1.1.4.1. Issue 1: Unclean excretions from the body

1.1.4.2. Issue 2: Sleep

The jurists disagreed about sleep, expressing three opinions. One group of jurists held the view that it is a factor of annulment, and made ablution obligatory after it whether it was for a short or for a long duration. Another group held that it is not so, and they did not make ablution obligatory after it, unless the person was convinced, in accordance with the opinion of those who do not acknowledge doubt, that he had acquired hadath*2 or when he was in a doubt that he had, in accordance with the opinion of those who consider doubt (as an effective factor). Some in the early generation used to depute a person to keep track of their state during sleep, that is, whether they had acquired hadath. Another group made a distinction between a light short sleep and a long deep sleep. They made ablution obligatory after a deep sleep, but not after light sleep. This is upheld by the fuqaha? of the regions, and by the majority. As some (bodily) positions facilitate deep sleep as well as discharge of annulling elements more than other positions, the jurists differed about them. Malik said that the person who sleeps reclining on his side or prostrate must perform ablution, whether the sleep was long or short, but one who sleeps in a sitting posture is under no obligation for ablution, unless such sleep becomes very long. His opinion about one (who sleeps while) bowing differed. He said once that his hukm is the same as that of the person standing, while he said another time that his hukm is that of the person prostrating. Al-ShafiT said that whenever a person sleeps, whatever his posture, he is obliged to perform ablution, except for the person dozing off while sitting. Abu Hanifa and his disciples said that there is no ablution for a person who sleeps, except for one sleeping on his side. The basis for disagreement among them on this issue is the conflict of the relevant traditions. There are traditions whose apparent meaning implies that there is no ablution at all for a person who goes to sleep, like the tradition of Ibn Abbas, “that the Messenger of Allah (God’s peace and blessings be upon him) visited Maymuna and went to sleep at her place till they could hear him breathing. He then arose and prayed without performing ablution”. There is the saying of the Prophet (God’s peace and blessings be upon him) which is as follows: “If one of you dozes off during prayer, he should lie down till he is no longer sleepy (and then resume prayer). For it is possible that he intends to seek forgiveness of his Lord, but may err and slander himself’. It is also related that the Companions of the Prophet (God’s peace and blessings be upon him) used to doze off in the mosque till their heads would sink low. They prayed after this without performing ablution. All these are established traditions. There are also others whose obvious meaning indicates that sleep is a form of hadath. The clearest of these is the tradition of Safwan ibn (Assal in which he said, “We were on a journey with the Prophet (God’s peace and blessings be upon him) when he ordered us not to take off our boots because of a visit to the privy, urination, or sleep, and that we should take them off only in case of sexual defilement”. He thus held urination, visit to the privy, and sleep to be similar. It has been declared sahih by al-TirmidhT. Among these is also the preceding tradition of Abu Hurayra, which is the saying of the Prophet (God’s peace and blessings be upon him), “When one of you wakes up from sleep, he should wash his hand before putting it into the water (utensil)”. Its apparent meaning is that sleep necessitates ablution, whether it is short or long. Similarly, the apparent meaning of the verse of according to those who derive such a meaning from the words of the Exalted, “O ye who believe! When ye rise up for prayer, wash your faces, and your hands up to the elbows, and lightly rub your heads and (wash) your feet up to the ankles”,53 that is, when you arise from sleep, in accordance with what is related from Zayd ibn Aslam and other early authorities. As the apparent meanings of all these traditions were in conflict, the jurists decided the issue on the basis of one of two methods: the method of preference Or the method of reconciliation. Those who applied the method of preference, either dropped the obligation of ablution after sleep completely on the basis of the apparent meaning of the traditions that drop it, or imposed it always after sleep, whether short or prolonged, on the basis of traditions that impose it, that is, in accordance with the prescribing tradition that was preferred by them Or in accordance with the tradition that dropped it. Those who adopted the Method of reconciliation interpreted the traditions prescribing ablution to a Pply to extended sleep, and interpreted the traditions waiving ablution to a PpIy to a short sleep. This, as we have saidj is the opinion of the majority, and ^conciliation is better than preference, as far as it is possible, according to ° experts on usul al-fiqh. Al-ShafiT interpreted the traditions so as to exempt, from among the positions of the person sleeping, the sitting posture alone, as this was established to be an authentic report about the Companions, that is, they used to sleep while sitting and then prayed without performing ablution. Abu HanTfa made it obligatory only after sleep while reclining on the side, as this has been stated in a marfiF tradition, and in a saying of the Prophet (God’s peace and blessings be upon him): “Ablution is obligatory on one who sleeps reclining on one side”. The narration has been established from TJmar. Malik said: Since sleeping can be a cause of annulment of ablution only on account of the fact that it makes easy the release of the cause of hadath. In forming his views, Malik took into account three things: soundness, duration, and posture. He did not stipulate either duration or soundness for a posture that usually facilitates the occurrence of hadath^ but he did do so for postures that normally do not do so (like standing or sitting).

.1.1.4.3. Issue 3: Touching women

The jurists disagreed about the obligation of ablution for a person who touches a woman with his hand or with other sensuous limbs. One group held that one who touches a woman reaching out for her when there is no barrier or covering between the touching skins, is obliged to perform ablution. Similarly, one who kisses her, as a kiss, according to them, is a kind of touching, whether or not he derives pleasure from it. This opinion was upheld by al-ShafiT and his disciples, except that he once made a distinction between the person touching and the person being touched, making ablution obligatory for the person touching to the exclusion of the person touched; another time he held that it was obligatory on both. A third time he made a distinction between women in the prohibited degree and a wife, making ablution obligatory in the case of (touching) the wife, but not in the case of women in the prohibited degree, while another time he held them to be similar. Others made ablution obligatory only when lustful pleasure is felt or it was intended. Upholders of this view go into details making a distinction in the case of the existence of a covering or otherwise, and in the case of particular limbs whose touching is harmful. In the case of kissing, they did not stipulate pleasure. This is the opinion of Malik and the majority of his disciples. Some negated the obligation of ablution for the person touching women, which is the opinion of Abu HanTfa. Each of these schools has predecessors from among Companions (holding these views), except the stipulation of pleasure, for I do not remember that any Companion stipulated this. The reason for disagreement is the equivocality of the term “touching” in the usage of the Arabs. The Arabs apply it sometimes for touching that is by hand, and sometimes use it as an allusion to intercourse. A group of jurists, therefore, held that touching causing ablution according to the words of the Exalted, “or ye have touched women ., .”,54 means intercourse (which leads to major ablution, that is, bathing). Others maintained that the meaning here is that of touching by hand, and among them are those who considered it to be a general term intended for the particular, and, therefore, stipulated pleasure in it. There were those among them who deemed it a general term intended for the general, because of which they did not stipulate pleasure (for annulment). Those who stipulated pleasure were drawn to this by what restricts the generality of the verse, namely, the tradition that says that the Prophet (God’s peace and blessings be upon him) used to touch cAhsha while prostrating, and perhaps she did too. The traditionists recorded the tradition of Habib ibn Ab? Thabit from TJrwah from ^A’isha: “He the Prophet (God’s peace and blessings be upon him) used to kiss some of his wives and then go out to pray, but did not perform ablution. I said, ‘Who could that be, but you, and she smiled’”. Abu TJmar said that this tradition was deemed feeble by the scholars of Hijaz, but was considered' sahih by those of Kufa. Yet, he held it to be authentic, saying that this tradition was also related through Ma<bad ibn Nubata. Al-Shafi T c said that if the tradition of Ma^ad ibn Nubata about kissing is established, I do not maintain the obligation of ablution for it, or for touching. Those who made ablution obligatory upon touching by hand, argued that the term “touching” is used in its primary application to touching by hand and is applied metaphorically to intercourse, and if the word vacillates between the primary and metaphorical uses, it is better to confine it to the primary meaning, unless an evidence indicates the metaphorical meaning. The others could have said that when the use of a metaphorical term becomes frequent it is more expressive in its metaphorical sense than in its actual meaning, like the term gh&it, which is more expressive in denoting a visit to the privy than it is in denoting depressed ground, which is its actual meaning. What I believe is that the word “touching”, though it is equally expressive of both meanings, or almost equal, is more vivid, in my view, for denoting intercourse though it is a metaphor, as Allah, the Glorious and Exalted, has used the terms mubashara, contact”, and mass, “touching”, for copulation and they denote the meaning of touching. It is on the basis of this interpretation of the verse that the argument is made for the permissibility of tayammum in the case of one with a m ajor impurity, without requiring the assumption of advancing or delaying in the order of the words in the relevant texts, as will be coming up in what follows, and the conflict between the verse-and the traditions is also removed the basis of the other interpretation. The opinion of those who understood from the verse both meanings of touching (by hand or by way of intercourse) is weak, as the Arabs, when they use an equivocal term, intend thereby one of the meanings that can be indicated by the term and not all the meanings that may be indicated. This itself is obvious in their language.

1.1.4.4. Issue 4: Touching the penis

The jurists differed about it expressing three opinions. There are those who made ablution obligatory because of it, whatever the nature of the touch. This is the opinion of al-ShaficT, his disciples, Ahmad, and Dawud. Some of them did not make ablution obligatory at all in this case. These are Abu HanTfa and ’ his disciples. Both parties have predecessors among the Companions and the Tabi un. A c group of jurists made a distinction between touching it in a certain state and touching it in a different state. These jurists are further divided into sub-groups. Some made a distinction based on whether the person derives pleasure from it. Others made a distinction on the basis of whether he touches it with the inner part of the hand (palm) or with the outer part. They made ablution obligatory in the case of pleasure, but not in its absence; similarly, they (the other group) made it obligatory in the case of touching with the palm, but not in the case of touching with the outer part. These two considerations are related from the disciples of Malik. It was as if the consideration of the inner part of the hand refers to the derivation of pleasure. Some jurists made a distinction on the basis of intention and forgetfulness, making ablution obligatory in the case of intention, but not in case of forgetfulness. This is related from Malik, and is the opinion of Dawud and his disciples. Still others held that ablution following touching is recommended and not obligatory. Abu TJmar said that this is the settled view related from Malik by his disciples from among the residents of al-Maghrib, but the narration varies. The reason for disagreement is that there are two conflicting traditions in this. First is the tradition related from Busrah (daughter of Safwan) that she heard the Messenger of Allah (God’s peace and blessings be upon him) saying, “When one of you touches his penis he should perform ablution”. This is the best known tradition laid down about the obligation of ablution from touching the penis, is recorded by Malik in his al-Muwatt&, and has been authenticated by Yahya ibn MaTn and Ahmad ibn Hanbal, but has been declared weak by the jurists of Kufa. It is also related in the same meaning from Umm Habiba, and Ahmad ibn Hanbal declared it .to be authentic. A version similar in part is related through Abu Hurayra. Ibn al-Sakan held it to be authentic, though it has not been recorded by al-Bukhari or Muslim. The second tradition, which opposes this, is related from Talq ibn A1T, who said, “We came up to the Messenger of Allah (God’s peace and blessings be upon him) and there was a man with him, who appeared to be a bedouin. He said, 4 0 Messenger of Allah! What do you say about a man who touches his penis after performing ablution?’ He said, ‘Is it not but a part of you?”’ This has also been**recorded by Abu Dawud and al-TirmidhT, and has been declared authentic by many scholars among the KufTs and others. The jurists chose to interpret these traditions in one of two ways: acceptance of one and rejection of the other by the method of preference or abrogation, or the method of reconciliation. Those who preferred the tradition of Busra or considered it to have abrogated the tradition of Talq ibn CA1I upheld the obligation of ablution after touching of the penis, while those who preferred the tradition of Talq ibn CA1T dropped the obligation of ablution resulting from the touch. Those who desired to reconcile the two traditions made ablution obligatory in one case, but not in the other, or they interpreted the tradition of Busra to indicate recommendation and the tradition of Talq ibn C A1T to indicate the negation of obligation. The arguments adduced by each party for preferring the tradition of its choice are (too) many and their discussion is lengthy. They are available in their books, but the points of disagreement are those that we have indicated.

1.1.4.5. Issue 5: Eatables prepared on fire

The jurists in the first period disagreed about the obligation of ablution after eating what was cooked on fire, because of the conflict of the traditions related about it from the Messenger of Allah (God’s peace and blessings be upon him). The majority of the jurists of the regions after the first period agreed about dropping the obligation, for it was established for them that such was the practice of the four Caliphs, and also because of the tradition related from Jabir, who said, “One of the last commands of the Messenger of Allah (God’s peace and blessings be upon him) was to relinquish ablution after consuming what was cooked on fire”. It is recorded by Abu Dawud. But a group of scholars from the traditionists, Ahmad, Ishaq, and a group besides them held that ablution is obligatory only after eating camel meat, because of an established tradition on this point from the Prophet (God’s peace and blessings be upon him).

1.1.4.6. Issue 6: Laughter during prayer

Abu HanTfa expressed a deviant opinion as he made ablution obligatory for one who laughs during prayer, because of a tnursal tradition55 of Abu al-cAliyah, which states that a group of people laughed during prayer and the Prophet (God’s peace and blessings be upon him) ordered them to repeat ablution and prayer. The majority rejected this tradition for its being a mursal and opposed to the principles, as it makes something a cause of invalidating ablution during prayer, but not when one is not praying. It is, however, a mursal that is sound.

1.1.4.7. Issue 7: Ablution after carrying the dead

One group of jurists deviated by making ablution obligatory because of carrying the dead. There is a tradition for it that is weak, “One who bathes the dead let him take a bath, and one who carries them let him perform ablution”. It is necessary to know that the majority of the jurists made ablution obligatory due to the loss of senses, whatever its cause, like fainting, insanity, or intoxication. All of them held it to be analogous to sleep, that is, they maintained that if sleep makes ablution obligatory in a state that normally leads to hadath, namely, sound sleep, it is appropriate that the loss of reason should cause this too. These are the issues of this chapter that are agreed upon or are widely known to be disputed. We must now move to the fifth chapter.