before paying for it, the seller may either [recover its price by] sharing [in the man's assets with the other creditors], or take back the commodity if it can be precisely identified. But the commodity must be shared with all the creditors if the bankrupt possessor has died.

38.21 Guarantee of debts

Someone who guarantees (≤âmin) [another's debt] must sustain the loss [in case of default]. Someone who guarantees the appearance of the debtor (Ćâmil al-wajh) must also sustain the loss if he does not bring the debtor [when required], unless he had stipulated that he would not have to sustain the loss.

38.22 Transfer of debts (Ćawâla) (344)

If a creditor (al-muĆâl) agrees to having a debt owned by him by one person (al-muĆîl) transferred to another person (al-muĆâl `alay-hi) who owes the former (al-muĆîl) a similar debt, he may not go back and claim the debt from the first debtor (al-muĆîl), even if the second debtor (al-muĆâl `alay-hi) is bankrupt, unless the first debtor deceived the creditor by concealing the second debtor's bankruptcy.

A debt is transferred only if the first debtor (al-muĆîl) had a claim against the second debtor (al-muĆâl `alay-hi) to begin with. Otherwise the undertaking of the debt by the latter is a guarantee (Ćamâla) [for the payment of the first debtor's debt].

38.23 More on guarantee of debts and bankruptcy

A guarantor (Ćâmil) pays the debt only if the debtor is bankrupt or absent.

Death or bankruptcy makes all the person's debts immediately due, but not the debts which other people owed to him. (345)

A slave who was permitted [to engage in commerce] may not be sold because of debts he thereby incurred, nor may his master be prosecuted for these debts.

A debtor [whose insolvency is unknown] may be detained until this is known, but he may not be detained if he is known to be bankrupt.

38.24 Apportionment (qisma) of jointly owned property

Buildings and lands which can be divided without harm may be divided [among those who have joint ownership of them]. But if a commodity cannot be divided without damage and one party wishes to sell it, the other party should be compelled to sell along with him.

Division by lot (qur`a) {137} should be done only with possessions of one kind. Neither partner may [promise to] pay a price to equalize the lots. The shares may be equalized by compensation only if the division is made by mutual agreement (tarâ≤) [and not by drawing lots].

38.25 Function of a testamentary guardian-executor (wa™î)

A testamentary guardian appointed by a testamentary guardian is equivalent to the [original] testamentary guardian. A testamentary guardian may trade with the possessions of his orphan wards and give their women slaves in marriage. If someone appoints an untrustworthy guardian, the guardian may be removed from his appointment.

[In disposing of an estate} first consideration should be given to burial expenses, then to debts of the deceased, then to his bequests, and then to what is due to their heirs.

38.26 Squatters' rights

If someone occupies for ten years a house belonging to someone else, the house becomes his if the owner was present during this time, knew that the person was occupying it, and claimed nothing from him; the first owner then has no case. But occupying the house of a relative or an in-law for this length of time does not transfer ownership.

38.27 Bequests (346)

An acknowledgement by a [terminally] sick man to an heir that he owes him something or that he has received from the heir what the heir owed him is invalid.

A bequest to enable someone to make the Ćajj pilgrimage [on his behalf] is to be carried out, but in our opinion it would be better if he had made a bequest to give that amount in alms.

If the person who was hired to do the Ćajj pilgrimage dies before completing it, the cost of the distance he traveled is allotted to him, and the rest of the money returned. If he wasted any money, this is taken from his [estate], unless he took the money with the provision that he should spend it all by the time he completed the pilgrimage. In that case those who hired him hold responsibility for the money; yet the pilgrim should return what is left over if there is any left over.



CHAPTER 39 (347)
INHERITANCE PORTIONS (FARÂ'IŃ)

39.01 List of heirs

Male heirs are only of ten kinds: 1) a son, 2) a grandson or {138} his descendant, 3) the father, 4) the paternal grandfather or his ascendant, 5) a brother, 6) a [full or paternal] brother's son or his descendant, 7) a paternal uncle [by the same grandfather], 8) a paternal uncle's son or his descendant, 9) the husband, and 10) the patron [who set the person free].

Female heirs are only of seven kinds: 1) a daughter, 2) a son's daughter, 3) the mother, 4) [either] grandmother, 5) a sister [of any kind], 6) the wife, and 7) the patroness [who set the person free].

39.02 Husband

The husband inherits one half of his wife's estate if she leaves no children or grandchildren through her son. But if she leaves a son or daughter or a grandson or a granddaughter through a son she had by her present or a previous husband, the husband's share is one fourth.

39.03 Wife

The wife inherits one fourth of her husband's estate if he leaves no children or grandchildren through his son. (348) If he leaves a son or daughter or a grandson or granddaughter through a son of his by his present or a previous wife, the wife's share is one eight.

39.04 Mother

The mother inherits one third of her son's or daughter's estate if he or she leaves no children or grandchildren through his or her son, or two or more brothers of whatever kind, except in two cases: 1) If the deceased son leaves a wife and both parents, the wife receives a fourth of the estate, and the mother a third of what is left. The remainder thereafter belongs to the father. 2) If the deceased daughter leaves a husband and both parents, the husband receives a half of the estate, and the mother a third of what is left. The remainder thereafter belongs to the father. In other than these two cases the mother receives one third of the estate, unless her ratio is reduced to accommodate other sharers.

But if the deceased leaves a son or daughter, or a grandson or granddaughter through his son, or two [or more] brothers of any sort, the mother receives a sixth.

39.05 Father

If the father is the only heir, he inherits the whole of his son's estate. {139} If the deceased leaves a son or a grandson through his son, the father receives one sixth. If the deceased leaves no son or grandson through his son, but others entitled to a fixed share (sihâm), the father receives a sixth and whatever is left after these have been given their shares. (349)

39.06 Son

If a son is the only heir, he inherits the whole estate. If there are heirs entitled to a fixed share, such as a wife, parents, a grandfather or a grandmother, he receives what is left after they have had their shares. A grandson through a son is equivalent to a son if the son is missing.

If there are a son and a daughter, the son receives twice the share of the daughter. Whether there are many or few sons and daughters, they share at this ratio either the entire estate or what is left after those entitled to fixed shares have had their shares.

If the son is missing, his son is his equivalent with respect to what he would inherit or exclude [others] from. (350)

39.07 Daughters

An only daughter inherits half the estate. If there are two daughters, each receives a third. If there are more than two, their combined portions do not exceed two thirds.

39.08 Son's daughters

A son's daughter is equivalent to a daughter if the deceased leaves no daughter. Likewise several daughters of his are equivalent to several daughters of the deceased if he does not leave any.

If the deceased left a daughter and a son's daughter, the daughter receives one half the estate and the son's daughter one sixth, thus completing two thirds. If the son has several daughters [to share with the deceased's daughter], the combined share of the son's daughters does not exceed one sixth as long as they have no brother to inherit with them and what remains goes {140} to the agnates (`a™aba) of the deceased.

If the deceased left two daughters, nothing goes to the daughters of his son, unless they have a brother; in that case the residue of the estate is divided among them, with the brother receiving twice the amount one of his sisters receives.

Similarly, a male heir a generation below the son's daughters inherits with them according to the same ratio.

So too, if a son's daughters, inheriting with a daughter of the deceased, receive once sixth of the estate, and below them there are a [grand]son's daughters who have a brother or a nephew, the residue is divided among him and his sisters or paternal aunts in the same way.

Son's daughters who have a share in the two thirds of the estate have no share in this division of the residue.

39.09 Full and consanguine sisters

A sole full (shaqîqa) sister inherits one half the estate. Two or more full sisters share in two thirds of the estate. If there are full or consanguine brothers and sisters, of whatever number, each brother receives twice the amount one of his sisters receives.

If there are daughters to receive a share of the inheritance, the sisters are like residuary agnates to them: They inherit what is left over after the daughters have had their shares, and are not to be enriched at the daughters' expense.

Brothers and sisters inherit nothing if the deceased leaves a father or a son or a grandson through his son.

Consanguine brothers and sisters are equivalent to full brothers and sisters if there are not full brothers or sisters.

If there is a full sister and one or more consanguine sisters, the full sister receives half the estate, and the remaining {141} consanguine sisters share in one sixth. But if there are two full sisters, the consanguine sisters receive nothing, unless they have a [consanguine] brother; in that case they inherit the remaining [third] with him, although he receives twice what one of them receives.

39.10 Uterine brothers and sisters

A uterine brother or sister receives one sixth, the same for either. If they are two or more, all share equally in one third of the estate. They are excluded from the inheritance if there is a son or daughter, a grandson or granddaughter through a son, a father, or a paternal grandfather.

39.11 Full and consanguine brothers

A brother, whether full or consanguine, inherits the whole estate if he is the sole heir. but a full brother excludes a consanguine brother. If there are one or more brothers and sisters together, either full or consanguine, the estate is divided among them, but a brother receives twice the share of one sister.

If along with a brother there are heirs entitled to fixed shares, these receive their shares first, and the brother receives the residue. But if there are several brothers and sisters, the residue is divided among them, with each brother receiving twice the share of one sister.

If nothing is left [after the other heirs receive their fixed shares], the [full or consanguine] brothers and sisters receive nothing. An exception occurs when among those entitled to fixed shares there are uterine brothers, whose share is a third. Then any one or more full brothers, or full brothers and sisters, all participate equally with the uterine brothers in their third. This inheritance rule is called "participation" (mushtarika). {142} But consanguine brothers do not participate in the uterine brothers' portion, because they were not born of the same mother.

If one or more full or consanguine sisters remain [when the fixed shares of the other heirs total the whole estate], accommodation is made for them by reducing the ratio of all. (351)

If there is only one uterine brother or sister, no one participates in his or her share [of one sixth]. The residue [of one sixth] in such a case goes to the full brothers and sisters. If there are only full or consanguine sisters, accommodation is made for them.

A consanguine brother is equivalent to a full brother if the full brother is missing, except with regard to "participation".

39.12 Nephews

The son of a full or consanguine brother is equivalent to the brother if the latter is missing, but the son of a uterine brother is never an heir.

39.13 Exclusion of heirs

A full brother excludes a consanguine brother, (352) but a consanguine brother has preference over the son of a full brother, (353) and the son of a full brother has preference over the son of a consanguine brother. The son of a consanguine brother excludes a full paternal uncle. (354) A full paternal uncle excludes a consanguine paternal uncle. (355) A consanguine paternal uncle excludes the son of a full paternal uncle. The son of a full paternal uncle excludes the son of a consanguine paternal uncle. Thus the nearer relative is preferred.

39.14 Non-heirs

Those who are never heirs include the sons of sisters of whatever sort, the sons of daughters, the daughters of a brother of whatever sort, the daughters of a paternal uncle, the maternal grandfather, and a uterine paternal uncle. (356)

A slave does not inherit, nor does a slave in the process of being freed.

{143} A Muslim does not inherit from an unbeliever, nor an unbeliever from a Muslim.

Others who do not inherit are the son of a uterine brother, the maternal grandfather, and the mother of the maternal grandfather. (357)

39.15 More excluded heirs

The mother of the paternal grandfather may not inherit together with her son, the grandfather of the deceased. (358)

Uterine brothers may not inherit together with the paternal grandfather, or with the sons or daughters or grandchildren through a son. Brothers of whatever sort may not inherit together with the father. (359)

A paternal uncle may not inherit together with the paternal grandfather, nor a brother's son with the paternal grandfather. (360)

39.16 Impediment of crime

An heir who deliberately murdered the deceased inherits neither his estate nor the blood rate. An heir who accidentally killed the deceased inherits his estate but not the blood rate.

39.17 Effect of exclusion

Someone who does not inherit in a particular case [because he is excluded by another heir] cannot himself exclude another heir. (361)

39.18 Inheritance by spouse divorced or married in last illness

A woman repudiated by three pronouncements during the illness from which the deceased died inherits from her husband, but [if she dies first] he does not inherit from her. The same holds if he made only one pronouncement of repudiation, then died from the illness after her `idda period.

If a man in good health makes one pronouncement of repudiation against his wife, they may inherit from one another as long as she is still in her `idda period. If the `idda period has expired, they cannot inherit from one another.

If a man marries during his last illness, his wife does not inherit from him, nor he from her.

39.19 Grandmothers

A maternal or a paternal grandmother inherits one sixth. If both of them are to inherit, they divide the sixth between them, unless the combination is of a maternal grandmother and a paternal great-grandmother; in that case the maternal grandmother has prior claim to the sixth, because of a tradition in her favour. If {144} the combination is of a paternal grandmother and a maternal great-grandmother, they each receive one half of the sixth.

According to Mâlik, only two grandmothers may inherit, the father's mother, the mother's mother, or [to take their place] the mothers of either. But Zayd ibn-Thâbit (362) is reported to have allowed three grandmothers to inherit: one on the mother's side, and two on the father's side, that is, the father's mother and paternal grandmother. But none of the orthodox caliphs are reported to have allowed more than two grandmothers to inherit.

39.20 Paternal grandfather

If the paternal grandfather is the sole heir, he inherits the entire estate. If he inherits together with a son or a son's child, his share is one sixth. If there are no brothers and sisters, but other heirs entitled to a fixed share, he is to be assigned a sixth and any residue that there happens to be.

If there are brothers together with heirs entitled to fixed shares, the grandfather has three choices, of which he may pick the most advantageous: 1) an equal share with the brothers, 2) a sixth of the whole estate, or 3) a third of the residue.

If there are brothers alone inheriting with him, the grandfather divides the estate with them, provided they are only one or two, or, what is their equivalent, four sisters. If there are more than two brothers, he has a right to a third. Thus, when inheriting with brothers, he takes a third, or he divides the estate with them if this is more advantageous to him.

Consanguine brothers inherit with the grandfather the same as full brothers if there are no full brothers. If there are both full and consanguine brothers, the full brothers may count the consanguine {145} brothers in their number to offset the share of the grandfather; then they may claim the share computed for the consanguine brothers.

An exception [to this exclusion of consanguine brothers] occurs when there is besides the grandfather a full sister who has a consanguine brother or sister or both. She takes her half of the estate and surrenders the residue to her consanguine brothers or sisters [after the grandfather has had his share]. Sisters are not to be enriched at the grandfather's expense, except in the case of al-Gharrâ', to be spoken of presently.

39.21 Patron (mawlâ)

The patron, whether man or woman, inherits the whole estate if he or she is the sole heir. If there are heirs entitled to fixed shares, he or she receives the residue after they have had their share.

A patron inherits nothing when there are agnate relatives, but he has a greater right than the cognate relatives to whom the Book of God most High (the Qur'ân) assigns no share. Only those cognate relatives to whom the Qur'ân assigns a share may inherit. (363)

A patroness may inherit only from someone she herself has freed, from a child of such a person, or from someone such a person freed in turn. (364)

39.22 Accommodation by reduction (`awl)

If the combined shares of all those assigned a definite share in the Qur'ân exceed the entire estate, each one's share is diminished by making the total shares of all, as based on a common denominator, the new common denominator of their shares. (365)

No accommodation is made for a sister when there is also a grandfather inheriting, except in the case of al-Gharrâ'. This is when a woman dies leaving a husband, a mother, a full or consanguine sister, and a paternal grandfather. The husband would receive {146} a half, the mother a third, and the grandfather a sixth. Since the estate would thus be exhausted, accommodation is made for the sister's share of one half, that is three [sixths, becoming three ninths]. Then her share is combined with that of the grandfather, [making four ninths], and this amount is divided between them, with a third of it going to her and two thirds going to him. A common denominator of twenty-seven is necessary to assign even shares to all concerned.



CHAPTER 40 (366)
LEGAL STATUS OF MISCELLANEOUS PRACTICES

40.01 Wu≤û' (367)

The wu≤û' before ™alât is obligatory. The word wu≤û' (ablution) is derived from wa≤â'a (cleanliness). Not obligatory, but a matter of sunna, are rinsing one's mouth, inhaling water through the nose, and rubbing one's ears. Brushing one's teeth with a chewing stick is a desirable, even very desirable practice. Wiping one's boots [instead of washing the feet] is a privilege and mitigation. (368)

40.02 Ghusl (369)

Ghusl (ritual bathing) is obligatory after a major sexual defilement, and [the end of] the bleeding of menstruation or childbirth. The ghusl on Friday is a sunna. The ghusl on the two feasts is desirable. Ghusl is obligatory for someone who becomes a Muslim, because he is in a state of major sexual defilement. (370) The ghusl bathing of a dead person is a sunna.

40.03 The five ™alâts (371)

The five ™alâts are obligatory; so is saying "Allâhu akbar" to put oneself in a state of consecration [for ™alât]. But the rest of the "Allâhu akbar"s are sunnas. To begin ™alât with the intention of fulfilling its obligation is obligatory. Lifting one's hands is a sunna. Reciting the opening sûra of the Qur'ân is obligatory, while reciting an additional portion of the Qur'ân is an undisputed sunna. Standing, bowing, and prostrating are obligatory. The first sitting {147} is a sunna, while the second one is obligatory. Saying "as-salâmu `alaykum" is obligatory, while turning the head a little to the right during it is a sunna. Avoiding conversation during ™alât is obligatory. The two tashahhuds are a sunna. The qunût prayer in the ™alât of ™ubĆ is good, but not a sunna. Facing the qibla is obligatory.

40.04 Other ™alâts (372)

The Friday afternoon ™alât and attendance at it are obligatory. The witr ™alât, (373) the ™alât of the two feasts, the ™alât on an eclipse (374) or in request of rain, (375) and the [special common] ™alât during fear of an enemy (376) are undisputed sunnas. God commanded the latter, (377) and it is an act by which the merit of communal ™alât is achieved.

40.05 Ghusl before entering Mecca (378)

To do the ghusl before entering Mecca is a desirable practice.

40.06 Joining ™alâts (379)

Joining ™alâts on a rainy evening is a mitigation, but practiced by the orthodox caliphs. The joining of ™alâts at `Arafât and al-Muzdalifa is an undisputed sunna. The joining of ™alâts by a traveler on an urgent journey is a privilege. For a sick person to join two ™alâts for fear of losing consciousness [at the time of the second] or simply because it is easier for him is a mitigation.

40.07 Fast and ™alât on a journey

Not fasting while traveling [during Rama≤ân] is a privilege. (380) The shortening of ™alât during a journey is an undisputed sunna. (381)

40.08 Supererogatory ™alâts

The two [supererogatory] rak`as of dawn (382) are very desirable, but according to another opinion they are sunnas.

The ™alât of mid-morning ≤uĆâ) is supererogatory.

Supererogatory also is the tarâwîĆ™alât during Rama≤ân, (383) which has great merit. Someone who rises for it with faith and the intention of being rewarded by God has all his past sins forgiven. Doing ™alât during the nights of Rama≤ân and of other months {148} is a supererogatory, even very desirable practice.

40.09 Burial (384)

Doing ™alât over Muslim dead is an obligation [on the community], satisfied by the person who performs it. The same is true of bringing them to burial. Washing them is an undisputed sunna.

40.10 Knowledge (385)

Seeking knowledge is also a community obligation, satisfied by the persons who actually devote themselves to it, except for knowledge that pertains to a man individually; [this is a personal obligation].

40.11 Jihâd and forts (386)

The obligation of jihâd (holy war) binds the community, and is satisfied by those who carry it out, except when the enemy is at the gates; then all the people are obliged to take part in the fighting, provided the enemy are [not more than] twice their number.

[Building] forts at landing places of Muslim territory, fortifying and defending them are obligations of the community, satisfied by those who engage in this.

40.12 Fasting (387)

Fasting during the month of Rama≤ân is obligatory. Making a retreat [in the mosque] is supererogatory. (388) To do supererogatory fasts is desirable; likewise to fast on the day of `Âshûrâ' (10 MuĆarram), during the months of Rajab and Sha`bân, on the day of `Arafât (9 Dhû-l-Ćijja), and the day of tarwiya (8 Dhû-l-Ćijja). (389) Yet fasting on the day of `Arafât is better for someone not making the pilgrimage than for a pilgrim.

40.13 Zakât (390)

The zakât on money, farm produce, and livestock is obligatory. The zakât on `Îd al-fi≥r is a sunna laid down by the Messenger of God.

40.14 Pilgrimage (391)

Making the Ćajj pilgrimage to the house [of God] is obligatory, while making the `umra pilgrimage is an undisputed sunna. Saying the talbiya is an undisputed sunna. To make the intention before performing the Ćajj is obligatory.

The circumambulation after pressing on [from `Arafât] (≥awâf al-ifâ≤a) is obligatory. The walk between a™-ņafâ and al-Marwa is obligatory. The [first] circumambulation (≥awâf al-qudûm) which comes immediately before this walk is an undisputed sunna, but the circumambulation after pressing on [from `Arafât] is a more insistent {149} obligation. The circumambulation of taking leave (≥awâf al-wadâ`) is a sunna.

Spending the night at Minâ before the day of `Arafât is a sunna. Joining [the ™alâts of Ļuhr and `a™r] at `Arafât is an undisputed sunna. Stopping at `Arafât is obligatory. Spending the night at al-Muzdalifa is an undisputed sunna. Stopping at al-Mash`ar al-Ćarâm is an order. (392) The throwing of pebbles is an undisputed sunna.

Shaving one's head is likewise an undisputed sunna, as is kissing the black stone.

The ghusl before putting oneself in a state of consecration [for the Ćajj] is a sunna, as are the [two] rak`as done at that time. The ghusl at `Arafât is a sunna, while that before entering Mecca is a desirable practice.

40.15 ņalât in common (393)

Doing ™alât in common is twenty-seven times better than doing it alone.

Doing ™alât by oneself in the Sacred Mosque [of Mecca] or the Mosque of the Messenger [in Medina] is better than doing ™alât in other mosques. (394) There are differences of opinion as to how much better the Sacred Mosque is than the Mosque of the Messenger, although there is no difference of opinion that to do on ™alât in the Mosque of the Messenger is better than doing a thousand ™alâts in any other mosque aside from the Sacred Mosque. The proponents of Medina (395) say that to do ™alât in the Mosque of the Messenger (On him be peace!) is better than doing so in the Sacred Mosque, but not up to a thousand times better. What has been said concerns obligatory ™alât, but it is better to do supererogatory ™alât at home.

{150} It is better, in our opinion, for the inhabitants of Mecca to do supererogatory worship by doing ™alât than by making the circumambulation, but for strangers the opposite is true because of the little opportunity they have to make the circumambulation.

40.16 Looking at women (396)

To take one's eyes off forbidden women is obligatory, but there is no wrong committed in the first non-deliberate glance, nor in looking at an elderly lady, nor in looking at a young woman for a good reason, such as to identify her. Also a fiancé (khâ≥ib) has the privilege of looking at the young woman. (397)

40.17 Unjust speech

To guard one's tongue from lying, false witness, obscene language, backbiting, gossiping, and every wrong is obligatory. The Messenger said, "If someone believes in God and the Last Day, let him speak what is good or be silent." He also said, "It is a good mark of the Islâm of a man for him to keep out of what does not concern him."

40.18 Taking a Muslim's life or property

God has declared sacred and forbidden the blood, possessions and reputation of Muslims, except when one has a right to take them. It is not legitimate to kill a Muslim unless he apostatizes after having been a believer, or has illicit sexual intercourse after being maritally restricted, or kills someone apart from a case of talion, or engages in banditry, or is guilty of heresy. (398)

40.19 Sexual and related restrictions

Keep your hand away from such wealth, sexual contact, and shedding blood which are not licit for you. Nor let your feet bring you to things not licit for you. Do not permit your sexual parts or any part of your body to touch what is not licit {151} for you. For God said, "Those who guard their private parts [except from their wives or slave women are not blameworthy. But those who seek what is beyond that] are transgressors" (Qur'ân 23:5-7). God has also forbidden any obscenity, whether openly or in secret, and approaching women sexually when they are bleeding from menstruation or afterbirth. And he has forbidden [marriage to] the classes of women we mentioned above. (399)

40.20 Doing licit and avoiding doubtful things

God has commanded you to eat what is good, that is, what is licit. It is not licit for you to eat anything but what is good, or to put on anything but what is good, or to ride anything but what is good, or to live in any place but what is good; everything else you make use of must be good. (400)

Besides good things there are doubtful things. To omit them is to be safe, and to make use of them is like grazing next to the border and to be on the verge of entering the domain of the forbidden.

40.21 Injury to property rights

God has forbidden taking possessions wrongly. This includes usurpation, encroachment, betrayal [of the privilege of access], usury, bribe taking, enrichment by gambling, selling something risky, adulterating a commodity, and overrating or misrepresenting it by smooth talk. (401)

40.22 Forbidden meat (402)

God has forbidden animals not ritually slaughtered, blood, pork, what is sacrificed to the honour of something other than God, animals which died by falling from a cliff or being hit with a club or something else, and animals strangled with a rope or other material.

But in case of necessity animals thus mortally injured need not be ritually slaughtered, {152} but the dead animal may be eaten by the person in need. He may go so far as to completely satisfy his hunger and store up the rest, but if he has no further need for the meat he should throw it away.

It is not wrong for a person to make use of the tanned skin of an animal not ritually slaughtered, but he should not do ™alât on it or sell it. He may, however, sell or do ™alât on the skins of predatory animals, provided they have been ritually slaughtered. One may also make use of the wool or hair of an animal which died without being ritually slaughtered and whatever was taken from the animal while it was alive, but in our opinion it is preferable to wash these things first. No use should be made of the feathers, horns, hoofs or teeth of an animal not ritually slaughtered. It is disapproved to make use of the tusks of an elephant. Any part of a pig is forbidden, but by way of privilege its hair may be used.

40.23 forbidden drink

God has forbidden the drinking of wine, whether a small or a large amount. The drink of the Arabs at that time was date wine, but the Messenger (On him be peace!) explained that any intoxicating drink, whether in a small or a large amount, is forbidden. Any drink which overcomes the mind and intoxicates it fits the definition of wine (khamr). The Messenger (On him be peace!) also said, "[God] who forbade drinking it also forbade selling it."

[The Messenger] also forbade mixed drinks, whether they are mixed when they are first put in vats or at the time of drinking. (403) And he forbade storing juices in hollowed gourds or in pitch lined containers. (404)

40.24 Other forbidden meat

[The Messenger] forbade eating predatory animals with fangs and the {153} meat of domestic donkeys. Included with the latter is the meat of horses and mules, since God said, "[He made them] for you to ride on and for ornament" (Qur'ân 16:8). These may not be ritually slaughtered, but only wild donkeys.

It is not wrong to eat predatory birds or those with talons.

40.25 Treatment of parents

It is an obligation to respect one's parents, even if they are evildoers or unbelievers. A person should speak kindly to them and live with them showing proper deference. But he should not obey them to do something forbidden, as God has said. (405) A believer must also ask God's forgiveness for his parents if they are unbelievers.

40.26 Treatment of fellow Muslims

A believer, moreover, must show care for Muslims and give them good advice. No one reaches the true stature of faith until he loves for his brother believer what he loves for himself; thus it is related from the Messenger of God. [A believer] must also keep up contact with his blood relatives.

A believer, moreover, must greet another believer when he meets him, visit him when he is sick, wish him well when he sneezes, assist at his burial when he dies, and defend both his private and public interests while he is absent.

A believer shall not socially boycott his brother for over three nights. A greeting (as-salâmu `alaykum) suffices to break the boycott, but he must not neglect speaking to him after greeting him.

A boycott (hijrân) is permitted of someone guilty of an unwarranted innovation (bid`a) or who was so bold as openly to commit one of the bigger sins, provided one cannot punish {154} or admonish the person, or the person does not accept the admonishment.

It is not defamation to speak about the character of someone guilty of unwarranted innovation or of a major sin, nor, when requested, to give a character reference about someone who is about to marry or join some enterprise or do something similar, nor to testify to the bad character of a witness, nor to speak about the person for some other good reason.

It is a noble virtue for you to forgive someone who did you wrong, to give to someone who refused you something, and to show kindness to someone who cut you off.

All good manners and good guidance derive from four Ćadîths related from the Prophet : 1) "If someone believes in God and the Last Day he should speak what is good or be silent." 2) "It is a good mark of the Islâm of a man for him to keep our of what does not concern him." 3) The Prophet (On him be peace!) made a brief testament for someone: "Do not be angry," and 4) "A believer loves for a brother believer what he loves for himself."

40.27 Things not to listen to

It is illicit for you to deliberately hear out a malicious story, or to take pleasure in listening to the speech of a woman who is not licit for you, or to listen to players of musical instruments or singers. (406)

40.28 Qur'ân recitation

It is not permitted to recite the Qur'ân with distorting melodies as in the quavering of songs. but the venerable Book of God must be honoured by reciting it with calmness and decorum, in a way certain to please God and draw near to Him, and with attention to the meaning of what is recited.

40.29 Commanding the acceptable (407)

To command the acceptable and forbid the objectionable is an obligation on {155} anyone who has the public or private power to do so. If he cannot do so by deed, he should do so by word. If he cannot do so by word, he should do so by his heart.

40.30 Right intention

It is an obligation on every believer to desire the beneficent face of God in every good word and deed. If someone desires something other than God in his good words and deeds, his work is not accepted. This hypocrisy is the smallest form of polytheism.

40.31 Repentance (tawba)

Repentance from every sin and desisting from it is an obligation. Persisting in sin is to remain fixed on it and to intend to repeat it. Part of repentance is to return what was wrongly taken, to avoid forbidden things, and to have the intention of not turning back to the sin.

The penitent should ask forgiveness from his Lord, hoping in His mercy, fearing His punishment, and recalling His favours to him. He should also thank God for His favour to him by deeds, namely, by doing what is obligatory and omitting what is disapproved. And he should come close to God by doing the supererogatory good works which he can do without difficulty.

As for obligatory acts which he had missed, the penitent should do them all immediately, begging God to accept them, and turning to Him in repentance for having missed them.

The penitent should ask God's help when it is difficult for him to control himself or he is confused as to what he may do. He should be certain that God is in a position to reform his condition, give him success, and fortify him. He should not abandon his confidence in God because of the good or evil which is in him, nor despair of the mercy of God.

40.32 Meditation

Thinking about the acts of God is the key to worship. {156} Therefore have recourse to meditation on death and what comes after it, on the kindness of your Lord to you, on his sparing your life, and on his taking the life of others because of their sins. Meditate also on your own past sins, on the outcome of your life, and on how suddenly and very soon you may die.



CHAPTER 41
POINTS OF DECORUM

41.01 Personal upkeep (fi≥ra) (408)

Personal upkeep includes five things: 1) trimming the mustache, that is, the handlebars which curl around the lips, without shaving off the mustache altogether but God knows best, 2) trimming the nails, 3) plucking out the hair of the armpits, (409) 4) shaving the hair of the pubic and lumber regions and there is no harm in shaving the hair off the rest of the body, (410) 5) circumcision, which is a sunna for men, (411) and cliterechtomy, which is respectable for women.

41.02 Beards

The Prophet commanded that the beard be spared and let grow thick without being cut off. Mâlik said that it is not wrong to shorten it if it is too long; many Companions and Followers of the Companions said the same thing.

41.03 Dying hair

To dye one's hair black is disapproved, but not forbidden. But it is not wrong to redden it with henna or make it yellow with the dye of the katam tree.

41.04 Use of silk and gold

The Messenger (On him be peace!) forbade men to wear silk, and gold or {157} iron rings. It is not wrong to use silver to decorate a ring (412) or a sword or a copy of the Qur'ân, but silver should not be put in a bridle or a saddle or a knife or other such things. Women may wear gold rings, but [the Messenger] forbade them iron rings. The common choice from what is related concerning wearing rings is to wear it on the left hand, since the right hand is used for taking things: A man takes something with his right hand, then puts it in his left.

There is a difference of opinion concerning the use of clothes with some silk woven in (khazz). (413) Some say it is permitted; others say it is disapproved. The same is true about silk badges on clothes, unless a thin piece is used.

41.05 Excess and defect in clothing

When women go out, they should not wear thin clothing which allows their shape to be seen. (414)

A man should not drag his wrapper vauntingly or his garment ostentatiously. His garment should go only to his ankles, since this will keep it cleaner and show more reverence to his Lord.

It is forbidden to wear a ™ammâ' cloth over no other garment; this is a cloth which [goes over both shoulders and] is lifted up [by the arm] on one side, while hanging down on the other. Such a garment is forbidden if one is not wearing an undergarment, but if one is, there is a difference of opinion whether it is forbidden.

41.06 Covering private parts

To cover one's private parts is a command. The lower covering of a believer should go halfway down his calves. The thigh is considered a private part, but not in the same way as the private parts themselves.

A man should not enter the baths without a loincloth. A woman should go to the baths only for a reason. (415)

Two men or two women should not come into physical contact {158} under a single cover.

41.07 Women going out, and music

A woman should not go out unless she is covered, and only when she must go out, such as to assist at the death of her parents or relatives, or for some other legitimate purpose. (416)

She may not be present at a gathering where there is a woman wailer or the playing of mizmâr flutes or of lutes or similar [wind or stringed] instruments. Tambourines are permitted at a wedding, but there is a difference of opinion concerning kabar drums. (417)

41.08 Seeing women (418)

A man should not be alone with a woman who is of marriageable relationship to him. Yet it is not wrong for him to see her for some reason like identifying her, or if he has betrothed her. He may look at the face of an elderly lady at any time.

41.09 False hair and tattoos

Women are forbidden to attach [false] hair (419) or to have tattoos. (420)

41.10 Putting on footwear

To put on a shoe or a sandal, one should start with the right foot. In taking them off one starts with the left. There is nothing wrong with putting on sandals while standing. It is disapproved to walk with only one sandal on.

41.11 Images

To make images [of animals or people] on silks, tents, walls, or rings is disapproved. To design images on clothing (421) is not disapproved, but it is better not to do so. (422)



CHAPTER 42
EATING AND DRINKING ETIQUETTE

42.01 Prayer before and after

If you eat or drink, you must [begin by] saying " Bi-smi llâhi" (In the name of God). You should take your food with your right hand, and when you are finished you should say " Al-Ćamdu li-llâhi" (Praise to God).

{159} 42.02 Various details during the meal

It is good for you to lick your hand before wiping it off.

Eating manners include leaving a third of your stomach for food, a third for drink, and a third for breath.

If you are eating with someone else, eat only what is in front of you.

Do not take another bite until you have finished swallowing the previous one.

Do not breathe inside the vessel while you are drinking, but take the cup away from your mouth and then resume drinking if you wish. Do not take your drink down in large gulps, but sip it.

Chew your food until it is completely masticated before swallowing it.

Clean your mouth out after eating. To wash your hand from sauce smear and from milk is good. Pick out any food that is stuck in your teeth.

The Messenger (On him be peace!) forbade eating or drinking with the left hand.

When your are drinking, you should serve [first] the person on your right.

It is forbidden to blow on food or drink or on a book, or to drink from a gold or silver vessel.

It is not wrong to drink standing.

It is not permitted for someone who has eaten raw leek, garlic, or onions to enter a mosque.

It is disapproved to eat reclining.

It is disapproved to start eating at the top centre of a bowl of food. (423)

It is forbidden to eat two dates at once; but it is said that this prohibition applies only to co-owners of the dates they are eating. It is not wrong {160} to do so with your own family or with people you are feeding. When eating dates served with similar fruits, it is not wrong to reach and pick from the dish what you wish to eat.

42.03 Washing after eating

Washing one's hands before eating is not a sunna, unless they are dirty. After eating, a person should wash his hands and his mouth from any sauce stain, and rinse the milk from his mouth. It is disapproved to wash one's hands with food or bean flour or even the straining of grain; but there is a difference of opinion concerning this.

42.04 Going to a wedding feast

If you are invited to a wedding feast, go, unless there is infamous entertainment or obviously objectionable conduct going on there. It is up to your choice whether to eat at the feast. Mâlik stated the privilege of not attending the feast if it is too crowded.



CHAPTER 43
NORMS OF SPEECH, PRAYER, TRAVEL

43.01 Greeting

Returning a greeting is obligatory; initiating it is a desirable sunna. (424) A greeting consists in saying "as-salâmu `alaykum" (Peace be with you). The answer is "wa-`alaykum as-salâm" (And with you be peace), or "salâmun `alaykum", corresponding with the initial greeting. A fuller answer, ending with a blessing is, {161} "wa-`alaykum as-salâmu wa-raĆmat Allâhi wa-barakâtu-h " (And with you be peace and the mercy and blessings of God). Do not say as your answer "salâmu llâhi `alaykum" (The peace of God be with you). (425)

If one member of a group makes a greeting, that suffices for them all. The same holds if one of them returns a greeting.

Someone riding should initiate greeting someone walking, and someone walking should initiate greeting someone sitting. (426)

Hand clasping (427) is good. Mâlik disapproved of embracing, but Ibn-`Uyayna (428) permitted it. Mâlik also disapproved of kissing another's hand, and contested the traditions related in support of it.

One should not initiate greeting a Jew or a Christian. If someone [forgetfully] greets a member of the tolerated classes, he should not wait for an answer. If a Jew or a Christian first greets a Muslim, the Muslim should answer "`alayka" ("upon you"). It is also said that one may answer "wa-`alayka s-silâm", with an "i", meaning "Upon you be a stone." (429)

43.02 Asking permission to enter; visiting the sick

Asking permission is obligatory; do not enter a house with someone in it without asking his permission, up to three times [if need be]. If you are granted permission you may enter, but if not you should go away.

It is desirable for you to visit the sick.

43.03 Whispering in another's company

Two people should not whisper together while excluding a third [who is with them]. Neither may a larger group whisper together while excluding one of their members. Another opinion is that they may not whisper together without him except by his permission.

Socially boycotting someone has already been discussed in a previous chapter. (430)

43.04 Dhikr (recollection of God)

Mu`âdh ibn-Jabal (431) said: "No work will more surely save a man from the punishment of God than the recollection of God." And `Umar [ibn-al-Kha≥≥âb] said: "Better than the recollection of God with the tongue is the recollection of him by observing his commands {162} and prohibitions."

43.05 Morning and evening prayers

One of the prayers the Messenger of God said every morning and evening was: "O God, by You we reach morning, by You we reach night, by You we live, and by You we die."

In addition, he used to say in the morning: "To You is the rising" [as from death], and in the evening: "To You is the return" [by death].

Also related from him is the prayer: "O God, make me Your most fortunate servant in my share in every good You distribute this day and afterwards: in the light You give for guidance, the mercy You spread wide, the blessings You extend, the harm You remove, the sins You forgive, the difficulties You repel, the trials You avert, and the health You give through Your mercy. For You are all powerful."

43.06 Prayer before sleep

When the Messenger (On him be peace!) went to sleep, he used to put his right hand under his right cheek, and his left hand on his left thigh, and say:

O God, in Your name I lie down, and in Your name I get up again. O God, if You take my soul, give in forgiveness; if You send it [out and back to me], (432) guard it as You guard Your righteous servants. O God, I submit myself to You, I commend myself to You, I entrust my being to You, I turn my face to You fearing You and desiring You. There is no place of safety or refuge from You but in You. I ask Your forgiveness, {163} and turn to You in repentance. I believe in Your Book which You sent down, and in the Messenger whom You sent. Therefore forgive me my past and future sins, both those I committed in secret and those I committed in public. For You are my God; besides You there is no deity. My Lord, protect me from Your punishment on the day you raise up Your servants. (433)

43.07 A prayer when going out

A prayer he used to say when going out of the house was:

O God, I seek Your protection from leading anyone astray or being led astray, from tripping anyone or being tripped, from wronging anyone or being wronged, from treating anyone ignorantly or being treated ignorantly.

43.08 A prayer after ™alât (434)

It is related from him that after every ™alât you should say "SubĆâna llâh" (Glory be to God!) thirty-three times, "Allâhu akbar" (God is most great!) thirty-three times, "Al-Ćamdu li-llâhi" (Praise be to God!) thirty-three times, and for the hundredth invocation: "Lâ ilâha illâ llâh, waĆda-hu, lâ sharîka la-hu, la-hu l-mulk, wa-la-hu l-Ćamd, wa-huwa `alâ kulli shay'in qadîr" (There is no deity but God, him alone without associate; his is the kingdom and the praise, and he is all powerful!).

43.09 A prayer after going to the toilet

After going to the toilet you should say: "Praise be to God who has blessed me with the pleasure of food, taken away from me its discomfort, and caused its energy to remain in my body."

43.10 Prayers against danger

You should seek protection from any danger you fear [while traveling] and whenever you settle in a place or sit or sleep somewhere, saying: "I seek protection in the perfect words of God from the evil he created." Or you may say:

I seek protection in the eminent face of God, in the perfect words of God which neither a just man nor a sinner can disregard, and in all the beautiful names of God, those which I know and those which I do not {164} know, from the evil which he created, disseminated and multiplied, from the evil which comes down from the sky, from the evil which rises into the sky, from the evil which he scattered on the earth, from the evil which comes out of the earth, from trials in the night and during the day, and from things coming by surprise at night or during the day, except for good that comes by surprise, O Merciful One.

There may be added the phrase "and from the evil of every animal, for my Lord takes hold of them by their forelock; my Lord is indeed on the right path."

43.11 On entering a house

When someone enters his house, it is desirable for him to say: "May whatever God wills [shall happen]. There is no power [to prevent it] but God.

43.12 Disapproved activities in mosques

In mosques it is disapproved to do work [unconnected with worship] like sewing. A person should not wash his hands or eat there, unless something light, like a sweet. He should not trim his mustache or nails there, even if he gathers up the clippings in his clothes. He should not kill lice or bedbugs there.

[Mâlik] stated the privilege of strangers spending the night in mosques in the countryside.

43.13 Reciting the Qur'ân

In the baths someone should not recite more than a few verses of the Qur'ân. One may recite from the Qur'ân while riding or lying down or walking from one town to another, but to do so while walking to the market is disapproved, although some say that a learner may do this.

For someone to recite the [whole] Qur'ân in seven nights is good, but to recite less and understand it {165} is better. It is related that the Prophet did not recite it in less than three nights.

43.14 A prayer at the beginning of a journey

When a traveler is getting on his mount, it is desirable for him to say:

In the name of God. O God, You are my companion on this journey and my substitute in my family. O God, I seek refuge in You from the troubles of this journey, from returning disappointed, and from finding my family and possessions in a sorry state.

43.15 A prayer after mounting an animal

When the traveler has got on his mount, he should say: "Glory be to the One who has made this [animal] subservient to us. [But for Him] we could not do it. (435) We shall be brought back to him."

43.16 Foreign trade

Trading in hostile countries or in the land of the Blacks is disapproved. (436) The Prophet (On him be peace!) said: "Traveling is a piece of punishment."

A woman should not travel a day and a night or more in the company of someone she is marriageable to. A special exception, according to Mâlik, is the obligatory Ćajj pilgrimage: A woman may travel for this in safe company, including men she is marriageable to.



CHAPTER 44
TREATING AND AVOIDING HARM

TO MEN AND ANIMALS

44.01 Charms and medical treatment

It is not wrong to make charms (ruqya) against the evil eye and other evils, (437) nor in using the prayer of seeking refuge in God, taking medical treatment, drinking medicine, blood letting, and cauterizing. Cupping [to draw blood] is good. For men to use kohl {166} as a medicine is legitimate; it is a cosmetic for women. Treatment should not be taken which makes use of wine, impurities, concoctions containing something from an animal not ritually slaughtered, or anything which God has forbidden.

It is not wrong to cauterize [a wound], or to use charms containing verses of the Qur'ân or some other good words, or to wear amulets (ma`âdha) containing verses of the Qur'ân. (438)

If a plague breaks out in an area, no one should enter it, and those who are in it should not flee out of it.

44.02 Portents

The Messenger (On him be peace!) said about evil omens (shu'm) that if there are any they are in houses and women and horses. He also disapproved of bad proper names, and loved good appellations (fa'l).

44.03 Curing effect of evil eye

To wash away the effect of an evil eye, the person with the evil eye must wash in a basin his face and hands, his elbows and knees, the extremities of his feet, and under his loincloth. Then he should pour the water over the person affected by his evil eye.

44.04 Stars

A person should look at the stars only to find the direction of the qibla or to find out what time of the night it is, and should not look at them otherwise.

44.05 Dogs

Dogs should not be kept in city or country houses, unless [to protect] crops or livestock, which the dog accompanies into the desert and brings back in the evening. They may also be kept for hunting for one's livelihood, but not for sport.

44.06 Castration

It is not wrong to castrate livestock in order to improve their meat. But it is forbidden to castrate a horse. (439)

44.07 Tattooing animals

To make tattoos on the faces [of animals] is disapproved, {167} but it is not wrong to make them elsewhere on their bodies. (440)

44.08 Kindness to slaves

Kindness should be shown to slaves, and they should not be given work they are not strong enough to do.



CHAPTER 45
DREAMS AND LEISURE

45.01 Dreams (ru'ya)

The Messenger of God said: "A good dream which a worthy man has is one forty-sixth part of prophecy. If any of you has a bad dream, when he wakes up he should spit (441) three times to his left, and say 'O God, I seek your protection from the evil I have seen in my dream, lest it harm me in my religious or worldly affairs.'"

45.02 Yawning and sneezing

If someone yawns, he should put his hand over his mouth.

If someone sneezes, he should say "Al-Ćamdu li-l-llâhi" (Praise be to God). Anyone who heard him should say: "YarĆamu-ka llâh" (May God have mercy on you). The one who sneezed should answer "Yaghfiru llâhu la-nâ wa-la-kum" (May God forgive us and you), or "Yahdî-kum llâhu wa-yu™liĆu bâla-kum" (May God guide you and improve your condition).

45.03 Games and betting

Playing backgammon (nard) or chess is not allowed. It is not wrong to greet people playing one of these games, but to sit by them and watch is disapproved.

There is nothing wrong in horse or camel racing or in archery. If the two contestants bet anything, {168} they should place a legitimizing contestant between them. If the legitimizing contestant wins, he takes the stake, but if one of the others wins, the legitimizing contestant has no obligation. This is the opinion of Ibn-al-Musayyib. (442)

But according to Mâlik, [a competition with betting] is allowed only if a contestant puts down a stake to go to someone else who wins, or to the one who came in second if the placer of the bet himself wins. But if only the placer of the bet and one other are contesting, and the placer of the bet wins, the stake goes to the spectators.

45.04 Killing snakes and other animals

It is related [from the Messenger] that when snakes appear in Medina they are to be admonished for three days [to go away]. (443) To do this in other settled areas is good, but they are not to be admonished in the desert, but killed when they appear.

Killing lice and fleas by fire is disapproved. it is not wrong God willing to kill ants when they cause harm and cannot be neglected. But in our opinion it is better not to kill them. Gecko lizards (wazagh) (444) may be killed. Killing frogs is disapproved. (445)

45.05 Against pride in ancestors

The Prophet (On him be peace!) said: "God has taken away from you the ignorance of the Jâhiliyya and their boasting of their ancestors. Whether you are believers and pious or immoral and wicked, you are sons of Adam, and Adam is from the dust."

He also said about a man who learned the genealogies of people: "[It is] a useless science and ignorance [of it] does not hurt."

`Umar [ibn-al-Kha≥≥âb] said: "Learn about your genealogies enough to ascertain the blood relationships among you."

Mâlik said: "I disapprove of carrying genealogies back to our {169} pre-Islamic ancestors."

45.06 Dreams

A good dream is one forty-sixth part of prophecy. If someone has a bad dream he should spit (446) three times to his left, and seek the protection of God from the evil he has seen [in the dream].

Someone who does not know the science of dreams should not interpret them. Nor should anyone interpret a dream as indicative of something good when he knows it is indicative of something bad.

45.07 Poetry

It is not wrong to chant poetry, but in a short amount is better. One should not spend much time chanting it or composing it.

45.08 Religious learning

The best and most preferable science, and the one closest to God, is knowledge of his religion and his revealed laws regarding what he commanded, forbade, called for, and encouraged in his Book and by the tongue of his Prophet. [One must] understand and grasp these things, be concerned for their observance, and actually practice them.

[Dedication to] knowledge is the best of works. The scholars closest to God and best before him are those who fear him most and desire most the things of God. Knowledge shows the way to all that is best and leads to it.

Salvation (an-najât) is [achieved by] recourse to the Book of God and the Sunna of his Prophet, and by following the way of the Faithful and of men of the [first and] best century of "the best people that has ever been brought forth for [the good of] mankind". (447) Immunity [from sin and error] consists in relying on these [sources]. Salvation [likewise] lies in following the righteous Precedessors. (448) For they are an example to follow with regard to the interpretations they made and the conclusions they drew. {170} Although they had different opinions about legal details (furû`) and cases, one should not depart from their company.



EPILOGUE

"Praise be to God who guided us unto this; for we would certainly not have the right path unless God had guided us." (449)

Abû-MuĆammad `Abdallâh ibn-abî-Zayd [al-Qayrawânî] says: We have now finished what we promised to do in this book of ours. God the Most High willing, it will be of benefit to children who want it taught to them, and adults who have need of it. Its contents will give the ignorant knowledge of their religion, both the things they must believe and the obligations they must carry out. And it will help them understand much about law (fiqh) in its principles and branches, and about sunnas, desirable practices, and good manners.

I ask God, the Mighty and Majestic, to let us all benefit from what we know, and to help us all to carry out the duties with which he encharged us. There is no wisdom or power but in God the Exalted and Mighty. May God do his ™alât for our Master, his Prophet MuĆammad, together with his family and Companions, and give them abundant peace.


INDEX OF
ARABIC TECHNICAL TERMS

This index is not exhaustive, but gives the principal terms and the principal references, even where the translation does not transcribe the Arabic term. Notes are indicated by "n" and the number.

`abd (& raqîq, mamlûk, raqaba) male slave 32.06.12.24.29, 33.11, 34.05, 37.16, 39.14, 44:08.n3
a≤Ćâ (& ≤aĆiyya, u≤Ćiyya) immolation, animal for immolation 17.01, 29.n1
adhân call for ™alât 9.01, 12.01, 15.n1, 16, 17.10, 18.01, 19
`afw clemency 37.02
`ahd pact 31.06
ahl al-kitâb"people of the book" = Jews or Christians 32.06
amân guarantee of safety 30.01
`anat illicit intercourse 32.08
`âqila clan 37.03.08
`aqîqa sacrifice for child on eighth day 29.04.08
`ar≤ (pl. `urû≤) merchandise 25.04
`âriyyaloan for temporary use 34.n4, 36.08.09.n15
`ariyyaadvance gift of dryable fruit 34.29.n22
`Âshûrâ'a fast day, originally Jewish 40.12
`â™ib (pl. `â™aba) agnate 35.15, 39.08.21.n3.n4.n17
`a™r mid-afternoon prayer 8.03, 10.06.n3, 12.04.05.n8, 13.05, 14.02.n2.n4, 16, 28.06.07, 40.14
`atama(= `ishâ') 8.05.n3, 10.08
`awl accommodation by reducing inheritance portions 39.22
baghy revolt against the imâm 37.n18
barîd 12 miles 14.01.n1, 23.10
bay` selling 34.01
bayyinaevidence, witness 36.07.n14, 37.01, 38.01.n1
bid`a reprehensible innovation 40.26
bikr unmarried girl 32.02.17.22
≤aĆiyya(= a≤Ćâ), immolation, animal for immolation 29.n1
≤amân responsibility in sale 34.07
≤âmin guarantor 38.21
≤arûrî necessary 8.n3, 12.n7, 14.02.n2.n3
dayn claim 34.16
dhabĆ slaughter by cutting throat 28.16
dhakâtritual slaughtering 29.05, 40.22.24
dhawû l-arĆâm cognate relatives 39.21
dhikr recollection 10.04, 40.30, 43.04
dir` throw-over cloth 3.04, 12.01
diya blood rate 37.01.03-06.08.10.12.14.n4.n6
du`â' prayer, petition, supplication 16.01, 21.03, 43
≤uĆâ (& ≤aĆwa) mid-morning 17.01, 19, 27, 29.08, 40.08
fajr dawn 8.01
fa'l good omen 44.02
far≤ obligation: Prologue.n1; inheritance share: 39
farî≤a inheritance portion 39.01-22.n17
fay' abandoned property 30.n4
fi≥r breaking fast 17.01, 27
fi≥ra personal upkeep, natural state 41.01
ghanîmabooty 30.02
gha™b usurpation 36.12.n21, 38.14-15, 40.21
ghazw raid 30.04
ghîla paid murder 37.17.n2.n18
ghusl ritual bathing 2.02, 3.01, 5, 20.01.04, 22.04, 28.07, 40.02.05.09.14
Ća≤ânacustody of children 33.09
hadar case of no responsiblity 37.11
Ćadd fixed Qur'ânic penalty 2.02, 20.04, 37.19.23-26,29.31-34.36, 37.19
hady gift immolation 23.08, 28.09.16, 29.01, 31.06.07
Ćalâl permitted 40.20
Ćâmil guarantor 38.23
Ćâmil al-wajhdebtor 38.21
Ćarâm forbidden: Prologue.n1
Ćawâlatransfer of debt 38.22
hiba donation 36.02.03.n5
hijrân boycott 40.26
Ćirâba banditry 37.17.20.n18
Ćubus foundation, trust 36.02.04.05.10.n9.n10.n11
Ćurma sacredness 24
`îd major feast 17, 40.04
idâra transactional trade 25.n6
`idda woman's seclusion to test pregnancy 2.02, 32.04.11.12.14.20.21.29, 33, 39.18
iĆdâd widow's mourning 33.03
iĆrâm entering state of consecration 10.01, 12.n1, 16, 17.01, 19, 28.02.14.15.20.n3
iĆtikârspeculative trade 25.n6
ijâra selling thing or service by time 34.08.23.n16
ikhtiyârîpreferable 8.n3
îlâ' oath of abstinence 32.25
imâm leader 11.10.n1, 12.09, 15, 16.1, 17.01, 18.01.03, 19, 20.04, 21.01
îmân faith 1.08
iqâla reversal of sale 34.03
iqâma a formula somewhat repeating the adhân 9.01.02, 12.04, 16, 17.01, 18.01, 19
`ishâ' late evening prayer 8.05, 10.08,n2.n4, 12.03.05, 14.03, 16, 28.06.08
isfâr radiance before dawn 8.02, 10.10
istaĆâ≤amenorrhagia 2.02, 33.01
istibrâ'slave woman's seclusion to test preganancy 2.02, 32.27, 33.06 34.06, 35.08
istijmârwiping anus with stones 4.02
istinjâ'wiashing private parts 4.01.02
istisqâ'prayer for rain 19, 40.04
i`tikâf retreat in the mosque 24, 40.12
`itq outright freeing of a slave 35.01.10
janâbamajor sexual defilement 5.n2, 6.05
janâza funeral 21.01-07
jihâd holy war 30, 40.11
jizya tax on tolerated non-Muslims 25.10, 30.01
ju`l selling service by job 35.23
julûs sitting 10.01.02, 40.03
jumu`aFriday assembly prayer 12.09, 15, 40.04
juzâf in undetermined quantity 34.05.12.19.n10
kaffâraatonement 23.11, 31.01-06, 32.29
kirâ' renting 34.08.23.n16
kitâba writ permitting slave to purchase freedom 32.23, 35.03.05.n5; see mukâtab
kitâbî Jewish or Christian 32.06.11, 33.03.04; see ahl al-kitâb
khi≥ân circumcision 29.09
khiyâr selling on trial 34.06
khusûfeclipse 18, 40.04
khu≥baFriday sermon 15, 17.01, 18.03, 19
li`ân cursing for adultery 32.27, 33.07
liwâ≥ homosexual act 37.30.31
luqa≥a found property 36.10.n19
ma`âdhaamulet 44.01
madhy distillation 2.01
mafqûdmissing husband 32.20
maghribevening prayer 8.04, 10.07.n2.n4, 11.03, 12.03.05, 14.01, 16, 28.06.08
makrûhdisapproved: Prologue.n1
mandûbrecommended: Prologue.n1
manî semen or leuchorrhea 2.01.n2
mawlâ patron 39.21
majûsî Magi 37.04
mîqât limits of Ćaram around Mecca 23.02
mîthâqcovenant 31.06
mubâĆ permitted: Prologue.n1
mudda`îplaintiff, claimant 38.01.02
muddua grain measure 3.02.n3, 31.03
muĆâl creditor 38.22
muĆîl debtor 38.22
muĆsanmaritally restricted 2.02, 32.04.27, 37.21.30.n23, 40.18
mukâtabslave permitted to purchase freedom 27, 35.03.06.07; see kitâba
mukhta™™ goods privately taken from enemy outside battle 30.n4
mu™allâplace for ™alât 17.01
murtahinone who takes in pledge 36.07
murtaddapostate 37.19
musâqâtleasing an orchard 34.26.n19
mut`a temporary marriage 32.04; severance award 32.17.n22
mustaĆabbadesirable practice: Prologue.n1
mustashabbihdoubtful 40.20
muthlamutilation 35.11
muwâ≤a`aselling a slave woman in seclusion 34.06
muzâbanaexchange of indefinite quntities of same item 34.12
nadhr vow 31.04
nafal bounty 30.02
nafaqamaintenance payment to wife 33.07.10
nâfila supererogatory practice: Prologue.n1
naĆr piercing throat of animal 17.02, 28.06
najâsa filth 3.01.n2
nasî'a timed loan 34.01
na™rânî(pl. na™ârâ), Christian 31.06, 37.27
nikâĆ marriage 32
nifâs bleeding after childbirth 40.02
qadar destiny 1.03
qafîz a grain measure 25.02
qadhf slander 32.27, 27.31
qarâbablood relationship 32.05.12
qar≤ capital loan for mutual profit 34.09.25
qasam simple oath 31.n1
qasâmasworn indictment 37.01.n1, 38.01
qawad retaliatory measure 20.04
qibla direction of Mecca 1.08.n19, 8.01, 10.01, 12.03.08, 16, 19, 20.01.08, 21.06.n2, 29.03, 40.03, 44.04
qirân combining Ćajj and `umra by one consecration 28.16.18.19
qi™â™ talion 37.07.10
qi≥â`a full payment for freedom 35.n5
qiyâm standing 10.01, 40.03
qunût a prayer in ™alât 10.02, 12.02, 40.03
qur' period between menstrations 33.01
qur`a lot 38.24
Qur'ân1.02, 13, 40.28, 43.13, 44.01
raghîbadesirable practice: Prologue.n1
râhin giver in pledge 36.07
rahn pledge 36.07.n13
raj`a revocation of repudiation 32.14.28
rak`a unit of ™alât action 10.05-08.10-11.n1.n3, 11.02.06.n3, 12.02.05.09.n7.n8, 14.01-03.n3.n4, 14, 16, 17.01, 18.02, 19, 23.14, 28.04.10.12, 40.08
ribâ usury 34.01
ribâ≥ fort 30.03, 31.08, 40.11
radâ' wrapper 3.04
ri≤â` (& ra≤â`) nursing of child 32.30, 33.09
ri≥l a measure for water 3.02
rukû` bow 10.01, 40.03
ruqya charm 44.01.n1
ru'ya dream, vision 45.01.06
™â` a measure for grain 3.02, 25.02, 27
sabb an-nabîinsulting the Prophet 37.19
™adâq dower 32.01.04.10.18
™adaqaalms 36.02.03.n5
Ćir sorcerer 37.19
salaf early men of Islam 1.10, 45.08; capital loan for borrower's profit 34.08
salam sale with advance payment 34.15
alât ritual prayer 2-22, 40.03-09.14.15.22
salb personal effects taken during jihâd 30.02
sariqa stealing 37.36
sawm bid 34.22
shaf` a supererogatory ™alât 10.10.n8, 23.14
shafâ`aintercession 37.40
shâhid (& shahâda) witness 8.04.n5, 38.01-07.n1
sharikapartnership 34.03.24.27
shaqîq(a)full brother (sister) 39.09
shighârexchange marriage without dower 32.04
shuf`a preemption 36.01.n1
shu'm evil omen 44.02
sihâm fixed share 39.05.11.20.n17
™iyâm fasting 23.01-14, 40.07.12
™ubĆ morning prayer 8.10, 9.02, 10.01.10.n2.n4, 12.02, 13.03, 17.02, 28.08, 40.03
sujûd prostration 10.01, 40.03
suknâ lodging 33.07
™ulĆ amicable settlement 38.11
sunna tradition: Prologue.n1, 1.08.n18
tab`iyyaconcomitance in freeing slave 35.13
tadbîr master's declaration that at his death his slave will be free 35.01.02.n2
ta'dîb discretionary punishment 37.25.n27
tafwî≤ marriage of delegation 32.10.18
tahlîl "Lâ ilâh illâ llâh" 43.08
taĆmîd"Al-Ćamdu li-llâhi" 10.04, 17.02, 42.01, 43.08, 45.02
takbîr "Allâhu akbar" 9.01.02.n1, 10.10, 11.06, 12.02.n1, 13.02, 16, 17.01.02, 19, 21.01.04, 22.01.02, 28.09, 40.03, 43.08
≥alâq repudiation 32.11.14.16.24
talbiya"Labbayka" prayer 28.02.07, 40.14
tamattu`combining Ćajj and `umra by separate consecrations 23.08, 28.16.17.19, 31.07
tarâ≤ mutual agreement 38.24
tarâwîĆ Rama≤ân night devotions 23.14, 40.08
tarwiyadrawing water on 8 Dhû-l-Ćijja 40.12
tasbîĆ "SubĆân Allâh" 10.04, 43.08
tashahhuda prayer in ™alât 10.03.n2, 11.03.n3, 12.02, 26, 17.01, 18.01, 19, 40.03
taslîm " As-salâmu `alaykum" 10.03, 11.06, 12.02.09, 13.02, 17.01, 18.01, 21.01.04, 22.02, 40.03, 43.01
≥awâf circumambulation 28.04.12.n2.n17, 40.14
tawba repentance 40.31
tawliyacost resale 34.03
tayammumablution with sand 6, 12.07, 20.01
thayyibwoman married before 32.02.17.22
u≤Ćiyyaimmolation, animal for immolation 29.n1; see a≤ Ćâ
`uhda selling with guarantee 34.06.14, 36.01
umm waladslave mother of master's child 33.05, 35.08
`umra a supererogatory pilgrimage 23.08, 28.13.16-19, 31.04.07; a life grant 36.05.n12
ûqiyya a measure of silver 25.03.09
wadî`a deposit 36.09.n16
wady a male sexual fluid 2.01
wâjib obligatory: Prologue.n1
wakîl deputy 38.09
walâ' patronship 35.15; see mawlâ
walî guardian 32.01, 37.01, 38.10
wa™î testamentary guardian, executor 32.03, 38.25
wa™iyyabequest 35.01, 38.27
wasq a grain measure 25.02
witr a supererogatory ™alât 9.n1, 10.10.n8, 12.08, 23.14, 40.04
wu≤û' ablution 2.01, 3.01, 4.03-06, 12.03.06.n10, 13.02, 20.01, 40.01
yahûdîJewish 31.06
yamîn oath 31.01, 38.01
zakât religious tax 25.n1, 26, 27, 40.13
Ļihâr declaring wife forbidden 32.26
zinâ' illicit intercourse 32.05, 37.21-29.31.32.n21, 40.18
zindîq heretic, hypocrite 37.19.n14
Ļuhr early afternoon prayer 8.02, 10.06.n2.n4, 12.04.05.n7, 14.02.n2.n3.n4, 16, 17.02, 28.06.07, 40.14

NOTES

1. The exact literal meaning is debated. See Fazlur Rahman, Islam (New York: Anchor, 1968), p. 58, his Islamic methodology in history (Karachi, 1965), pp. 3-4, and M.Y. Guraya, "The concept of Sunna, a historical study", Islamic Studies, 11:1 (1972), 13-44.

2. On the early schools see J. Schacht, An introduction to Islamic law (Oxford: Clarendon, 1964), ch. 6, F. Rahman, Islam, pp. 48-49, N. Coulson, A history of Islamic law (Edinburgh U.P., 1964), chs. 2 & 3, his Conflicts and tensions in Islamic jurisprudence (U. of Chicago P., 1969), chs. 1 & 2, and A. Hasan, "Origins of the early schools of law", Islamic Studies, 9:3 (1970), 255-269. On the role of ijmâ` in the early schools cf. A. Hasan, "Ijmâ` in the early schools", Islamic Studies, 6:2 (1967), pp. 121-139, and "Ijmâ`, an integrating force in the Muslim community", Islamic Studies, 6:4 (1967), pp. 389-406.

3. Cf. M.Y. Guraya, "Historical background of the compilation of the Muwa≥≥a' of Mâlik b. Anas", Islamic Studies, 7:4 (1968), pp. 379-392.

4. The origins of Muhammadan jurisprudence (Oxford: Clarendon, 1950), esp. ch. 6.

5. A history of Islamic law, pp. 3,64-65.

6. Islam, ch. 3.

7. Cf. N. Coulson, A history of Islamic law, p. 56, and A. Hasan, "The sources of Islamic law", Islamic Studies, 7:2 (1968), pp. 165-184.

8. Cf. N. Coulson, Conflicts and tensions in Islam, p. 7, and J. Schacht, Introduction, pp. 60-61. On early use of istiĆsân cf. A. Hasan, "Early modes of ijtihâd: ra'y, qiyâs and istiĆsân", Islamic Studies, 6:1 (1967), pp. 47-79.

9. In the •anafite document Al-fiqh al-akbar I, n. 7; cf. A.J. Wensinck, The Muslim creed (London: Cass, 1932), p. 102ff., and W.M. Watt, The formative period of Islamic thought (Edinburgh U.P., 1973), pp. 132, 267.

10. Cf. N. Coulson, History, pp. 76-80, Conflicts, p. 23.

11. Cf. H.R. Idris, La Berbérie orientale sous les Zîrides, Xe-XIIe siècles (Paris: A.-Maisonneuve, 1962), pp. 687-688.

12. Ibid., pp. 698-701.

13. Ibid., pp. 708-709.

14. Ibid., pp. 644-655; W.M. Watt, The formative period, p. 317.

15. Idris, op. cit., p. 705.

16. Ibid., pp. 700-701.

17. Ibid., p. 719.

18. Ibid., p. 697.

19. Ibid., p. 101.

20. I, p. 177, SI, p. 301.

21. In R. Palmer, The Bornu, Sahara and Sudan (London, 1936), p. 14.

22. Nayl al-ibtihâj bi-ta≥rîz ad-Dîbâj, printed in the margin of ad-Dîbâj al-mudhahhab fî ma`rifa a`yân `ulamâ' al-madhhab (Cairo, 1932).

23. Ed. O. Houdas (Paris: Adrien-Maisonneuve, 1913 & 1964).

24. Ed. O. Houdas (Paris, Adrien-Maisonneuve, 1913 & 1964); on the authorship of this work cf. N. Levtzion, "A seventeenth-century chronicle by Ibn-al-Mukhtâr: a critical study of Ta'rîkh al-Fattâsh", B.S.O.A.S., 34 (1971), pp. 571-593.

25. Cf. J.O. Hunwick, "A new source for the biography of A Ćmad Bâbâ al-Tinbuktî (1556-1627)", B.S.O.A.S., 27 (1967), pp. 568-593, and the index to this work appearing in Centre of Arabic Documentation, Research Bulletin, 1:1 (1964), the last 17 pages.

26. Ed. M. Hiskett, "Material relating to the state of learning among the Fulani before their jihâd", B.S.O.A.S., 19 (1959), pp. 550-578.

27. Edited by F.H. El-Masri, A critical edition of Dan Fodio's Bayân wujûb al-hijra `alâ l-`ibâd, with introduction, English translation and commentary, University of Ibadan Ph.D. thesis, June 1968. It was later printed by Oxford U.P.

28. Published in Cairo, 1959; cf. also University of Ibadan library ms. n. 82/54.

29. Kano: `Abdallâh al-Yassâr, 1962 (printed in Cairo). There is also the edition of I.A.B. Balogun, A critical edition of IĆyâ' al-sunna wa-ikhmâd al-bid`a, University of London Ph.D. thesis, 1967.

30. Cf. Appendix: Legal categories.

31. These and the following Ćadîths are not in the standard collections of •adîth. An-Nafrâwî, I, p. 34, says that they go back to MuĆammad himself, according to one opinion, or only to `Alî, according to another opinion.

32. Cf. 41.06.

33. Cf. 40.10.

34. The historical context of the various dogmas expressed in this chapter can be found in W.M. Watt, The formative period of Islamic thought (Edinburgh U.P., 1973). A detailed theological explanation of the same dogmas can be found in my Ph.D. thesis (Edinburgh, 1970), Muslim theology as presented by MuĆammad ibn-Yûsuf as-Sanûsî, especially in his al-`Aqîda al-wus≥â.

35. Cf. Qur'ân 112; 17:111.

36. Cf. Qur'ân 2:255.

37. Cf. Qur'ân 50:16. This explanation of "mounting the throne" is the Ash`arite mean between Mu`tazilite demythologization and •anbalite fundamentalism.

38. Cf. Qur'ân 6:59.

39. Cf. Qur'ân 10:13 etc.

40. Cf. Qur'ân 7:180 etc.

41. I.e. Mount Sinai; cf. Qur'ân 7:143.

42. An anti-Mu`tazilite point; cf. Watt, op. cit., pp. 178-179, 242-245, 281-285 etc.

43. Cf. Qur'ân 14:4; 3:160 etc.

44. Qur'ân 40:59 etc.

45. Cf. Qur'ân 75:23.

46. Cf. Qur'ân 21:47; 101:6.

47. Cf. Qur'ân 84:7-13.

48. Cf. Qur'ân 3:142; 37:23.

49. The "basin" is not mentioned in the Qur'ân, but in the Traditions; cf. EI2," •aw≤". It is founded on the Qur'ânic mention of Kawthar (108:1), interpreted as a river in Paradise.

50. This teaching is strict Ash`arism, but Sunnite theology on this point generally follows al-Mâturîdî in maintaining that faith does not include works and is equal in all believers. Cf. Watt, op. cit., pp. 314-315.

51. The Sunna, here capitalized, includes the whole law revealed to MuĆammad, and is not distinguished from the Qur'ân, as sunna ordinarily is; cf. an-Nafrâwî, I, p. 109.

52. I.e. Muslims. The point is directed against the Khârijites.

53. Cf. Qur'ân 3:169.

54. This point is against the Shî`'ites (and Fâ ≥imids) who exalted `Alî and condemned the previous caliphs.

55. For chapters 2-7, cf. Qur'ân 5:6, 4:43.

56. Semen for a man, leucorrhea for a woman.

57. Cf. 33.06.

58. That is, he may remarry her after a consummated marriage with and divorce from another man; cf. 32.14.

59. Cf. 33.06.

60. An-Nafrâwî, I, p. 142, notes that first and foremost internal purity from envy, pride, hatred etc. is required.

61. Najâsa includes non-ritually slaughtered animals, their blood and once living by-products (exclusive of hair), puss, the urine and excrement of men and animals which should not be eaten, any sexual liquid, vomited food if it is altered, a rotten egg (Fertilization does not make it foul) etc. Cf. al-Fiqh `alâ l-madhâhib al-arba`a, pp. 16-20.

62. A muddu is a common market word in English and other languages of West Africa; it is a variable measure of roughly three cups. An-Nafrâwî, I, p. 366, defines it as "the heaping amount both hands held together can hold". W. Hinz, Islamische Masse und Gewichte (Leiden, 1970), defines the legal muddu as 1.053 liters (p. 45-6).

63. I.e. the Ka`ba in Mecca.

64. She must be completely covered except for her face and hands; cf. an-Nafrâwî, I, p. 151.

65. Cf. 40.01.

66. Cf. also 40.02.

67. A major sexual defilement is the penetration of the penis into the vagina, even without ejaculation, or any ejaculation of semen or emission of leucorrhea.

68. 12.07.

69. Qur'ân 30:17-18 mentions ™alât at evening (masâ'), morning (™ubĆ), late evening (`ashiyy), and noon (Ļuhr). A night prayer (11:114; 17:78-9; 20:130; 50:39-40) was abrogated by 73:20. Al-Qayrawânî interprets the "middle ™alât" (2:238) as ™ubĆ; others interpret as `a™r.

70. Al-Qayrawânî speaks for people west of Mecca.

71. Al-Qayrawânî does not explain here, but in chapters 13 and 14 presupposes a distinction between the normal time (ikhtiyârî) of a ™alât and the prolongation of this time because of necessity (≤arûrî). During both times ™alât may be fulfilled (adâ'), as opposed to being made up (qa≤â') when the time has elapsed. The ≤arûrî time of Ļuhr and `a™r terminates at sunset, and that of maghrib and `ishâ' at dawn. Cf. al-Fiqh `alâ l-madhâhib al-arba`a, pp. 93-97.

72. An-Nafrâwî, I, p. 196, says that this is a stupid illustration.

73. EM>Shâhid, the opposite of ghâ'ib, "absent".

74. The first third of the night.

75. Except for the two "Allâhu akbar"s (God is most great). Such an act of devotion performed a single or an odd number of times is called a witr, a term principally applied to a supererogatory ™alât after `ishâ'. Cf. 10.04.

76. Each ™alât consists of a series of rak`as. This section describes the actions from the beginning of one rak`a to the beginning of the next.

77. Sûra 49 is usually given as the beginning of the Mufa™™al. Sûras 49-79 are considered the longer sûras of this part, and are recited at ™ubĆ and Ļuhr. The shorter sûras, 92-114, are recited at `a™r and maghrib. For `ishâ' the sûras of medium length, 80-92, particularly SabbiĆ ism rabbi-ka l-a`lâ (87) and Wa-sh-shams (91), are recited. Cf. an-Nafrâwî, I, pp. 206 and 230.

78. The qunût is said only in the second rak`a of the ™alât of ™ubĆ.

79. Note that the ™alât of ™ubĆ has two rak`as (the series of actions and words beginning with "Allâhu akbar" and ending with the second prostration), while Ļuhr and `a™r have four, maghrib has three, and `ishâ' four. The final sitting, tashahhud and "as-salâmu `alaykum" are performed after the last rak`a of each ™alât. After the second rak`a of Ļuhr, `a™r, maghrib and `ishâ' there is another sitting in which the shorter form of the tashahhud is recited without the "as-salâmu `alaykum".

80. Literally, "remembering", "calling to mind", "recollection", it is applied to the recitation of certain praise formulas which aid the mind to be free from other matters and concentrate on God. The ™ûfîs have elaborate theories about dhikr.

81. Cf. 43.08.

82. Cf. 40.08.

83. Shaf` means "double" or "an even number", i.e. two supererogatory rak`as; witr means "single" or "an odd number", i.e. the single rak`a following the shaf` rak`as.

84. Allowed in this time, however, are the shaf` and the witr for someone who oversleeps, as mentioned in the previous paragraph; cf. an-Nafrâwî, I, p. 237.

85. The term imâm, meaning "leader", is used for the holder of supreme power in Islam, i.e. the caliph, for local authorities (cf. 1.10 & 37.20), and more commonly for the leader of prayer, who may be any Muslim man, but for Friday mosques is officially appointed.

86. I.e. starting from the beginning.

87. E.g. counting the one rak`a he did with the imâm as the first, the first rak`a done by himself as the second, and then sitting for a tashahhud.

88. Cf. 40.15.

89. Cf. 12.02.

90. Aside from the "Allâhu akbar" of iĆrâm, which is obligatory.

91. I.e. with the correct number of rak`as, shortened or normal, the correct selection of readings, recited aloud or quietly; cf. an-Nafrâwî, I, p. 265.

92. Cf. 3, note 2.

93. Cf. 40.06.

94. On 9 Dhû-l- Ćijja, during the Ćajj pilgrimage; cf. 29.07.

95. On the same day; cf. 29.08.

96. This applies to the ≤ arûrî time, e.g. if he wakes up and there is time for one rak`a before sunset he must make up Ļuhr and `a™r; cf. an-Nafrâwî, I, p. 276.

97. Since the first rak`a of `a™r may be done within the ≤arûrî time, and this makes the whole ™alât of `a™r count as being fulfilled; cf. 8, note 3.

98. An-Nafrâwî, I, p. 278, favours the latter opinion; see also 14, note 3.

99. Presuming he is still pure and not in need of another wu≤û'.

100. From sûra al-•ajarât (49) to the end of the Qur'ân; cf. 10, note 1.

101. A Hâshimite mile, according to an-Nafrâwî, I, p. 297, equals 3,500 arm lengths, from elbow to fingertips. At one and one half feet per arm-length, this equals 5,250 feet, nearly the standard English mile. According to al-Fiqh `alâ l-madhâhib al-arba`a, p. 250, one mile equals 6,000 arm lengths and 48 of these miles equal 80 kilometers (= 49.7 miles), which is close to the same.

102. Two rak`as complete the ™alât of Ļuhr, and one begins that of `a™r within the ≤arûrî time.

103. The principle at work here is the same for when a woman begins to menstruate. If enough time is left to finish one ™alât (even shortened for a traveler) and part of the next, both ™alâts come under the rule of being shortened (for a traveler) or omitted (by a menstruating woman, according to the second opinion in ch. 12.05). But if there is time only to finish one ™alât or part of one, the first of the two ™alâts to be done is not included under the rule of being shortened or omitted. Note that when the ™alât of Ļuhr is done in the way of a non-traveler because there is time for only two rak`as, it must still be done to make up for, and not fulfill, the obligation, since its ≤arûrî time has past.

104. Four rak`as complete the ™alât of Ļuhr, and one begins that of `a™r.

105. According to an-Nafrâwî, I, pp. 303-4, the adhân was originally called from the minaret only. Then `Uthmân ibn-`Affân ordered another adhân to be called earlier in the market. Then Hishâm ibn-`Abdalmalik, while governor of Medina, transferred the adhân of the minaret to the interior of the mosque, and that of the market to the minaret.

106. Cf. 41, note 8.

107. Cf. Qur'ân 4:101-3.

108. Cf. 29.02.

109. Cf. 28.06.

110. "Al-ayyâm al-ma`lûmât", Qur'ân 22:28.

111. "Al-ayyâm al-ma`dûdât", Qur'ân 2:203.

112. Cf. 40.09.

113. An-Nafrâwî, I, p. 329, adds that the person should be laid on his right side.

114. "Dhû-maĆram": this is a family member by either consanguinity or affinity; cf. an-Nafrâwî, I, p. 335.

115. Variously interpreted as :1) cloth from Sa Ćûl, a town in Yemen, or 2) a cloth of a certain weave called suĆûl; cf. an-Nafrâwî, I, p. 337.

116. He should be left with the evidence and glory of his shed blood.

117. Likewise inheritance is excluded between a believer and a non-believer (39.14). Otherwise unbelieving parents are to be honoured (40.25).

118. The opening sûra of the Qur'ân (al-FâtiĆa) is not said. According to Mâlik, the deceased does not benefit from this or from reciting the Qur'ân over the grave; cf. an-Nafrâwî, II, p. 333.

119. The imâm faces the qibla, and the dead person is before him.

120. I.e. the weight of the hill in gold or silver, according to an-Nafrâwî, I, p. 343.

121. Cf. Qur'ân 2:183-7.

122. If news of sighting the moon has not arrived, he may not begin the Rama ≤ ân fast in doubt.

123. Because he did not form an intention; cf. an-Nafrâwî, I, p. 356.

124. An-Nafrâwî, I, p. 359, makes a similar case for a harvester who is fatigued from work and needs to save his crop.

125. Cf. 28.16.

126. As opposed to the lesser atonement described above, 23.05; cf. an-Nafrâwî, I, p. 360.

127. Cf. 3, note 3.

128. E.g. the Qur'ân, which was first revealed then; cf. an-Nafrâwî, I, p. 368.

129. Cf. 40.08.

130. This practice is particularly recommended during the last ten days of Rama ≤ ân; cf. al-Fiqh `alâ l-madhâhib al-arba`a, pp. 319-320.

131. And make up the days missed.

132. Zakât originally was interchangeable with alms (™adaqa), but in MuĆammad's time it developed into the fiscal system of the Muslim community for providing all the needs listed in Qur'ân 9:60. Sometimes zakât was paid directly to these beneficiaries; sometimes it was collected and administered by the government. Later governments introduced other imposts and taxes, relegating zakât to a secondary, religious obligation - thus the translation "legal alms", as the obligation is interpreted today. But classical jurists, such as al-Qayrawânî, still viewed zakât as the only tax which could justly be levied on Muslims, even though it was not necessarily administered by the government in its entirety. Cf. J. Schacht, "Zakât", Shorter Encyclopaedia of Islam.

133. According to W. Hinz, one "Prophet's wasq" equals 252.3456 liters, and one "Prophet's sâ`" equals 4.2125 liters (op. cit., pp. 53 and 51). An-Nafrâwî, I, p. 380, notes that the zakât rate for a taxable amount of farm produce is 10%, unless the land is irrigated, in which case it is 5%. On this tax and kharâj see A. Grohmann, "`Ushr", Shorter Encyclopaedia of Islam.

134. A standard dînâr equals 4.233 grams of gold, according to W. Hinz, op. cit., p. 11.

135. A standard dirham equals 3.1215 grams of silver, according to W. Hinz, ibid., p. 3.

136. Transactional trade (idâra) is buying goods for quick resale, even at a loss. Speculative trade (iĆtikâr) is buying goods to sell when the market price rises.

137. The conclusion is that if someone in the course of the year enters the minimum or a higher zakât bracket by one of these processes, he must pay the zakât of this bracket for the whole year.

138. I.e. the followers of Zoroastrianism, the traditional religion of Persia.

139. This interpretation, which takes "dhawd" as a Ćâl of "five", is common in Nigeria, but is given in the second place by an-Nafrâwî, I, p. 397. His first interpretation is that "dhawd" is mu≤âf to "five"; the reading would then be: "There is no zakât on fewer than five dhawds; a dhawd consists of five camels."

140. An-Nafrâwî, I, p. 397, notes that it makes no difference whether the animal is male or female.

141. Cf. 25, note 2.

142. Cf. also 31.17 & 40.14. On general rules for the Ćajj cf. Qur'ân 2:196-203; 22:27-32.

143. The four indispensable elements (rukn) of the Ćajj pilgrimage are: 1) the i Ćrâm, 2) jogging between a™-ņafâ and al-Marwa, 3) stopping at `Arafât during the night of 9-10 Dhû-l- Ćijja, and 4) the ≥awâf al-ifâ≤a; cf. Abû-l-•asan al-Mâlikî ash-Shâdhilî, al-Muqaddima al-`izziyya (Cairo: Maktabat al-Mashhad al- •usayniyya, n.d.), pp. 137-147.

144. Al-Qayrawânî explains the set points of place, but not those of time. According to an-Nafrâwî, I, p. 409, one may put oneself in a state of consecration for the Ćajj pilgrimage any time from the beginning of Shawwâl through Dhû-l-qa`da until dawn of the day of immolation.

145. A town between Medina and Mecca.

146. This town is before al-JuĆfa.

147. Cf. 40.05.

148. The prayer beginning "Labbayka", given above.

149. A pass on the lower side of the city.

150. He says "Allâhu akbar" only if he cannot kiss or touch the stone; cf. an-Nafrâwî, I, p. 417.

151. The southwest corner. The black stone is in the southeast corner.

152. The stone where Abraham is supposed to have stood when he built the Sacred House; cf. an-Nafrâwî, I, p. 417. For maps of the Ka`ba area in the vicinity of Mecca, cf. A.J. Wensinck, "Hadjdj", Shorter Encyclopaedia of Islam.

153. Cf. Qur'ân 2:158.

154. See also 17.04 & 40.05.

155. The singular "`Arafa" occurs nearly as frequently as the plural "`Arafât", uniformly used in this translation. An-Nafrâwî, I, p. 420, thinks that the plural represents the general area.

156. Halfway between `Arafât and Minâ.

157. Marking coming out of the state of consecration.

158. 17. This is called the ≥awâf al-ifâ≤a (cf. Qur'ân 2:198), as distinguished from the first ≥awâf al-qudûm and the final ≥awâf al-wadâ`.

159. The smallest of three rocks, on the east end.

160. The middle one in the market, and Jamrat al-`Aqaba.

161. The state of consecration also makes it forbidden for a man to marry or to contract a marriage for another; cf. 32.12. This is in contrast to what holds for the sacredness of a retreat; cf. ch. 24.

162. On the prohibition of hunting, cf. Qur'ân 5:1-2,94-6.

163. Cf. Qur'ân 2:196.

164. Usually on 8 Dhû-l- Ćijja.

165. Cf. Qur'ân 5:95.

166. Cf. Qur'ân 5:95.

167. The terms u≤Ćiyya (pl. a≤âĆî), ≤aĆiyya (pl. ≤aĆâyâ) and a≤Ćât (pl. a≤Ćâ) are used interchangeably for a festal immolation and the animal for immolation.

168. Cf. 28.09 & 28.16.

169. An-Nafrâwî, I, p. 400, adds that only if the embryo dies by the slaughtering of its mother does it not need to be separately slaughtered. If it is still alive, it must be separately slaughtered.

170. On forbidden foods, cf. Qur'ân 2:173; 5:3; 6:121, 145; 16:115. See also 40.22 & 24.

171. Some editions add the words "because it is defiled".

172. Cf. Qur'ân 5:5.

173. An-Nafrâwî, I, p. 460, allows other animals to be used as well.

174. Cf. 41.01.

175. Cf. 40.11. The Qur'ân encourages and regulates fighting unbelievers: 2:190,244-6; 3:154-6; 4:74-7,84,89ff.; 5:35; 8:38-9; 9:13,29; 22:29-40; 47:4,35; 8:45; 61:10ff.

176. Cf. Qur'ân 9:29 and above, 25.10.

177. Cf. Qur'ân 8:41.

178. Other portions mentioned by an-Nafrâwî, I, p. 470, are the fay' (abandoned property), which goes to the public treasury, and the mukhta™™ (gain from private robbery of the enemy outside battle), which goes to the party who robbed it, except for a fifth which goes to the imâm.

179. EM>Nafal is an amount of wealth which the imâm keeps track of; cf. an-Nafrâwî, I, p. 475.

180. The term comes from a Qur'ânic passage urging fighting in close ranks, 8:60; cf. also 61:4 & 3:200.

181. An-Nafr‚wÓ, II, p. 2, quotes Ibn-`Arafa to explain three kinds of oaths. The first, called qasam, simply consists in saying "By God, I will" or "will not do such and such". The second is to bind oneself to do a certain recommended act (iltiz‚m al-mandŻb) should one do or fail to do something; the aim of this kind of oath is to restrain a person from breaking his word. The third kind of oath is to determine a certain legal effect to take place automatically if one breaks his word, for instance, "If I talk to Zayd, my wife is divorced" or "my slave is freed".
A vow is to bind oneself to do something in accord with God's laws for the sake of drawing near to him. It is not for the purpose of restraining the person from doing or omitting something else, for that would be an oath of the second kind, for example, "If I talk to Zayd, I will free my slave".
Authors differ on whether the form "If I talk to Zayd, for God's sake (li-ll‚h) I must free my slave" is an oath or a vow. Ibn-`Arafa makes it an oath, since it is to restrain the person from talking to Zayd. But Ibn-Rushd and al-AjhŻrÓ make it a vow, since the words "for God's sake" are in the typical language of a vow. In the translator's opinion, in the light of 31.02 & 04 it would be more in accord with the thought of al-Qayraw‚nÓ to class this example with oaths of the second kind ,as far as the conditional clause (shar≥) is concerned, and to interpret the principal clause (jaw‚b) of this example and of all oaths of the second kind as vows. Thus if a person breaks his oath to do or not to do something, he comes under a vow to do such and such.

182. EM>Thunyâ or istithnâ', that is, to say "God willing" (in shâ' Allâh).

183. Literally, "If I do it". An-Nafrâwî, II, p. 7, calls this an oath of innocence (birr), because the person is innocent until he breaks the oath.

184. An-Nafrâwî, loc. cit., calls this an oath of perjury (Ćinth), because the person is automatically guilty of perjury by omitting what he committed himself to do.

185. According to Qur'ân 5:89.

186. Various staples are mentioned in ch. 27.

187. When the oath is contrary to a good, it may be obligatory, recommended or permissible to break the oath. Even so, atonement is obligatory for breaking it, and not obligatory for fulfilling it. Cf. an-Nafrâwî, II, p. 10, and below, 31.05.

188. Cf. 28.04.

189. According to an-Nafrâwî, II, p. 17, a vow to go to Mecca has the same effect as an oath to go there.

190. An-Nafrâwî, II, p. 19, applies this obligation only to those who live close enough to return to Mecca, as in Egypt.

191. A jurist of Mecca who died in 114 or 115 H. (732/3); cf. J. Schacht, "`Atâ' b. Abî Rabâ Ć", EI2.

192. On the value of ™alât in these shrines, cf. 40.15.

193. Cf. 30.03 and 40.11.

194. Defined by Ibn-`Arafa in descending order of precedence as "someone who has authority over the woman by reason of ownership, paternity, agnate relationship (ta`™îb), testamentary guardianship (î™â'), suretyship (kilâfa), or Islâm"; cf. an-Nafrâwî, II, p. 22.

195. Cf. Qur'ân 4:4; other jurists use the term mahr.

196. This includes both unmarried girls and girls who married but were divorced before a full year of marriage. If she was divorced after a year she may not be forced into another marriage. Cf. an-Nafrâwî, II, p. 25.

197. Exactly the opposite of bikr, in the preceding paragraph. Thus a marriage for less than a year, and illicit relations do not make a woman a thayyib.

198. When she has a special guardian who has no right of constraint; cf. an-Nafrâwî, II, p. 28.

199. Cf. 34.22.

200. The term mut`a is derived from a verb used in Qur'ân 4:24, sometimes cited to support the practice.

201. Cf. 37.21.

202. This prohibition includes only simultaneous marriage to two sisters.

203. Cf. Qur'ân 5:5; 2:221; 24:3.

204. Because the Muslim child of the marriage would be the slave of the mother's Jewish or Christian master; cf. an-Nafrâwî, II, p. 43. This reason, of course, does not envisage the case when the woman's master is a Muslim.

205. But the slave woman must remain in the ownership of someone else; cf. below, 32.29.

206. That is, neither mentioning the dower, nor denying it, nor leaving it to a third party to settle; cf. an-Nafrâwî, II, p. 48, and Qur'ân 2:236.

207. But only if there is an impediment to the marriage of the parties in Islamic law; cf. an-Nafrâwî, II, p. 51.

208. By one month, according to an-Nafrâwî, II, p. 51.

209. But if he gets well, the marriage holds; cf. an-Nafrâwî, II, p. 56.

210. Cf. Qur'ân 65 (a≥-√alâq); 2;226-242.

211. Yet note the Ćâdîth quoted by an-Nafrâwî, II, p. 57: "Of things allowed, the most detestable (abgha≤) before God is repudiation."

212. Revocation (raj`a) is defined by Ibn-`Arafa as "the lifting, by the husband or judge, of the ban forbidding the husband to have intercourse with his wife because of having repudiate her". It is distinguished from remarriage (murâja`a), which is another contract after an effected (bâ'in) divorce. Cf. an-Nafrâwî, II, p. 58.

213. Cf. 33.01.

214. For more on khul`, see section.28 of this chapter.

215. To be distinguished from the temporary marriage (mut`a) forbidden in 32.04.

216. Until he would be seventy, according to the more common opinion; cf. an-Nafrâwî, II, p. 72.

217. On slave concubines, cf. Qur'ân 4:25-28; 70:29-31; no limit is set to their number.

218. These are the two forms of repudiation by delegation (niyâba); cf. an-Nafrâwî, II, p. 75.

219. Cf. Qur'ân 2:226.

220. Some texts add: "If he resumes relations, he is no longer qualified as an abstainer."

221. As by saying "You are to me like my mother's back"; cf. Qur'ân 33:4 & 58:2-4.

222. Cf. Qur'ân 24:4-9,23. It is defined by Ibn-`Arafa as "a husband's swearing that his wife has committed adultery or that he has not sired her pregnancy, and the wife's counter-swearing that he speaks falsely. If she refuses to counter-swear, the qâ≤î is to impose the fixed punishment on her;" cf. an-Nafrâwî, II, p. 82.

223. Ibn-Qâsim says that in this case the couple should proceed to cursing for adultery, but the majority opinion is that the husband should be given the fixed penalty for an accusation without evidence; cf. an-Nafrâwî, II, p. 84, and Qur'ân 4:2-9.

224. See above, 32.15. The Qur'ân does not use the word but it is implied in 2:229; 4:4,128.

225. For giving back part of the dower, an-Nafrâwî, II, p. 86, cites Qur'ân 4:4.

226. If the new marriage ends in divorce or widowhood she may remarry her former husband.

227. Because ownership of the woman as a slave is incompatible with marriage to her; cf. an-Nafrâwî, II, p. 87.

228. A slave is given half the number of lashes as a free man; cf. 37.22 & 37.31.

229. Cf. 32.14 and Qur'ân 2:228.

230. Cf. Qur'ân 33:49.

231. Cf. Qur'ân 2:234.

232. A period of abstinence, equivalent to `idda, to test the pregnancy of a slave concubine after a transfer of ownership.

233. This includes one not definitively repudiated by three declarations; cf. an-Nafrâwî, II, p. 100.

234. Because of high social class or sickness; cf. an-Nafrâwî, ibid.

235. Cf. Qur'ân 2:275-281; 3:130; 30:39.

236. Cf. below, 34.10.

237. Cf. 40.21.

238. When the child is seven, according to an-Nafrâwî, II, p. 129.

239. Ibn-`Arafa defines salaf as "the consignment of productive capital (mutamawwal) to be repaid in the same kind but not right away; the capital if for the profit of the borrower; it may not be a device to permit an unlawful `âriyya loan, and it is held at the borrower's liability;" cf. an-Nafrâwî, II, p. 133.

240. To rid the seller of responsibility for it.

241. Abû-`Amr Ashhab al-Qaysî, d. 204/819, a Mâlikite jurist of Egypt.

242. See above, 34.04.

243. Cf. 44.05.

244. An exchange of one amount for another of the same kind, when one or both amounts are indefinite. The indefiniteness includes the relative value of old to new foodstuffs, and undetermined quantities (juzâf) of an item. Cf. an-Nafrâwî, II, p. 140.

245. The term "capital" is used because the purpose of the transaction is the financing of a trader by his clients; cf. J. Schacht, Introduction, p. 153.

246. Because payment within three days is equivalent to immediate payment; cf. an-Nafrâwî, II, p. 144.

247. That is, the seller takes the money to go out and buy the article. This is prohibited because it is selling something risky and uncertain.

248. Even if the price is greater or lesser; cf. an-Nafrâwî, II, p. 149.

249. This prohibition applies primarily to outbidding the buyer by offering a higher price, but also to outbidding the seller by offering an article which is better or costs less; cf. an-Nafrâwî, II, p. 149.

250. An-Nafrâwî quotes Ibn-`Arafa to distinguish ijâra from kirâ'. Ijâra is "selling the service of mobile property other than a ship or an animal, to be paid for with something other than what is produced by the property" (II, p. 172). But an-Nafrâwî, ibid., notes that ijâra and kirâ' are in fact used interchangeably by al-Qayrawânî with regard to men and animals.

251. Defined by Ibn-`Arafa as "placing capital at the disposal of another for him to trade with and receive part of the profit, but no wage"; cf. an-Nafrâwî, II, p. 175.

252. If there is any profit. But if the man is hired to trade with the sale price, he has the right to a commission even if there is no profit. Cf. an-Nafrâwî, II, p. 176.

253. Especially watering them the basic meaning of musâqât.

254. The lessee must provide the see; cf. an-Nafrâwî, II, p. 183.

255. Because any delay in collecting these is the buyer's negligence; cf. an-Nafrâwî, II, p. 185.

256. Cf. an-Nafrâwî, II, p. 186. Not the difference between `ariyya, a noun derived from the root `-r-y and `âriyya (with alif of prolongation), which is derived from the root `-w-r. Cf. 36.08 and an-Nafrâwî, II, pp. 216-217.

257. Cf. Qur'ân 2:180-182; 5:106-108.

258. Khalîl ibn-IsĆâq gives many other bequests precedence over freeing a definite slave. Cf. an-Nafrâwî, II, p. 191.

259. EM>Tadbîr literally means to "turn one's back to" or "leave behind".

260. Thus reducing the share of the normal heirs described in chapter 39.

261. Thus a kitâba is distinguished from a qi≥â`a, which is a contract to buy freedom by paying the total sum all at once; cf. an-Nafrâwî, II, p. 195.

262. A child by another man is freed with its mother only if it is born after the master's child or after the mother is given an opportunity to gain freedom; a child born before she conceived from her owner or before she is given a chance of freedom is not freed. The master's child is automatically free from the moment of birth. Cf. an-Nafrâwî, II, p. 197, and below, 35.08.

263. She is to have less work and an ordinary slave and more than a wife; cf. an-Nafrâwî, II, p. 201.

264. If this child is born after the master's child; cf. an-Nafrâwî, II, p. 202.

265. That is, freeing the whole by reason of an important integral part or part title; cf. an-Nafrâwî, II, p. 204.

266. At the ruling of a judge; cf. an-Nafrâwî, II, p. 205.

267. E.g. as atonement or in consequence of an oath.

268. Ibn-`Arafa defines it as "a legal quality giving an agnate relationship (`u™ûba) [to the former slave] if he had none; it may be held by a man or a woman, and by reason of having freed the slave oneself or by his being freed on one's behalf"; cf. an-Nafrâwî, II, p. 208.

269. On the status of early non-Arab converts to Islam, cf. the article "Mawlâ", EI1.

270. By the master's declaring his slave like a sâ'iba, a female camel left to wander free.

271. Defined by Ibn-`Arafa as "the right of a co-owner to buy the share his partner is selling"; cf. an-Nafrâwî, II, p. 211.

272. But on his return he is given a year to exercise his right or not; cf. an-Nafrâwî II, p. 214.

273. But it binds the giver irrevocably once he gives his word; cf. an-Nafrâwî, II, p. 216.

274. The maximum proportion which can be willed. The remaining two thirds are reserved for the legal heirs; cf. ch. 39.

275. A donation (hiba) is a gift of the substance and usufruct of a thing, either for a recompense or simply for the sake of the donee. An alms (™adaqa), too, is a gift of the substance and the usufruct of a thing, but for the sake of a reward from God in the next life. Cf. an-Nafrâwî, II, p. 212.

276. An-Nafrâwî, II, p. 218, adds that a donation made to a rich person not related to the giver also may not be taken back.

277. As long as the child is still a minor; cf. an-Nafrâwî, II, p. 218.

278. In such a way as to prejudice the others, male or female, from receiving their normal share; cf. an-Nafrâwî, II, pp. 222-3.

279. Defined by Ibn-`Arafa as "a gift of the usufruct of a thing for as long as it exists, while the donor retains ownership of the substance, even if putative ownership"; cf. an-Nafrâwî, II, p. 211. On p. 227 an-Nafrâwî says that a Ćubus may also be for a limited duration.

280. Or his descendants if the Ćubus was left to be inherited without determination of time.

281. Even if the founder of the Ćubus is still alive; cf. an-Nafrâwî, p. 227.

282. Defined by Ibn-`Arafa as "the factual gift of the ownership of the usufruct of a thing to someone for as long as he lives, without a counter-value in return"; cf. an-Nafrâwî, II, p. 227.

283. Defined by Ibn-`Arafa as "property taken possession of in guarantee of a claim"' cf. an-Nafrâwî, II, p. 231.

284. Bayyina, literally "evidence"; cf. ch. 38, note 1.

285. Defined by Ibn-`Arafa as a "consignment of the temporary usufruct of a thing without recompense"' cf. an-Nafrâwî, II, p. 234.

286. Defined by Ibn-`Arafa as "the transfer of only the guardianship of movable property"; cf. an-Nafrâwî, II, p. 236.

287. I.e. "without negligence on my part in looking after it"; cf. an-Nafrâwî, II, p. 237.

288. An-Nafrâwî, II, p. 238, says that the general opinion is that he is not responsible.

289. Defined by Ibn-`Arafa as "a valuable found outside an inviolable place of custody, exclusive of an adult slave or livestock"; cf. an-Nafrwâwî, II, p. 240.

290. The description of the article should be vague, to prevent wrong claims; cf. an-Nafrâwî, II, 240.

291. Defined by Ibn-`Arafa as "forcible taking of the substance of another's property, not in circumstances of battle"' cf. an-Nafrâwî, II, p. 212. This includes unjust usurpation by rulers. On restitution of usurped property cf. 38.15. On legitimate war booty cf. 30.02.

292. Cf. 37.22.

293. In 38.15.

294. Cf. J. Schacht, Introduction, pp. 184-5. An example of the formula of the oath is "By God, the only deity, such and such killed him"; cf. an-Nafrâwî, II, p. 248. The same term, qasâma, is also used for the denial of the indictment, or compurgation, by the accused party.

295. EM>Ghîla includes paid assassination and killing to rob; cf. below, 37.20 and note 16.

296. The estate includes the blood rate. If the victim has no other estate but the blood rate, one third of it is affected by the waiver of clemency; cf. an-Nafrâwî, II, pp. 255-6. On bequests, cf. 35.01.

297. The term diya, with different provisions, is used in Qur'ân 4:92.

298. Not intending to kill him.

299. But a woman is paid equal to a man up to one third of the blood rate, as is said below, 37.09.

300. Cf. Qur'ân 2:178-9,194; 5:45; 16:126; 42:40. Compare also 22:39,60.

301. An-Nafrâwî, II, pp. 264-5, says that the first is Mâlik's definitive opinion.

302. The clan pays only on five conditions: 1) that the injured party is free, 2) that the injury is accidental or is treated as such, 3) the establishment of guilt by witnesses or by a sworn indictment, 4) that the amount reaches one third of the blood rate, and 5) that the wound is not self inflicted. Cf. an-Nafrâwî, II, p. 265.

303. Except in the case of killing an unbeliever for money; see below, 37.20.

304. But only indemnification is paid; cf. an-Nafrâwî, II, p. 267.

305. Cf. J. Schacht, Introduction, pp. 124 and 186. The source is a Ćadîth; cf. Bukhârî, the chapter al-I`ti™âm.

306. This is an exception to the general rule that a baby which dies without ever crying cannot receive or leave an inheritance; cf. 22.03.

307. According to an-Nafrâwî, II, pp. 273-4, a zindîq is the same as a munâfiq; the latter was left to the judgement of God in MuĆammad's time, but later practice was to put such persons to death. On the original and other meanings of zindîq, cf. L. Massignon, "Zindîk", in the Shorter Encyclopaedia of Islam, and W.M. Watt, The formative period of Islamic thought, pp. 171-2.

308. Cf. 40.18. See, however, Muhammad Talbi, "Religious liberty: a Muslim perspective", in Islamochristiana, 11 (1985), pp. 99-113, where it is maintained that the Qur'ân provides no Ćadd for apostasy, and that the Ćadîths which support it are not authentic.

309. Such as a Jew or a Christian.

310. Something which directly indicates unbelief, such as saying MuĆammad was only a sorcerer and not a prophet, or that Jesus is the Son of God, may be said with impunity; cf. an-Nafrâwî, II, p. 277.

311. Banditry (Ćirâba) is setting up a road block to prevent passage or to rob or kill an inviolable person; killing for money (ghîla) is a kind of banditry; cf. an-Nafrâwî, II, p. 272. Banditry is distinguished from killing an enemy for revenge, and from revolution against the imâm (baghy); cf. an-Nafrâwî, II, p. 255.

312. Cf. Qur'ân 5:33.

313. Cf. Qur'ân 5:34.

314. Zinâ' includes adultery, fornication and homosexuality. See the explanation of an-Nafrâwî, II, p. 280.

315. The Qur'ân merely provides flagellation (24:2,4).

316. The same holds for a woman. Islam and freedom are also required for marital restriction, and the husband can be restricted without his wife, if she is a slave or Jewish or Christian; cf. an-Nafrâwî, II, p. 281, and J. Schacht, Introduction, pp. 125 & 178-9. The qualification of marital restriction remains even after the dissolution of the marriage.

317. Cf. Qur'ân 4:15; 24:13.

318. If four witnesses see him in the act, as was said above; cf. an-Nafrâwî, II, p. 284.

319. Literally, "does what the people of Lot did". Cf. Qur'ân 11:77-83; 15:61-75; 26:160-175; 27:54-58; 29:28-35.

320. An-Nafrâwî, II, p. 286, adds that a simple chastisement (ta'dîb) is due for a man's penetration of his wife's or concubine's anus, for copulating with an animal, and for lesbianism. He adds, II, p. 291, that a chastisement is also due for masturbation by a man or a woman, except when a man has no alternative for his drive (yu≤≥arr); in that case it is licit. An-Nafrâwî is apparently arguing from analogy to the exception allowing the eating of forbidden meat when there is no other food (yu≤≥arr); cf. 29.05 and 40.05.

321. An unproven accusation of illicit intercourse or of being a bastard; cf. an-Nafrâwî, II, p. 286.

322. Qur'ân 24:4.

323. An-Nafrâwî, II, p. 289, explains that this is an alcoholic drink made from grapes. But, as seen in 37.33 and 40.23, the prohibition extends to all intoxicating drinks.

324. I.e. eighty lashes for a free man.

325. Or from any other fruit, according to an-Nafrâwî, II, p. 189.

326. By going in and coming out secretly; cf. an-Nafrâwî, II, p. 291.

327. Cf. Qur'ân 5:38.

328. As in shoplifting.

329. See below, 37.42.

330. On returning the increment of stolen goods, see 38.15; see also 36.12 on robbery.

331. Testimony (bayyina) is a statement (qawl) upon which the judge is obliged to act if the person who made the statement is shown to be of good character. The term is used of the testimony (shahâda) of witnesses and also for the witnesses themselves. Cf. an-Nafrâwî, II, p. 297, and J. Schacht, Introduction, p. 192.

332. The Umayyad caliph from 717 to 720. On his legal opinions cf. J. Schacht, Introduction, p. 53.

333. Meaning that judges may set up procedures to handle problems which did not exist during the time of MuĆammad and his companions. In this case they determined that the fact of the parties' having done business with each other or the plausibility of the charge is a condition for an oath to be required. Cf. an-Nafrâwî, II, p. 299.

334. At the mi Ćrâb, according to an-Nafrâwî, II, p. 302.

335. I.e. a church, a synagogue, or a fire temple for Magi; cf. an-Nafrâwî, II, p. 302.

336. Cf. Qur'ân 2:282.

337. Cf. 22.03.

338. Or even if he says he was merely mistaken; cf. an-Nafrâwî, II, p. 302.

339. The free child then remains with its mother; cf. an-Nafrâwî, II, p. 309.

340. According to an-Nafrâwî, II, p. 314, the first is the definitive opinion of Mâlik.

341. Cf. 36.12.

342. Someone who obtained produce from a robber not knowing that the productive source was stolen is not held to return the produce.

343. Provided the animals were grazing without a shepherd outside the farming season; cf. an-Nafrâwî, II, p. 322.

344. Cf. J. Schacht, Introduction, pp. 148 ff.

345. These may be claimed in due time by the deceased's heirs.

346. Cf. 35.01.

347. Most of these provisions are contained in Qur'ân 4:7-12,19, 176. See also N.J. Coulson, Succession in the Muslim family (Cambridge U.P., 1971).

348. If there are several wives, they divide the share of one wife; cf. an-Nafrâwî, II, p. 336.

349. The father inherits both a fixed share and, because he is an agnate (`â™ib), the residue.

350. A son is only an agnate, and does not receive a fixed share.

351. For example, the share of:
a husband, 1/2 = 3/6, is reduced to 3/10
a mother, 1/6, is reduced to 1/10
uterine brothers and sisters, 1/3 = 2/6, is reduced to 2/10
full or consanguine sisters, 2/3 = 4/6, is reduced to 4/10
The totals are: 10/6 10/10.
- cf. an-Nafrâwî, II, pp. 341-2; also below, 39.22.

352. Because of the strength of his blood tie.

353. Because of a closer degree of relationship.

354. Because the brother is related to the deceased through his father, which is a closer degree than the grandfather, through whom the full uncle is related to the deceased.

355. I.e. one whose mother is not a grandmother to the deceased.

356. Because all these are cognates with no assigned shares.

357. These also are cognates with no assigned shares.

358. Because anyone related to the deceased through an agnate is excluded by that agnate from a share in the residue.

359. For the same reason as in note 12.

360. Because the grandfather is two degrees removed from the deceased, while the brother's son is three degrees removed.

361. An-Nafrâwî, II, p. 344, gives several cases. While such a person may not exclude another heir, he may cause his portion to be reduced. For example, if the heirs are the mother, a paternal grandfather, and two uterine brothers, the uterine brothers are excluded by the grandfather, yet they cause the mother's share to be reduced from one third to one sixth.

362. A companion of MuĆammad, who was later responsible for compiling the Qur'ân; he died in 45/665.

363. E.g. uterine brothers. By way of summary, heirs include: 1) those entitled to a fixed share (ahl as-sihâm = ahl al-far≤): the father, the paternal grandfather and paternal ascendants, uterine brothers, the widower, daughters, son's daughters, a son's son's daughter, the mother, a grandmother on either side, a sister of any kind, and a widow; 2) agnates (`â™ib, pl. `a™aba), who share in the residue; these are: a) proper agnates (`â™ib bi-nafsi-hi), who are all the male relations in a male line and, by extension, the patron; the more proximate in any one line excludes the more remote from a share in the residue; b) those who became agnates through another agnate (`â™ib bi-ghayri-hi), that is, females who, when in competition with a proper agnate of the same class and degree, lose their fixed share and inherit as an agnate a part of the residue; these agnatized females are: a daughter in competition with a son, a son's daughter in competition with a son's son, and a full or consanguine sister in competition with a brother; c) those who become agnates when in competition with another who has a fixed share (`â™ib ma`a ghayri-hi); these are full or consanguine sisters in competition with daughters or son's daughters; 3) those who have both a fixed share and a share in the residue as an agnate; these are the father when inheriting with a daughter or a son's daughter, the grandfather when taking the place of the father in such a case, and a uterine brother whose father is a paternal uncle to the deceased.

364. She may not hold an inherited patronship or, presumably, a patronship by someone else's freeing a slave on her behalf; cf. 35.15.

365. Cf. note 5 of this chapter.

366. On the various legal statuses of acts cf. the Introduction, note 1.

367. Cf. ch. 4.

368. Cf. ch. 7.

369. Cf. ch. 5.

370. According to an-Nafrâwî, II, p. 353, if he is not in a state of major sexual defilement, bathing is not obligatory but only recommended.

371. Cf. chs. 8 & 10.

372. Cf. chs. 15-19.

373. Cf. 10.10.

374. Cf. ch. 18.

375. Cf. ch. 19.

376. Cf. ch. 16.

377. Qur'ân 4:101-3.

378. Cf. 28.02.

379. Cf. 12.04.

380. Cf. 23.10.

381. Cf. ch. 14.

382. Cf. 10.04.

383. Cf. 23.14.

384. Cf. chs. 20 & 21.

385. Cf. the Introduction and 45.08.

386. Cf. ch. 30.

387. Cf. chs. 23.

388. Cf. ch. 24.

389. Cf. 28.06 & 28.07.

390. Cf. chs. 25-26.

391. Cf. ch. 28.

392. Cf. Qur'ân 2:198.

393. Cf. ch. 11.

394. An-Nafrâwî, II, pp. 364-5, adds to these two the mosque of Elijah, i.e. al-Aq™â, in Jerusalem.

395. Especially Mâlik.

396. Cf. 41.07-08 & note 8.

397. An-Nafrâwî, II, p. 367, restricts this to looking at her face and hands to know her features.

398. Cf. 37.19-21. An-Nafrâwî, II, p. 373, explains that heresy is holding any tenet that is equivalent to unbelief.

399. 32.05.

400. Cf. Qur'ân 23:51 etc. An-Nafrâwî, II, p. 374, notes that the liceity of a thing depends also on its source, i.e. the means of getting possession of it.

401. Cf. 36.12 on robbery, and ch. 34 on the various forms of usury.

402. Cf. 29.06.

403. According to an-Nafrâwî, II, p. 381, the seriousness of the prohibition depends on the chance the mixture has of being alcoholic.

404. Because the juices are likely to ferment in them.

405. Cf. Qur'ân 29:8.

406. Cf. 41.07.

407. Al-amr bi-l-ma`rûf wa-n-nahy `an al-munkar; cf. Qur'ân 3:104,110,114; 7:157;. 9:71; 22:41; 31:17.

408. A word from Qur'ân 30:30, meaning the natural state of man as God made him and meant him to be.

409. An-Nafrâwî, II, p. 401, says the plucking is better than shaving or using lime.

410. Except that shaving the head is disapproved outside the time of completing the Ćajj pilgrimage. Others allow shaving the head when a turban is worn, and some say th;at even if a turban is nor worn, to shave the head is preferred, and not to do so is a mark of bad character. Cf. an-Nafrâwî, II, p. 401.

411. Cf. 29.09. An-Nafrâwî, II, p. 401, notes that for circumcision a party may be called and people invited.

412. Of wood, for example.

413. Cloth with the warp of some ordinary thread and the woof of silk; cf. an-Nafrâwî, II, p. 405.

414. I.e. the parts of the body which must be hidden before strangers.

415. E.g. to purify herself from menstruation, bleeding after delivery, a major sexual defilement, or because of sickness; cf. an-Nafrâwî, II, p. 408.

416. An-Nafrâwî, II, p. 409, distinguishes between: 1) an elderly woman, who may go out for any legitimate occasion, 2) a young woman who is not pretty, who may go out for public ™alât, and 3) a young woman who is pretty; she may not go out for any such occasion. If she does go out, she should go when and where she will not meet men. She should not put on perfume or fancy cloth. Her hands and face may show, unless she is very beautiful or bad morals prevail in the place. Cf. also I, p. 309, with reference to ch. 15, which says it is "disapproved" for any girl to go out for the jumu`a ™alât.

417. Cf. 40.27 & 42.04.

418. Cf. 40.16.

419. An-Nafrâwî, II, p. 410, allows false hair to be "put on" without being attached.

420. An-Nafrâwî, II, p. 411, applies this to men and women.

421. An-Nafrâwî, II, p. 413, adds "or carpets".

422. An-Nafrâwî, II, p. 413, remarks that statues are completely forbidden - except for dolls for children, which are permitted - while pictorial representations on surfaces are disapproved, unless they are destined for menial use.

423. Tharîd, a dish whose chief component is sopped bread; cf. an-Nafrâwî, II, p. 418.

424. Cf. Qur'ân 4:86.

425. Since there is no tradition supporting this expression.

426. For the former in each case to avoid colliding with the latter or to reassure him; but in ordinary circumstances the lesser person should greet the greater first; cf. an-Nafrâwî, II, p. 424.

427. Mu™âfaĆa, putting the palm of one's hand on the palm of the other for the duration of the greeting; cf. an-Nafrâwî, II, p. 425.

428. A relator of •adîth, d. 198/814.

429. An-Nafrâwî, II, p. 426, explains that the Christian or Jew may have used the word as-samm (poison) or silâm (rock) in place of salâm. If the Muslim is not sure what he heard, "`alayka" will return the statement as it was meant. But if the Muslim is sure he heard "salâm" he must return the greeting. If he is sure he heard "sâm" or "silâm" he may answer with the word "silâm", referring to the legal penalty of stoning for adultery. On the presence of Christians and Jews in Tunisia at the time of al-Qayrawânî, cf. Hady R. Idris, La Berbérie orientale sous les Zîrîdes, Xe-XIIe siècles (Paris, 1962), II, pp. 757 ff.

430. 40.26.

431. A Companion of MuĆammad, d. 18/639.

432. An-Nafrâwî, II, p. 431, comments that the spirit goes out of man during sleep; some hold that there are two spirits, a spirit of life which remains until death, and a spirit of consciousness, which goes out during sleep.

433. According to an-Nafrâwî, II, p. 432, this prayer is only what MuĆammad taught his people to say, since he himself committed no sin.

434. Cf. 10.04 for the same prayer with a variant order.

435. Qur'ân 43:13.

436. . An-Nafrâwî, II, p. 438, explains that [in al-Qayrawânî's time] the Blacks were unbelievers (kuffâr); but even if they are believers, the journey across the Sahara is full of dangers to the trader's life and property.

437. An-Nafrâwî, II, p. 440, notes a Ćadîth that it is better not to make use of charms, but he explains it as referring to those composed by unbelievers or with foreign words. On belief in the "evil eye" see my Muslim theology as presented by MuĆammad ibn-Yûsuf as-Sanûsî, especially in his al-`Aqîda al-wus≥â (Ph.D. thesis, University of Edinburgh, 1970), p. 254.

438. An-Nafrâwî, II, p. 442, notes that if the amulet is covered it may be worn by menstruous women and touched by non-Muslims or animals.

439. An-Nafrâwî, II, p. 448, notes that castrating humans, even slaves, is forbidden.

440. An-Nafrâwî, II, p. 448, says that according to one opinion tattooing the face without branding with fire is not forbidden, even for men.

441. Going through the motions of spitting, without making noise [or actually expectorating]; cf. an-Nafrâwî, II, p. 449.

442. One of the seven great jurists of Medina, d. 94/713.

443. With the idea that they are jinn. If they remain they are presumed to be devils. Cf. an-Nafrâwî, II, p. 454.

444. Commonly thought to be poisonous, but really not.

445. But they may be eaten if ritually slaughtered, according to an-Nafrâwî, II, p. 456.

446. See note 1.

447. Qur'ân 3:110. The sentence refers to some sources of religious science: the Qur'ân, •adîth, consensus of believers (ijmâ`), and the authority of the Companions of MuĆammad.

448. Learned men of the first three centuries of Islam; cf. an-Nafrâwî, II, p. 460.

449. Qur'ân 7:43.