The Distinguished Jurists Primer by Ibn Rushd

Prayers that are not prescribed as a universal obligation include prayers that are a sunna y or are supererogatory (nafl)y or prayers that are prescribed as a communal obligation (fard kifdya). As (each of) .these have ahkdmy some agreed upon and some disputed, we deemed it proper to take up the discussion of each prayer separately. These prayers together are ten in number: the two of the morning prayer, the witr prayer, supererogatory prayers, the two rakfas on entry into a mosque, prayers during Ramadan, the eclipse (kusuf) prayer, prayer for rain, the two cid prayers, and the prostrations (on reciting certain parts) of the Qur’an, which are also a kind of prayer. This book, therefore, comprises ten chapters. We shall be discussing funeral prayers separately ’under the chapter on the ahkam of the dead, as is the practice of the jurists and that is what they compile under the title: “the book of janffiiz”.

They disagreed about on five points: its hukm, its description, its time, the supplication (qunut) during it, and its observance while travelling on a riding beast.

The discussion of its hukm has been covered in the discussion of obligatory prayers. Malik (God bless him), in its description, preferred that it be offered as three rak^as of witry separated with a salutation.150 Abu Hamfa said that witr consists of three rak^as without any separation between them by means of the salutation. Al-ShaficT said that witr is a single rak^a. For each group there are opinions coming down from the generations of the Companions and the Tabi un.

c The reason for their disagreement stems from the conflict of traditions on the subject. It is established from the Prophet (God’s peace and blessings be upon him) through the tradition of cA’isha “that he used to pray eleven rak^as at night, offering one as witr". It is established from Ibn ‘Umar that the Messenger of Allah (God’s peace and blessings be upon him) said,/‘The prayers during the night are (observed) two at a time, and if you find that the morning is going to overtake you, then, offer one ra&a as witr". Muslim has reported from ‘Arisha “that the Prophet (God’s peace and blessings be upon him) used to pray thirteen rak'as at night, and offered five of these as witr without sitting in between, except at the end of the last”. Abu Dawud has reported from Abu Ayyub al-Ansari, “Witr is a prescribed duty for every Muslim, thus, he who prefers to observe it with five may do so, he who prefers to observe it with three may do so, and he who prefers to observe it with one may do so”. Abu Dawud has recorded that the Prophet (God’s peace and blessings be upon him) used to observe witr with seven, nine, and five rak^as.

He recorded (a tradition) from ‘Abd Allah ibn Qays, who said, “I said to ‘Alisha, ‘With how many (rak as)

c did the Messenger of Allah (God’s peace and blessings be upon him) observe witr?' She said, ‘He used to observe witr with four and three, six and three, eight and three, ten and three, but he did not observe it with less than seven or with more than thirteen’ ”. There is also the tradition of Ibn ‘Umar from the Prophet (God’s peace and blessings be upon him) that he said, “The sunset prayer (maghrib) is the witr of the prayers of the day”.

The jurists adopted the method of preference in these traditions. Those who held that witr is a single rak^a decided on the basis of the words of the Prophet (God’s peace and blessings be upon him), “If you are apprehensive about the (approach of) dawn offer a single rakfa as witr," and also on the basis of the tradition of ‘Arisha, “He used to observe witr with one rak'a". Those who maintained that witr is three rakcas, without there being a separation between them, and confined the hukm of witr to three only, have nothing to rely upon as proof in this matter, as all traditions imply a choice, except the tradition of Ibn ‘Umar that the prophet (God’s peace and blessings be upon him) said, “The sunset prayer (maghrib) is the witr of the prayers of the day”. Abu HanTfa would say: “When one thing is compared with another and the hukm of both is made the same, it is appropriate that the things compared have the same description, thus, when maghrib is compared with the witr of the prayers of the day and as maghrib consists of three it follows that the witr of the night be also three”.

Malik, on the other hand, relied on the argument that the Prophet (God’s peace and blessings be upon him) never observed witr unless it followed an even number (of rakcas). He, therefore, held that this was the sunna of witr and that the minimum in this is two rakcas. Witr, in his’view, may in fact be a single rak^a preceded by an even number of rakcas, or that lw/r, which is prescribed has to include an even number along with it. Thus, if a witr is added to an even number of ra&as, the whole becomes witr (an odd number). This opinion is supported by the tradition of <Abd Allah ibn Qays—mentioned earlier—which describes witr prayers as comprising an even number of rak^as and then an odd number. His belief that witr comprises a single rakfa is revealed in his statement: “How can witr be observed when nothing precedes it, and for what is it a witr (odd number)?” The Messenger of Allah (God’s peace and blessings be upon him) has said, “What has been prayed before it makes it odd”. The apparent meaning of this statement agrees with his view that the technical meaning of witr is the odd number itself, that is, something not consisting of an even number plus an odd? number, because in such a case it is not an odd number in itself but because of the odd number besides it. This interpretation is better.

The truth, however, is that all these traditions imply a choice in the description of the witr prayer ranging from one to nine as has been reported in the acts of the Messenger of Allah (God’s peace and blessings be upon him). The inquiry (to be made) is whether it is a condition for the witr that it be preceded by an even number of rak^as. It is possible to say that this is a condition as that was the case with the witr of the Messenger of Allah (God’s peace and blessings be upon him). It is also possible to say that it is not a condition for it as Muslim has recorded that the Prophet (God’s peace and blessings be upon him) used to wake cA’isha up for her iwtr prayer when he had prayed1 up to the point of the witr. The apparent meaning of this is that she used to observe witr without it having been preceded by an even number. He (Muslim) has also recorded a tradition from <A>isha “that the Messenger of Allah (God’s peace and blessings be upon him) used to observe witr with nine rak^as, sitting down in the eighth and ninth, and he did not offer the salutation except in the ninth. He then offered two rak'as while seated. These are eleven rakfas. 'When he grew older and put on some weight he used to observe witr with seven ra&as sitting only in the sixth and the seventh, and not offering the salutation except at the end of the seventh. He then used to offer two rakfas while seated, and these come to nine In this tradition the witr precedes the even number, and it contains a proof that it is not a condition for the witr that it be preceded by an even number, and that the term zptfr is applied to mean three. This is supported by what is related by Abu Dawud from Ubayy ibn Ka<b, who said, “The Messenger of Allah (God’s peace and blessings be upon him) used to recite in the witr (the chapters) “Glorify the name of your Lord, the most High .. ‘Say O disbelievers .. and ‘Say, Allah is One .. There is a similar tradition from A>isha where she says about the third recitation, “Say, Allah is One and the mtfawwidhatan [‘Say, I seek refuge with the Lord of the daybreak .. and ‘Say, I seek refuge with the Lord of mankind .. ?]” The jurists agreed that the time of witr is after the isha* prayer up to the break of the dawn, as this has been reported from the Prophet (God’s peace and blessings be upon him) through a variety of channels. One of the most authentic of these is what is reported by Muslim from Abu Nudra al-SAwfi that Abu Sa id informed them that c they had asked the Prophet (God’s peace and blessings be upon him) about witr, and he said, “The witr is before the morning (prayer)”. They disagreed about the permissibility of observing it after the dawn. A group of jurists prohibited this, while another group permitted it as long as the worshipper had not yet performed the morning prayer. The first opinion was held by Abu Yusuf and Muhammad, the disciples of Abu HanTfa, and by Sufyan al-Thawri. The second was held by al- Shafi T, Malik, and Ahmad.

c The reason for their disagreement derives from the conflict between the practice of the Companions in this regard and the traditions. The apparent meaning in the traditions about this (matter) is that it is not permitted to observe ,witr after dawn as in the tradition of Abu Nudra that has already been mentioned. Further, the tradition of Abu Hudhayfa is explicit about this as recorded by Abu Dawud, where it is said, “It has been prescribed for you (from the time) between the ishffi prayer till the break of the dawn”. There is no dispute among the authorities on -usiil (al-fiqh) that what occurs after the word ild (till) has a hukm that is the opposite of what precedes it as it represents the limit. Though this belongs to one of the categories of the indirect indication of the text {dalil al-khitab), it is of a kind that is agreed upon as in the words of the Exalted, “Then strictly observe the fast till nightfall”,152 and in His words, “(Wash your hands) Up to the elbows”.153 There is no dispute among the jurists about (the propositon) that what is beyond the limit is the opposite of what is before the limit.

The conflict between practice and traditions is discernible from what is related from Ibn Mascud, Ibn cAbbas, TJbada ibn al-Samit, Hudhayfa, Abu al-Darda\ and ^isha that they used to observe witr after the break of the dawn and before the morning prayers, and there was no opposition from the other Companions over this. A group of jurists held that such a case is within the category of consensus but such a claim is not justified, as an opinion of one person about an issue cannot be attributed to another who is silent about it, that is to say, the opinion of a person on an issue should not to be ascribed to a consensual opinion when his opinion is not known. As to the issue at hand, how is it correct to say that there is no reported dispute among the Companions over it. What dispute can be greater than the dispute of the Companions who related these (differing) traditions, I mean, their disagree­ ment with those who permitted the witr prayer after the break of the dawn.

What I think of their practice on the issue, however, is that it does not go against the traditions reported on it, that is, the permissibility of praying witr after dawn. In fact, the permissibility in this regard belongs to the category of qadd* not t0 °f Their practice would go against the traditions if they considered praying after daybreak to be of the category of add?. Think over this. The dispute over this issue actually relates to the question of whether qadd* in worship with determined timings is in need of a renewed command, that is, a command other than the command for add*. Thus, such an interpretation ascribed to them is more suitable as the practice was reported from most of them that they were seen observing the witr as qada? before the (morning) prayer, but after the break of the dawn. An opinion has been related from Ibn Mas ud on this, that c is, he used to say, “The time for witr is from the last time of ishd* up to the morning prayer”. The existence of this opinion, however, does not necessarily mean that we should ascribe it to all of the Companions whom we have mentioned, that all shared that opinion because one Companion was seen praying witr after daybreak, and it is necessary to ponder over the nature of the transmission from them about this. Ibn al-Mundhir has reported five opinions about the timing of witr including the two well-known opinions that I have mentioned. The third opinion is that the worshipper should observe the witr even if he has offered the morning prayer. This is the opinion of Tawus. The fourth is that he should observe it even after sunrise. This was maintained by Abu Thawr and al-AwzacT. The fifth is that he may observe the witr of the previous night. This is the opinion of Sa Td ibn Jubayr?

c The reason for this disagreement stems from their dispute about the emphasis laid on observing witr and the degree of its nearness to the category of obligation (fard). Those who held it to be closer to obligation prescribed its qadd? in a period that is beyond that of the period determined for it. Those who held'that it was not close to being an obligation prescribed qada? in the shorter period. Those who held it to be a sunna like all the other sunan deemed qadd* to be weak in this case as qada? is necessary in obligations. Hence, their disagreement about the qadd? of id prayers for one who has missed it. It is necessary that no distinction be made in this between recommendation and obligation, that is, those who hold that qadd* of an obligation is through a renewed command should maintain the same about recommendation, and those who hold that it is obligatory through the original command should maintain the same about recommendation.In their disagreement about the qunut (supplication), Abu HanTfa and his disciples maintained that the worshipper should recite it in the witr prayer. Malik disallowed it, while al-ShaficT permitted it during the second half of Ramadan. One group of jurists permitted it for the first half of Ramadan and a second group for the entire month of Ramadan.

The reason for their disagreement arises from the conflict of traditions. It has been related from the Prophet (God’s peace and blessings be upon him) that he always recited the qunut. It is also related that he permitted it for a month. Again, it is related that in his last days he did not recite qunut in any part of the prayer. Finally, it is related that he prohibited it. This* issue has been discussed earlier.

Observing the witr prayer while riding on a beast, whichever way it is facing, has been permitted by the majority as it has been established through the acts of the Prophet (God’s peace and blessings be upon him), that is, he used to observe witr while riding. This is what they relied upon to prove that it is not an obligation, for it has been established from the Prophet (God’s peace and blessings be upon him) that “he used to offer supererogatory prayers while riding”, while it has not been established from him at all that he used to observe obligatory prayers while riding. In the view of the Hanafites, because of their agreement with the majority that on the premise that no obligatory prayer is to be observed while riding, and because of their belief that the witr prayer is obligatory, it must necessarily follow that it should not be prayed while riding, and they rejected the tradition on the basis of analogy, which is weak.

Most of the jurists held that if a person observes witr and then goes to sleep, he may not observe witr a second time if he wakes up to observe supererogatory prayers; this is because of the words of the Prophet (God’s peace and blessings be upon him), “Witr is not observed twice in a night”. It is recorded by Abu Dawud. Some of them held that he may make the first witr even by adding a rak^a to it and then observe it a second time after offering an even prayer. This is an issue that they termed naqd al-witr. It is weak from two aspects: first, that witr cannot be converted to a supererogatory prayer by making it even; second, that observing a single rakfa as a supererogatory prayer is not known in the law. Permitting it or not permitting it is the cause of disagreement on the issue. Those who took into account the underlying meaning in witr, which is the opposite of even, said that it is converted by 5 making it even through the addition of a second rakta. Those who took into account the technical meaning said that it is not converted by making it even as the even prayer is supererogatory, while the witr is an emphatic sunna (mt^akkada) or it is obligatory.