Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut Tahrir To the Questions of the Visitors of his Facebook Page "Fiqhi"
Answer to Question
The Saying "Health of Bodies Takes Precedence Over the Health of Religions" To: Umm Ibrahim
Question:
Assalamu Alaikum, our eminent Ameer. These days we encounter a phrase repeated by various segments of society regarding the issue of distancing in prayer, where they justify it using what they claim to be a legal maxim stating: "Health of bodies takes precedence over the health of religions"! Could you please clarify whether this is actually a legal maxim (qa’idah fiqhiyyah) that can be relied upon? And what are its parameters?
Answer:
Before answering your question, I will mention the following points:
Universal rules (al-qawa’id al-kulliyyah) in Fiqh are Sharia rulings derived from Sharia evidences through a correct Sharia derivation (istinbat). The ruling must be attributed to a term of "universality" (kulliyyah) and not to a general term (lafzh 'amm). It is stated in Al-Kurrasah (The Booklet):
"(As for the explanation of the universal rule being a Sharia ruling, the universal rule is: the universal ruling that applies to its partial cases (juz’iyyat). Its being a ruling is because it is derived from the Address of the Legislator (khitab ash-shari'), thus it is the meaning of the Address of the Legislator. As for this ruling being universal, it is because it is not the attribution of a ruling to a general term (lafzh 'amm), such that it would be called a general ruling, like the Saying of Allah the Exalted:
وَأَحَلَّ اللَّهُ الْبَيْعَ
'And Allah has permitted trade.' (Surah Al-Baqarah [2]: 275)
This applies to all types of trade, so it is a general ruling. And like the Saying of the Exalted:
حُرِّمَتْ عَلَيْكُمُ الْمَيْتَةُ
'Prohibited to you are dead animals.' (Surah Al-Ma'idah [5]: 3)
This applies to every dead animal, so it is a general ruling. Rather, the universal ruling that constitutes a universal rule is the attribution of a ruling to a term of universality, which is why it is called 'universal' (kulli). Therefore, every ruling that falls under the meaning of this term is a 'partial case' (juz’iyyah) of this universal ruling, not an individual instance (fard) of it. Examples include the rule 'The means to a Haram is Haram' and the rule 'That without which an obligation cannot be completed is itself an obligation,' and similar rules. In these two rules, the Sharia ruling, which is 'Prohibition' (al-hurmah), was not attributed to a general term like 'trade,' but rather to a universal term, which is 'The means to a Haram.' Similarly, the Sharia ruling, which is 'Obligation' (al-wujub), was not attributed to a general term like 'dead animal,' but to a universal term, which is 'That without which an obligation cannot be completed,' and therefore it was universal...)" End quote.
Furthermore, the evidences from which the universal rule is derived must contain a Sharia legal cause ('illah), or something that stands in the place of a legal cause (mathabat al-'illah), such as when the evidences indicate the ruling and something else that is consequent to it or resulting from it, appearing then to be in the status of a legal cause. This is necessary for the universal formulation of the rule. It is stated in Ash-Shakhsiyyah al-Islamiyyah (The Islamic Personality), Volume 3, in the chapter "Universal Rules":
"[...Universal rules are derived from the Sharia text just like the derivation of any Sharia ruling, whether from a single evidence or several evidences. However, the evidence in this case includes a meaning that stands in the place of a legal cause, or it includes a legal cause ('illah). This is what makes it applicable to all its partial cases...
For example, the Saying of the Exalted:
وَلَا تَسُبُّوا الَّذِينَ يَدْعُونَ مِن دُونِ اللَّهِ فَيَسُبُّوا اللَّهَ عَدْواً بِغَيْرِ عِلْمٍ
'And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge.' (Surah Al-An'am [6]: 108)
The Fa in 'lest they insult' (fayasubbu) indicates that your insulting their idols leads to them insulting Allah, and this is Haram. Consequently, your insulting their idols in this case is Haram, so it was as if it were a legal cause. The prohibition of insulting those who disbelieve is the evidence for the ruling, and it has indicated, alongside the ruling, something else consequent to it when He said: 'lest they insult Allah.' Thus, the rule 'The means to a Haram is Haram' was derived from this verse...]"
In a similar manner, the rule "That without which an obligation cannot be completed is itself an obligation" was derived... this pertains to the necessity of the "status of the legal cause."
As for the evidence containing a legal cause ('illah), it is stated in Ash-Shakhsiyyah, Volume 3, following the aforementioned regarding the status of the legal cause:
"[For example, the Messenger ﷺ said:
الْمُسْلِمُونَ شُرَكَاءُ فِي ثلاَثٍ: فِي الْكَلإِ وَالْمَاءِ وَالنَّارِ
'The Muslims are partners in three things: water, pastures and fire.' (Reported by Abu Dawud)
It was established from him ﷺ that he approved the private ownership of water for the people of Ta'if and the people of Madinah. It was understood from the condition of the waters that he allowed for private ownership that the community was not in need of them. Thus, the legal cause ('illah) for people being partners in the three things was their being part of the community’s utilities. The evidence indicated the ruling and indicated the legal cause—meaning it indicated the ruling and indicated something else that was the reason for legislating the ruling. From this, the rule 'Whatever is from the community’s utilities is public property' was derived, and so on for all universal rules.]"
Ash-Shakhsiyyah then concludes the topic with the following: "[From this, it becomes clear that the universal rule makes the ruling stand in the place of a legal cause for a universal ruling because it is a reason for it—meaning it results from it or is consequent to it—or makes it a real legal cause for a universal ruling. It is a universal ruling that applies to its partial cases; therefore, it is applied to every ruling it fits, just as the evidence is applied to the ruling it brought. Analogy (qiyas) is not applied to it; rather, its partial cases fall under it, meaning they are included within its concept (mafhum) or its literal wording (mantuq) exactly as they are included under the indication of the evidence, and seeking proof through it is like seeking proof through the evidence...]"
Accordingly, the recognized universal Sharia rules are those derived through Sharia derivation (istinbat) according to what was explained above, meaning they fulfill the following conditions:
a- They must be derived through a correct Sharia derivation according to the foundations of jurisprudence (Usul al-Fiqh)...
b- The derived ruling must imply universality, such that partial cases (juz’iyyat) fall under it...
c- The evidences from which the universal rule is derived must contain a Sharia legal cause ('illah) or something in the status of a legal cause, leading to the universal formulation of the Sharia rule.
These are the recognized rules derived from the evidences through Sharia derivation. As for rules that were not derived from Sharia evidences, or were derived through an incorrect derivation, they are not recognized and have no value.
By contemplating the saying mentioned in the question ("Health of bodies takes precedence over the health of religions"), the following becomes clear:
This saying was not derived through a Sharia derivation from evidences containing a legal cause or the status of a legal cause to be a valid universal rule under which partial cases fall...
As for those who say it is derived from the evidences of the prayer of the sick person who cannot stand and thus prays sitting, this is not a Sharia derivation because this is a specific ruling (hukm khass) that does not extend beyond the sick person who cannot pray standing. It does not include the person who prays standing but is distanced from the person beside him by a meter or two!
Therefore, this saying ("Health of bodies takes precedence over the health of religions") is not a legal maxim (qa’idah fiqhiyyah) in this sense according to the jurists as far as I know. Rather, it is from the speech of the common people, like: "Caring for bodies is better than caring for religions" and their saying "The soundness of bodies is more entitled than the soundness of religions." All of these are not legal maxims. In fact, there are jurisprudential statements to the contrary... For example, [Ibn Amir al-Haj al-Hanafi says: "The preservation of religion from the necessities (daruriyyat) is given precedence over all else when there is a conflict, because it is the greatest objective. Allah the Exalted said:
وَمَا خَلَقْتُ الْجِنَّ وَالإِنْسَ إِلا لِيَعْبُدُونِ
'And I did not create the jinn and mankind except to worship Me.' (Surah Adh-Dhariyat [51]: 56)" (Al-Taqrir wa al-Tahbir by Abu Abdullah, Shams al-Din known as Ibn Amir al-Haj al-Hanafi, d. 879 AH)]
Therefore, this saying is not considered one of the Sharia rulings, and introducing it into the subject of distancing is not correct in any way. As for the Sharia ruling regarding distancing, we have previously issued several detailed answers on this subject, and I will suffice by reminding you of only two answers:
- The first on 17 Shawwal 1441 AH - 08/06/2020 CE, from which I quote for you:
"[...Thirdly: It is not said that a contagious disease is an excuse that permits distancing in prayer. This is not said because a contagious disease is an excuse for not going to the mosque, and not an excuse for one to go and distance himself from the worshiper beside him by a meter or two!! Contagious diseases occurred during the time of the Messenger ﷺ (the plague), and it was not reported from the Messenger ﷺ that the one afflicted with the plague should go to prayer and distance himself from his companion by two meters; rather, he is excused and prays in his house... meaning that the person with a contagious disease does not mix with the healthy and is provided with sufficient and complete treatment, by the permission of Allah. As for the healthy person, he goes to the mosque to pray Jumu'ah and congregational prayers as usual without distancing... 17 Shawwal 1441 AH - 08/06/2020 CE]" End quote.
- The second answer on 14/10/2020 CE regarding the Jumu'ah prayer, from which I quote for you:
"[...It is clear from the above that Jumu'ah is an individual obligation (fard 'ayn), and that it must be performed in the manner explained by the Messenger ﷺ with its pillars and conditions of validity, including the joining of rows in the Sharia-compliant manner as we explained in our previous answers... The authority’s prevention of its performance in this manner is a great sin that falls upon the shoulders of the authority, whether that is by the state closing mosques or by preventing the performance in the Sharia-compliant way...
And because Jumu'ah is an individual obligation, every responsible Muslim must strive for it and perform it in the Sharia-compliant way with its pillars, conditions of validity, and joining of rows... etc. If he cannot due to a physical obstacle or an oppressive ruler who prevents the performance of Jumu'ah in the Sharia way, but rather forces the worshipers into innovation (bid'ah) by imposing distancing, and the worshiper cannot prevent that, then let him perform it according to his ability, and the oppressive ruler shall bear the sin...
The Messenger ﷺ said in what was reported by Al-Bukhari and Muslim (may Allah the Exalted have mercy on them) on the authority of Abu Hurayrah (may Allah be pleased with him):
وَإِذَا أَمَرْتُكُمْ بِأَمْرٍ فَأْتُوا مِنْهُ مَا اسْتَطَعْتُمْ
'And if I command you with a matter, then do of it what you are able.' (The wording is Al-Bukhari’s)...
So, if the Muslim is able to pray Jumu'ah (the individual obligation) with joined rows, he must pray in this manner because distancing is a bid'ah as long as he is able to avoid it. But if he is unable to do so due to the sinful authority, then at that time he prays in the manner possible for him. An-Nawawi (d. 676 AH) said in his book (Al-Minhaj Sharh Sahih Muslim bin al-Hajjaj) in the explanation of this Hadith with Muslim’s wording: On the authority of Abu Hurayrah, the Messenger of Allah ﷺ said: '...and if I command you with something, then do of it what you are able.' An-Nawawi said in his explanation: '...this is from the important rules of Islam and from the comprehensive speech (jawami' al-kalim) given to him ﷺ, and it includes countless rulings such as various types of prayer; so if he is unable to perform some of its pillars or some of its conditions, he performs the rest.... and Allah knows best.']" End quote.
I hope this is sufficient, and Allah is most Knowing and most Wise.
Your brother, Ata Bin Khalil Abu Al-Rashtah
16 Shawwal 1442 AH Corresponding to 28/05/2021 CE
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