Contemporary Fiqh Issues - Sh. Jamaal Zarabozo

Class Notes:

Introductory Note:

When look back at the time of Prophet (ءليه سلام) and now a days in the last 100 years there are lot of innovation and lot of changes and new issues. As Muslims we believe that the Guidance of Allah (سبحانه و تعال), the deen and the teaching of Prophet (ءليه سلام) is meant for all of humanity and until the day of judgment.

When there is a new issue that comes up there should be some kind of guidance in Quran and Sunnah to guide us to what is the shari’ah ruling on any kind of issue that come in.

As we knew that our purpose of the creation is to Worship

وَمَا خَلَقْتُ الْجِنَّ وَالْإِنسَ إِلَّا لِيَعْبُدُونِ

“And I did not create the jinn and mankind except to worship Me.” [51:56].

This worship of Allah (سبحانه و تعال) this comprises all of the aspects of our life not only Salath and siyaam but all the aspect as said in Quran

يَا أَيُّهَا الَّذِينَ آمَنُوا ادْخُلُوا فِي السِّلْمِ كَافَّةً وَلَا تَتَّبِعُوا خُطُوَاتِ الشَّيْطَانِ إِنَّهُ لَكُمْ عَدُوٌّ مُّبِينٌ

“O you who have believed, enter into Islam completely [and perfectly] and do not follow the footsteps of Satan. Indeed, he is to you a clear enemy.” [2:208]

This verse is also the command of Allah (سبحانه و تعال) that in the all the aspect we need to submit to Allah(سبحانه و تعال).

However what happens sometimes now a days is that there are major life issues that people face and the have difficult choices and face something more difficult and as Muslim we have to act upon it based on guidance of Allah (سبحانه و تعال)

In this class we will address 3 issue

1. Birth Control
2. Abortion
3. Organ Transplants.
   

and before that lets consider some of the common cases that we face today

The case of Abortion

• For example if someone has bad fetus, then there are couple of choices in front of that person either the person can complete the term of pregnancy and who knows what kind of the quality of life that child possess and many people would like to abort of such a child.
• This is matter of taking a life and this is the common issue what we face today and also as technology advances this becomes more common.
  

Taking off the life support system.

• Either living in the vegetative state or taking them off form that life support system knowing that person will die if we take it off.
  

Organ donation

• If a relative needs kidney to survive, Is this permissible in the shari’ah point of view to save some life by donating organ ?

When these issues becomes relevant to any individual and if doctor comes to us and says this is the state what are we going to do. Most people at that time go to internet and get quick fatwa or ask some sheikh who might not be well versed with these kind of issue. These kind of issue is matter of taking the life.

There are people who come and ask about the act they did 10 years before and when they did the act they did not know if that was correct in the sight of Allah (سبحانه و تعال). They had to take an action and they are now leaving with the feeling that they don’t know if they did right or not. Thus have knowledge about this becomes more important to us.

One of the most important benefit of the knowledge is that it gives tranquility in the heart of a believer by worshiping Allah (سبحانه و تعال) like how he wants to be worshiped.

There is big difference to worship based on culture and based on the knowledge form Quran and Sunnah and when you worship Allah (سبحانه و تعال) worship in the manner described in Quran and Sunnah your heart will feel the rest. And you will believe that you are doing the right thing to please Allah (سبحانه و تعال).

These kind of new issues which many of the Ulema in the past did not face it is “fardh kifaya” to the Muslim Ummah as whole to study these issue and to find what it the guidance of Allah (سبحانه و تعال) concerning these issues. If we do not possess this knowledge then all of Ummah will be sinful. We should have such people who have knowledge on this subject in different parts of the world so they help in guiding people.

Since Many of the technological advancement come from the west and thus the people on the west are the first one who study the ethics of this new technology and there is field called bio-medical ethics and there is some basic principles taught in this field what are known as
“4 basic principle in the Bio Medical Ethics” , this basic principles are taught throughout the world including Muslim world and these are the principles to which medical practitioner refer to.

In the Islamic perspective with respect to these principles it is not sure if these principles are completely agreed upon. For Instance,

First principle “is the issue of Autonomy”

• Individual has right to do what he wants and what he don’t want.
• In general, everything is upto the patient and if he wants to do some procedure and it is legal, then no one can stop him in doing that procedure.
• Law should not interfere with the rights of the human beings this is one of the corollary of this principle.
  

So this notion which is most prominent among the human right activist “Its my body keep law off the body” is this true in Islam ?

• No, We believe that everything belongs to Allah (سبحانه و تعال) .
  
• when someone dies we say :
  

إِنَّا لِلَّهِ وَإِنَّا إِلَيْهِ رَاجِعُونَ

"Indeed we belong to Allah , and indeed to Him we will return."

• In Islamic perspective everything including body is given to us by Allah (swt) and thus in reality it belongs to Allah (swt) and we should not do anything to it accept Allah (swt) permitted to do it.

Many time we have people in position of religious authority who are not qualified the reason for such state is that people choose to go to religious study if they fail into getting into other secular studies. Even now the parents are pushing the kids to the kind of secular degrees and the next generation doesn’t look like in better shape as the people are pushing towards only the secular field.

Birth Control / Abortion

There are lot of topic based on which people attack Islam and this is one of such topic which Islam is been attacked upon.

There was U.N conference took place in the Beijing which they adopted the platform and some of the demands which almost passed as human right demands on that conference was safe sex and safe abortion and this demand almost got passed and would have been included in the human rights. Had they become part of the human rights document then Muslim country would have signed this and lot of Muslim country would have been put under pressure to implement this and Alhamdulillah this was not passed.

Out of lot of the things feminist are calling for, there are issue which are reasonable even within Muslim society. Even if we look at the secular point of view, women’s are mistreated in Muslim society and one of the things in Islam is to give every Muslim proper rights no matter if it is a male or a female. If we keep such door open they attack and this also influence the Muslims. There are feminist and modernist who are influencing Muslims in many ways and the part of the problem is that we leave these doors open.

Gender Equality :

One of thing which they passed in the UN platform is the gender ideology. What they mean by gender equality perspective is that “All of things that you see around today which differentiates as men and women is not based on biological difference but based on culture and this things should be removed if they have to get equal rights. This is what called as Gender Equality.”

Now a days scholar don’t know what the gender equality and they refer this term and think this as the sexual difference between male and female which is not true.

One feminist said what they mean by equality is “equality is not what law says and not equality in the provision but equality is, women should not bare children like men this is called gender equality. We don’t believe that any women have choice to bare the children. No women should be authorized to raise children and society will be totally different. Women should not have this choice and if there is such choice then too many women will make that choice”

Gender equality in Islamic point of view is different and there are pressure that put on Islam to change this and unfortunately what they are targeting is the institute of family and if we don’t know what the guidance of the Allah(سبحانه و تعال) regarding this topic and it will be easier for the people to target Islam.

Is there any evidence that husband and wife should have children ?

• There is couple of narrations of a hadees and in one narration of the hadees a man came to Prophet (ءليه سلام) and ask can he marry a women who cannot give birth to the children and Prophet (ءليه سلام) said “you should marry those women who are loving and capable of baring children and for I shall boast regarding the no of children among the other nations on the day of judgment” [Abu Dawood – Ibn Hajar, Ibn Hibban and Albani said this is Saheeh]
• This hadees is the indication is that to have children
• The hadees of Prophet (ءليه سلام) is in the form of Amr and atleast we can say it is recommended.
• If you look in the Quran Allah (سبحانه و تعال) in couple of places like prophet Zakariya (ءليه سلام) making Dua to have children and thus this is the way of Prophets and part of the marriage union is to bare children.
• Allah (سبحانه و تعال) in the Quran after speaking about the permissibility to have relation with wife during the night of Ramadan says:
  

فَالْآنَ بَاشِرُوهُنَّ وَابْتَغُوا مَا كَتَبَ اللَّهُ لَكُمْ

“So now, have relations with them and seek that which Allah has decreed for you.” [2:187]

• Ibn Abbas and other tabieen said the meaning of the “seek what Allah recorded for you” is referring to the children.
• Scholars look at different laws of shari’ah and it tries to protect the life and one of the five basic aspects that the shari’ah is An-nasd and one of the Nasd is the protection of Family and this includes to protect the family continue the family. We can say that part of the goal of shari’ah is to marry and have children
  

Are children Ni’mah or blessings ?

وَاللَّهُ جَعَلَ لَكُم مِّنْ أَنفُسِكُمْ أَزْوَاجًا وَجَعَلَ لَكُم مِّنْ أَزْوَاجِكُم بَنِينَ وَحَفَدَةً وَرَزَقَكُم مِّنَ الطَّيِّبَاتِ أَفَبِالْبَاطِلِ يُؤْمِنُونَ وَبِنِعْمَتِ اللَّهِ هُمْ يَكْفُرُونَ

“And Allah has made for you from yourselves mates and has made for you from your mates sons and grandchildren and has provided for you from the good things. Then in falsehood do they believe and in the favor of Allah they disbelieve?“ [16:72]

• Allah (سبحانه و تعال) talking about the bounties and children is part of it.

الْمَالُ وَالْبَنُونَ زِينَةُ الْحَيَاةِ الدُّنْيَا

“Wealth and children are [but] adornment of the worldly life” [18:46]

what about the verse in the Quran

إِنَّمَا أَمْوَالُكُمْ وَأَوْلَادُكُمْ فِتْنَةٌ

“Your wealth and your children are but a trial, and Allah has with Him a great reward” [64:15] can we say they are fitnah ?

• Every bounty can be a fitnah, because whatever bounty Allah (سبحانه و تعال) gives you it can fitnah and is in itself is not evidence that it is not bounty.

In reality there are different means of birth control and the law differ on the methods. If we say for example in general having children is one of the goal of marriage and does it mean we can have children as many as you want.

Ablution Day 1: Taste of Fiqh Us Sunnah - Sh. Jamaal Zarabozo

Day 1 : Page 25 of Fiqh-Us-Sunnah text book vol 1.

Ablution:

Prophet (ءليه سلام) said "The prayer is not accepted without purification". There are 2 forms of such purification.

1. Purification by using Water
2. Purification by using dirt

Purification with water has 2 types.

1. Wudhu
2. Ghusl

Wudhu is well established in the Islamic Law. Sayed Sabiq in his book page #25 under Ablution presents 3 major sources and he is touching base on some of the evidences.

(i) Quran : He presents the Ayah

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ

"O you who have believed, when you rise to [perform] prayer, wash your faces and your forearms to the elbows and wipe over your heads and wash your feet to the ankles" [Al-Maidah : 6]

(ii) Sunnah : He present the Hadees

Abu Hurairah reported that the Messenger of Allah (ءليه سلام) said "Allah does not accept the prayer of one who nullified his ablution until he performs it again." (Related by al-Bukhari, Muslim, Abu Dawud and at-Tirmidhi)

(iii) Ijmaa3 - Concenses

Lexical Definition of Wudhu: (not covered in the text book)

The word Wudhu (وضوء) lexically speaking comes from Al-Wadaaha which means goodness , cleanliness and brightness. Part of the lexical meaning is cleanliness i.e An-nadafa

Wudhu with dhamma over waaw (و) this is means actual action of making Wudhu.
Wadhu with fatha over waaw (و) this refers to the water that is used to make Wudhu.

Technical Definition of Wudhu:

The definition should fall under Jami3 wa mani3 (جامع و مانع) i.e. explanation of everything that falls under that category and everything which doesnt fall under that category. Different Madhabs have different defintion for Wudhu. The definition will show the reflection of their opinion about the act.

Hanafi Definition :

One definition: Al-Wudhu is the washing and wiping over the specific bodily parts.
Second definition: Al-Wudhu is washing of the 3 limbs and wiping over the one quarter of the head.

Maliki Definition :

Act of purification by water that is related to specific bodily parts and done in specific manner.

Shafiee Definition :

It is the use of water on specific bodily parts begin with the intention.

Hanbali Definition :

It is the use of purifying water on four bodily parts in the manner describes in the Shariah and done in the proper order.

If you look at these definition by different Madhabs it is clear that the definition are based on the conceptualization of Wudhu that each Madhab has.

• Some of them mention the word niyyah i.e, intention because they think this is one of the Arqaan of the Wudhu.
  
• For instance, if you at Hanafi Opinion Intention i.e. Niyyah is not mention in the definition as it is Sunnah for them.
  
• Some of them mentioned it has to be done in specific manner except for Hanafi as for Shafi'ee it is defined and known.
  
• The importance of the order is one of the other aspect which is defined by all other than Hanafi

Thus the conceptualization what each Madhab has is clear in the definition they have.

Looking at the how Syed Sabiq started the section i.e "Ablution means to wash one's face, hands, arms, head and feet with water" he doesn't explicitly say that this is his definition of Wudhu, but atleast in the way he is defined it is clearly leaning to the Hanafi definition.

(Start of Juicy part not part of the text as well )

What if some one rejects the idea of making Wudhu and what is the ruling if someone does claim this ?

• This is act of Kufr and this is known by necessity and this is part of the Deen.
• If someone rejects making the wudu for salath then this is act of Kufr. This refers only to Wudhu for Salath not for any other act of worship like reading Quran.

What if someone intentionally prays without making Wudhu ?

• Hanafis: Anyone who belittles the deen such as intentionally praying without wudhu this is person is committing kufr.
• Malikis: The one who does this should be executed like the one who does not pray. In Maliki case it is not clear i they consider Hadd or Kufr
• Shafi'ee: It he does this intentionally then he should be asked to make tawbah and if he does not make tawbah then he should he executed as Hadd punishment not kufr.
• Hanbalis: Many of them say it as act of Kufr.

Note: When talking about capital punishment, these law exists it to make people realize the magnitude of the act what they do.

There is a difference between execution while in the state of kufr and not being kufr like issue related to inheritance and marriage. If we say this person should be executed as Hadd they are saying that it does not make him out of the religion but the sin is so great that the penalty is stil the death.

What is the ruling on the Wudhu is it Wajib / Shuroooth/ Musthabb/ Makroo3 / Mubaah ?

The ruling is based on the situation.

When it is haram ?

• When it causes you injury i.e. there is danger of death or serious illness because of making Wudhu.
  
• If someone steals water from somebody else in order to make Wudhu. Some scholars differ on this etc.,
  

When it is Wajib ?

• It is wajib on the person not in the state of impurity and intended to make Salath etc.,
  

When it is Mustahabb ?

• Making Wudhu while going to sleep.
• Wudhu while making Dhikr
• Among the Ulema making Wudhu before giving the 'ilm etc.,
  

When it is Makroo3 ?

• When it causes you to miss the prayer when you already have Wudhu.
• Some Scholars say one who repeats his Wudhu over and over again before making the act of worship. Because this can lead to waswasa and also it is case of Israaf etc.,
  

When it is Mubaah ?

• Difficult to think of the case where it is Mubaah as act of worship.

When was Wudhu Made Obligatory:

If we look at the verse in Surah Maidah, we know that this surah was revealed in Madinah. So when was this act obligatory.

• There is a story that Jibreel taught Prophet (ءليه سلام) on how to make Wudhu.

Ibn Hajar commenting on this said that compiler of the seerah agree with this story. From the Isnad aspect there is some weakness in this. So there is no strong evidence to this.

• Ibn Hazm says Wudhu was not obligatory untill Madinan period.
• Others say that it was mae obligatory in Madinah but it was Sunnah in Mekkah.
• Most of the Scholars feel that the Salath wouldnt be valid without Wudhu from the beginning but to proove this point there is no evidence.

Is this concept of Wudhu only for the Ummah of Prophet Muhammad (ءليه سلام) ?

There are authentic hadees that Prophet Ibrahim (ءليه سلام) made Wudhu and also there is authentic hadees that one of the worshiper of Allah (سبحانه و تعال) of previous nation making Wudhu. It is clear that the previous umoom this concept was present. This does not proove that Prophet (ءليه سلام) made Wudhu in Mekkan stage even if the previous Ummah did Wudhu.

Hadeeth (i)

'Abdullah ibn as-Sunnabiji stated that the Messenger of Allah said, "When a slave makes ablution and rinses his mouth, his wrong deeds fall from it. As he rinses his nose, his wrong deeds fall from it. When he washes his face, his wrong deeds fall from it until they fall from beneath his eyelashes. When he washes his hands, his wrong deeds fall from them until they fall from beneath his fingernails. When he wipes his head, his wrong deeds fall from it until they fall from his ears. When he washes his feet, his wrong deeds fall from them until they fall from beneath his toenails. Then his walking to the mosque and his prayer give him extra reward." (Related by Malik, an-Nasa'i, Ibn Majah and al-Hakim.)

• According to Al-Albani this is saheeh
• There are many Ahadeeths of this nature and many of them excludes the Kabaair i.e. the Major sins and when we come to this kind of hadees then it known that this is referring to only minor sins.

Hadeeth (ii)

Anas reported that the Messenger of Allah said, "If good characteristics exist in a person, Allah makes all of his acts good. If a person purifies himself for prayer, he expiates all of his sins and his prayer is considered an extra reward for him." (Related by Abu Ya'la, al-Bazzar and at-Tabarani in al-Ausat.)

• This hadees Al-Albani and before him Ibn 3aadi, Ibn Hibban says this is munkar i.e. rejected.

Hadeeth (iii)

Abu Hurairah reported that the Messenger of Allah said, "'Shall I inform you (of an act) by which Allah erases sins and raises degrees?" They said, "Certainly, O Messenger of Allah." He said, "Perfecting the ablution under difficult circumstances, taking many steps to the mosque, and waiting for the (next) prayer after the (last) prayer has been performed. That is ribat. (Related by Malik, Muslim, at-Tirmizhi and an-Nasa'i.)

• Here Prophet (ءليه سلام) is describing this as إِسْبَاغُ "Isbaagh" i.e making something complete and prefect
• عَلَى ‏ ‏الْمَكَارِهِ 'alal Makaarih i.e. under difficut condition. What does this expression mean is that situation when it is uncomfortable to make Wudhu. If is important that this hadees in no way implies that you are going to seek any kind of hardship in intention of getting reward from Allah (سبحانه و تعال) and there is too much hardship then there is no need to make Wudhu in such cases.

Hadeeth (iv)

Abu Hurairah also reported that the Messenger of Allah, upon whom be peace, passed by a grave site and said, "Peace be upon you, O home of believing people. Allah willing, we shall meet you soon, although I wish I could see my brothers." They asked, "Are we not your brothers, O Messenger of Allah?" He said, "You are my companions. My brothers are the ones who will come after (us)." They said, "How will you know the people of our nation who will come after you, O Messenger of Allah?" He said, "If a man has a group of horses with white forelocks amidst a group of horses with black forelocks, will he recognize his horses?" They said, "Certainly, O Messenger of Allah." He said, "They (my brothers) will come with white streaks from their ablutions, and I will receive them at my cistern. But there will be some who will be driven away from my cistern as a stray camel is driven away. I will call them to come. It will be said, 'They changed matters after you,' then I will say, 'Be off, be off."' (Related by Muslim.)

• Prophet (ءليه سلام) used term "غُرّ مُحجّلين" Ghurran Muhajjaleen which means dark horses that has white stripes on its head.
  
• مُحجّلين muhajjaleen is also means that three of the hooves of the horse has white stripes.
• This hadeeth highlights the aspect which is unique to this ummah to recognize us and to distinguish form other nation and this is not as the result of Making Wudu.