The Distinguished Jurists Primer by Ibn Rushd

In this chapter there are two sections. The first section is about curtailing the prayer and the second is about combining prayers.

Travelling is effective in curtailing (quadruple)141 prayers, by agreement, and is effective in combining prayers, with disagreement.

The jurists agreed about the curtailment of prayers, except for a deviant opinion, which is the opinion of cA5isha, who maintained that curtailing prayers is not permitted, except for one in a state of fear, because of the words of the Exalted, “And when ye go forth in the land, it is no sin for you to curtail [your] worship if ye fear that those who disbelieve may attack you. In truth the disbelievers are an open enemy to you”.142 They isaid that the Prophet (God’s peace and blessings be upon him) shortened his prayers for he was in a state of fear.

They (the majority) differed over this on five points. First, about the hukm of curtailing prayers. Second, about the length of the journey to which curtailment applies. Third, the kind of journey that justifies curtailment. Fourth, the point from which the traveller may commence shortened prayers. Fifth, the duration in time for which it is permissible for the traveller to continue curtailing prayers, if he has stayed on at one place.

With respect to the hukm of curtailing prayers, they held four different opinions. Some of them held that curtailing prayers is an obligation for the traveller and is determined for him. Some held that curtailing and completion are both obligatory for him by way of an option, like the option in case of expiation (kaffara). Some held that curtailing of prayers is a sunnay while others were of the view that it is an exemption and offering complete prayers has greater merit. The first opinion was held by Abu Harnfa, his disciples, and the Kaffs as a whole, that is, it is a fixed obligation. The second opinion was held by some of the disciples of al-ShaficT. The third, that it is sunna, was held by Malik in the best known narration from him. The fourth, that it is an exemption, was held by al-Shaf?! in the best known narration from him and it is supported by his disciples.

The reason for their disagreement derives from the conflict between rational argument and the form of the command in the transmitted evidence, and also the conflict of the evidence from the acts with the rational argument and the form of the words used in the transmitted evidence. The (rational) meaning arising from the curtailing of prayers for a traveller is an exemption because of the existence of hardship, just as he has been exempted in the case of fasting and other things. This also is supported by the tradition of Yafla ibn Umayya, who said, “I said to TJmar that Allah has said ‘if ye fear that those who disbelieve may attack you’, intending thereby the curtailing of prayers during a He said, ‘I was also struck by what has struck you, so I asked the Messenger of Allah (God’s peace and blessings be upon him), and he replied, qt is a charity that Allah has granted to you, so accept the charity’”. This indicates an exemption. Further, there is the tradition of Abu Qalaba from a man from Banu Amir, who came c to the Prophet (God’s peace and blessings be upon him) and the Prophet (God’s peace and blessings be upon him) said to him, “Allah has lifted from the traveller the obligation for fasting and a part of prayer”. These two traditions are found in the Sahih compilations. All this indicates leniency, exemption, and the removal of hardship, and not that curtailing of prayer is obligatory or a sunna.

The tradition that contradicts, through the form of its words, the rational meaning and these traditions is the tradition of S&isha, declared authentic by agreement, in which she said, “Prayer has been made obligatory two rak^as at a time. The prayer during journey is this basic (unit), while the prayer within a settlement was increased”. The evidence arising from the acts (of the Prophet) that conflicts with the rational meaning and with the meaning of the above transmitted traditions is what has been reported about the Prophet (God’s peace and blessings be upon him) that he shortened his prayer in all his journeys, and it has never been proved authentically that the Prophet had ever offered the complete prayer during a journey. Those who maintained that it is a sunna or an obligation with an option {wajib mukhayyar), interpreted it to be so, for it did not prove to be authentic for them “that the Prophet (God’s peace and blessings be upon him) completed his prayer, or did what was similar”. It therefore follows that it is one of several types, that is, either it is an obligation with an option or it is a sunna or it is a determined obligation for the traveller. Its being a fixed obligation, however, conflicts with the rational meaning, while its being an exemption conflicts with the transmitted words. Thus, it is necessary that it be (either) an obligation with an option, or a sunna. This is a kind of reconciliation (of the evidences). They objected to the tradition of ‘A’isha for it is well-known of her that she used to offer the complete prayer. <Ata? has related from her that she said, “The Prophet (God’s peace and blessings be upon him) used to complete the prayer during a journey and he used to shorten it, he used to fast and give up fasting, he used to delay the zuhr prayer and hasten the middle prayer, and he used to delay maghrib and" hasten <ishdP\ It is also opposed by the tradition of Anas and of Abu Najlh al-MakkT, who said “that the Companions of Muhammad (God’s peace and blessings be upon him) used to travel together, with some of them offering the full prayer and others curtailing it, with some of them fasting when others were not. They did not find fault with each other nor did they disagree about the offering of full prayer by TJthman and ‘Alisha”. This, then, is their disagreement on the first point.In their disagreement on the second point, which concerns the length of the journey permitting curtailment of prayers, the Jurists disagreed widely. Malik al-ShafW, Ahmad, and a large group of jurists held that prayer is to be shortened during (a journey of) four barids, which is a distance covered in one day moving at a medium pace. Abu Hamfa, his disciples, and the Kufts said that the minimum for which prayer is to be shortened is a journey of three days, and curtailing is for a person who travels from one region to another. The Zahirites said that curtailing prayers is permitted for each journey, whether to a near or distant place. f The reason for their disagreement stems from the conflict of the rational meaning with the words. Rationally speaking, the reason why travelling may occasion the curtailment of prayer is based on the hardship that exists, as in the case of fasting during travel. If this is the case, then, then curtailing is permissible whenever hardship is found. Those who take into account only the letter of the law maintain that the Prophet (God’s peace and blessings be upon him) said, “Allah has removed from the (liability of) traveller fasting and a part of prayer”. Thus, anyone to whom the term traveller can be applied is permitted to curtail or to forgo (delay) fasting. They supported this with what has been recorded by Muslim from TJmar ibn al-Khattab “that the Prophet (God’s peace and blessings be upon him) used to curtail prayers during a journey of about seventeen miles”.

A group of jurists, as we have said, adopted the fifth opinion maintaining that curtailing of prayers is not permitted, except to the person in a state of fear, because of the words of the Exalted, “And when ye go forth in the land, it is no sin for you to curtail (your) worship if ye fear that those who disbelieve may attack you. In truth the disbelievers are an open enemy to you”.143 It is said that this was cAHsha’s opinion* They also maintained that the Prophet (God’s peace and blessings be upon him) used to curtail his prayers as he was in a state of fear.

The basis for the disagreement of those who took into consideration the element of hardship stems from the disagreement of the Companions over this. Thus, the opinion about four barids is related from Ibn TJmar and Ibn c Abbas, and has been reported by Malik. The opinion about three days is related from Ibn Mas ud, TJthman, and others.

c With respect to the third point that relates to the kind of journey for which curtailment is permissible, some of the jurists said that it is permitted in a journey undertaken to seek nearness to Allah, like hajj, ^umra, and jihad.

• Those who upheld this opinion include Ahmad. Some of them permitted it in all permissible (mubdh) journeys, thus, excluding journeys undertaken for ev design. This was the opinion of Malik and al-Shafi T. Some of c 189

them allowed it in any kind of journey whether for seeking nearness, permissible, or for evil design. This was the opinion of Abu HanTfa, his disciples, al-ThawrT, and Abu Thawr.

The reason for their disagreement springs from the conflict of the rational meaning, or the apparent meaning, with the evidence arising from the acts (of the Prophet). Those who took into account the element of hardship or the apparent meaning of the term “journey” did not differentiate between one kind o f journey or another. Those who took into account the evidence arising from the acts said that it is not permitted, except in a journey undertaken to seek nearness to Allah, as the Prophet (God’s peace and blessings be upon him) did not ever curtail prayers, except during a journey undertaken to seek nearness to Allah. Those who distinguished between a permissible journey and one undertaken with unlawful design in mind did so through an enhanced application of the rule. The rule pertains to whether exemptions are permitted in the pursuit of unlawful things. In this issue the rational meaning is in conflict with the apparent meaning, therefore the jurists differed over it.

On the fourth point that relates to the question of from which spot may the traveller commence to curtail prayers, Malik stated in al-Muwatta* that prayers are not to be curtailed until the person has left the dwellings area on the outskirts of the village and he does not begin to offer full prayers till he reaches the first of such dwellings. It is also related from him that the person is not to curtail prayers in case of the well-populated village until he is at a distance of three miles from it and this, according to him in one narration, is the boundary for the area in which Friday prayers are obligatory on the persons living outside the centre of the town. The first opinion was adopted by the majority.

The reason for this disagreement stems from the conflict between the meaning of the term and the evidence arising from the acts. This is so as the word “traveller” is applied to a person the moment he commences his journey. Those who took into account the connotation of the term said that as soon as he goes beyond the houses of the village he is to curtail prayers. Those who took into account the evidence of acts, that is, the acts of the Prophet (God’s peace and blessings be upon him), said that he is not to begin curtailing prayers, until he is at a distance of three miles from the houses of the village as this is established from the tradition of Anas, who said, “The Messenger of Allah (God’s peace and blessings be upon him) used to pray two rak^as when he had travelled a distance of three miles or three farasikh—Shu'ba doubted (which)”.

In their disagreement over the time period for which a traveller may stop in a town (during his journey) and yet curtail his prayers there are many disputes; Abu <Umar has related about eleven opinions, but the well-known ones are those that are held by the jurists of the provinces, and they have three different opinions. First is the opinion of Malik and al-ShaficT that if the traveller decides to stay for four days he is to offer complete prayers. The second is the opinion of Abu Hanifa and Sufyan al-Thawri that if he decides to stay for a period of fifteen days he is to offer complete prayers. The third is the opini0n of Ahmad and Dawud that if he decides to stay for more than four days he is to offer complete prayers.

The reason for disagreement arises from the fact that the matter is not expressly stated in the law, and using analogy for such prescription is deemed weak by all. All of them therefore strived to argue for their opinion on the basis of the reported circumstances in which the Prophet (God’s peace and blessings be upon him) continued to curtail prayers while he stopped on the way or he continued to treat prayers with the hukm of a traveller.

The first group argued for their opinion on the. basis of the report “that the Prophet (God’s peace and blessings be upon him) stayed at Makka for three days and curtailed his prayer during his himra”. There is no evidence in this that this is the limit for curtailing prayers, in fact, it does furnish an evidence that the traveller is to curtail prayers when the stay is for three days or less. The second group argued for their opinion on the basis of the report that he (the Prophet) stayed at Makka and curtailed his prayers. This he did for about fifteen days in some versions, while it is also narrated (variously) as seventeen days, eighteen days, or nineteen days. This is recorded by al-BukharT. Each version was adopted by some group. The third group argued on the basis of the stay of the Prophet (God’s peace and,blessings be upon him) at Makka for his hajj during which he offered curtailed prayers for four days. The Malikites supported their opinion with the report “that the Messenger of Allah (God’s peace and blessings be upon him) determined three days for the traveller at Makka after he had completed the rituals”. This indicates in their view that a stay of three days does not stop the term “traveller” from being applicable to the person staying, and this is the point that was made by all. They strove to derive this from the acts of the Prophet'(God’s peace and blessings be upon him), that is, (the answer to the question of) when the term “traveller” is not applicable to the person who intends to stay. For this reason they agreed that if the term “traveller” is not lifted from him up to a certain period, on the basis of the opinion of one of them, the person will continue to curtail prayers if some impediment is preventing him (from resuming his journey) even if the 'stay is prolonged indefinitely (with the will of Allah). Those who took into account the minimum period of his stay interpreted the maximum period of his stay, invoked by the rival, on the basis of this reasoning. Thus, the Malikites, for example, said that the fifteen days for which the Prophet (God’s peace and blessings be upon him) stayed after the conquest of Makka, he did s0 while constantly intending that he would not stay more than four days. The i ame argument can be valid against the time that they determined.

’ It is better for the mujtahid in such cases to follow one of two methods. He t should assign the hukm to the maximum period of stay that has been reported I during which the Prophet (God’s peace and blessings be upon him) curtailed I his prayers. He should fix this as the limit since not curtailing is the original | principle and it is therefore necessary that this period not be increased except ! on the basis of an evidence. The alternative is to uphold that the original J principle is based on the minimum period on which a consensus has taken ■ place and the reports about the Prophet (God’s peace and blessings be upon him) that he stayed for periods in excess of this minimum during which his prayers were curtailed; this is because it is likely that it is permitted to the traveller. Further, it is also likely that he stayed with the intention of staying for the (minimum) period permitted to the traveller, but that it occurred to him that''he should stay longer. When there is an ambiguity, it is necessary to uphold the principle. The minimum that has been asserted on the issue is one day and night, and this is the opinion of RabTa ibn AbT *Abd al-Rahman. It is related from al-Hasan al-BasrT that the traveller is always to curtail prayers, except when he stays at one of the cities. This is based on* the assumption that the term “travelling” is applicable to him till he approaches one of the cities. These, then, are the governing issues related to curtailment of prayers.

Three issues are related to the topic of combining prayers. First is its permissibility. Second, the manner of combining prayers. Third, things permissible in combining.

About the permissibility of combining prayers, the jurists agreed that combining zuhr and <asr at the time of zuhr at *Arafa (by a pilgrim) is a sunna, and combining maghrib and Hsh& at Muzdalifa at the time of %sha> is also a sunna. They disagreed^ about combining prayers on occasions other than these. The majority permitted it, but disagreed as to the occasions on which this is permitted and those on which it is not. Abu Harnfa and his disciples prohibited this absolutely.

The reason for their disagreement arises from their dispute about the interpretation of the traditions that are cited in support of combining prayers and their employment as legal evidence for the permissibility of jam*. All of them comprise acts and not words, and acts are subject to wider interpretation more than are words. Second, there is a dispute about the authenticity of the traditions. Third, there is a disagreement about the permissibility of employing analogy in this. Thus, there are three reasons for disagreement, as you can see.

The traditions about whose interpretation they disagreed, include the tradition of Anas, which is authentic by agreement and is recorded by ak Bukhari and Muslim. He said, “When the Messenger of Allah (God’s peace and blessings be upon him) used to travel before the declining of the sun, he delayed zuhr till the time of W, when he used to descend (from his mount) and combine the two. If, however, the sun had declined before the commencement of the journey, he used to pray zuhr and then ride”. They also include the tradition of Ibn TJmar, which too is recorded by the two Shaykhs (akBukharl and Muslim). He said, “I have seen the Messenger of Allah (God’s peace and blessings be upon him), when he was hastening his journey (for some reason), delaying maghrib so that he would combine it with Hsh#”. The third is the tradition of Ibn <Abbas, recorded by Malik and Muslim. He said, “The Messenger of Allah (God’s peace and blessings be upon him) prayed zuhr and ‘asr combined and maghrib and Ssha* combined, in the absence of (a cause for) fear or journey”. Those who uphold the permissibility of combining prayers interpreted this tradition to mean that he delayed praying zuhr till the time fixed for W and then combined the two. The Kofis maintained that he prayed zuhr in its last timing and in its first timing in accordance with what is related about the imama of Jibril. They said that it is proper that the tradition of Ibn cAbbas be interpreted this way as there is consensus on the point that without a valid excuse, two prayers are not to be offered in the time fixed for one of them. They also argued for their interpretation on the basis of the tradition of Ibn Mascud, who said, “By Him, besides Whom there is no god, the Messenger of Allah (God’s peace and blessings be upon him) did not offer a prayer, ever, other than in its appointed timing, except the two prayers that he combined: zuhr and <asr at cArafa, and maghrib and S'sAif at Muzdalifa [jam^\ They also said, “It is possible to interpret these traditions to mean what we have said or to mean what you have said. The fixed timings of prayers and their performance within the timings, however, has been established, and it is not permitted to .move away from an established principle to a matter that is subject to interpretation”.

The tradition whose authenticity they differed about is related by Malik from Mu^adh ibn Jabal: “They went out with the Messenger of Allah (God’s peace and blessings be upon him) on the day of (the expedition of) Tabuk, and the Messenger of Allah (God’s peace and blessings be upon him) used to combine zuhr and 'asr and maghrib and One day he delayed praying and then came out to pray zuhr and <asr combined, he went back (to his place f rest) and then came out to pray maghrib and <ish& combined”. This tradition, if proved authentic, is clearer in meaning than those traditions that permit combining, as the apparent meaning here is that he advanced to the time of maghrib, though they would say that he prayed maghrib in its last timing and <i$h& in its first appointed timing, as there is no definitive indication in the tradition about this; in fact, the words of the narrator are subject to interpretation.

Their disagreement about employing analogy in this relates to the association of all prayers during a journey with the prayers at cArafa and Muzdalifa, that combining is to be permitted on the analogy of these prayers. Thus, for example, it may be said: “These are prayers whose obligation has arisen during a journey, therefore, it is permitted to combine them, and the basis is the gathering of the people at <Arafa and Muzdalifa”. This is the opinion of Salim ibn cAbd Allah, I mean, the permissibility of this analogy, but the use of analogy in matters of worship is deemed weak.

These, then, are the causes of disagreement arising over the permissibility of combining prayers.

Those who .upheld the combining of prayer during a journey differed about its manner. Some of them said that it is preferable to delay the first prayer and offer it with the second prayer, however, if they are combined within the timing of the, first this is also permitted. This is one narration from Malik. Some of them deemed the two equal, that is, the second may be advanced to the timing of the first or it may be the other way round. This is akShafWs opinion and is a narration from Malik through the jurists of Medina, while the first has been related by Ibn akQasim from him. This kind of combination (delaying the first to the time of the second) is preferable according to Malik, as it has been established through the tradition of Anas. Those who considered the two methods as equal relied on the principle that preference is not undertaken on the basis of ^adala, that is, one <adala is not be preferred over another <adala for determining the obligation of acting upon the tradition. This means that if the tradition of Mu<adh is proved authentic it is obligatory to act upon it, just as it is obligatory to act upon the tradition of Anas, if the 'addla of the transmitters of both traditions is established, and even if the ^addla of the transmitters of one tradition is stronger than that of the other.

Those who upheld the permissibility of combining prayers agreed that travel is one of the causes permitting the combining of prayers. They disagreed about combining prayers within a settlement and also about the conditions of travel that permits it, as some of them considered any kind of journey, whatever its nature, to be a valid cause for combining prayers, while others stipulated a particular form and a particular kind of prayer. Malik is one of those who stipulate a particular form of journey, according to the narration of Ibn ak Qasim from him. He said that the traveller is not to combine prayers unless the journey becomes cumbersome for him. Al-ShafiT is among those who did not stipulate this, and this is also one narration from Malik. Those who adopted this opinion (Malik’s) relied on the saying of Ibn TJmar “I have seen the Messenger of Allah (God’s peace and blessings be upon him), when he was hastening his journey (for some reason), delaying maghrib so that he would combine it with Sshff”. Those who did not hold this opinion adopted the apparent meaning of the traditions of Anas and others.

Similarly, they disagreed, as we have said, about the kind of journey in which combining (of the prayers) is permitted. Some said that it is a journey motivated by piety, like hajj or war (jihad), and this is the apparent meaning of the narration of Ibn al-Qasim. Some said that it is a journey that is permissible (motivated by piety or undertaken for any legitimate purpose), as against a journey undertaken for unlawful ends. This is al-ShafiTs opinion and the apparent meaning of the narration of the Medinites from Malik. The reason for their disagreement over this is the same as the reason for their disagreement over a journey during which prayer is curtailed, although in that case the meaning is general, as curtailment has been reported both through words and acts (of the Prophet), while combining has been reported through acts alone. Those who confined it to the kinds of journey in which the Messenger of Allah (God’s peace and blessings be upon him) combined his prayers did not permit it in other kinds of journeys, while those who considered it a kind of exemption (rukhsa) for the traveller deemed it valid in other journeys as well.

Malik and the majority of the jurists do not permit the combining of prayers within a settlement without an excuse, while a group of the Zahirites and Ashhab, from among the disciples of Malik, permitted it. The reason, for their disagreement is based upon their dispute over the meaning of the tradition of Ibn Abbas. Some c of them interpreted it to apply to the case of rain, as did Malik, while others adopted its absolute meaning. Muslim has recorded an addition in his report, namely, the words of the Prophet (God’s peace and blessings be upon him) “in the absence of [a cause of] fear or journey or rain”, and this was adopted by the Zahirites.

1 Al-Shafi T permitted the combining of prayers within a settlement when it c rains, whether during the day or the night, while Malik prohibited it during the day (because of rain) and permitted it during the night. He also permitted it during the night when there is slush (sludge) during the night in the absence f rain. Al-ShafiT criticized Malik for making a distinction between prayers during the day and prayers during the night, as he related the tradition and then diverted it (through interpretation), that is, restricted its general meaning on the basis of analogy. He commented on the words of Ibn cAbbas, “The Messenger of Allah (God’s peace and blessings be upon him) prayed zaAr and <asr combined and maghrib and <ish& combined, in the absence of [a cause of] fear or journey”, saying that he considered this to have been at the time of rain. Al-Shafi T c said that he did not adopt the general meaning or its interpretation, that is, the restricted meaning, but he rejected part of it and interpreted (restricted) the rest. This is something that is. not permitted by consensus, for he did not accept the words “prayed zuhr and combined”, but accepted the words “prayed maghrib and H$h& combined”, and then interpreted them. I believe, however, that Malik (God bless him) rejected part of the tradition as it was opposed by practice ('amal}. He therefore adopted the part that was not opposed by practice, which is the combining of maghrib and within a settlement, for it is related that when those in authority used to combine maghrib and Hsha>y Ibn TJmar used to combine these with them.

The investigation of this principle is based on the examination of the issue as to how practice ^amal} can be a legal evidence. The earlier Malikites used to say that it is a category of the principle of consensus. There is, however, no basis for this as the consensus of a few is not to be relied upon. The later Malikites used to say that it is a kind of communal transmission (ntfawtir), and they argue for this on the basis of (the prevalent use of) a measure (sat) and similar things that have been transmitted by the jurists of Medina from the predecessors. Practice is an act and acts do not convey tawatur, unless they are corroborated by words, for tawatur is a method of (oral) reports and not acts. To deem acts as exhibiting tawatur is difficult and perhaps not permissible. In my view, it is more likely to be a case of the general need of the people, a principle adopted by Abu Harnfa, as it is not permissible to deem such recurring practices, along with their recurring causes, as unabrogated, when the people of Medina, who acted upon these sunan following their predecessors are oblivious of them. It is a stronger (evidence) than the (principle of) general need of the people adopted by Abu Hanifa, for it is appropriate that the jurists of Medina not be oblivious of these as compared to those on whom Abu HanTfa has relied for transmission. On the whole, ^amal is corroborating evidence when it accompanies and conforms with something that is transmitted, in which case it conveys persuasive evidence, and when it is opposed by such transmission, it (still) conveys probable evidence. But the question, whether this corroborating evidence reaches a level with which authentic traditions transmitted through a single isndd (dhdd) can be rejected,needs investigation. It is possible that in certain cases it does reach such a level, while in others it does not because of the difference in the degree of the need of the people. The reason is that whenever the need for a sunna is acute and it is a matter that is constantly recurring for the subjects, the transmission of the sunna by way of dhad that does not become widespread in reports and practice (despite the acute need of the people), exhibits weakness because it gives rise to one of two conclusions: that it is either abrogated, or that there is some discrepancy in its transmission. This has been elaborated by Mutakallimun like Abu al-Ma^lT. :

Malik permitted the combining of prayers within a settlement by a sick person (marid) when he was afraid that he would faint at the time of the other prayer, or when the person loses control of the excretion exits, but al-Shafi<T prohibited this. The reason for their disagreement stems from their dispute over extending the underlying cause of combining during a journey, that is, hardship. Those who applied the cause uniformly held that it is preferable and more appropriate in this case, as hardship for the marid in observing separate prayers is greater than that for the traveller. Those who did not consider this (hardship) as the underlying cause and considered it, as they say, deficient, that is, specific to this hukm to the exclusion of others, did not permit it.