Al-Hidayah: The Guidance PDF

Al-Hidayah THE GUIDANCE  CONTENTS Volume one Publisher's Note vii Introduction ix Ch. 1: Author's Preface 1 BOOK I: Taharah (Purificati...

Al-Hidayah THE GUIDANCE  CONTENTS Volume one Publisher's Note vii Introduction ix Ch. 1: Author's Preface 1 BOOK I: Taharah (Purification) 5 Ch. 2: The Obligatory Acts of Ablution 7 Sec. 1: The Required Practices (Sunan) of Ablution io Sec. 2: Factors Annulling Minor Ablution (Wudu') 14 Sec. 3: Bathing (Ghusl) 19 Ch. 3: Water With Which Minor Ablution is Permissible 25 Sec. 1: On Wells 33 Sec. 2: Leftover (Water) and Other Fluids 37 Ch. 4: Tayammum (Substitute Ablution With Clean Earth) 43 Ch. 5: Mash (Rubbing) on Boots 53 Ch. 6: Menstruation and Extended Bleeding 59 Sec. 1: Extended/Irregular Bleeding 64 Sec. 2: Postnatal Bleeding 66 Ch. 7: Impurities and Their Cleansing 69 Sec. 1: Istinja' 75 BOOK II: Sated (Prayer) 79 Ch. 8: Prayer Timings 81 Sec. 1: Recommendations About Timings 85 Sec. 2: Timings in which Prayer is Disapproved 89 Ch. 9: Adhan (Call to Prayer) 93 Ch. 10: The Conditions that Precede Prayer 101 Ch. n: The Description of Prayer 107  The Hidayah CONTENTS CONTENTS The Hiclayah V Sec. 1: Recitation in Prayer 126 Ch. 12: Imantah (Leading the Prayers) 133 Sec. 5: Miscellaneous Rules 260 Ch. 13: Ritual Impurity (Hadath) During Prayer Ch. 33: Zakat on Am (Wealth) 267 141 Ch. 14: Factors Nullifying Prayer and Things Disapproved Sec. 1: Fiddah (Silver) 267 149 Sec. 1: Disapproved Acts Sec. 2: Dhahab (Gold) 268 154 Sec. 3: `Urficf (Goods) 269 Sec. 2: Etiquette for the Privy and the Mosque 158 Ch. 15: The Witr Prayer Ch. 34: The Person Who Passes by the Tolls Official (`Ashir) 273 159 Ch. 35: Minerals and Treasure-Troves 279 Ch. 16: Nawafil (Supererogatory Prayers) 163 Ch. 37: Persons to Whom.Sadaqah (Zakat) Can be Paid 289 Sec. 1: Recitation 165 Ch. 38: Sadaqat 297 Sec. 2: Prayer During the Month of Ramadan 170 Sec. 1: The Amount of the Obligation and its Time 300 Ch. 17: Catching the Definitive Obligation (Faridah) 173 Ch. 18: Delayed Substitute Performance (Qada') 179 Ch. 19: Prostrations of Error During Prayer 183 BOOK N: Sawn: (Fasting) 303 Ch. 20: Prayer During Illness 191 Ch. 39: The Obligation of Fasting (Sawm) 305 Ch. 21: Prostrations of Recitation 197 Sec. 1: Sighting of the Moon 309 Ch. 22: Praying During Journey (Safar) 203 Ch. 4o: Factors Leading to Qada' and Kaffarah 317 Ch. 23: The Friday Prayer (Salat al-Jumu`ah) 209 Sec. 1: Illness 326 Ch. 24: The Prayer of the Two 'Ids 217 Sec. 2: What a Person Imposes on Himself 338 Sec. 1: The Takbirs of Tashriq 221 Ch. 41: rtikaf (Seclusion in a Mosque) 341 Ch. 25: The Eclipse Prayer 223 Ch. 26: The Seeking of Rain 225 BOOK V: Hajj (Pilgrimage to Mecca) 347 Ch. 27: Prayer in a State of Fear 227 Ch. 42: The Obligation of Hajj 349 Ch. 28: Funerals (Jandiz) 229 Sec. 1: The Mawaqit 354 Sec. 1: Bathing the Deceased 229 Ch. 43: The /1)ram 357 Sec. 2: The Shroud 231 Ch. 44: Qiran 393 Sec. 3: Prayer over the Deceased 232 Ch. 45: Tamattu` 399 Sec. 4: Carrying of the Bier 236 Ch. 46: Offences 409 Sec. 5: Burial 237 Sec. 1: Conjugal Relations 415 Ch. 29: The Shahid (Martyr) 239 Sec. 2: Tawaf in a State of Impurity 418 Ch. 3o: Prayers Inside the Ka`bah 243 Sec. 3: Game and Reparation for Hunting 425 Ch. 47: Crossing the Miqat Without the Ittram 441 BOOK III: Zakat (Poor-Due) 245 Ch. 48: Combining One *am with Another 445 Ch. 49: Siege/Confinement 449 Ch. 31: The Obligation of Zakat 247 Ch. 5o: Lost Rites 455 Ch. 32: Sadaqah of Pasturing Animals 255 457 Sec.i: Ibil (Camels) 255 Ch. 51: Hajj on Behalf of Another Ch. 52: The Offering 463 Sec. 2: Baqar (Cattle—Cows and Oxen) 257 469 Sec. 3: Ghanam (Sheep and Goats) 258 Ch. 53: Scattered Issues Sec. 4: Khayl (Horses) 259  vi The Hidayah CONTENTS 43 BOOK VI: Nikaij (Marriage) Ch. 54: The Formation of the Contract of Nil* 475 Sec. 1: Statement of the Prohibited Categories of Women 478 Ch. 55: Awliya' (Guardians) and People of Equal Status 491 Sec. 1: Kafa'ah (Equality of Status) 500 Sec. 2: Agency (Wakalah) in Nikah and Other Matters 504 Ch. 56: Mahr (Dower) 507 Sec. 1: Dhimmis 525 Ch. 57: Marriages of Slaves 529 Ch. 58: Marriages of the Polytheists 539 Ch. 59: Distributive Justice in Marriage (Qasm) 545 BOOK VII: Rada (Fosterage) 547 Ch. 6o: The Meaning of Rada' 549 Ch. 61: The Legal Effect of Rada' 551 BOOK VIII: Talaq (Divorce) 557 Ch. 62: Talaq al-Sunnah (Divorce Conforming to the Sunnah) 559 Sec. 1: Legal Capacity for Pronouncing Divorce 565 Ch. 63: Pronouncing Divorce 569 Sec. 1: Associating Talaq with Time 576 Sec. 2: Miscellaneous Forms 579 Sec. 3: Divorce by Simile (Tashbih) 582 Sec. 4: Divorce Prior to Consummation 585 Sec. 5: Divorce Through Indirect Expressions 587 Ch. 64: Tafwicl (Delegation) 593 Sec. 1: Choosing (Ikhtiyar) 593 Sec. 2: Her Affair in Her Hands 596 Sec. 3: Divorce at One's Discretion (Mashi'ah) 607 Ch. 65: Oaths Pertaining to Divorce 607 Sec. 1: Exceptions (Istithnd) 613 615 L....., GLOSSARY INDEX 639 661 ABOUT THE TRANSLATOR  Introduction In the Name of God, Most Merciful and Compassionate AL-MS ARGHTN.:11NI: THE JURIST The Author of al-Hida yali, Shaykh al-Islam, the Imam, Burhan al-Din Abu al-Hasan ibn Abi Bakr ibn tAbd al-Jail ibn al-Khalil ibn Abi Bakr al-Farghani al-Rushdani2 al-Marghinani was born on Monday the 8th of Rajab in the year 511 A.H, after the asr prayer. Abu al-Hasan was his kuri- vail,' his first name was 'Ali and his father's name was Abu Bakr_ The province to which he belonged was called Farghanah, and Marghinan was a city in this province. He is, therefore, generally referred to as al- Marghinani. He is said to be a descendant of Abu Bakr al-Siddiq (God This introduction has borrowed substantially from the Introduction to al-Hidiiyall written by the learned Shavkh, 'Allamah Imam 'Abu al-Hasanat Muhammad `Abd al- Havv al-Lakhna..i (God bless him) one of the greatest scholars of the Islamic `alum in the Indo-Pak Sub-Continent. The introduction also relies upon our own unpublished essay on the Islamic Legal Tradition. It is a work that focuses more on the work of the jurists and its legal content and nature, rather than on biographies. Mawlana Abd al- Hayy al-Lakhnawi divided his introduction into six heads, beginning with the biography of the Author and a description of his works. The remaining five heads deal with the method of the Author, some errors, typographical and others, the meaning of Zaiiir al- Riwayah, biographical details of the personalities mentioned in al-Hidayall, and finally the chains of transmission leading up to the Author of al-Hidayalr. This is followed by a supplement to the introduction that records similar details, including the names of tribes and places mentioned in The introduction and the supplement are spread over seventy-five pages and provide a wealth of information. Part of the descrip- tion, as indicated, is based upon our own essay on the Islamic Legal Tradition'. This essay deals with the organic structure and nature of the books in the Hanafi school as well as in the other Sunni schools. Where the description is our own, some of the facts stated in the introduction have been transmitted on the authority of Imam al-Lakhnawi and earlier scholars. 'Apparently, his birthplace was the village of Rushtan in Uzbekistan. 'That is, he was alluded to by this name. ix  Al-Hidayah Al-Marghindni performed / 1a.„ —: y si t er., INTRODUCTION Al-Hidayah xi nah.aiexi ly ri:n he;e'iatrhih4i4n1A).H. He died on the 14th of Dhi " Mach_ One report records the date of his death as 596 A., ", the year A.H.4 ibn 'Umar al-Attabi as well as others. It can be seen that in an environ-. He was Niro in Sunargand. ment where one is taught by giants in the field, and surrounded by great men, the standards are very high and one has to excel to be noticed. Al- Marghinani did much more than that. Allaniah 'Abd al-Hayy al-Lakhnawi refers to him as the leading Imam of his times, having complete mastery over most of the disciplines and sciences of his day. There was no one like him in his times, he says, and he was past master in the discipline of khilaf that deals with the reasoning of different Imams and schools of law. 'Abd al-Hayy al-Lakhnawi adds that there are six grades of jurists in the Hanafi school. The first grade is that of the majtahid ft al-madhhab (full majtahid within the school) and includes jurists like Imam Abu YOsuf, Imam Muhammad al-ShaybanI and other disciples of Imam Abu Hanifah (God bless him). The second grade is that of the majtahid fi al-maail who is able to settle issues on which there is no narration from the jurists of the first grade, however, such a jurist stays within the iisa/ and ciawel'id of the school and employs them to settle new issues. The jurists in this grade were al-Khassaf, al-Tahawi, al-Karkhi, al- Sarakhsi and al-Halwani. The third grade is that of the ashab al-takhrij or those who are capable of elaborating issues, highlighting the underlying reasoning and identifying the proper rule. The fourth grade is that of the ashab al-tarjih, like al-Quduri and the author of al-Hida yah. These jurists are able to prefer, through legal reasoning, one opinion over another from among the opinions prevailing within the school.' The fifth grade is that of ?mu/a/lids, who are able to distinguish between the stronger and weaker opinions, like the authors of the four acknowledged texts. The sixth is that V-Marghinani's teachers include: Imdm Nairn al - Din Abu Hafs of the grade below the previous grade, who have no ability to distinguish t sr al- Nasa the author of al-Nasak)yah ft al-Tawiiid; between the strong and the weak opinion or, as he says, to distinguish the Sadr al-Shahid Hisam al - Din 'Umar ibn Abd al - Aziz; and Imam north from the south. This places the author of al-Hidnyah in the fourth Diva" ai-Din Muhammad ihn al - Husavn al - Bandaniii, the student of 'Ali grade, however, there are those who would grant him a higher status. The ai-Sunargancli , the author of Tuhfat al-Fugalui% who was also the detailed classification of the jurists into six or seven grades is very helpful. teadia and father -in - Baddl There is a parallel classification of the issues as well. Taken together they law of Abu Bala al - Kasani, the author of Tani, al-Shani 'i '. His contemporaries held our Author in help us identify the various tasks that are undertaken within a school of law as well as to appreciate the abilities of the jurists who undertake these * esteem. These lungs include: Imam Fakhr al-Din Qadilhan: 4-Kabir BUTIIII1 al- Din, the author ofal-Aluhit al-Burhsitri; imam Huai Dsn al-Fat'""' Muhartutud ibn Ahmad al - Bukhari. the author of.`41-77va-1/4 Shaykh Lam al -Din Abu tiasr Ahmad ibn Nfulyrion'id ` Perhaps, this status is assigned to them by giving prominence to the major function they performed in their Mukhtasars or other works. This should not mean that they did not have other qualifications. 4P ev.ixv-one or  tvaso...!, is , 1A\\*, ht ttrt,;*. tiows thAt Ano vvims\t, N't‘kt‘t. tht,. 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He was al-Kasani's teacher and his father-in-law. The book is highly organised and a sufficient maturity. strict application of the term mukhtasar will exclude this book from The term mukhtasar appears to have been used for a rule book first y.14 idaycaatteagiorm this (8) B by al-Muzani (God bless him). He died in 264 A.H., and it is possible 3btadi' by al-Marghinani (d. 593 A.H.). This is the matn that such books were written before his time. His Mukhtasar is usually of which al-Hidayah is the commentary. published with Imam al-ShaftTs Kitab al-Umm. In the Hanafi school, therefore, it was natural that al-Muzani's nephew, al-Tahawi, should use (9) Al-Hawi by Najm al-Din al-Turki (d. 652 A.H.). the term first.' After this, the writing of mukhtasars became a regu- (io) Al-Fiqh al-Nafi' by Nasir al-Din al-Samargandi. lar feature, whether or not this title was used. Some of the well know After this there was an abundance of such texts and what we mention n mukhtasars of the Hanafi school are the following: below are just a few of the well known texts. (11) AI-Mukhtar lil-Fatwa by al-Mawsili (d. 683 A.H.). The commen- (1) Al-Jamic al-Saghir and al-Siyar al-Saghir by Imam Muhammad al- tary on this matn is written by al-Mawsili himself and is called al- Shaybani (d. 189 A.H.). These have been described above. Ikkhtiyar. This text is used in al-Azhar. (2) Mukhtasar al-Tahawi by al-Tahawi (d. 321 A.H.). He begins with the (12) Majrna` al-Bahrayn by al-Sa'ati (d. 694 A.H.) statement that the book contains rules that cannot be ignored or (13) Kanz al-Daqa'iq by al-Nasafi (d. 710 A.H.). whose knowledge must be acquired. (14) Wiqayat al-Riwayah al-Hidayah by Burhan al-Sharrah (3) Al-Kafi by Hakim al-Shahid (d. 334 A.H.). In these mukhtasars, the Matimild ibn Sadr al-Sharrah (d. 747 A.H.). As the title shows, it was chain of transmission of filth coming down from the earlier Imams a summary prepared from al -Hidayah itself, not only its matn. Sadr was maintained. This was the text chosen by Imam al-Sarakhsi (God al-Sharrah al-Thani (d. 747 A.H.), the grandson and student of this bless him) for his 3o volume commentary al-Mabsat. Al-Marawazi author, summarised the summary further, calling it al-Niqayah, and created this book by summarising Kitab al-Asl and the two Jettni's wrote a commentary on it as well. through the elimination of lengthy narrations and some repetitions. (4) Mukhtasar al-Karkhi by Imam al-Karkhi (d. 340 A.H.), the famous Some of the texts that are used by the maddris for teaching, referred to as the acknowledged texts (mutan mu`tabarah), are those mentioned at Hanafi jurist, who is also the author of Usfd al-Karkhi. We have not (6), (11), (13) and (14). Some add (12) to this list. In the grades mentioned had the opportunity to examine this book, but jurists often quote it above, these jurists, the authors of the mutan mu`tabarah, are referred to in their works. as muqallids. They cannot prefer opinions, but have the ability to identify (5) Mukhtasar al-Jassas by al-Jassas (d. 370 A.H.). He was al-Karkhi's stu- the strong opinions that are to be followed, that is, opinions preferred dent. by those in the higher grades. In our view, preference should be given to (6) Mukhtasar al-Quduri by al-Quddri. This was the text chosen by al- *The Author, however, says that he has brought in additional issues that were not Marghinani for his own Mukhtasar. Al-Quduri (d. 43o A.H.) ordered included by al-Qudari, and that he has tried to remove the difficulties encountered in the chapters in his book according to al-Tahawi's book and not (evidences) and arguments in studying al-Quduri. Further, he has provided the adillah brief. 'His book is called Mukhtasar al-Tahawi.  `,11UCT I00 xvi INTRODUCTION Al-Hidayah for teaching purposes and thereafter Bidayat al-Mubtadi' as the matn al- xvii Hidayah should be used as a commentary to understand the rules, as w e Mukhtasar al-Quduri is included within Bid adding to the length, unless it became absolutely necessary. He also adds elaborate below. Further, ayat that he decided to call it Bidayat al-Mubtadi', and that if he were to write al-Mubtadi'. a commentary on it, he would call it Kifayat al-Muntahi. The tinikhtasars listed above and even those that are not listed forrsm. The Author kept his word. Bidayat al-Mubtadi' incorporates within a linked chain. Each muklitasar borrows from the one that precedes it. it almost the entire text of Mukhtasar al-Qudari". On rare occasions he In this chain, preference is usually given to those opinions that came fit improves the text and refines it. We can safely say that almost three- The attempt being to commence the statement of the rules with the opin, fourths (if not more) of Bidayat al-Mubtadi' is Mukhtasar al-Qudari. The ions of the earlier Imams. This conforms with the system of precedents rest of the text comes from al-Jamie al-Saghir and on some occasions even in Islamic law. In Islamic law, the precedents assigned priority are those that from Kitab al-Asl. The order followed in Bidayat al-Mubtadi' is not that were laid down first and not those that came later. The reverse order is followed by al-Qudari, rather it is the order laid down by al-Jamie a!- followed in the common law, with the latest decision being given prece- Saghir. It is almost the same order that is followed by al-Sarakhsi in his dence.'4 The presumption in Islamic law is that the decisions arrived at T al-Mawbo th earlier are closer to the '40,15 while those that came later are to be han-.ings are to be noticed here. First, he combined two of the most dled with caution. Those who are interested in this topic may examine the powerful and highly respected statements of the preferred rules. The mer- writings of Ibn `Abidin on the subject. This system of precedents attaches its of both have been described above. Second, he did not reduce the size significance to chains coming down from the earlier imams, so as to dis- of the book. In fact, he expanded, refined and combined the statement tinguish the authentic from the spurious and the strong from the weak. of the rules to create a perfectly balanced book of rules. In his matn, the statement of the rules is complete and can be understood with relative How does Bidayat al-Mubtadi' compare with the other texts that have ease as compared to later summaries. The later books either squeezed the also recorded the preferred rulings? We will first, briefly, describe the cre- texts to facilitate memorisation or started adding codes for identifying ation of Bidayat al-Mubtadi', and then deal with those vital factors that opinions. The later books have their merits, but the vital features that make the matn what it is. distinguish Bidayat al-Mubtadi' are missing to some extent. Al-Marghinani in his introduction to Bidayat al-Mubtadi' states that There is yet another feature that we consider most important, and to in the early stages he resolved to write a fiqh text that would be concise explain that we have to go back to the great Imam (Abu Hanifah) and yet comprehensive. After going through the texts, he found Mukhtasar his disciples. Roscoe Pound, in his five volume work on jurisprudence, al-Qudari to he a very precise and amazingly comprehensive book. Nev- quotes from Hamilton's translation of the Hidayah and says that this is ertheless, he found the leading Shaykhs encouraging one and all to mem- the beginning of the case method of studying law.'' In our view, this was orise al-larni` al-Saghir.' 6 He, therefore, decided to merge the two without not the beginning of the case method, rather the beginning was made by Imam Muhammad in his well known books, which in turn reflects "This is a wonderful topic for research. the tremendous effort made by the learned Imam and his teachers. It is "That is, they were derived by those who had greater knowledge of the evidences, as because of this contribution alone that he is rightly called the greatest they were close to the period of the Prophet (God bless him and grant him peace) and (oA'zam) Imam. Imam al-Sarakhsi after praising the Imam says the fol- were more proficient in the use of usid that they had laid down themselves. al,.caghir was reported by Imam Muhammad entirely on the authority of lowing: Imam Abu Ynsuf. This adds to its strength. Imam Muhammad based the work on forty unless he had understood the issues of kaubs, however, he did not make babs or chapters within these kitabs. This work was to become a qadi or permitted to issue a farwd, this book. Allamah al-Laldmawi has listed about forty jurists who wrote commentaries undertaken by Imam Abu Tahir al-Dabbas. As to why this book was recommended for on this book, and these are all the well known jurists whose works we study today. memorisation depended upon the nature of the cases mentioned. These represented of the case method of study in American law schools is attributed some of the core issues settled by the school. According to some jurists, the issues of this "The to A book were held in very high esteem and it was deemed necessary that no one be allowed  Ai-Hs ct za - or even read and benefit from is unique method of aibo_ _ -..ne La._ Credit for further organising the c.a.s must be given to Fja.1-:r_ al-S: the light the _ as we47. N;n-erilleless, great 4 _ sag _ - -. - - - - was attached to the study of the deta_. :- ni - cases by the earlier jurists_ The idea is captured in another story. Abet al-Fadl Muhammad ibn Muttanunad ibn Atimad, al-Hakim al-Shahid, who was a qa4-1, wrote Li 7.n- arr He two books: al-Afuntaqa and al-K4 The Liner is the precis prepared from - the formation Imam Muhammad al-Shaybancs al-Slab-51a and the two Mini's. It is said.71 the questions, that he died in the year 334 A_H_ He was executed brutally by the Turks -- Thereafter, he and is, therefore, referred to as Shahid. As the story goes, he is reported tr.1 172_ -1.7_ 'Li do not say t hls answers. to have said prior to his execution that this is the fate of a person who that LI W icii they agreed - with what they disputed with him, three- prefers this world over the next As to whv he said this, some add liar to him..--1 The remaining' is shared when he prepared al-Kaft by removing repetitions and details from Imam by him Muhamm.ad's books, the Imam appeared to him in a dream_ In this its."' The person repented on what he had said dream, Imam Muhammad asked him, "Why have you done this to my 0,-tiatever th:source of this story, its implication is true. Theor d, "qu books?" He replied, "The fuqand have become Ian- so I deleted the rep- ques_ a etitions and stated what is essential." At this Imam Muhammad became tions and responses" means the formulation of cases, either actual or very angry and said, "May God cut you up like the way you have cut up hypothetical, for explaining the rules. It is this that the Imam did along my books." It is said that the Turks tied him between two tree-tops (by with his disciples.' Without these cases, filth would not have been under- pulling them down) and he was split into two. In our view-, this is not stood, neither by the Hanafi jurists nor even by those of the Maliki and a very pleasing story for we feel that al-Hakim al-Shahid, may God bless Shatil schools, but that is another story. It is because of these cases him, made a powerful contribution to the case method that we have men- and the associated rules that all jurists are dependants of Abu Hanifah, tioned above. It does, however, tell us that true.6qh can be acquired only tiu'man ibn Thabit ibn Zotah (God be pleased with him). It is not with- by working through the detailed cases. There is no method more power- out reason then that Allamah al-Lakhnawi says: wa ma adraka ma Abu ful than this for the teaching offigh. It is also the method that dominated Hanifah? the scene for a long time, until the appearance of the literalists. The way the rules are elaborated in these works through chains of Al-Marghinani's Bidayat al-Mubtadi' captures this vital feature to the related cases is simply outstanding and highly sophisticated. This method extent of the statement of rules and related cases.`' We have pointed this was developed into an art that reached its perfection in the works of out within the translation in a few places. In the later summaries, this vital feature was lost to a great extent. In fact, `.,.sillamah al-Lakhnawi warns jurists like al-Sarakhsi, who added a tremendous amount of supporting us that we have to be careful about some of the summarised versions; detail to these cases. Till this time, Islamic law was a practical law solv- however, this does not pertain to the recognised texts. ing problems; it needed all this detail. Today, very few people appreciate CODIFICATION: THE GOAL OF ISLAMIC LEGAL TEXTS 18 That is, settled the cases. 19 0ne-half for framing the initial cases and another one-fourth for the right deci- When we use the word "code" with reference to Islamic legal texts, we sions. obviously do not mean a statute enforced with the authority of the state. "One-fourth. "Due to the possibility that he may have issued the correct rulings even in some of these. 23 Though in a very concise form. 'Those who design cases today, for case studies, know that this is not an easy task.  Al-Hidayah INTRont.c.riox xx INTRODUCTION xxi Codification with reference to Islamic schools means the attempt to bring uniformity into the law out of a mass of available rulings. Such a code, like This shows that the only difference between the nutkhta:ar, like al-Qudiiri all statutes, enables the subjects to follow the law with ease, and supports and Bidayat al- A104'mb', on the one hand, and a fatawa compilation, on the experts in providing detailed rulings to the subjects (called fatwas). the other hand, is that the latter incorporates the rulings of the jurists The effort to bring uniformity into the law began with the mukhtasars of the third grade as well. On rare occasions, it may include the rulings and culminated in what are called the jatiiwa compilations. The term of jurists in the fourth grade, however, the essential condition would be fatawa should not lead us to believe that these works are an entirely that of the ability to undertake ijtihad. Thus, the niuklitaar can be used different class of texts. One of the earliest, and also one of the best, is just like the.fatawa compilation, however the fatawa compilations pro- Fatawa Qddrkhati. The Author was a contemporary of al - Marghindni. In vide additional rulings, though of a lesser status. We may look at both as fact, he died one year before al-Marghindni in the year 592 A.M. As al_ attempts to provide "codes" for stating the legal position for the benefit of the public. The message in both documents has been the same: the fatwa Marghinani died at the age of eighty-two, and one of his contemporaries today is this. was Qadi'khan's teacher, it is possible that the latter was influenced by al-Hidayah itself. In any case, his book is highly organised and follows if he is a full mujtahid. The presumption is that the truth sides with our companions, almost the same arrangement as a/-Hidayali as far as the arrangement of and they are not to be opposed. His ijtihad cannot reach the level of their ijtihad. He books (chapters) is concerned. Qadrldian explains the nature of his book is not to incline towards the opinion of a jurist who has opposed them. Nor is he to accept such a person's hujjah (proof), because they knew the adillali (evidences) and as follows:24 could distinguish between an evidence that was authentic and established and one that was the opposite of this. (2) If the issue is disputed by our companions, and one of his I have mentioned in this book the issues that occur frequently, for disciples is siding with AV' Hanifah (God bless him), he is to adopt their view, due to which there is a need, around which the problems of the unimah the combining of the conditions (of ijtihad) and the gathering of sound adillah in their view. If both disciples oppose Abu Hanifah (through a common opinion), and if the revolve, and on which is focused the attention of the fiulaha' and difference is based upon a change in conditions due to the passage of time, like render- the imams. These issues are of various kinds and types. Among ing a verdict on the basis of prima facie moral probity, he is to adopt the ruling of the these are those that have been transmitted from our earlier com- two disciples, as the condition of the people has changed. Thus, in the case of muzar`ah, panions.25 There are those that are transmitted from the later mu'amalah and similar issues, he is to adopt the view of the two disciples. The basis is Mashalkh (jurists), may Allah be pleased with them all.' I have the unanimous agreement of the later jurists on these issues. In issues other than these, some have maintained that the mufti is to be given an option of choosing (between arranged these issues in the format of the well known books... , them) according to what his opinion guides him to. Abd Allah ibn al-Mubarak has said and where the views of the later jurists were many, I have men- that he is to adopt the opinion of Imam Abu Hanifah (God bless him) in such a case. tioned one or two, and have given prominence to those views that They discussed the question as to who is a mujtahid. Some said that if a person is asked are more reliable.27 about ten issues and he gives a sound ruling in eight of these and errs in the rest, he is a mujtahid. There are others who maintain that the mujtahid is one who has necessarily 24 In the first section, devoted to the mufti, that serves as an introduction to his book. absorbed (memorised) al-MabsCit, identified the abrogating and abrogated texts, knows "Abu Hanifah and his disciples (God bless them). the muhkam and mu'awwal, and is aware of the practices and customs of the people. (3) If the issue is found in books other than the Zahir al-Riwayah, then if it is compatible 'Like the jurists in the third grade mentioned above: al-Karkhi, al-Jassas, al-Dabbusi, with the usUl (system of interpretation and qawa`id) of our companions, he is to act and al-Sarakhsi, may God bless them all. upon it. (4) If there is no narration about the issue from our companions, but the later z7 The learned jurist then gives some advice to the person issuing fatwas, the mufti, as jurists have agreed about it to some extent, he is to act upon it. If they have disagreed, he to how he is to conduct himself in searching for and issuing of the ruling. We have trans- is to undertake ijtihad and issue the ruling that appears sound to him. If the mufti is a lated the passage for the benefit of the readers, who would like to understand the way mut/a/lid and not a mujtahid, he is to follow the view of the person who has the greatest fatwas are issued. He says: "The mufti in our times, from among our (contemporary) expertise in fiqh in his view, but he is to attribute the response to such a (knowledge- companions, when he is asked for a fatwa on an issue, and is asked about an incident, able) person. If the most learned person in fiqh, in his view, lives in a city other than should: (i) If the issue is related from our early companions through the zahir trans- his, he is to have recourse to him in writing, and is not to work on conjecture for fear of missions, without a disagreement among them, is to incline towards them and issue the fabrication?' ruling according to their opinion. He is not to oppose them with his own opinion, even  Al-Hidayah INTkoDucTio,i INTROVVCTION Al-Hidayah xxiii The distinction stated above is, therefore, based on two things: th status of the rulings incorporated and the number of rulings.ncorpne these rules along with their underlying reasoning and methods and I will be able to provide new rulings when needed. The fatawa literature. rated. Accordinglv, a Wawa compilation may be ten times the size of a mukhtasar. What then is the crucial difference between a mukhtasar on the other hand, is directed at the vendor with the message: keep thC%C like Biddivat al- Alubtadi., and a fatawa compilation, such as the Fattiw-' on the shelf and serve your customers, but if the shoe does not fit get 'Alamgiriiyah or Fatawa Hindiyyah as it is called. The difference has beena in touch with the cobbler in your own city or write to one in a different explained by al-Niarg,hinani himself, and we would like to quote hihl here. He says: He favoured the earlier jurists with success so that they were able to AL-HIDAYAH: THE COMMENTARY frame the issues for each thing obvious and concealed. The inci- dents. however. recur repeatedly and new cases attempt to burst Al-Hidityah placed its stamp on most books that came after it. AI- out of all topical systematisation. Yet, it is the endeavour of stal- Afukhtar is in reality Bidayat al-Mubtadi' in a different syntax. Its com- warts rlii*L2hiels to trap runaway issues by referring them to their mentary al-lkhtiyar borrows huge chunks from al-Hida yah to explain the oric....ns and by serding them through precedents. (In this endeav- issues. Al-Wigayah is a summary of the entire al-Hidayah, as its full title our reliance on the governing principles i of these issues ) will conveys. Commentaries on Kanz al-Datia'iq, such as, Kashf al-Haqa'iq =-21:-. a in grip over them. by al-Afghani, are based entirely on al-Hidayah. The Fatawa 'Alamgiri openly states that it is following the structure of al-Hidayah, which means Tht. -ssazt is conveving is that it is not possible to record in a book taking the basic rulings from it, besides following its general structure. aL :De T.77-7 :1_ 772/:1 beings faro. The method is to study and under- Many of the rulings that have been taken from other authoritative books ran: -it' cases that highlight the vital rules and to connect could easily have been taken from al-Hidayah_ The additional matter is, 1c4.,7-7 1.7_7 711- 7 :'77 where they have been derived. Once these of course, from other authoritative books and fatawa literature. There Lrt am- new case a be settled and all new is however,.fiqh in al-Hida yah, but in the fatawa there arc only rulings. ip,e faced_ _is this is something In short, al-Hidiryah became like a primary source book for the work nix. :a:. =b.: nr_r. taiwarts are thot.e that was done later. It was, therefore. said: al-Hidigah like the Qur'an has iiiavt- -L-it the ability to abrogated the books that preceded it This may not be entirety true, but aerw' tie :7_ if n-_, - 7.: 7 Lan one by people it shows the influence al-Hidir-y:.‘;: has had on later devek.rpments. lesser : Al-Hulayah is a l'ery _. 'look to read, and equally d:fficult riesr, are at variance with ze: translate. The advice some rave, prior to the commencement of them did compel= sa d- an. snit the translation, was that it is L'17:;,..1-1_-_,4 to translate. Perbaps ther were work? The onh- reason we :az time -.if a A tii._-_12:tior. many things, by reduang the manlier of accpth-e -.7tulusre it ils ::t come r.c.'7."_.7.... '21 7 of 7.7. 7.1.; alit reci:.ire the cot:opine tad 77 Lt " a" - :ei the deni:e.t mar te 'v :ex; C.:. 7nit rrit 7...1777€3;iry 16 riot in t "ler :101- ='='Ircrdv-fx 7..i -rt.': *Ilk. He Is list link= Witt tie _44-1'eUrtIr. krb,.St' "_...at".7 7. _7.7_74 r_t is Ile scrtit: Z7A: ::,.'Acr; Lis purr amd yam ere :ase -at anoolinen..telo "Igir iCat Zirill":1it' VC! Z. it 7.1 t't" 2it poem 1110 ANS mcil! tr- - t7e 'Zie 7.7.41s1.: xxiv Al-Hidayah INTRO DUCTIo N INTRODUCTION Al-Hidayah are left wondering how he did it. You have to retrace your steps and recre xxv ate every move. Each thump of the mighty paw is packed with im mense power, and you are not done with one when you can see the next one Where the teacher lacks the necessary competence and is not equipped with knowledge that is required to decode the semi-coded statements, coming. Like the tiger his moves are all calculated, desired to have th al- e Hidayah will become a very difficult book. After all, the Author took thir- maximum effect. We have never seen a book that had so much planning teen years to complete the book. We must benefit from his gift to us. In go into it. It appears that he must have spent days writing down single the eight hundred years that followed the completion of the book, a num- paragraphs. ber of commentaries, besides innumerable glosses, have been written on al-Hidayah. Some say that the number of commentaries and glosses writ- Nevertheless, the Author was creating an extremely powerful teaching ten on the book run into hundreds and may even be close to a thousand. device designed to draw in both the student and the teacher. The b Consequently, the number of commentaries written on al-Hidayah out- contains a huge amount of "coded" information. We use the term coded number any book in the Islamic legal system and, perhaps, in any other here to mean what people in the computer world would mean. Within.n system. This in itself is sufficient proof of the power of the book. It is this information are "macros"—short statements that pack within them said that no book has received so much attention from jurists. In the pages of information. The macro needs to be preprocessed before the introduction to Badr al-Din al-Ayni's commentary, a list of forty-six full code can reveal its entire meaning. These macros are to be preprocessed commentaries is provided.3° Many consider the best known commentary with the help of the teacher or detailed commentaries. A person who is to be Fath al-Qadir. This commentary was written by Ibn al-Humam, able to study al-Hidayah after elaborating these macros is likely to reach but he could not complete it. Ayni's own commentary, al-Binayah Sharh al-Hida yah, is considered to be very good. We have found the comments the machine-level of the instructions of fiqh. The design enables teach- of the Author of al-Inayah and those of Allamah al-Lakhnawi and al- ers to use the book as an instructional device in short or long courses Ayni to be extremely powerful and helpful. It is said that some Shafici depending on the level of the audience. It is the teacher who decodes jurists criticised the author for including traditions that were not very these texts for students in the classroom after the student is given the reliable. This led to the writing of several books on the documentation opportunity to do so himself. The reason for the popularity of the book (takhrij) of the traditions in al-Hidayah. One of the best known is that is, therefore, obvious: it gives immense power to the teacher over his audi- by al-Zaylal, which was also summarised by Ibn Hajar al-Asqalani. Here ence, and a unique opportunity to the student to interact with the teacher our own bias creeps in, but we would like to pass it on to the reader. It as well as with the rest of the class. In our view, and this has been the is our considered opinion that Al-Marghinani was relying on Imam al- experience of many teachers, anyone who works through the statements Sarakhsi's al-Mabsut as a source book for constructing his arguments. in al-Hidayah through discussions with a teacher will soon find that the Accordingly, when a problem cannot be fully solved through the com- body of rules called fiqh is taking hold of his mind. He will soon start mentaries a recourse to al-MabsUt will help. On some occasions, however, seeing patterns in these rules and will be able to trace the links between the issue discussed will not be found even in al-Mabsut. We also feel that the matn, Bidayat al-Mubtadi', may have been influenced by al-Kaft as them. This effort will grant him an ability to answer highly complex ques- incorporated by al-Sarakhsi. tions offiqh without the aid of any source. In short, he will be on his way On examining an Urdu translation published in Deoband, we found to becoming a faqih. It is for this reason that al-Hidayah is used as a pri- that the Urdu text did not distinguish between the statements of Biclayat mary manual in almost every ,nadrassah and institution=s in the world, al-Mubtadi' and its commentary, al-Hidayah. The same problem exists whatever the school affiliation. in al-Ayni's thirteen volume commentary of al-Hidayah published from Beirut; one cannot distinguish the matn from the shark. This led us to "We are not reproducing this list due to shortage of space. 29 Perhaps, without realising its immense power. think about the manner in which this book is studied today. We consider INTRODUCTION Al-Hiddyah xxvii merger of the matn with the shark, without distinguishi ng matirsido ksefr some kind, to be shocking, an act of gross negligence and callousness.3, hundred years.33 Accordingly, we have added some notes to the text by In our view, it is not possible to understand the book without relying mostly on well known commentators, but sometimes on the basis rating the matn from the commentary. Further, the s of our own research. There is no end to the number of notes that can be matn states thePa- added to the text of al-Hicleiyah, however, we have resisted this temptation It is like reading the text of a statute and then turning rule. to the co out of respect for the wise judgement of the Author. He wanted the book for further explanations. Al-Hidayah is not only a teaching m rnmentar anual, it iys to stay small and precise, the way he wrote it. He wrote a lengthy book the most authentic and reliable book for knowing the law. It i s used for himself, but said this: "When I was close to completion, it appeared to this purpose all over the world, even by other schools. This fact is also rel- be somewhat lengthy, and I feared that recourse to it would be lessened evant for those who are interested in the due to its length." If the book is burdened with lengthy commentaries ruling for ordering their actions. Our advice to them is: read just the rule, that is, the text of and extensive notes the purpose is lost. It is very difficult to access huge al-Mubtadi'. This is the law. The other opinions mentioned in theB 1( 1-a yat con commentaries spread over a dozen or so volumes. They are avoided even mentary are not to be followed. They have been provided to t. by the teachers themselves. The translation itself, we feel, has eliminated filth, that is, legal reasoning. To the student we say: Do not teach you the need for many of the notes given in various editions of the book. listen to those In translating this book, our hope is that it will be used by the younger who teach the law in terms °frith, wa Ohl without emphasising the opin- generation to understand Islamic law and the legal reasoning underly- ion to be followed." To those issuing jiitwas we would say: It is Bidayat ing the law. For this purpose, the best course of action for the student is al-Mubtadi' that you need. Yes, there are additional issues addressed by to add his own notes after discussion with the teacher. The exercise will the Author in the commentary, but the matt, is the governing and pri- be extremely beneficial. Accordingly, in the first few books our notes are mary text. somewhat lengthy. This is intentional. The aim was to keep in view the To facilitate this, we have tried to translate the text of Bidayat al- interest of the general reader, who does not have access to a teacher and Mubtadi' in a manner that it can be read independently without to show by example what kind of notes may be added by the student him- reading self. On some pages, we felt, that there was no need for adding notes; in the commentary. This text is displayed in bold and can be distinguished fact, notes on some pages would become a hindrance rather than a help. from the commentary. We have not succeeded all the time in doing so, We hope that the notes, where provided, will be of use to all. because complete sentences in the matt, are broken down at odd places We find that many schools and madeuis teach the law from al-Qudari. by the Author for comments, and it is difficult to maintain the required It is a wonderful book and needs to be read, however, Bidayat al-Mubtadi' links. Nevertheless, the reader should have very little problem if he wishes to read the matn. includes al-Quduri within it and much more. It is a better organised, more refined and somewhat expanded version of al-Quduri. An effort along Al-Hidayah is difficult to understand without the help of notes or will be made to provide the Arabic version of Bidayat al-Mubtadi' without the constant attention of the teacher. As mentioned earlier, the with the English meanings extracted from this translation. An ideal process of adding notes to the book has been going on for the last eight approach would be, at least for the classroom, to read the smaller text and then turn to al-Hiclayah for elaboration. to say some- It is customary with the commentators of al-Hidayah thing about al-Marghinani's method and the way he uses certain terms. 3'The fault obviously lies with the publishers and not with the authors of these com- mentaries. It may he argued that an expert will be able to recognize the main even if it is not distinguished. Yes, but that is not the point under discussion. Further, such an "Unfortunately, some of the glossators and hence some teachers convert the teaching argument can be given only by the arrogant. game of semantics. The result is that very little attention is paid to of al - Hidayah into a 310n some occasions this is difficult to determine in the book, and we have addressed the frill inside and a major goal of the book is lost. this below.  Al-Hidayalt I NTRODUCTION INTRODUCTION AI-Hidayah xxix we are reproducing some of these comments, courtesy `Allarnah Lakhnawi, but we have also added a few that we have observed oursel while translating the book. A few of these may be irrelevant for the ve 10. to an issue and its precedent by using "this" for the issue and "that" lation. trans_s for the precedent; In the text, the Author of al-Hidayoli usually refers to: u. to an implied question directly without the preceding, "If it is said," except on two or three occasions in the entire book; 1. himself as "This feeble servant," but some of his students later inserted in its place "He (God be pleased with him)"; he rarely uses 12. his own legal reasoning by saying, "the takhrij is," but where it is the personal pronoun out of modesty, a practice followed by someone else's takhrij, he refers to the person's name; leading jurists and traditionists;34 most 13. (al-As1) meaning thereby al-Mabsat by Imam Muhammad the scholars from Ma VTard' al-Nahr (Transoxiana), that is, Bukhara ibn al-Hasan al-Shaybani; and Samargand, according to al-Inciyah, al- by saying "our Shaykhs" 14. al - Mukhtasar and he intends thereby the precis written by but according to some he means by this all those scholars Quclari; who did not meet the Imam (Abu Hanifah); by saying (he 15. a statement in al-Jami' aI-Saghir or in al-Muktasar ;. the cities of Ma Ward' al-Nahr by using the words said), but he does so even when he refers to his own statement in (in our region); Bidayat-al-Mubtadr, perhaps, it is the scribe who does this; 4. to a verse of the Qur'an previously cited by saying, "what we al-Qudari by specifi- 16. a difference between al-Kuni` al-Saghir and recited"; to a rational argument and legal reasoning that has pre- cally naming al-Jami' al-Saghir; ceded by saying, "what we have stated" or "what we elaborated"; to but sometimes a tradition that he has previously stated by saying, "what we have 17. al-kitab when he means thereby al-Ja mi` al-Saghir, related"; he is referring to al-Muktasar when he uses this word. 5. the opinion of a Companion as athar The list provided above is an excerpt from Allamah al-Lakhnawi's and at times he does not distinguish between khabar and athar, referring to both by saying, text. We list below a few points that we consider important. "what we have related"; main of Bidayat (1) The Author states the rule, which is part of the 6. legal reasoning by saying, "the fiqh in this issue is"; al- Mubtadi', first. If the rule appears as a single opinion, it is the unanimous view of the school, that is, the view of the Imam and the a disagreement among jurists by using the word "Oa (they said)"; two disciples. 8. to an interpretation preferred by the scholars of traditions by say- not found, he states the Za hir (2) On occasions, where total unanimity is ing, "This tradition is interpreted as" or "construed to mean"; al-Riwayah first and this is followed by the view of one or more is concerned, he is stating the stronger jurists. As far as the rnatn 9. his own interpretation of a tradition by saying, "we interpret it as opinion first. In such a case, the position is reversed in the commen- tary; he will provide arguments and support for the stronger opinion 34 It has been noticed in the text, however, that the statement "this feeble servant" at the end of the discussion. usually appears when he is correcting an error in al-Quduri's text.  Al-Hidayah Ispritobuclio,, Where two jurists are on one side, the rule according to the tw INT RO CTION Al-Hidayah will be stated first. This is usually Abu llanifah (God blesshim)o alo with one of his companions. In such a case, the view of the ng (6) He uses the word spar` in two different ways: to mean the law, that is, disciple, where it is a reasonably strong opinion appears withinotthe her the sharrah or to mean the texts of the sharrah, that is, the texts of matt:. At other times, a variant narration from a disciple or eve n f the Qur'an and the Sunnah. the Imam himself are mentioned in the commentary merely forrom- (7) Al-Qudari's statements.—When he reproduces al-Qudari's text, he is purpose of elaboration.;'