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MINHAJ ET TALIBIN

MINHAJ ET TALIBIN

A MANUAL OF

MUHAMMADAN LAW

ACCORDING TO THE SCHOOL OF

SHAFII

BY

MAHIUDIN ABU ZAKARIA YAHYA IBN SHARIF EN

NAWAWI

TRANSLATED INTO ENGLISH FROM THE FRENCH EDITION

OF

L. W. G. VAN DEN BERG

BY

E. G. HOWARD

LATE DISTRICT JUDGE, BINGAPOEE

LONDON

W. THACKER & 00., 2, OREED LANE,

E.C.

CALCUTTA & SIMLA: THACKER, SPINK & CO.

l!)l-t

K

PKINTED BT

WILLIAM CL0WE8 AND SOKS, LIMITED, LOKDON AND BECCLE8.

PKEFATORY NOTE

In the préface to his édition of the Fath el Karih in 1894, Mr. L. W. C.

Van deu Berg remarked that " from yoar to year European control

over Moslem peoples is extending, so that it is unnecessary to insist upon the importance of rendering the two works that fonn the basis of

the légal literature of the School of Shafii accessible, not only to a small number of Arabie scholars, but also to magistrates and political

agents" to whom that language is for the niost part unfamiliar. This being as true now as it was twenty years ago it is thought advisable to

pubhsh an English translation of the other and larger work referred to, the Minhaj et Talibin, which " occupies the first rank for deciding légal

cases." In the préface to his édition of this treatise, published in 1882

at Batavia by the Government of the Netherlands Indies, Mr. Van den

Berg explained that the French version, of which this book is a ren-

dering into English, was not a mère literal translation of the concise

Arabie text, which would hâve been uninteUigible, but a paraphrase,

based partly upon the Moharrer and the Commentary of Mehalli, and

partly upon the two principal sixteenth-century commentaries on the

Minhaj et Talibinthat is to say, the TohJat-el-Mohtaj and the Niliayat el Mohtaj. It is not always possible to décide a question by référence

to the Minhaj alone ; and in such a case a Muhammadan juristalim, fakih, mufti or kadi, as it may bebas recourse principally to the

Tohfa and the Nihaya, which Dr. Th. Juynboll, in his Handhuch des islamischen Gesetzes, 1910, calls "the two standard works in the whole modem Fikh-literature of the School of Shafii." It is hoped, therefore,

that the présent publication may be of some practical utility in the

direction above indicated, and at the same time not without interest

to the student of comparative jurisprudence.

CONTENTS

BooK 1. PuRiTY (Tahara). Chafter I. General provisions page 1 II. Causes of slight corporal
BooK 1.
PuRiTY (Tahara).
Chafter I. General provisions
page
1
II.
Causes of slight corporal impurity
3
III. Ablution
5
IV.
Moistening of foot-gear
7
V. Bathing
8
VI.
Things impure in themselves
10
.11
VII. Ablution with sand
.
.
.
.
VIII.
Menstruation
16
BooK 2.
Pbayer {Sala).
Chapter
I. General provisions
19
Manner of prayer
24
II.
III.
Conditions for the validity of prayer
32
IV. Expiatory prostration
35
and for
V. Prostrations for reading the Koran,
thanksgiving
39
VI. Supererogatory prayer
40
BooK
3. Public Prayer {Salai el jemaa).
Chapter
I. General provisions
43
II.
Prayer on a journey
52
56
III.
Public prayer on Fridays
IV.
Prayer in case of danger
62
V.
Public prayer at the two great festivals of the year
64
VI.
Prayer on the occasion of éclipses
66
VII. Prayer in time of drought
67
VIII.
Intentional omission of prescribed prayers .
69
.
.70
BooK 4. FuNERAL CEREMONIES {Jenaza)
.
.
.
.
.
Bock 5. Alms Contribution, or Charity Tax {Zakat).
Chapter
Assessment on cattle
II. Assessment on produce
III. Assessment on gold and silver
80
I.
83
85
IV.
Assessment on mines, treasure and merchandise
86
V. Payment at the end of the fasting month .
89
.
Persons and objects liable to assessment .
90
VI.
.
Bock 6. Fasting {Siam).
Chapter
95
I. General provisions
103
II. Supererogatory fasting
.
.
.
.
104
Bock 7. Religious Retirement {Aaiakaf)

vm

BooK

8.

CONTENTS

PlLGKIMAGE (Hajj).

Chapter

I. General provisions II. Stations

.

III. Ihram, or state of consécration

IV. Entry into Mecca

V. Actions forbidden during ihram

PAGE

107

109

110

112

120

VI. Causes that prevent the accomplishment of the

BooK 9.

pilgrimage

Sale or Barter (Bia).

Chapter

,,

I. General provisions

II. Illicit gain

III. Other illicit sales

,,

IV. Right of option or cancellation

,,

V. Property sold, before the purchaser bas taken

possession

122

123

125

126

129

135

VI. Simple transfer ; part transfer ; transfer at a profit,

,,

or at a loss

VII. Sale of trees, fruit, and standing crops

VIII. Disputes between vendor and purchaser

IX. Slaves

BooK 10. Sale by Advance (Salam)

BooK 11. Pledge or Security (Rahn)

Bock 12.

Bankruptcy, etc. [Taflis).

Chapter I. Bankruptcy

II. Incapacity of lunatics, minors, and spendthrifts

III. Compromise, and right of way

IV. Transference of debts

,,

V. Guaranty

BooK 13. Partnership {Sherka)

BooK 14. Principal an» Agent {Wakala)

15.

Admission (Ikrar) .

16.

LoAN (Aariya)

17.

Usurpation (Ghasb)

18.

Pre-emption (Shefaa)

19.

Joint-stock Companies {Kirad)

20.

Parming Leases {Mosaha)

21.

CoNTRACT DP HiRiNG (Ijara) .

22.

Occupation of Land, etc. (Ahia el

muât)

23.

Endowment (Wakaf)

24.

GiPTS (Hiba) .

25.

Things found {Lokta)

26.

PouNDLiNGS {Lehit)

27.

JoB-WoRK (Jaala)

28.

Distribution of Estâtes {Feraid)

29.

WiLLs( Ifo^a^/a)

138

140

144

145

147

152

161

167

169

174

175

179

181

188

195

198

205

210

215

218

226

230

234

236

240

244

246

259

CONTENTS

Lx

PAGE

BooK 31. Distribution of the Profits of War and of Booty (Kesm elfi'

wa el ghanima)

Distribution of the Proceeds of the Tax {Kesm es Sadahal) .

32.

Marriage (Nikah).

33.

Chapter I. General provisions

,,

II. Prohibited marriages

.

.

.

.

III. Marriage of infidels

IV. Right of

option ;

ifaf :

and marriage between

slaves

Dower {Sculak)

34.

273

277

281

.291

295

299

305

35. Sharing of THE Husband's Favours, and Disobedience of

WiVES (Kesm wa neshuz)

Divorce (Khula)

37. Répudiation (Talak)

36.

Return to Conjugal Union (Rejaa)

38.

 

Oath of Continency (lia)

39.

 

40.

41.

Injurious Comparison {Dhihar)

 

,,

Expiation, with REGARD TO Injurious Comparison (iiCa/am)

.

,,

Imprécation {Lian)

42.

 

Period of Légal Retirement (Idda)

43.

 

.,

44. Period ofWaiting or a Slave (Zî/tVim)

45. Relationship Fostesage {Radaa)

,,

46.

Maintenance (Nafakai)

 

Crimes ag.mnst the Person (Jerah).

47.

 

Chapter I.

General provisions

.

.

.

.

.

.

Tl. Punishment under the law of

talion, and the

316

320

327

345

348

352

355

358

365

375

378

383

395

persons who can demand its application

.

405

48. Price of Blood (Diya).

Chapter I. General provisions

II. Obligation

to pay

.

the

.

.

price

of

.

.

blood ;

.413

the

aakila ; and expiation

49. Procédure in Cases of Crimes against the Person (Dawa)

50.

Rebels (Biiqhal)

51. Apostasy (Ridda)

,,

52.

53.

54.

Fornication (Zina)

Defamation {Hadd el Kazf)

Crimes punishable with Amputation {Keta es sarika).

Chapter I. Thett

.

55.

II. Brigands

Forbidden Beverages ; and Punishment at the Discrétion of

THE Court (Ashriba)

.

.

.

.

.

420

429

433

436

439

442

440

448

.451

56.

Excusable Homicide and Wounding ; and Responsibility for

Damagb (Siaf wa deman el bawlat)

.

.

.

57. MiLiTARY Expéditions (Star)

58.

PoLL-TAX {Jaziija).

Chapter I. General provisions

II. Armistices

,,

59. HuNTiNG AND Slaughter of Animals {Sayd wa debah)

60. Sacrifices (Adhiya)

61, Eatables {Atama)

62. Racing and Shooting Compétitions {Musabaka wa munadala) .

.

.

.453

457

465

470

472

477

480

483

CONTENTS

PAOB

BooK 63.

Oaths ( Yeman)

486

»

64

Vows (Nazr)

495

»

65.

Administration of Justice (Kada).

 

Chapter

I. General provisions .

500

II. Judgments by default

507

 

III. Distribution of estâtes

512

 

 

66.

Evidence of Witnesses (ShaJiaâat)

515

67.

Procédure {Daawa wa heynat)

526

68.

Simple Manumission {Itk)

537

69.

TestamentARY Manumission (Tadbir)

545

70.

Enfranchisement by Contract (Kataba)

549

71.

Freedom on Account of Maternity {Umhat el awlcul)

558

Glossary of Arabic Words and Names SuBjECT Index

559

565

INTRODUCTION

In THE NaME OF God, THE MeRCIFUL, THE COMPASSIONATE

Glory to God, the good, the generous, whose blessings are too manifold

to be numbered ; who poureth forth abundantly His grâce and His

justice, Who leadeth us in the right way ; Who maketh to profit in the study of the divine law those His servants towards whom He showeth

kindness, and whom He hath chosen. To Him I offer praise the most high, the most perfect, the most

pure, the most complète. I bear witness that there is none other god

One that

l)ut He alone, whose power none shareth ;

that He is the

loveth to pardon. And I bear witness that Muhammad is His servant and His preferred and chosen Apostle. God grant him His grâce and

His blessing, and crown him in heaven with faveur and honour.

Now, the best way to manifest obédience towards God and makb right use of precious time is assuredly to dévote oneself to the study

of the law. And many of our learned men of blessed memory hâve

already published with this object concise but exhaustive works, of which in my opinion the best is the Moharrar of the imam Abu Kasim

er Eafii, an authority whose accuracy is beyond question. It is a book

of the very greatest usefulness, upon whose authority may rely not only the jurist anxious to ascertain the véritable doctrine of our school, but

also any other person who seeks to instruct himself by obtaining infor-

mation from it. Eafii intended to include in his work nothing which had

not already been established by the majority of authorities, and he may be said to hâve remained faithful to this programme, in spite of the

great dif&culty of carrying it out.

Its prolixity, however, is an obstacle to this work being learnt by

heart, except perhaps by some persons who dévote themselves exclusively to the study of law, and consequently it appeared to me to be useful

to compose an abridgment of it, in length not more than about half of the original volume, but introducingif God willsome improve-

ments.

In the number of thèse improvements should principally be men-

tioned the four follov,'ing : In the first place, I hâve everywhere indicated

xii

INTEODUCTION

the réservations, that are sometimes not indicated in the Moharrar.

Secondly, it ^\ill be easy for me to quote from the Moharrar several

passages in manifest opposition to the doctrine preferred in our school,

as the reader will see, if it please God. In the third place, I shall replace

by others clearer and more correct ail the Httle used expressions employed

by Eafii, as well as those that might suggest erroneous ideas, either becaiise he wished to be too exphcit, or because he was not sufficiently

so. Finally, in cases where there is divergence of opinion among

authorities I shall give an impartial exposition of the two opposing

théories, the two sides from which one may consider the question in

dispute, and the two methods of reasoning adopted in order to solve

it ; and then I will also, where there is occasion for it, quote separately

the décisions of our imam Shafii, and note the relative value of the

différent appréciations.

In order to avoid any subséquent misunderstanding I hereby notify

the reader that in the course of the work I shall employ the words el

adhJiar and el mashur to designate the doctrine which appears to me

préférable, with this différence that I shall use el adhliar wherever the

doctrine I reject is widely accepted, but otherwise el mashur. Similarly the words el asahh and es saJiih will indicate what, in my opinion, is

the better way of regarding and resolving a question ; with this différ-

ence that where there are to be found authorities of repute who incline

to the contrary opinion, I shall use the word el asahh, but otherwise

es sahih. The word el mazhab will indicate the System which merits

the préférence in our school ; while en nass will dénote the personal

opinion of our imam Shafii, even where his reasoning may appear to

me to be weak, or in the case of an isolated décision.

The word el-jedid

means that in his first period, i.e. during his stay in Irak, Shafii was of

the contrary opinion ; and the words el-kadim and fi kawl kadim indicate

that the theory quoted was abandoned by that imam in his second

period, i.e. during his stay in Egypt. The expression kil kaza dénotes

that this way of regarding and resolving a question is not to be recom-

mended, and that most authorities come to another conclusion, whether

the method I disapprove is or is not defended by authorities of repute ;

and I employ the words ^ kawl to mean that nearly ail authorities hâve

expressed the contrary opinion. And lastly, I must warn the reader

that I begin ail insertions of my own by the word kultu, and terminate

them by the phrase wallaliu aalam.

In case of words or orthographie signs that hâve been added or

intercalated, the reader may rely upon it that the matter was incon- testable and the insertion absolutely necessary. Similarly, wherever he may meet with a form of glorifying God differing from that in the

INTEODUCÏION

xiii

Moharrar or other books upon jurisprudence, he may rest assured that

I hâve verified it frora the most authoritative collections of traditions.

And, finally, to some questions I hâve assigned another place in

their section, without keeping to the order in the Moharrar, either

because I thought them better placed so, or because I wished to be more

concise.

I hâve even taken the liberty to invert the order of whole

sections, in order to improve the gênerai arrangement.

In conséquence of what I hâve said I hope that this abstract will

be at the same time a véritable commentary upon the Moharrar ; for,

on the one hand, I hâve omitted absolutely none of the rules and con-

troversies discussed in that work, however small their importance, and,

on the other hand, I believe that I hâve considerably improved it.

Moreover, I hâve already begun a work which will contain a dis-

cussion of ail the debatable points in this abstract, a work in which I

explain why I hâve sometimes had to départ from the text of the Moharrar, and sometimes added a réservation or a conditional modi- fication, etc. But in almost ail cases thèse changes were absolutely necessary and indisputable.

God, the générons, is my sole helper ; in Him I put my trust ; upon Him I lean. To Him I address my prayer, that He may cause to grow

from my labour some benefit to myself and to ail other believers ; that

He may be satisfied with me, my friends, and ail the faithful.

NOTE

(SEE INTRODUCTION, PAGE xii)

The foUowing four signs indicate doctrines considered by Nawawi

to be préférable to the contrary opinion. * = aclkhar (clearer), where the doctrine rejected

is widely

accepted.

** = mashhur (well known), where this is not tlie case.

f = asahli

(surer), where

the contrary

is

maintained by

authorities of repute. Il = sahili (authentic), where this is not so.

(The signs immediately précède the passages to which they

relate.)

The Personal

brackets [

1-

opinions of Nawawi

are

inclosed in

square

MINHAJ ET TALIBIN:

A MANUAL OF MUHAMMADAN LAW

BOOK 1.—LEGAL PUEITY

CHAPTER L—GENERAL PROVISIONS

GoD has said in tiie Koran " We make clear water for cleansiiig corne

dowii from heaveii." ïlms to reinovo aiiy impuiity, whether blight or seiious, it is necessary to make use of " water " in tlie proper sensé

of thé Word, a liquid that can be described as " water " witliout modi-

fication. Water wliose nature lias been altered by tbe addition of some

foreign substance, such as saiïron, loses its purifying quality, for the

altération prevents its being any longer described simply as " water."

On the other liand a modification that does not prevent a liquid being still called " water " does not atï'ect its purifying quality ; and conse-

quently inere stagnancy, or mud, or moss, or some accidentai object in a basin or a pipe, are of no conséquence. And in the same way the

introduction of substances that do not dissolve, such as aloes or grease

or sand, cannot be regarded as modifying the nature of water. It is blâmable to proceed to purification with water heated by the

sun, or with water that has already been used for an obligatory puri-

fication.

According to some authors Sliafii, in his Egyptian period,

sustained that even water used for a purification not legally prescribtd must on that account be considered improper for any ritual use, if the

quantity does not aniount to two kollah. So considérable a quantity

cannot itself become impure by contact with impure substances, unless

its nature is thereby modified.

The impurity of water ceases with the adultération that causes it,

whether it regains its original quality of itself, or by an increase in the

quantity of liquid ; but if the impurity has merely been rendered imper-

ceptible by the addition of musk, saffron, sand, or plaster, the water continues to be unsuitable for purification, as the impurity itself has

not been removed.

A quantity of Itt^s than two kollah becomes impure by contact, but

B

2

MINHAJ ET TALIBIN

as soon as the amounfc is incroascd to tliis iiiiiiiniuiii ilie -water bicornes

suitable for purification, if the impurity was uiiaccompanied by any

adultération of the quality. On the other hand, impure water, to which

water suitable for purification bas becn added, remams impure until

the minimum bas been reached ; but according to some jurists the

mixture should be considered pure, though unsuitable for purification, if the quantity of impure is less than that of pure water.

**As an exception to the foregomg rules the body of a bloodless

insect does not render a liquid impure. And one jurist is of opinion

that nothing we hâve just said applies to impurity so slight as to be inappréciable.

[*In this latter opinion I concur.] Eunning water is subject to the same rules as stagnant water, at

least this is so according to the opinion expressed by Bhafii m his second

period, though that Imam at first admitted that running water can

nover become impure, unless by adultération, however small the

quantity of liquid.

fTwo kollali are equal to about five hundred ratai of Baghdad.

The adultération of water due to a change from a state of purity to

one of impurity is shown by taste, colour, and smell ;

and when it is

at first impossible to distinguish the pure from the impure, one must

décide as best one can which of the two one ought to use, and then

purify oneself with that one believed to be pure. This course, however,

according to some jurists, is not lawful if other water can be procured

whose purity is not subject to doubt. *A blind man is subject to thèse

rules relating to the examination of the liquid.

If of two liquids that

resemble one another one is water and the other urineff, it is of no use

attempting an examination, and recourse must be had to purification

by sand, after mixing the contents of the two vessels. And finally if it

is a question of water and rose-water, both pure, one washes first with one and then with the other ; though some authors maintain that even in such a case one should fiist carefully ascertain the nature of the

liquid to be used.

When one of two similar liquids bas been chosen and used, the other

must be thrown away, in order that no other believer, coming in his

turn to perform his ablutions, may be assailed by the same doubts.

Should this not bave been done, and should a mistaken choice be

believed to hâve been made, still the purification should not be repeated

with the other liquid^such at least is Shafii's personal opinion. fBut

in isuch a case purification by sand also should be performed. A warning

that a liquid is impure should be accepted, if grounds are given for it

aud it cornes from a person worthy of confidence, and even without

LEGAL PUEITY

3

a

follower. Any sort of vessel inay be used for tlie purposc of ablution so long

as it is clean, except vessels of gold and silvcr, fof wbich the very acquisi-

tion is forbidden. fTliis prohibition does not includo vessels merely

gilt or silvered *or of valuable material or adorned with jcwels, but

does include such as arc mounted or inlaid witli gold or silver, if tlic

precious métal is in great quantity and solely for ornament. fThus it

does not apply to the three folio wing cases : (1) if the gold or silver

!:;iouiids if

coiiiiiig fioiii

u

jurist of

tlie

scliool of

"wiiicli une

is

fornis only a small part of the vessel and is of some use ;

quantity is very small, even when solely for ornament ;

(2)

(8)

fif the

fif the

quantity is considérable, provided it is of some use. fThe position of the gold or silver is iunnaterial.

[The use of vessels mounted or inlaid Avith gold is totally forbidden

by our schooL]

CHAPTER IL—CAUSES SLIGHT CORPOEAL IMPURIÏY

Section 1

There are four of thèse causes.

1. The issue from the body, by the urhiary or stercorary passage,

of any substance except sperm. As to matter from a wound, a listula,

an incision or any other opening in the proximity of the stomach, the

following distinctions hâve been established : (a) when either pas sage

is obstructed and the opening is below the stomach, any issue *even

if accidentai, e.g. a taeniaimpairs the purity of the body ; (b) when

either passage is obstructed and the opening is above the stomach, or

(c) when neither is obstructed and the opening is below, *the purity

of the body is unafïected.

2. Loss of consciousness, except by sleep in a sitting posture.

3. Contact between a man and a woman, *except when marriage