The Distinguished Jurists Primer by Ibn Rushd

This chapter discusses breaking the fast (and not fasting) and its ahkam. Those who may break the fast (or not fast) are, in the law, of three kinds: a category in which it is permitted, by consensus, to fast or not to fast; a category in which it is obligatory not to fast, along with the accompanying disagreement among Muslim jurists; and a category in which it is forbidden not to fast. For each of these there are related ahkam.

Those to whom both things are permitted are the the sick person, by agreement, the traveller, with disagreement, the pregnant woman, the wet- nurse, and the old person. This division is agreed upon in its entirety, except the traveller whose problem is examined from various aspects. These include the point: that if he fasts, whether his fast is considered to be valid. If it is valid, whether it is better for the traveller to fast or not to fast, or whether he has a choice between the two. Whether breaking the fast is permitted to him for a limited type of journey or for any journey to which the term “journey” is applied in usage. When may the traveller stop fasting? When does he begin fasting (again)? If he initiates a journey during Ramadan, does he have the right to break the fast after the passage of a portion of the month? Finally, if he does not fast, what is the hukm for him? The case of the sick person involves the discussion of the identification of the sickness which entitles him not to fast, and also the hukm while not fasting:

This relates to the question of the sick person and the traveller if they fast, whether their fast is considered valid as an obligatory fast. The jurists disagreed over this. The majority maintain that if they fast their fast is in order and valid. The Zahirites maintain that their fasts are not valid and their obligation is to perform qada> on other days (not in Ramadan).

The reason for the disagreement is based on the interpretation of the words of the Exalted, “And whosoever of you is sick or on a journey, (let him fast the same) number of ’Other days”, whether they are to be read as they are so that no implied word is assumed, or whether they are to be construed metaphorically and an implied word is to be read into them so as to read, “and he does not fast then (let him fast the same) number of other days”. This kind of absence of words in speech is known to the experts of the language as lahn al-khitab (style of Arabic). Those who read the verse as it is and not metaphorically said that the obligation for the traveller is to fast the same number of other days, because of the words of the Exalted, “number of other days”. Those who assumed the implied words “and he does not fast” said that his obligation is a number of other days if he does not fast. Both groups support their interpretation on the basis of traditions that testify to the correctness of their understanding, though the principle is to read a text as it is, unless another evidence indicates that it be read in its metaphorical meaning.

The majority argue for their opinion on the basis of the established tradition of Anas, who said, “We travelled with the Messenger of Allah (God’s peace and blessings be upon him) during Ramadan and he did not find fault with the person fasting in preference to the person not fasting nor did he find fault with the person not fasting in preference to the one fasting”. It is also established from him that he said, “The Companions of the Messenger of Allah (God’s peace and blessings be upon him) used to travel together with some of them fasting when others were not”. The Zahirites argue for their opinion on the basis of what is established from Ibn cAbbas “that the Messenger of Allah (God’s peace and blessings be upon him) travelled to Mecca in the year of its conquest during Ramadan. He continued to fast up to al-Kadld after which he stopped fasting and so did the people”, and they , used to act upon the most recent of the commands of the Messenger of Allah (God’s peace and blessings be upon him). They said that this indicates the abrogation of fasting (during travel). Abu TJmar said that the argument against the Zahirites is their consensus that if the sick person keeps the fast his fast is considered to be valid.

This relates to the question whether fasting is better than not fasting (during travel). If we say, according to the opinion of the majority, that the traveller is entitled not to fast, then we must add that the jurists had three different opinions (within this general agreement). Some of them held that fasting has greater merit. Those who held this opinion include Malik and Abu HanTfa. Some maintained that not fasting is better. Those who held this opinion include Ahmad and a group of jurists. Some maintained that this was a matter of choice, none is better.

The reason for their disagreement arises from the conflict of an interpretation with the apparent meaning of some transmitted texts, and the conflict of some transmitted texts with other transmitted texts. This is so as the understandable meaning of the permission of not fasting for a person is an exemption intended to remove hardship for him, and when an exemption is provided it is meritorious to relinquish the exemption. This is testified to by the tradition of Hamza ibn Amr c al-AslamT, recorded by Muslim, that he said, “O Messenger of Allah, I find in myself the strength to fast during a journey, would I then be sinning?” The Messenger of Allah (God’s peace and blessings be upon him) said, “It is an exemption from Allah, so he who acts upon it does good, but there is no sin on the person who wishes to fast”. The saying of the Messenger of Allah (God’s peace and blessings be upon him), however, that “It is not an act of piety to fast during a journey”, along with the fact that one of his last acts was not to fast, gives the impression that it is better not to fast. Not fasting, though, is not the hukm, but a permissible act, and it was difficult for the majority to deem the permissible act as being better than the prescribed. Those who gave a choice in the matter did so because of the tradition of cA’isha, who said, “Hamza ibn cAmr al-AslamT asked the Messenger of Allah (God’s peace and blessings be upon him) about fasting during a journey and he said, ‘Fast if you like, and if you like do not”’. It is recorded by Muslim.

Whether the permissibility of not fasting for the traveller is limited to journeys of a minimum determined distance. The jurists disagreed about it. The majority said that he may not fast in a journey for which prayer is to be curtailed, and that varies in accordance with their disagreement on that issue. A group of jurists maintained that he may cease fasting in every journey to which the term “journey” is applied. These are the Zahirites.

The reason for their disagreement stems from the conflict of the apparent meaning of the text with an interpretation. The apparent meaning is that the person may not fast in any journey to which the term is applicable, because of the words of the Exalted, “And whosoever of you is sick or on a journey, (let him fast the same) number of other days”.222 Yet, the understandable meaning of the permission of not fasting during a journey is (relief from) hardship. As hardship is not to be found in every journey it becomes necessary that not fasting be permitted in that journey that entails hardship, and because the Companions were apparently agreed upon a limit for this, it follows that an analogy be drawn upon the limit for the curtailment of prayer.

They also disagreed about the sickness during which not fasting is permitted. A group of jurists said that it is a sickness in which hardship and duress become associated with the fast. This was Malik’s opinion. Another group of jurists said that it is an overwhelming sickness. This was Ahmad’s opinion. A third group of jurists said that if the term “sick” could be applied to such a person he is not to fast. The reason for their disagreement is the very reason that is assigned for the limit of the journey.

When does the traveller stop fasting and when does he fast? A group of jurists said that he is to cease fasting the very day that he begins his journey. This was the opinion of al-Sha^T, al-Hasan, and Ahmad. Another group said that he is not to cease fasting the day he commences his journey. This was upheld by the jurists of the provinces. A group of jurists considered it desirable for the person who 'knows that he will reach a city on the first day of his journey should enter it while fasting. Some of them were more strict in this than others, but all of them did not impose expiation on a person who entered when he was not fasting. They disagreed about the person who entered a city when only part of the day had past. Malik and al-ShaficT said that he is to continue eating and drinking. Abu HanTfa and his disciples said that he is to abstain from eating, just as the menstruating woman, in their view, refrains from eating when she enters the period of purity.

The reason for their disagreement about the time at which the traveller is to stop fasting arises from the conflict of traditions with reasoning. It is established through the tradition of Ibn cAbbas “that the Messenger of Allah (God’s peace and blessings be upon him) kept the fast until he reached al- KadTd when he stopped fasting and so did the people with him”. The apparent meaning of this tradition is that he stopped fasting after he had> formed the intention for fasting. In the case of the people, however, there is no doubt that they broke the fast after they had formed the intention for it the previous night. Implying the same is the tradition of Jabir ibn <Abd Allah “that the -Messenger of Allah (God’s peace and blessings be upon him) travelled to Mecca in the year of its conquest. He continued to travel up to Karac al- GhamTm, where he asked for the drinking bowl, when the people were fasting, and raised it so the people could see him. He then drank from it. It was later said to him that some of the people continued to fast. He said, ‘They are the disobedient. They are the disobedient’ Abu Dawud has recorded from Abu Busra al-Ghifan that he had barely gone beyond the houses when he asked for the dining sheet. Jacfar, the narrator of the tradition, said, “I said to him, ‘Do you not see the houses?’ He replied, ‘Do you shy away from the sunna of the Messenger of Allah (God’s peace and blessings be upon him)”’. JaTar said, “He then ate”. The reasoning here is that as the traveller is permitted only to form the intention for his fast on the previous night it is not permitted that he annul his fast, because he formed the intention on the basis of the words of the Exalted, “O ye who believe! Obey Allah and obey the messenger and render not your actions vain”.

The reason for their disagreement about abstaining from eating, or not abstaining, on the part of the person entering a city during the day is their dispute about its similarity with the person not fasting on the Day of Doubt (and who abstains) when it is proved to him that it is the first day of Ramadan. Those who held this case to be similar to it said that he is to abstain from eating (to fast), while those who did not hold it to be similar said that he is not to abstain as that case is based on a lack of knowledge while this is based upon a cause permitting or giving rise to eating. The Hanafites said that both are causes giving rise to abstinence from eating following the permission to eat.

This relates to the question of whether it is permitted for a person fasting during Ramadan to begin a journey and then stop fasting while travelling. The majority maintain that he is permitted to do so. It is related from some, and these are TJbayda al-SalmanT, Suwayd ibn Ghafla, and Ibn Majaz, that if he has been fasting during Ramadan and begins a journey in it he is not permitted to cease fasting.

The reason for their disagreement arises from their dispute over the meaning of the words of the Exalted, “And whosoever is present let him fast the month”. This can be interpreted to mean that one who is present (resident) for part of the month is under an obligation to fast for the whole month. It is also possible to understand from it that the person who has witnessed part of the month (as a resident) should fast for that part, as the meaning by agreement is that the person who has witnessed the whole month should fast for the whole month, it should also mean that one who has witnessed part of the month (as a resident) should fast for that part. The opinion of the majority is supported by the fact that the Prophet began his journey during Ramadan.

The hukm for the traveller if he ceases to fast (during Ramadan) is qada\ by agreement, and the same holds for the sick person, because of the words of the Exalted, “(Let him fast the same) number of other days”.223 224 The exceptions are persons who are sick due to fainting or insanity, but the jurists disagreed about the two cases. The jurists of the provinces maintain the obligation of qad# for the person who faints, but differ about the insane. In Malik’s opinion he is under an obligation for qada>, but it is weak because of the words of the Prophet (God’s peace and blessings be upon him), “The pen (liability) has been lifted in the case of three persons .. and the insane person until he recovers”. Those who imposed the obligation on both disagreed about the existence of fainting and insanity as vitiating factors for fasting. One group said that they do vitiate fasting, while another group said that they do not. A third group of jurists made a distinction between the fainting spell occurring before dawn or after dawn. One group said that if it occurs after the passage of the greater part of the day the person’s fast is valid, but if it occurs in the first part of the day he is to fast as qadtf, and this is Malik’s opinion.

All this is weak, as fainting and insanity are causes because of which liability (taklif) is removed, especially in the case of insanity. When the liability is removed the person cannot be described as one fasting or not fasting. How, then, can it be said about an attribute removing liability altogether that it invalidates the fast, for it would amount to saying about a dead person or one all of whose acts are invalid that his fast and his acts have been nullified.

There are certain sub-issues related to the qadd* of the traveller and the sick person including the questions: do they perform consecutively? What is required from them as qad&i What is their duty if they delay, without excuse, the performance of qada? until the next Ramadan? If they die without performing the required qadd>, does the guardian {wall) fast on their behalf?Some of the jurists made it obligatory that qad# be performed consecutively like add, while others did not. Some of these jurists gave the person a choice, with some considering consecutive performance to be desirable, but the greater majority stands for the relinquishment of the obligation of consecutive performance.

The reason for their disagreement arises from the conflict of the apparent meaning of the text with analogy. Analogy, in this case, requires that qada? performance be the same as ad&\ the basis for this being prayer and hajj. The apparent meaning of the words of the Exalted, “(Let him fast the same), number of other days”,225 implies that the obligation exists for the same number alone and not for consecutive performance. It is related from cA5isha that she said, “The verse was revealed as ‘consecutive number of days’, but the word ‘consecutive’ was dropped”.

With respect to delaying qadd until the next Ramadan has started, a group of jurists said that the obligation upon such a person is qadd after the new Ramadan as well as expiation (kaflara). This was the opinion of‘Malik, al- Shafi T, and Ahmad. Another € group of jurists said that there is no obligation of expiation upon him. This was the opinion of al-Hasan al-Basn and of Ibrahim al-Nakha T.

c The reason for their disagreement is whether analogy can > be used for extending one expiation to another? Those who did not permit analogy for expiation said that he is only liable for qadd\ Those who permitted analogy in expiation said that he is obliged to make expiation on the analogy of the person who breaks his fast intentionally as both violate the sanctity of the fast. This person does it by relinquishing qadd at its proper time whereas the other does it by eating during a day on which eating is not permitted. Analogy here would be well grounded had it been established explicitly by the Lawgiver that there is a determined time for qad&, because the timings for 'ad# have been determined by the Lawgiver. One group of jurists deviated saying that if the illness of the person continues up to the next Ramadan there is no qad# for him. This opposes the text.

A group of jurists said that if the person dies having missed an obligatory fast, no one else is to fast on his behalf. Another group of jurists said that his wali is to fast on his behalf. Those who did not make fasting obligatory on the guardian said that he is to feed (the needy) on his behalf. This was al-Shafi'Fs opinion. Some said that there is no obligation for fasting or for feeding unless the person leaves a testament to the effect. This was Malik’s opinion. Abu Hanlfa said that the guardian is to fast. If he is not able to do this he is to feed (the needy). One group of jurists made a distinction between (fasting due to) a vow (nadhr) and the regular obligatory fasting, saying that his guardian is to fast on his behalf for a vow, but not for obligatory fasting.

The reason for their disagreement stems from the conflict of analogy with traditions. It is established from the Prophet (God’s peace and blessings be upon him) through a tradition from cA>isha that he said; “If a person dies when he owed a duty to fast, his oWf is to fast on his behalf”. It is related by Muslim. It is also established from him (God’s peace and blessings be upon him) through the tradition of Ibn cAbbas, who said, “A man came up to the Prophet (God’s peace and blessings be upon him) and said, ‘O Messenger of Allah, my mother has died owing the fast for a month. Should I, then, fast on her behalf?’ He said^ ‘Had there been a debt against your mother would you have paid that on her behalP’ He replied, ‘Yes’. He said, ‘The debt of Allah has a prior claim for payment’”. Those who maintained that the principles oppose this, because as no one prays for another or performs ablution for another then no one is to fast for another, said there is no obligation of fasting for the guardian. Those who adopted the text for this said that he is obliged to fast. Those who did not employ the text for this confined it to the case of (a fast due to) a vow. Those who constructed an analogy from this (vow) said that he is to fast on his behalf for Ramadan (missed).

Those who imposed the feeding of the needy decided on the basis of the verse, “(Fast) a certain number of days; and (for) him who is sick among you, or on a journey, (the same) number of other days; and for those who can afford it there is ransom: , the feeding of a man in need”.226 Those who granted a choice in this reconciled the verse and the tradition.

These, then, are the ahkam of the traveller and the sick person to whom it is permitted not to fast or to fast.

The remainder of this chapter is devoted to the discussion of the wet-nurse, the pregnant woman, and the old person. There are two well known issues related to this. The first is if the pregnant woman and wet-nurse do not fast, what is their duty? The jurists have four opinions on this issue. The first is that both feed the needy and there is no qada> for them. This is related from Ibn <Umar and ibn cAbbas. The second opinion, which is the counterpart of the first, is that they only perform qada? and they are not obliged for feeding the needy, and this is the opinion of Abu HanTfa, his disciples, Abu TJbayd, and Abu Thawr. The third opinion is that they perform qada* as well as feed the needy. This was al-Shafi^s opinion. The fourth opinion is that the pregnant woman performs qada* but does not feed the needy, while the wet- nurse performs qada> as well as feeds the needy.

The reason for their disagreement derives from the vacillation of their cases between resemblance with those for whom fasting is difficult and between the sick person. Those who regarded them to be similar to the sick person said that they are only to perform qadd\ Those who regarded them to be similar to those for whom fasting is exhausting said that they are only obliged to feed the needy; this view rests on the evidence of the recitation, recited by some, of the verse, “And those for whom it is overwhelming is ransom: feeding the needy (masakin)” Those who considered both factors for them, it appears, formed their opinion on the basis of both resemblances. Thus, they said that they are obliged for qada* insofar as they resemble the sick person, and they are obliged for ransom insofar as they resemble those for whom fasting is difficult. Holding them similar to a person of sound health who does not fast, however, is weak as there is no permission for the healthy person not to fast. Those who made a distinction between the pregnant woman and the wet-nurse associated the pregnant woman with the sick person, and they rendered the hukm of the wet-nurse to be a combination of the hukm of the sick person and the hukm of the person for whom fasting is difficult, or they held her to be similar to the person in sound health. Those who singled out one hukm for them have a better opinion, Allah knows best, as compared to those who combined the two, just as those who singled out the hukm of qada* for them have a better opinion than those who singled out the hukm of feeding for them, as the reading of the verse on the basis of which they assigned it is not mutawatir (and is variant). So ponder over it, for it is evident.

The jurists agreed that the old man and woman who are not able to fast may not fast, but they disagreed about their obligation if they do not. A group of jurists said that they are under an obligation to feed the needy, while another group said that they are not. The first view was held by al-ShaficT and Abu Hanifa, and the second was held by Malik, except that he considered it (feeding) desirable. The majority of those who uphold feeding say that it is an amount of one mudd for each day. It is, however, said that even if they dole out handfuls, as Anas used to do, it is considered sufficient for them.

The reason for their disagreement derives from the variant recitation that we mentioned, that is, “And those for whom it is overwhelming is ransom: feeding the needy (mas&kin)” Those who considered acting upon a verse, which is not established in the mushaf, as obligatory when it has been transmitted as an individual narration by <adl narrators, said that the old man (shaykh) is covered by it. Those who did not consider this to be obligatory maintained that the hukm of the old person is that of a sick person whose illness continues up to his death.

These are the ahkam of the category of persons to whom it is permitted not to fast, that is, the well-known ahkam that are either explicitly stated in the law or are related to those that are stated with respect to persons who are allowed not to fast.

The examination of the category of persons to whom it is permitted not to continue the fast if they have broken their fast is taken up with reference to breaking, the fast through sexual intercourse or through some other way, and with reference to an act that is agreed upon or that which is disputed, that is, an act based on doubt and one that is not. Each of these two cases occurs either due to forgetfulness or due to intention or due to choice or due to duress.

The majority of the jurists maintained that a person who breaks his fast through intentional sexual intercourse is under an obligation of qada? as well as expiation, because of what is established through the tradition of Abu Hurayra, who said, “A man came up to the Messenger of Allah (God’s peace, and blessings be upon him) and said, T am ruined, O Messenger of Allah’. He said, ‘And what has ruined you?’ He said, ‘I had sexual intercourse with my wife during Ramadan.’ He said, ‘Do you have a slave that you can set free?’ He replied, ‘No’. He said, ‘Are you able to fast for two months consecutively?’ He replied, ‘No’. He said, ‘Do you have food with which you can feed sixty needy persons?’ He replied, ‘No’. He then waited. The Prophet (God’s peace and blessings be upon him) received as a gift a faraq [fifteen sd\ sixty midrib], of dates and said to him, ‘Give these as alms’. The man said, ‘To someone w'ho is poorer than I? There is no household between the boundaries of the town more in need of it than ours’. The Prophet (God’s peace and blessings be upon him) smiled so that his canine teeth were noticeable, and said, ‘Go, feed it to your family’”. They differed over this on several points including: whether breaking a fast intentionally by eating or drinking carries the same hukm as that, for breaking the fast through sexual intercourse involving qada> and expiation? If the person has sexual intercourse out of forgetfulness, w hat is his obligation? What is the obligation for the w^oman if she was not forced into it? Is expiation obligatory in the listed order or is it a matter of choice? What is the amount that is to be given to each needy person, if he makes expiation by feeding the needy? Does expiation recur with the recurrence of sexual intercourse? If feeding is deferred when he is in difficult straits, does it become binding when his situation improves?

One group of jurists deviated (from the majority opinion) and did not impose anything on a person breaking his fast intentionally through sexual intercourse, except qada\ They maintained this either because this tradition did not reach them or because (they thought that) the matter did not amount to a determined decision in this tradition, for had it been so the person would be under an obligation to fast when he was not able to manumit a slave or to feed the needy, and this indeed was a must, according to the apparent meaning of this tradition., if he was in sound health. Further, had this been a determined ruling the Prophet (God’s peace and blessings be upon him) would have informed him that fasting was obligatory on him once he could afford it. Likewise, another group deviated and said that there is no liability for this offence except expiation alone, as qadd> has not been mentioned in the tradition, and the qada* mentioned in the QuPan applies to persons to whom breaking the fast is allowed, or to those to whom fasting is not permitted. We may recall here the disagreement over this, which we have already stated. As there is no text for the obligation of qadtf on the person who breaks his fast intentionally, the dispute surrounding the qada? of such a person was linked with the qadd* of a person who intentionally relinquishes prayer until its prescribed time is over. The dispute over these two issues is deviant. The well- known dispute, however, is over the issues we have listed.

Is expiation obligatory for intentionally breaking the fast by eating or drinking? Malik, his disciples, Abu Hanifa, his disciples, al-ThawrT, and a group of jurists maintained that the person who intentionally breaks his fast by eating or drinking is liable to qadd> and expiation mentioned in this tradition. Al- ShafiT, Ahmad, and the Zahirites held that liability for expiation arises in the case of breaking the fast through sexual intercourse alone.

The reason for their disagreement arises from their dispute over drawing an analogy between the person breaking the fast through sexual intercourse and one breaking it by eating and drinking. Those who maintained that they have a common basis, which is the violation of the sanctity of the fast, determined that the hukm should be the same for them both. Those who maintained that though expiation is a punishment for the violation of sanctity, it is more suitable by its intensity for the person breaking the fast through sexual intercourse as compared to others, and (thus, they said that) because the purpose of punishment is deterrence a greater punishment is laid down for the act for which there is a more powerful desire. This act, they said, is more powerful than other offences, though the degrees of the offences are close and the aim of the imposition of expiation is to make people abide by the laws and be pious and upright, as in the words of the Exalted, “O ye who believe! Fasting is prescribed for you, even as it was prescribed for those before you, that ye may ward off (evil)”. This enhanced form of expiation, they said, is therefore specific to sexual intercourse. These views are expressed by those who uphold analogy in this case. The opinion of those who do not uphold analogy here is obvious, they do not extend the hukm for (violation through) sexual intercourse to eating and drinking.

The report by Malik in al-Muwattd, that a person broke his fast during Ramadan and the Prophet (God’s peace and blessings be upon him) ordered him to make the listed expiation, is not persuasive as the statement of the narrator that the person “broke his fast” is mujmal (unelaborated), and the mujmal does not have a general implication that can be adopted. It does, However, give an opinion as the narrator reported expiation to be a consequence for breaking the fast. Had this not been the case he would not have mentioned these words, and he would have mentioned one of the ways in which the fast is broken.

When the person fasting has sexual intercourse out of forgetfulness, al-ShafiT and Abu HanTfa maintain that there is no qadd for the person nor is there any expiation. Malik said that he is liable for qaddy but there is no expiation. Ahmad and the Zahirites maintained that he is liable for both qadd and expiation.

The reason for their disagreement over qadd of the person acting out of forgetfulness stems from the conflict of the apparent meaning of the tradition with analogy. The analogy holds one forgetting prayer to be similar to the person forgetting his fast. Those who held him to be similar to one forgetting prayer held him liable for qadd as the person forgetting prayer has been held liable by the text. The tradition conflicting with the apparent implication of this analogy is what has been recorded by al-BukharT and Muslim from Abu Hurayra, who said, “The Messenger of. Allah (God’s peace and blessings be upon him) said, ‘One who forgets while fasting and eats or drinks should complete his fast, for indeed it is Allah who has given him to eat and made him drink’”. This tradition is supported by the general implication of the saying of the Prophet (God’s peace and blessings be upon him), “Liability for mistake, forgetfulness, and what they did under duress has been lifted from my umma”.Within this topic their disagreement about whether there is qadd for the person who (mistakenly) believes that the sun has gone down and breaks his fast, but the sun appears thereafter. The reason is that such a person has made a mistake, and the hukm of one making a mistake is the same as that for one forgetting. In whatever way we express it, the effectiveness of forgetfulness in dropping (the obligation) of qadd is evident, Allah knows best. The argument is that if we were to maintain the principle that qadd is not binding on the person forgetting until an evidence indicates this, it becomes necessary to hold that forgetfulness in fasting is not liable to qadd as there is no evidence to indicate this, as against the situation in prayer. If, on the other hand, we were to hold that the principle is that qadd is obligatory until an evidence indicates its removal from the liability of the person forgetting, then, we can say that an evidence has indicated its removal from the liability of the person forgetting in the tradition of Abu Hurayra. Unless one were to maintain that the evidence which exempted the case of the person forgetting the fast from the rule of forgetfulness for the other forms of worship, where all liability is removed by the text from one relinquishing it, is analogy to the case of fasting constructed upon the case of prayer. The imposition of obligation of qadd by means of analogy, however, is weak. And qadd in the opinion of the majority is obligatory through a renewed command.

The opinion of those who imposed qadd as well as expiation upon the person committing sexual intercourse in forgetfulness is weak. The effective­ ness of forgetfulness in the waiving of punishments is evident in the law, and expiation is a kind of punishment. What led them to decide this is their reliance upon the unelaborated (mujmal) text transmitted in the tradition; I mean, it was not mentioned in that text whether the person committed the act intentionally and not out of forgetfulness. Yet, those who imposed expiation on the hunter of prey (in the prohibited months) in forgetfulness did not maintain this principle of theirs along with the fact that the text relates to the person acting intentionally. It was more becoming for the Zahirites to adopt the tradition that was authentic by agreement, which imposes expiation upon the person acting intentionally until an evidence indicated its applicability to forgetfulness, or they should have adopted the general implication of the saying of the Prophet (God’s peace and blessings be upon him), “Liability for mistake, forgetfulness, and what they did under duress has been lifted from my ummd\ until an evidence indicated the restriction. Both groups did not abide by their principle, and in the unelaborated implication transmitted* in the tradition about the Bedouin there is no persuasive force. Those experts of usul who maintained that the lack of detail from the Lawgiver in varying circumstances stands in the position of a general implication arising from sayings is weak. The Lawgiver has not laid down any rule at all that is not elaborated, and lack of elaboration belongs to us.

This issue is about their disagreement over the obligation of expiation upon the woman who has been coaxed into having sexual intercourse (while fasting). Abu HanTfa and his disciples, and Malik and his disciples made expiation obligatory for her. AI-ShaficT and Dawud said that there is no expiation for her.

The reason for the disagreement stems from the conflict of the apparent meaning of the tradition with analogy, because the Prophet (God’s peace and blessings be upon him) did not order the woman in the tradition to make expiation. The analogy is that she is like the man as both’ are under the liability.

Is there an order for the making of the expiation, as in the case of zihdr (injurious assimilation), or is there a choice? By order I mean that the subject is not to move from one obligation to. the other unless he is unable to perform the previous one; and by choice I mean that he is permitted to make a choice of one without being unable to perform the other. They disagreed about this. Al-Shafi T, Abu Hanlfa, al-ThawrT, and all c the KufTs said that there is an order. Thus, the person is to manumit a slave first, and if he is unable to do this he is to fast, and if he is unable to do that then he is to feed the needy. Malik said that it is based on choice. Ibn al-Qasim has related from him that he considered feeding the needy more desirable than manumission and fasting.

The reason for their disagreement in imposing an order derives from the conflict of the apparent meanings of the traditions and the various analogies. The apparent meaning of the tradition about the Bedouin implies an order, as the Prophet (God’s peace and blessings be upon him) asked him about his ability to perform acts in a definite order. The apparent meaning of what is related by Malik that “A man broke his fast during Ramadan and the Messenger of Allah (God’s peace and blessings be upon him) ordered him to set free a slave, or to fast for two consecutive months, or to feed sixty needy persons”, indicates a choice, as the word (or), in the usage of the Arabs implies a choice, even though this occurred in the words of the narrator, one of the Companions, who were best acquainted with the context and the implications of the words.

The conflicting analogies, on the other hand, are based on holding it to be similar, once, with, the expiation in zihdr and, another time, with the expiation for an oath, though it resembles more the expiation for zihdr rather than that for an oath, and also by deriving an order from the statement of the narrator.

The desirability of commencing with feeding the needy, in Malik’s view, is in conflict with the apparent meaning of the traditions. He decided this on the basis of analogy as he saw that feeding of the needy had been mentioned as a substitute for fasting on a number of occasions in the law, .and that it is more compatible with it than the others on the evidence of the variant recitation, “And those for whom it is overwhelming is ransom: feeding the needy”.230 It was for the same reason that he, and a group of jurists, deemed it desirable for a person who has died with a pending duty to fast that expiation through feeding be made on his behalf. This appears to belong to the category of preferring analogy, which is supported by principles, over a tradition that is not supported by the principles.

This relates to their disagreement over the quantity of food to be given to the needy. Malik, al-Shafi T, and their c disciples said that he is to give one mudd of food to each needy person in accordance with the mudd used by the Prophet (God’s peace and .blessings be upon him). Abu HanTfa and his disciples held that less than two mudds, in accordance with the mudd used by the Prophet (God’s peace and blessings be upon him) would not be sufficient, and this comes to one-half sdS for each needy person.

The reason for their* disagreement arises from the conflict of analogy with a tradition. The .analogy is based upon the similarity of this ransom with that in the case of not shaving the head (at the close of the pilgrimage) due to an ailment, which is expressly stated. The tradition is what is related in different versions of the traditions about expiation that a faraq (a large measure) comprised of fifteen sd^s. Its comprising fifteen however, does not indicate its obligation for each needy person in this case, except through a very weak indication, but it does indicate that the substitute: for fasting in this expiation is this amount.

This is about the recurrence of expiation with a recurrence of the violation of the fast. They agreed that a person who has sexual intercourse during Ramadan and makes an expiation, and then has sexual intercourse on another day has to make another expiation. They agreed that the person who commits sexual intercourse a number of times on the same day is only obliged to make a single expiation. They disagreed about the case of a person who has intercourse on one day during Ramadan and does not make the expiation until he has intercourse on another day. Malik, al-ShaficT, and a group of jurists said that he is to make an expiation for each of these day. Abu HanTfa and his disciples said that he is to make a single expiation as long as he has not made an expiation for the first intercourse.

The reason for the disagreement stems from the similarity of these expiations with those in the hudud. Those who held them to be similar to the hudud said that one expiation is sufficient in this on account of a number of acts, just as the person committing unlawful sexual intercourse is subjected to one penalty of stripes even if he has committed the act a thousand times (before that) when he has not been subjected to hadd for any of those occasions. Those who did not consider them to be similar to the hudud determined a separate hukm for each of the days in which the fast has been violated, and therefore imposed one expiation for each day. They maintained that the distinction is based upon expiation being a way of attaining nearness to Allah, while the hudud are a form of pure deterrence.

Does a person, who committed the offence of copulation during the fast of Ramadan and could not afford the cost of expiation at the time, have to offer it when his financial condition improves? Al-Awzaci said that he owes nothing if he was hard up at the time of the offence. Al-ShafiT hesitated over this question.

The reason for their disagreement is that it is a hukm.nut expressly stated in the law, and it is, therefore, likely to be similar to debts, in which case the obligation reverts if his financial position improves, and it is equally likely to say that if this had been obligatory the Prophet (God’s peace and blessings be upon him) would have explained it.

These, then, are the ahkam of the cases in which the jurists agreed that the fast was broken by deliberate action. In disputed cases those who held that the fast had been broken differed as to whether qadff alone should be imposed, or qada> as well as expiation. Examples for these are: cupping, vomiting, swallowing a stone, and the traveller breaking his fast on departing the first day, in the opinion of those who maintain that he should not do so.

Malik made qadd> and expiation obligatory on such a traveller, but he was opposed in this by the remaining jurists of the provinces and the majority of his disciples. Those who considered qada* and expiation obligatory, in the case of deliberate vomiting include Abu Thawr and al-AwzacT, but the remaining jurists who maintain that vomiting breaks the fast impose only qadd* for it. The jurist who imposed qadd* and expiation in the case of cupping, from among those who maintained that cupping breaks the fast, is Ata> alone.

c The reason for this disagreement derives from the existence of similarity of disputed factors breaking the fast with undisputed factors breaking it, and with acts that do not break it by agreement. Those who granted predominance to °ne of these resemblances made obligatory the hukm assigned to it. These two kinds of resemblances that are to be found in them are what gave rise to the disagreement, I mean, whether the person is considered to have broken the fast or he is not considered to have done so. As breaking the fast is doubtful, expiation is not obligatory according to the majority, only qadd* is obligatory.On account of this, Abu Hamfa felt that the person who breaks the fast intentionally and then something occurs on that day permitting the breaking of the fast for that person, there is no expiation for him. This is like the case of a woman who breaks the fast intentionally and then starts menstruating during the rest of the day. Another example is when a person in sound health breaks the fast intentionally and then falls ill. A third is when a resident breaks his fast and then goes on a journey. Thus, those who considered the ultimate development that legitimized breaking of his fast said that there is no expiation for him. The reason is that to each of these persons it was revealed by the eventual development that breaking his fast on that day was permitted to him. Those who paid more attention to the violation of the law imposed expiation upon this person, as at the time when he broke the fast he did not have knowledge of the permissibility arising afterwards. This is the opinion of Malik and al-Shafi T.

c Within this topic is the imposition of qadd? alone by Malik upon a person who broke his fast when he was still doubtful about the dawn, and also the imposition of qadd? and expiation upon the person who breaks the fast when he is doubtful about sunset, in accordance with the distinction between them that has preceded.

The majority agreed that there is no expiation for breaking the fast on a day of qada* for Ramadan, because it does not possess the same sanctity as that of ad&, that is, of Ramadan. The exception was Qatada, who imposed qadd? as well as expiation in this case. It is related by Ibn al-Qasim and Ibn Wahb that such a person is under an obligation to fast for two days on the analogy of an invalid hajj.

They agreed that one of the sunan of fasting is the delay of the meal before dawn, and haste in the breaking of the fast, because of the saying of the Prophet (God’s peace and blessings be upon him), “The people will continue to enjoy blessings (of Allah) as long as they hasten the breaking of the fast and delay the meal before dawn”. He also said, “Have the meal before dawn for it bears a blessing”. The Prophet (God’s peace and blessings be upon him) said that “The difference between our fast and that of the People of the Book is having the pre-dawn meal”.

The majority of the jurists also maintain that one of the sunan of Ramadan and one of its desirable practices is the restraining of the tongue from uttering obscenities and nonsense, because of the saying of the Prophet (God’s peace and blessings be upon him), “The fast is a shield, so when one of you arises in the morning with a fast he should not utter obscenities and foolish things. If another person hurls abuses at him he should say: l am fasting”. The Zahirites held that uttering obscenities breaks the fast. This, however, is a deviant opinion.These then are the well-known issues related to obligatory fasting. The discussion of recommended fasting remains, and that is the second part of this book.