The Distinguished Jurists Primer by Ibn Rushd

In this part there are four issues that are taken to be the principles of this topic. The first issue is about the exposition of its obligation. The second issue is about the number of its (daily) obligations. The third issue is about the individual for whom it is obligatory. The fourth issue is about the consequential obligation because of intentional relinquishment.

Its obligation is evident from the Book, the sunna, and consensus. The fact that it is so widely known makes its discussion unnecessary.

There are two opinions about the number of daily obligations. First is the opinion of Malik, al-Shafi T, and the majority, which maintains c that only five (daily) prayers are obligatory. The second is the opinion of Abu HanTfa and his disciples which maintains that the witr prayer is also obligatory along with the five (daily) prayers. Their disagreement about whether the obligation established from the sunna is wajib or fard is of no consequence.85

The reason for their disagreement lies in conflicting traditions. The traditions that confine the obligation to five prayers are explicit, widely known> and well-established. The most vivid of these is the tradition of wn?, “When the obligation reached the number five, Musa (Moses) said to him (Muhammad), ‘Turn back to your Lord, for your umma cannot bear this’. He said, ‘So I did’. The Exalted said, ‘They are five but they are fifty (in reward value), My decree is not altered’”. Further, there is the widely known tradition of the bedouin, who asked the Prophet (God’s peace and blessings be upon him) about it and the Prophet (God’s peace and blessings be upon him) said, “Five prayers in a day and;night”. He asked (again), “Am I obliged for more besides these?” He replied, “No, unless you observe them voluntarily”.

Among the traditions that convey the meaning of the obligation of witr is that of cAmr ibn Shu^yb from his father and from his grandfather “that the Messenger of Allah (God’s peace and blessings be upon him) said, ‘Allah has added a prayer for you, and this is the witr, so keep it up’ ”. They also include the tradition of Haritha ibn Hudhafa who said, “The Messenger of Allah (God’s peace and blessings be upon him) came out to us and said, ‘Allah has commanded you to observe a prayer, which is better for you than the red camels. This is the jw/r. He has determined that you observe it in the time between the night prayer (SiZwP) and the morning prayer (fajr\ ”. In addition, there is the tradition of Burayda al-AslamT “that the Messenger of Allah (God’s peace and blessings be upon him) said, ‘The witr stands confirmed, and he who does not observe it is not one of us’”.

Those who maintained that an addition, (over the five daily prayers) amounts to an abrogation, and for whom these traditions (about witr) did not reach a level of authenticity sufficient to abrogate the widely known and established traditions (that confine the obligation to five), preferred them (the latter). Further, the limitation of five is established by the tradition of isrd? in the words of the Exalted, “My decree is not altered”, which apparently imply that nothing is to be increased or decreased, though they convey a stronger probability of decrease. And what is revealed as an informative sentence (not a command) is not subject to abrogation. Those for whom the strength of the traditions, which imply an addition over five prayers, reached a level where it was obligatory to act according to them deemed it necessary to abide by the addition, especially those who held that an addition does not imply abrogation. This, however, is not Abu Hamfa’s opinion.

The person for whom it is obligatory is every pubescent Muslim, and there is no dispute about this.

With respect to the obligation in the case of the person who relinquishes it intentionally, and when he is ordered to pray refuses to do so, but does not deny its obligation, a group of jurists said that he should be executed, while another group said that he is to-be punished and confined. Among those who maintained that he is to be executed; some made his execution obligatory as a result of his disbelief (kufr). This is the opinion of Ahmad, Ishaq, and Ibn al- Mubarak. Others, who upheld his confinement and punishment till he resumes praying, determined it as a hadd penalty, which is the opinion of Malik, al- Shafi i, Abu Harnfa, his disciples, and of the Zahirites.

c The reason for this disagreement stems from the conflict of traditions. It is established from the Prophet (God’s peace and blessings be upon him) who said, “Shedding the blood of a Muslim does not become lawful, except in three cases: disbelief after faith, fornication after marriage, and killing a human being when it is not in retaliation for another life”. It is also related from the Prophet (God’s peace and blessings be upon him) in the tradition of Burayda that he said, “The distinguishing factor between them and us is prayer, so he who relinquishes it has committed disbelief’. In the tradition of Jabir, the Prophet (God’s peace and blessings be upon him) said, “It is the (basis for) distinction between obedience and disbelief’, or he said, “Polytheism is nothing but the relinquishment of prayer”. Those who understood from the term disbelief here to be actual rejection deemed this tradition to be a commentary on the words of the Prophet (God’s peace and blessings be upon him) “disbelief after faith [occurring in the tradition quoted above]”. Those who deemed it (the use of the term disbelief here) merely as censure and reproach said that it means that his acts are like those of the disbelievers and that he resembles the disbelievers. It is just like saying, “a fornicator does not commit fornication and remain a believer” or “a thief does not commit theft and remain a believer”. Thus, they held that hadd penalty is not to be imposed in this case.

The opinion of those who said that he is to be executed by way of hadd (penalty) is weak. They have nothing to rely on, except for a weak qiyas al- shabahy if that is possible here, that is, the comparison of prayer, the foremost command, with murder, the foremost prohibition. The term “kufr” is literally applied to mean “denial”, and it is known that the person relinquishing prayer is not denying, unless he relinquishes it with such a belief. We, therefore, have two choices. First, if we interpret the tradition in the sense of “disbelief’, it *s binding on us to construe that the Prophet (God’s peace and blessings be upon him) meant a person who rejects it while disbelieving it, thus committing disbelief. Second, to assign to the term “kufr” a meaning other than its primary application, and this is possible in two ways. First, by assigning to the individual the hukm assigned to a disbeliever, that is, with respect to execution and the remaining ahkdm for the disbelievers, even when he is not denying belief. Second, by saying that all his acts are like those of the disbelievers by way of censure and deterrence, in view of the fact that a person who fails to perform the prayer resembles the disbelievers in his attitude, for the disbeliever does not pray. This is similar to the saying of the Prophet (God’s peace and blessings be upon him), “The fornicator does not commit fornication and remain a believer”.

The decision by interpretation that his hukm is the hukm of a disbeliever cannot be taken, except through an evidence, for it is a hukm that has not been established by the law in a way that a decision can be based upon it directly.' As there is no evidence indicating actual disbelief, which amounts to denial in our view, it is necessary that it be construed in its allegorical sense and not in a manner that has not been established in the shar*. In fact, its opposite has been established, which is that the shedding of his blood is not permissible as he does not fall under any of the three cases mentioned in the law. So ponder over this, for it is evident. Allah knows best. This means that there are two choices for us. We may either imply the existence of ah assumed word in the text, if we regard failure to pray tantamount to disbelief, in which case it conforms to its meaning in the law, or we may to interpret it in the metaphorical sense. The interpretation leading to the application of• the hukm of a disbeliever in all its manifestations, while the person is a believer, is something that is inconsistent with the general principles, especially when the tradition establishes the cases in which execution is applied due to disbelief or as a hadd. For this reason, this opinion is similar to the doctrine of those who impute the sinners with kufr (disbelief).