The Distinguished Jurists Primer by Ibn Rushd

The comprehensive discussion of the principles and rules of this form of purification is covered in six chapters. The first chapter is about the identification of the hukm, that is, whether it is obligatory or recommended from the aspect of being absolute, or is stipulated only as a condition for salahi The second chapter relates to the identification of the kinds of impurities. The third chapter is about the objects from which the removal of such impurities is obligatory. The fourth chapter is about the thing with which they are to be removed. The fifth chapter deals with the manner of their removal from each object. The sixth chapter relates to the etiquettes of the privy.

The source of this chapter from the Book are the words of the Exalted, “Thy Diment purify”,78 and from the sunna the words of the Prophet (God’s peace a nd blessings be upon him), “One who performs ablution should snuff up water and reject it, and one who uses stones [in purifying himself after excretion] should use the odd number [like three, five, etc.]”. There is also the command of the Prophet (God’s peace and blessings be upon him) for cleaning ^enstrual blood from clothes, and for pouring a pitcher of water over urine, as ! n the case of the bedouin. In addition, there is his saying about passing a grave ln which two persons were buried that “they are being given some torment, but not for a major sin; one of them did not cleanse himself after urinating The jurists agreed, because of the existence of these transmitted texts, that removal of impurities has been commanded by the law, but they differed over whether this was by way of obligation or recommendation, that is, as a sunna, as indicated earlier. One group of jurists usaid that the removal of impurities is obligatory, which was the opinion of Abu Hanlfa and al-ShaficI. Another group of jurists said that it was sunna mtfakkada (emphatic), but is not an obligation (fard). One group said that it is an obligation when remembered, but is waived in the case of forgetfulness. Both opinions are related from Malik and his disciples.

The reason for their disagreement over this issue stems from three factors. First, there is disagreement about the words of the Exalted, the Glorious, “Thy raiment purify”; whether these are to be taken literally or figuratively. The second reason is the conflict between the apparent meanings of the traditions with respect to this obligation. The third reason is their disagreement about the prescribed commands and proscriptions as related to a rational underlying cause; whether the underlying cause understood from these commands and proscriptions is a corroborative fact that moves the command from an obligation to a recommendation, and ,the proscription from a prohibition to disapproval, or whether it is not a corroborative fact, and that there is no difference here between rational and non-rational worship. Those who.made such a distinction did so because most of the rational ahkam in the law relate to ethical norms or to juristic interests, which are mostly recommended. Those who interpreted the w ords of the Exalted, “Thy raiment purify”, to mean physical raiment said’ that purification from impurities is obligatory, while those who considered it as symbolic of purity of the qalb (heart) did not find any legal evidence in them.

Included in the conflicting traditions in this issue is the widely known tradition about two buried persons and the words of the Prophet (God’s peace and blessings be upon him) that “they would be given some torment, but not for major sins; one of them did not cleanse himself after urinating”. The apparent meaning of this tradition implies an obligation as torment relates only to an obligation. The tradition opposing this is that established from the Prophet (God’s peace and blessings be upon him), that when he was assaulted while praying with the blood and viscera of a slaughtered camel placed upon him, he did not terminate his prayers. The apparent meaning of this is that had the removal of impurities (jm/aw) been obligatory like the obligation o purification from ritual impurity (hadath\ he would have terminated hi» prayers. Another related tradition is as follows: “While the Prophet (Gods peace and blessings be upon him) was praying once in his sandals he cast them off; the people (praying with him) followed suit but he denied the need for and said, ‘I cast them off as Jibril informed me that there was filth on them The apparent meaning is that had it been obligatory why would he have continued the prayer?

Those who adopted the method of preferring the apparent meaning of these traditions upheld obligation when the tradition requiring obligation was :preferred, and upheld recommendation when the two traditions requiring a ‘recommendation were preferred; I mean, that the two traditions imply that the removal of the sandals is in the category of an emphatic recommendation. Those who adopted the method of reconciliation include two groups. The first said that it is obligatory when remembering and when able to perform, and that the obligation is dropped in the case of forgetfulness and the incapacity to perform. The other group said that it is always an obligation, but is not a condition for the validity (proper performance) of prayer. This is the fourth opinion on the issue, and (the second part of it) is weak, because wayira is to be removed during prayer.

In the same way, some of the jurists who distinguished between rational and non-rational forms of worship, that is, who deemed the non-rational as emphatic for purposes of obligation, made a distinction between a command prescribed for purification from legal impurity (hadath) and the command for actual impurity (najdsa), as it is known that the purpose of purification from najasa is cleanliness, which is an ethical norm. Purification from hadath, on the other hand, is non-rational. They also sought support from the corroborating evidence of praying in sandals, as they did from the consensus about ignoring slight filth in some cases, when it is evident that one usually treads on filth with them.

The jurists agreed that the kinds of impurities are essentially four. First, carrion of warm-blooded animals not living in water. Second, flesh of swine, whatever the cause of its death. Third, blood of an animal that does not live in Water, and is extracted from a living or dead animal when it flows out, that is, when' it is excessive. Fourth, the urine and excrement of human beings. Most the jurists agreed about the impurity of khami\ but there is disagreement about this among some of the traditionists. The jurists disagreed about things besides these. The principles of this chapter are covered in seven issues.

They disagreed about carrion that has no blood in it, and about dead sea j Rimals. A group of jurists said that a carcass of a bloodless creature is clean; ► milarly, the dead sea creatures. This is Malik’s opinion and that of his disciples. A group of jurists maintained equivalence, with respect to impurity, between carrion of a warm-blooded and bloodless creatures, unless it was something over which there is agreement that it is not carrion like worms and what is produced in eatables, but they exempted dead marine animals from this, which is al-ShafiTs opinion. Another group considered carrion and dead sea animals to be the same, exempting bloodless carrion, which is Abu HanTfa’s opinion.

The reason for their disagreement is based on their dispute over the meaning of the words of the Exalted, “Forbidden unto you are carrion .. .”79 The reason, I think, is that they agreed that it belongs to a category of a general word intended for the particular, after which they differed as to which particular is meant here. Some of them exempt from this dead sea- animals and carrion of bloodless creatures, some exempted dead sea animals only, while others made an exemption in the case of carrion of bloodless creatures alone. The reason for a disagreement over these exemptions is based upon their disagreement over the restricting evidence. The apparent argument of those who exempted bloodless carrion is based upon the established tradition from the Prophet (God’s peace and blessings be upon him) relating to flies when they fall into food. They said that this indicates the cleanliness of flies, and there is no underlying reason for this except the fact that they are bloodless.

Al-ShafiTs view is that this is particular to flies, because of the words of the Prophet (God’s peace and blessings be upon him), “In one of its wings is disease and in the other its cure”. Al-Shafici deemed weak the derivation from the tradition that the apparent meaning of the verse implies two separate prohibited impurities: carrion and blood. The first is acted upon by ritual slaughter for purification, because of which a slaughtered animal is permitted for consumption by agreement, while blood is not purified by slaughter and has a separate hukm. Thus, how is it possible to combine the two and maintain that blood is the cause of the prohibition of carrion? This is (a) strong (argument) as you can see, for if blood had been the cause of prohibition of carrion, the prohibition of eating (dead) animals would not have been lifted by slaughter. The prohibition of the blood still remaining in it and which has not been eliminated yet would have subsisted, and permissibility would only apply after the complete exhaustion of the blood from the animal; the cause having been removed, the effect would necessarily follow. If the cause is found, but the effect is absent, then, this is not the real cause. An example of this is the case of grape juice. If the prohibition is lifted from grape juice, it necessarily follows that intoxication be absent, that is if we believe intoxication to be the cause of prohibition. Those who exempted dead sea animals, adopted the established tradition of Jabir, which states “that they ate for several days of the whale that had been thrown out of the sea and that they derived their supplies from it. When they informed, the Messenger of Allah (God’s peace and blessings be upon him) about this, he approved their act saying, ‘Is something left of it?’ ” This is an evidence indicating that he did not permit this out of necessity arising from exhaustion or lack of food. They also argued on the basis of the words of the Prophet (God’s peace and blessings be upon him), “Its water is pure and its dead creatures are permitted (for consumption)”.

Abu HanTfa, on the other hand, preferred the general meaning of the verse over this tradition, either because the verse is definitive and the tradition probable, or he held that this was an exemption for them, that is, the exemption in the tradition of Jabir, or because he held that the whale had died due to a cause, which was the turbulence of the sea that threw it out on the shore, as carrion is that which dies of its own without an external cause.

Another reason for their disagreement here is whether the pronoun in the words of the Exalted, “[The catch of the sea] and its food is permissible for you, a provision for you and for seafarers”,80 refers to the sea or to the fish itself. Those who associated it with the sea said that its food is that which is on the surface, while those who associated it with the catch said that what is permissible is only what is caught. In addition to this, the KufTs also relied on a tradition in which the prohibition of consuming fish floating on the surface is laid down, but which is weak according to the others.

Just as the jurists differed about the (hukm of the) kinds of carrion they disagreed about (the hukrn of) the parts of dead animals, which they had deemed as carrion by agreement. Thus, they concluded that flesh of the parts of mayta was also mayta, but they disagreed about bones and hair. Al-Shafi T c held that bones and hair were also mayta, while Abu HanTfa held that they are not. Malik made a distinction between hair and bones saying that bones are mayta, but not hair.

The reason for their disagreement relates to their dispute as to what activity in the limbs can be assigned the term “life”. Those who maintained that the activity of growth and food intake depicts life said that when the activity of growth and food intake is absent from hair and bones they become mayta. Those who maintained that the term “life” is only applied to the senses, and as hair and bones do not possess the capacity to sense, they are not.maj/ta. Those who distinguished between the two, assigned to bones the capacity to sense, but not to hair. There is a disagreement about the capacity of the bones to sense, and the matter is disputed among the physicians. The evidence proving that food intake and growth are not that kind of life to the absence of which the term may la can be applied is the agreement of all jurists that a, part of an animal cut off when it is alive is mayta. This is based on a tradition, which is the saying of the Prophet (God’s peace and blessings be upon him), “Whatever is cut off from an animal, when it is alive, is mayta”. They agreed, however, that hair sheared from an animal is clean. Further, if the term mayta were to be applied to things whose growth and food intake has stopped, the uprooted vegetation would also be termed as mayta, as vegetation also shows growth and food intake. To this al-ShafiT may reply that food intake, to the absence of which the term death is applied, is limited to beings endowed with the capacity to sense.

They disagreed about the utilization of skins of dead animals. A group of jurists upheld the unconditional permissibility of the utilization of skins, whether tanned or not, while another group held the opposite view, that is, they are not to be utilized at all, even when tanned. A third group of jurists made a distinction between tanned an untanned skins, maintaining that tanning purifies them, which is al-ShafiTs and Abu HanTfa’s opinion. There are two narrations from Malik about this. The first is the same as that of al- Shafi I, while c the second is that tanning does not purify them, but they can be used if no moisture is involved. Those who maintained that tanning is a purifying factor, agreed that it purifies the skins of the animals that can be ritually slaughtered, that is, those permissible for consumption, but they disagreed about those to which ritual slaughter does not apply. Al-ShaficT held that it purifies the skins of ritually slaughtered animals only, as slaughter is a substitute for the purpose of purification. Abu HanTfa maintained the effectiveness of tanning in purifying the skins of all animals with the exception of swine. Dawud said that it purifies all, even the skins of swine.

The reason for their disagreement is the conflict of traditions on this issue. The absolute permissibility of its utilization is laid down in Maymunas tradition, when the Prophet (God’s peace and blessings be upon him) was passing by a carcass he said, “Would that you had made use of its skin”. Its absolute prohibition is derived from the tradition of Ibn cAkTm, which states that “the Messenger of Allah (God’s peace and blessings be upon him) wrote that neither its hide nor its sinew are to be utilized”. This was a year before his death. In some traditions the command conveys (the permissibility of) their utilization after tanning, but not before. The established tradition for this isTHE BOOK OF (RITUAL) PURIFICATION (TA HARA) that of Ibn ‘Abbas that the Prophet (God’s peace and blessings be upon him) said, “When the hides are tanned they become purified”.

The conflict of these traditions led the jurists to differ in their interpretation. One group adopted the method of reconciliation on the basis of the tradition of Ibn ‘Abbas, distinguishing between tanned and untanned skins. Another group adopted the method of abrogation, and relied on the tradition of Ibn cAkTm, because they date it as late as one year before the Prophet’s death. A third group preferred Maymuna’s tradition maintaining that it entails an addition over the tradition of Ibn ‘Abbas, as the prohibition of utilization prior to tanning cannot be derived from Ibn ‘Abbas’s tradition, which speaks of purity, but utilization is different from purification. While each pure thing may be utilized, it is not necessary that each usable thing is pure.

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The jurists agreed that blood of land animals is unclean, but they differed about the blood of fish. Similarly, they disagreed about small quantities of blood of animals other than those of the sea.

A group of jurists said that the blood of fish is clean, and this is one of two opinions from Malik and is also the opinion of al-Shafi‘T. Another group of jurists said that it is unclean on the basis of the rule for blood. This is Malik’s opinion in al-Mudawwana. Similarly, a group of jurists said that small quantities of blood are overlooked, while others said that the hukm of large and small quantities is the same. The former view is held by the majority.

The reason for their disagreement over the blood of fish relates to their disagreement whether dead fish is mayta. Those who considered dead fish to be included in the general prohibition for mayta, deemed its blood to be the same, while those who exempted it from the general prohibition, exempted its blood on the same analogy. There exists a weak tradition related to this, and this is the saying of the Prophet (God’s peace and blessings be upon him), 1 wo kinds of mayta and two kinds of blood have been permitted to us, locust a nd whale, and liver and spleen”.

Their disagreement over large and small quantities of blood relates to the ^position of the qualified meaning over the absolute or the imposition of the absolute meaning over the qualified. The prohibition of blood has been laid down in absolute terms in the words of the Exalted, “Forbidden unto you are Car rion and blood and swine-flesh”,81 while it is found in qualified terms in His words: “Say: I find not in that which is revealed to me aught prohibited to an eater that he eat thereof, except it be carrion, or blood poured forth, or swine-flesh—for that verily is foul”.82 Those who imposed the qualified meaning over the absolute meaning, and these are the majority, said that it is only blood that is “poured forth” that is prohibited and unclean. Those who decided according to the absolute meaning in preference to the qualified, said that blood “poured forth” is blood in large quantities, while that which is not “poured forth” is blood in small quantities, and both are prohibited. They also supported their view by saying that a thing which is unclean in essence cannot be clean in its constituent parts.

The jurists agreed about the uncleanliness of human urine and excrement, except for the urine of a male infant. They disagreed about what is besides this with respect to all animals. Al-ShaficT and Abu Hamfa held that urine and excrement of all animals are unclean, while a group of jurists upheld their absolute cleanliness, that is, offal of all animals from urine and excrement. A group of jurists said that the hukm of their urine and dung is dependent upon the hukm of their flesh. The animals whose flesh is prohibited, their urine and dung are prohibited and unclean, while the animals that are fit for consumption their urine and dung are clean, except for those animals that consume filth. The animals that are considered abominable (for food), their urine and dung are also abominable. This was Malik’s opinion, as well as that of Abu Hamfa with respect to beasts of prey.

There are two reasons for their disagreement. The first is their dispute over the significance of the ordained permissibility of praying in the resting place of animals, the permission granted by the Prophet (God’s peace and blessings be upon him) to the TJmiyln to drink the urine and milk of camels, as well as the meaning of the prohibition of praying in the resting place of camels. The second reason is the analogy, for this purpose, of all other animals upon man. Those who constructed the analogy of all other animals upon man, maintaining that this belongs to the category of higher qiyds, did not consider the permissibility of praying in the resting places of animals as implying the cleanliness of their urine and dung, but deemed it to be a hukm resting upon a revelatory non-rational source. Those who interpreted the prohibition of praying in the resting places of camels to imply uncleanliness, and deemed the permissibility of drinking the urine of camels in the case of the TJmiyin as medication, which is permitted on principle, said that all urine and dung lS unclean. Those who interpreted the tradition permitting prayer in the resting places of animals as implying the cleanliness of their excrement and urine, as also in the case of the TJrniyTn, and deemed the prohibition of praying in the resting places of camels an act of worship and as conveying a meaning other than uncleanliness, the difference, according to them, between man and animals being that the excrement of man is repulsive by nature, while that of animals is not, deemed the excrement as being dependent upon (the permissibility) of the flesh of animals. Allah knows best. Those who based the analogy of all other animals upon domesticated animals, deemed’ all excrement to be clean and not prohibited, except for the excrement of man.

The issue is subject to interpretation, and had it not been disallowed to issue an opinion that no one has expressed before among the widely known opinions, even when the issue is disputed, it would be said that the distinction be based upon those emitting an offensive smell and are considered filthy and those that do not emit such an odour and are not deemed filthy, especially those that have a pleasing smell, due to their agreement about the peimissibility of ambergris, which according to most is the excrement of a marine animal, and about musk, which is a residue from the blood of an animal in which musk is formed, as is known.

The jurists disagreed about small amounts of filth into three opinions. A group of jurists held that small and large quantities are the same. Among those who held this opinion is al-ShaficT. Another group of jurists held that small amounts of filth are overlooked, and they fixed this to be an amount equal to the size of an impure (alloyed) dirham. Among those who held this opinion is Abu HanTfa. Muhammad ibn al-Hasan deviated from this saying that if the filth covers one-fourth or less of the dress, prayer is permitted in it. A third group of jurists held that small and large quantities of filth are the same, e *cept in the case of blood as has been mentioned. This is Malik’s opinion. There are two narrations from him about menstrual blood, the one widely known being that it is similar to all other kinds of blood.

The reason for their disagreement is related to their dispute over the analogy of minor uncleanliness upon the exemption disregarding the remaining trace of filth in the case of cleaning with stones. Those who permitted such an analogy u pheld the permissibility of minor uncleanliness, and for this reason they limited it to the size of a dirham, the size of which is the same as the size of the outlet. Those who held that these and other exemptions cannot serve as a basis lor analogy, did not allow it.

The reason for the exemption granted by Malik in the case of blood has already preceded, while the explanation of Abu HanTfa’s opinion is that filth is divided, according to him, into gross and light. In the case of gross filth, the amount of exemption is limited to the size of a dirham, while light filth is tempted up to the extent of a fourth of the dress. Light filth in his view is like the excrement of beasts of burden and those from which the streets are seldom free. This division by him into gross and light is excellent.

They disagreed about semen, whether it is unclean. A group, from among them, Malik and Abu HanTfa, held that it is unclean, while another group maintained that it is clean, which was the opinion of al-ShaficT, Ahmad, and Dawud.

There are two reasons for their disagreement. First is the variation in c A’isha’s tradition. In some versions it says, “I used to wash off semen from the clothes of the Messenger of Allah (God’s peace and blessings be upon him), and he would go out to pray in them with water-marks on them.” In others it says, “I used to scrape off semen from the clothes of the Messenger of Allah (God’s peace and blessings be upon him)”, and that “he used to pray in them”. The addition is recorded by Muslim. The second reason is the vacillation of semen between resemblance with the unclean excrements of the body and between resemblance with other clean secretions, like milk etc.

Those who reconciled all the traditions, interpreting washing to be for the purpose of cleanliness, and derived from scraping that does not purify an evidence of its purity, and made an analogy for semen upon other pure secretions, did not deem it unclean. Those who preferred the traditions of washing over those of scraping, and considered semen to be unclean, as it resembled, in their view, to unclean excrements more than clean secretions, maintained that it is unclean. So also those who believe that uncleanliness is removed by scraping. They said that scraping itself indicates its uncleanliness, as does washing. This is Abu HanTfa’s opinion. On this basis there is no proof with those who maintain their opinion (that semen is clean) on the words that “he used to pray in them”, on the other hand, there is evidence in it for Abu HanTfa that uncleanliness can be removed without water, which is contrary to the opinion of the Malikites.