14- Interest, and the fiqh of Interest: Dr. Ihssan Baadarani

The Interest and Jurisprudence of Interest in the Lives of the Companions, Followers, and Imams:
Allah Almighty says: “Indeed in the Messenger of Allah you have an excellent example” [Al-Ahzab: 21].
This noble verse indicates the recommendation to emulate and follow the example of the Messenger of Allah (peace be upon him), but not as an obligation, as agreed upon by the commentators. It is not obligatory, for instance, to follow him (peace be upon him) in every matter – and if some have said otherwise, their opinion is not considered, for the text is clear and unambiguous. It signifies the organization of action according to the circumstances of time and place and the nature of the intellectual and cultural values in the life and biography of the Messenger of Allah (peace be upon him) through the revelation of his divine message. We call to Allah secretly, then openly, as narrated in the books of biography. It is not obligatory to remain for thirteen years in the Meccan period as he did (peace be upon him). It is not obligatory to migrate as he migrated. It is not obligatory to engage in seventeen or nineteen battles as he did in the Arabian Peninsula. This is the view taken by Dr. Yusuf Al-Qaradawi in his book “How to Deal with the Noble Prophetic Sunnah.”

It is necessary to reflect on the biographies of some of the Rightly Guided Caliphs, may Allah be pleased with them, who saw that the interests considered during the prophetic era had changed. There are many examples.

1. For instance, what Umar, may Allah be pleased with him, did with Bilal bin Al-Harith Al-Muzani regarding the land that the Messenger of Allah (peace be upon him) granted him, which was the land of Al-Aqiq, a wide valley near Medina. Umar summoned him during his caliphate and said to him, “The Messenger of Allah (peace be upon him) granted you a long and wide land because he was generous and did not refuse anything when asked. However, you are unable to manage all of it.” Bilal replied, “Yes.” Umar then said, “Keep what you can manage, and what you cannot, return it to us so we can distribute it among the Muslims.” Bilal responded, “By Allah, I will not give up anything that the Messenger of Allah (peace be upon him) granted me.” Umar said, “By Allah, you will,” and he took from him what he was unable to manage and distributed it among the Muslims.

Practical precedents in the biography of the Prophet do not carry the status of obligatory legislation. They were merely suitable for their time and place. If the reasons change, what was built upon them must also change.

2. Allah says, “Indeed, those who devour the property of orphans unjustly are only consuming fire into their bellies. And they will be burned in a Blaze” [Al-Tawbah: 58]. This is similar to what Umar, may Allah be pleased with him, did with those whose hearts were to be reconciled, such as Al-Aqra bin Habis and Uyaina bin Hisn, when he did not agree with Abu Bakr, may Allah be pleased with him, on granting them land from the charity funds. He said to them, “The Messenger of Allah (peace be upon him) used to reconcile you when Islam was still weak – meaning in strength – and now Allah has enriched Islam. Go and make your efforts.” This falls under the category of “utilitarian reasons.” At the time, the Messenger of Allah (peace be upon him) had given each of them one hundred camels after the Battle of Hunayn. The Ansar felt a need in their hearts for this giving, and the Messenger of Allah (peace be upon him) said to them, “I give to men who are new in Islam to reconcile them. Are you not pleased that people go with wealth while you return with the Messenger of Allah to your homes?” [Bukhari, narrated by Anas bin Malik].

The specific utilitarian reason is evident in the verse [Al-Tawbah: 58], where Islam needed supporters. When this reason ceased, the ruling also had to be suspended by preventing the giving, not based on personal opinion and judgment, but on the change in reason. The reason is consistent and changes with changing reality but does not disappear, as the need for reconciliation is always present given the circumstances.

Undoubtedly, giving to those whose hearts are to be reconciled is entrusted to the Imam to act upon according to the public interest. This leads us to say:

First – The interest here is temporal and changes with the changing times.
Second – The Imam is responsible for considering this matter and similar ones.

3- Allah says: “And know that anything you obtain of war booty – then indeed, for Allah is one fifth of it and for the Messenger and for [his] near relatives and the orphans, the needy, and the [stranded] traveler, if you have believed in Allah and in that which We sent down to Our Servant” [Al-Anfal: 41]. Likewise, what Umar, may Allah be pleased with him, did with the lands of Sawad in Iraq after conquering them is significant. He did not divide them as the Messenger of Allah (ﷺ) divided Khaybar. Instead, he ordered that the land remain with its people and imposed a tax (kharaj) on it to be spent on public interests for every generation at all times. He saw that dividing these lands would result in a general harm affecting the Ummah in the future, “the jurisprudence of the future”. If these lands were divided, the benefits from the kharaj would cease, impacting future generations.

If Umar, may Allah be pleased with him, had divided the land, the companions and Muslims would have been distracted from the primary objective. It cannot be said that Umar, may Allah be pleased with him, violated the Quranic text or the actions of the Messenger of Allah (ﷺ). Umar did what was most appropriate during his caliphate, while the Messenger of Allah (ﷺ) did what was most appropriate for his time. The intent of Sharia is to achieve the interests of the servants in both worldly life and the hereafter in their three levels: essential, needed, and improved. Umar, may Allah be pleased with him, followed the guidance of Allah and His Messenger (ﷺ).

Ibn Qudamah said: “The division of Khaybar by the Messenger of Allah (ﷺ) was at the beginning of Islam when there was a great need, and that was in the best interest at the time. Later, the best interest became clear in leaving the land as it was, which then became obligatory.”

The Caliph Umar, may Allah be pleased with him, was looking to the future and its jurisprudence with this perspective and would say: “If it weren’t for the future generations of Muslims, I wouldn’t have opened a village without dividing it – meaning among the conquerors – as the Messenger of Allah (ﷺ) did with Khaybar.” This was in line with the general interest of Muslims.

4- Allah says: “Say, ‘Obey Allah and the Messenger.’ But if they turn away – then indeed, Allah does not like the disbelievers” [An-Nur: 54]. The Messenger of Allah (ﷺ) was asked about stray camels and said: “What concern is it of yours? Leave it alone, for it has its water and its hooves; it finds water and eats trees until its owner finds it.” The Messenger of Allah (ﷺ) was also asked about sheep, and he said: “Take it, for it is either for you, your brother, or the wolf” [Narrated by Zaid bin Khalid, agreed upon].

This practice continued during his (ﷺ) time and the caliphates of Abu Bakr and Umar, may Allah be pleased with them. Stray camels were left as they were, and no one would take them until their owner found them.

In Al-Muwatta, Malik reported that Ibn Shihab al-Zuhri said: “During the time of Umar ibn al-Khattab, stray camels were numerous and no one touched them until the time of Uthman ibn Affan, who ordered that they be identified and then sold, with the money kept for the owner if he came” [Recorded by Imam Malik in Al-Muwatta].

The situation changed during the time of Ali ibn Abi Talib, who saw that selling them and giving the money to their owner could harm him, as the money was not as beneficial as the camels themselves. He decided to collect the stray camels and spend on their upkeep from the Muslim treasury until their owner came and claimed them.

The hadith of the Prophet (ﷺ) regarding stray camels that prohibits picking them up aims to achieve the best interest of the owner searching for his lost camel. If the stray camel was kept and integrated into the herd, it would invalidate this interest, as the owner would not be able to find it. If he did find it, disputes might arise between him and the one who picked it up over feeding and housing it or even denying it. All of this contradicts the desired interest.

Uthman, may Allah be pleased with him, saw that the owner’s interest, which the Messenger of Allah (ﷺ) was keen on, should be achieved in a different way than during his (ﷺ) time. This method involved identifying the camel, and if it wasn’t claimed, selling it and keeping the money for its owner. Uthman did this because trust had decreased or weakened.

During Ali’s time, the money was no longer as valuable as the camels themselves. Therefore, the owner’s interest was not achieved by keeping the money but by keeping the camel itself. Ali, may Allah be pleased with him, would keep it and spend on its upkeep from the Muslim treasury until the owner came to claim it.

Thus, we see that the ruling on stray camels changed in these three cases to achieve the interest of the owner, according to the circumstances of each era. This indicates that rulings change with changing times.

5- Allah says: “And who are more unjust than those who prevent the name of Allah from being mentioned in His mosques and strive toward their destruction” [Al-Baqarah: 114]. And Allah says: “The mosques of Allah are only to be maintained by those who believe in Allah and the Last Day” [At-Tawbah: 18]. Abdullah ibn Umar, may Allah be pleased with them, said: The Messenger of Allah (ﷺ) said: “Do not prevent the female servants of Allah from going to the mosques of Allah” [Narrated by Al-Bukhari].

Abu Hurairah, may Allah be pleased with him, reported that the Messenger of Allah (ﷺ) said: “Do not prevent the female servants of Allah from going to the mosques of Allah, but let them go out unadorned and not wearing perfume.”

Al-Khushani reported that he was a teacher in the palace of Prince Muhammad bin Al-Aghlab in Andalusia, teaching children during the day and girls at night.

A woman said: O Messenger of Allah, the men have taken your teachings, so allocate a day for us to come to you and learn from what Allah has taught you. He said (ﷺ): “Gather on such and such a day,” so they gathered, and he taught them.

It was narrated that the Messenger of Allah (ﷺ) would command the women to go out for the Eid prayers, including those who were menstruating, saying: “Let them witness the Eid and the prayers of the Muslims” [Narrated by An-Nasa’i and Ibn Majah]. In another narration by Abu Dawood: “The Messenger of Allah (ﷺ) commanded us to bring out the veiled girls for Eid.”

On the other hand, Imam Malik, may Allah be pleased with him, narrated from Yahya ibn Sa’id, from Amrah bint Abdul Rahman, from the Mother of the Believers, Aisha, that she said: “If the Messenger of Allah (ﷺ) had seen what the women have introduced, he would have prevented them from the mosques.” Aisha saw it as better to prevent women from entering mosques, even though the clear narration from the Messenger of Allah (ﷺ) permitted it, because she believed that the allowed action led to harm that outweighed the benefit due to the adornments and perfume the women had started using. Preventing them, in Aisha’s view, was to avoid harm, which takes precedence over obtaining benefit.

Abdullah ibn Umar, may Allah be pleased with them, reported that the Messenger of Allah (ﷺ) said: “If your women seek permission to go to the mosque, do not prevent them.” His son, Bilal ibn Abdullah ibn Umar, said: “By Allah, we will prevent them.” His father, Abdullah, turned to him and said: “I am telling you the saying of the Messenger of Allah (ﷺ) and you say, ‘By Allah, we will prevent them’?”

In another narration, Waqid ibn Abdullah ibn Umar saw preventing women from going to the mosques and swore, “By Allah, we will not allow them, as they use this as an excuse to display their adornments.” The narrator said: Abdullah ibn Umar became angry and said: “I tell you the saying of the Messenger of Allah (ﷺ) to ‘let them go,’ and you say ‘no’?”

This indicates that the companion Abdullah ibn Umar, may Allah be pleased with them, adhered strictly to the text allowing women to go to the mosques. However, his sons (Bilal or Waqid) acknowledged the text and believed in it, but also considered the intended purpose of the allowance. If going to the mosques led to undesirable outcomes, such as women displaying their adornments, then the intended benefit was not achieved. The purpose was to draw closer to Allah through worship, learning, and understanding the religion in the mosques. Thus, the sons of Abdullah ibn Umar looked at the text and its underlying reasons and believed that rulings should adapt to achieve their intended objectives and prevent harm.

6- Allah says: “This day [all] good foods have been made lawful, and the food of those who were given the Scripture is lawful for you and your food is lawful for them. And [lawful in marriage are] chaste women from among the believers and

Al-Tabari mentioned that a number of men from the Muhajirun and Ansar married women from among the People of the Book in the Sawad region after the conquest of Iraq. Among them was Hudhayfah ibn al-Yaman, the governor of Al-Mada’in in Persia. Umar, may Allah be pleased with him, sent him a message saying: “I have learned that you have married a woman from Al-Mada’in – and Hudhayfah was one of the scribes of revelation and the keeper of the secrets of the Messenger of Allah (ﷺ) regarding the hypocrites – from among the People of the Book, which I do not approve for you, so divorce her.” Hudhayfah, may Allah be pleased with him, wrote back: “Is it forbidden or permissible? Why do you order me to divorce her?” Umar, may Allah be pleased with him, replied: “It is permissible, but the women of the non-Arabs possess charm and deceit, and I fear they might overpower you and influence your own women.” Hudhayfah, may Allah be pleased with him, responded: “Now…,” and then he divorced her.

We say: The permissibility of marrying women from the People of the Book is a legal ruling established in the Qur’an. However, Umar ibn al-Khattab, may Allah be pleased with him, prohibited this practice after the Battle of Qadisiyyah due to circumstances related to public welfare. He aimed to prevent a major harm associated with this permissible ruling. One reason was to avoid the potential for Muslim men to neglect their Muslim women in favor of the beauty of women from the People of the Book. This potential harm contradicts the wisdom for which the marriage to women from the People of the Book was permitted in the Qur’an. Another reason was to prioritize the collective interest of the Muslim community over the individual benefit of Hudhayfah ibn al-Yaman, may Allah be pleased with him, who wished to marry a woman from the People of the Book. Additionally, it was to prevent the deceit of foreign women from the People of the Book who might exploit Muslim leaders and governors, who are on the front lines of the community. This general harm outweighs the personal interest of Hudhayfah, and the interest of Muslims under this new emergency situation is better served by prohibition rather than permissibility. This perspective of Umar ibn al-Khattab serves as evidence of the principle that rulings can change with changing times and circumstances.

7. Caliph Ali, may Allah be pleased with him, flogged Al-Walid ibn Uqba forty lashes and then said: “The Prophet ﷺ flogged forty lashes, Abu Bakr forty, and Umar eighty, and each of these is a Sunnah, but this is what I prefer” [Reported by Muslim]. This was despite the fact that Al-Walid had been accused by several people of drinking alcohol during the reign of Uthman, may Allah be pleased with him, when he was the governor of Kufa in the territory of the enemy.

Imam Abu Yusuf, the Chief Judge of Baghdad and a student of Abu Hanifa, stated: “The punishments should not be carried out in mosques or in enemy territory,” based on what was reported by Abu Dawood from Hakim ibn Hazam, may Allah be pleased with him, who said: The Prophet ﷺ forbade the carrying out of punishments in the mosque, reciting poetry there, or administering punishments there [Fiqh al-Sunnah by Sayyid Sabiq]. Abu Yusuf further explained the reason, saying: “Some of our scholars narrated from Makhlud that Zaid ibn Thabit, may Allah be pleased with him, said: ‘Punishments should not be carried out in enemy territory for fear that its people might join the enemy’” [See Fiqh al-Sunnah 2/365].

Moreover, what was written by our master Umar, may Allah be pleased with him, to Amr ibn Saad al-Ansari and his officials was not to administer any punishments on any of the Muslims in enemy territory until they return to the land of reconciliation.

It was narrated from Alqamah that the commander of the army, Al-Walid ibn Uqba, became drunk. People asked Ibn Mas’ud and Hudhayfah ibn al-Yaman, may Allah be pleased with them, to administer the punishment on him. They replied: “We will not do it. We are facing the enemy, and we fear that if they know, it will embolden them against us and weaken us.”

The previous reports indicate two reasons for not administering punishments:

1. The potential for the person being punished to defect, join the enemy, and relay news of the Muslims to them, which is a major harm.
2. The knowledge of the enemy about the internal weaknesses among the Muslims, which could encourage them to act more boldly against them.

Not administering punishments in times of combat and war is aimed at preventing a greater harm caused by the current circumstances. If the Muslims return to safety, the ruling returns to its original state, as rulings are governed by their objective and natural circumstances.

8. Allah, the Almighty, says: “As for the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [sent] from Allah. And Allah is Exalted in Might and Wise. But whoever repents after his wrongdoing and reforms, indeed, Allah will turn to him in forgiveness. Indeed, Allah is Forgiving and Merciful” [Surah Al-Ma’idah 38-39].

Imam Malik reported from Anas, may Allah be pleased with him, that slaves of Abdul Rahman ibn Haatib stole a camel from a man of Muzayna and slaughtered it. This was brought to Umar, may Allah be pleased with him, who said: “O Kabeer ibn al-Salt, go and cut off their hands.” When they departed, Umar, may Allah be pleased with him, called them back and said: “By Allah, if I did not know that you employ them and starve them such that if one of them were to eat what Allah has forbidden, it would be permissible for him, I would have cut off their hands. I swear by Allah, if I did not do so, I would have imposed a fine on you that would hurt you.” He then asked the Muzani: “How much was the price of your camel?” The Muzani replied: “I would have prevented it for four hundred dirhams.” Umar instructed Ibn Haatib: “Give him eight hundred dirhams” [Muwatta’ Malik].

Similarly, Umar, may Allah be pleased with him, forbade cutting off hands during the year of famine, saying: “Do not cut off hands during a year of hunger or during a year of drought” [Kanz al-‘Ummal]. As-Sa’di said: “I asked Ahmad ibn Hanbal about this hadith, and he said: ‘A drought refers to a date palm.’ I asked Ahmad: ‘Do you act upon it?’ He replied: ‘Yes, by my life.’ I asked: ‘If someone steals during a famine, do you cut off their hand?’ He said: ‘No, if necessity drives them to it and people are in famine and distress.’ Umar’s prohibition of cutting off hands during a year of famine suggests that the theft is due to dire necessity.

From these reports, it is evident that Umar, may Allah be pleased with him, understood from the legislation of cutting off hands that it should only apply to cases of pure material aggression. When it became clear to him that these slaves committed their act due to hunger and deprivation, he did not see fit to enforce the theft penalty.

All texts confirm that rulings were legislated for specific reasons and objectives, and they revolve around their reasons in existence and non-existence. When the reason is absent, the ruling is also absent.

The reason for mandating the cutting off of hands is material aggression against someone else’s property with criminal intent. The situation changed due to the necessity faced by the slaves who slaughtered the camel due to hunger, and similarly during a year of famine. Therefore, the ruling changed. When we consider Allah’s words: “As for the thief, the male and the female, amputate their hands…” [Surah Al-Ma’idah 38], we find that some understood “cutting off” and “hand” in a literal sense, where the hand refers to (the fingers) and so on. Others believed that “cutting off” includes the legs, based on Allah’s words: “The thief, the male and the female…”; had it not included the legs, it would have been stated as: “their hands.” Others understood “cutting off” and “hand” in a metaphorical sense, considering “cutting off” to mean “preventing” or “stopping,” and “hand” to mean “capacity.” They supported this interpretation with the verse: “But whoever repents after his wrongdoing and reforms, indeed, Allah will turn to him in forgiveness” [Surah Al-Ma’idah 39]. They did not see a place for cutting off hands from the fingers or up to the wrist given the presence of repentance, righteous deeds, and Allah’s forgiveness and mercy. It might be that replacing the punishment of cutting off hands with imprisonment, prevention, or restraint, in its broader meanings, is closer to the true meaning and implication of the verses [Surah Al-Ma’idah 38-39], and we align with those who interpret the verses in this manner.

9. Allah, the Almighty, says: “Among the People of the Scripture are some who, if you entrust them with a great amount of money, will return it to you, and among them are some who, if you entrust them with a single dinar, will not return it to you unless you are constantly standing over them” [Surah Al-Imran 75].

In “Nayl al-Awtar,” Al-Shawkani reported that the Prophet Muhammad ﷺ said: “There is no guarantee for the trustworthy.” This was narrated by Al-Bayhaqi from Ibn Umar, and Al-Suyuti stated that the hadith is weak. Based on this hadith, scholars have determined that the hand of a trustee is considered a trust, meaning that they are not liable if what is under their custody is lost or damaged unless it is proven that they acted negligently or carelessly. A craftsman or similar individual is considered a trustee for what the employer has given them to produce, such as a weaver, tailor, carpenter, and others. However, some people’s faith may weaken, leading them to act dishonestly, as mentioned in the verse.

After the time of the Prophet Muhammad ﷺ, there was a tendency for souls to lean towards dishonesty, leading to a decrease in trustworthiness as faith weakened. There was a need for a remedy that would protect the public interest by ensuring that the trustee (worker) would be more diligent in safeguarding what is in their possession and that the employer (owner) would be protected. Thus, the remedy was a shift in the ruling from not being liable to being liable. Imam Al-Bayhaqi cited several reports from Ali ibn Abi Talib, may Allah be pleased with him, demonstrating that he judged to hold workers liable for their trust. Among these reports is that he held a washer and a dyer liable, saying: “People are only corrected by this.”

We see this not only in the jurisprudence of the companions but also in the jurisprudence of the followers. For example, it is reported from Ali ibn Abi Talib, may Allah be pleased with him, where Ibn Sa’d relates in “Al-Tabaqat” that Urwah ibn al-Zubair, who died in 94 AH, entrusted Abu Bakr ibn Abd al-Rahman ibn al-Harith ibn Hisham with money belonging to the children of Musab ibn al-Zubair. The money was lost or partially lost while in Abu Bakr’s possession. Urwah sent a message to Abu Bakr saying: “You are not liable; you are merely a trustee.” Abu Bakr replied: “I know I am not liable, but you would not let the Quraysh know that my trust has been ruined.” So, he sold some of his own possessions to compensate for the loss.

In this incident, we see that the loss of the trust or part of it with Abu Bakr ibn Abd al-Rahman was not due to negligence or carelessness on his part. Nevertheless, he insisted on being liable for the loss to avoid doubts about the trustworthiness of people like Abu Bakr ibn Abd al-Rahman, due to the weakening of faith among people. It is worth mentioning that Urwah ibn al-Zubair and Abu Bakr ibn Abd al-Rahman were among the seven jurists of Medina. Urwah was the son of Asma and al-Zubair, and the brother of Musab and Abdullah, while Abu Bakr ibn Abd al-Rahman, known as the monk of Damascus, was blind.

10. Allah, the Almighty, says: “And if you are in doubt about what We have sent down to Our Servant, then ask those who read the Scripture before you” [Surah An-Nahl, 16:43]. Allah, the Exalted, also says in the Qur’an: “Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. But if you divorce her for the third time, she is not lawful to you afterward until she marries a husband other than you” [Surah Al-Baqarah, 2:229-230].

Imam Muslim, in his Sahih, narrates from Ibn Abbas (may Allah be pleased with him) that during the time of the Prophet (peace be upon him), Abu Bakr, and the early caliphate of Umar, the three divorces were considered as one. However, Umar ibn al-Khattab (may Allah be pleased with him) observed that people were rushing into divorce, which required deliberation and careful consideration. Therefore, he decided to enforce the three divorces as separate occurrences to prevent hasty divorces and to preserve the marital relationship as much as possible.

From this narration, we can deduce two things:

1. During the time of the Prophet (peace be upon him), Abu Bakr, and the early caliphate of Umar, three divorces given at once were considered as one.
2. Umar ibn al-Khattab (may Allah be pleased with him) decided to change this practice due to changes in people’s behavior towards divorce, emphasizing that divorce should be carried out with deliberation and caution due to its serious consequences for the family and society.

Translation:

11- Allah, the Almighty, says: {O you who have believed, when you contract a debt for a specified term, write it down. Let a scribe write [it] between you in justice. Let not the scribe refuse to write as Allah has taught him.} [Al-Baqarah: 282]. This verse highlights the importance of documentation and justice in financial transactions, emphasizing the need to record debts and witness testimonies to avoid disputes and conflicts. The terms “shahid” (witness) and “shuhada” (witnesses) are derived from the root that signifies testimony or giving knowledge about a specific event. It refers to reporting what a person has witnessed or knows, and testimony is considered a personal duty if a person is called to testify and there is fear of the loss of rights.

Testimony is obligatory: if a person is called to testify and there is a fear of losing rights, and if they are capable of doing so without harm to their body, honor, family, or property. Allah says: “And do not conceal the testimony. For whoever conceals it – his heart is indeed sinful.” [Al-Baqarah: 283]. Allah also says: “O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves, your parents, or your relatives.” [An-Nisa: 135].

Testimony is recommended: if there are many witnesses and there is no fear of losing the right. The conditions for acceptance of testimony include: justice, maturity, sanity, the ability to speak, memory, accuracy, and the absence of bias due to affection or animosity. However, some scholars, including Umar ibn al-Khattab, Shurayh, and Umar ibn Abdul Aziz, disagreed with these conditions. They allowed testimony of a child for a parent, a parent for a child, a son for a mother, a mother for a son, and a servant supported by the household owner, even though Aisha (may Allah be pleased with her) narrated that the Prophet (peace be upon him) said: “The testimony of a traitor or treacherous person, or a person with enmity towards his Muslim brother, or the testimony of a child for a parent, or a parent for a child is not accepted,” and in another narration: “Nor the testimony of a servant for the household.” [Fiqh as-Sunnah, p. 329].

Ibn Qayyim al-Jawziyyah mentions in his book “I’lam al-Muwaqqi’in” that Ibn Nafi’ al-Humayri reported that Umar ibn al-Khattab allowed the testimony of a parent for a child and a brother for a brother. As al-Zuhri said: The righteous predecessors were not suspected of bias in the testimony of a parent for a child, a brother for a brother, or a husband for a wife.

Ibn Qayyim al-Jawziyyah also notes that Shurayh the judge allowed a woman’s testimony from her father and husband in several cases. When a party in one case said: “This is her father and this is her husband,” Shurayh replied: “Do you know of anything that would discredit their testimony? Every Muslim’s testimony is valid.”

Ibn Qayyim also notes that Umar ibn Abdul Aziz allowed the testimony of a son for his father if the son was just. This understanding is based on the apparent meaning of the previous verses, which required that the witness be someone whose condition and trustworthiness are acceptable, meaning they must be just and truthful. Over time, people’s circumstances changed, leading rulers to suspect people’s statements. Hence, the testimony of relatives was rejected if there was suspicion.

Muhammad ibn al-Hasan al-Shaybani, a disciple of Abu Hanifa, states: “We were told by al-Haytham from Shurayh that there are four types whose testimony is not accepted for one another: a woman for her husband, a husband for his wife, a father for his son, a son for his father, and a partner for his partner, and those punished for false accusations.”

Shurayh rejected the testimony of Hasan for his father Ali (may Allah be pleased with them both) in a case against a Jew, asking for another witness instead of Hasan. The narration states: Abu Nu’aym mentioned in “al-Hilya” that:
“Ali ibn Abi Talib (may Allah be pleased with him) found his armor with a Jew who had picked it up. He recognized it and said: ‘This is my armor that fell from my mule.’ The Jew said: ‘It is my armor and is in my hand.’ The Jew then said: ‘Let us go to the judge of the Muslims,’ and they went to Shurayh.

Shurayh asked: ‘What do you want, O Commander of the Faithful?’ Ali said: ‘This armor fell from my mule, and this Jew picked it up.’

Shurayh asked the Jew: ‘What do you say?’ The Jew replied: ‘It is my armor and is in my hand.’

Shurayh said: ‘You have spoken the truth, O Commander of the Faithful, but we need two witnesses.’

He called Qanbar and Hasan ibn Ali, who testified that it was Ali’s armor.

Shurayh said: ‘We accept the testimony of your freed slave (Qanbar), but we do not accept the testimony of your son (Hasan).’

Ali said: ‘Did you not hear Umar ibn al-Khattab (may Allah be pleased with him) say that the Prophet (peace be upon him) said: ‘Hasan and Husayn are the leaders of the youth of paradise?”

Shurayh said: ‘Yes.’

Ali said: ‘Then why do you not accept the testimony of the leader of the youth of paradise?’

Shurayh said to the Jew: ‘Take the armor.’

The Jew said: ‘The Commander of the Faithful came with me to the judge of the Muslims who ruled in my favor and was satisfied. By Allah, O Commander of the Faithful, it is your armor that fell from your mule. I picked it up. I bear witness that there is no deity but Allah and that Muhammad is the Messenger of Allah.’

Ali (may Allah be pleased with him) then gifted it to him and gave him nine hundred [dirhams]. The Jew was killed with him on the day of Siffin.”

We have two opinions regarding the testimony of relatives in these narrations:

1. Adherence to the Qur’anic texts regarding accepting the testimony of relatives for each other, as was practiced during the time of the Companions and some of the Tabi’un like Shurayh the judge during the caliphates of Umar and Uthman (may Allah be pleased with them). The verses required only that the witness be just, and it was known that the default for a Muslim is justice, especially the righteous predecessors who were not suspected of bias in accepting the truth, even if it was about relatives.
2. Rejection of the testimony of relatives, as done by some Tabi’un, including Shurayh the judge during Ali’s caliphate, because close kinship became a source of bias and suspicion in truth-telling due to the change in people’s piety and integrity over time. Since the goal of testimony is to achieve justice for individuals and communities, this goal is best achieved by excluding the testimony of relatives due to this bias.

Therefore, Shurayh himself rejected the testimony of relatives after having accepted it in many cases. It is worth noting that Shurayh lived for 120 years, as mentioned by Ibn Qutaybah in his book “Al-Ma’arif,” and served as a judge in Kufa during the caliphate of Umar ibn al-Khattab (may Allah be pleased with him) and for more than seventy years after him. This long period saw a change in people’s circumstances and opinions about testimony, demonstrating that legal rulings evolve with their underlying reasons and objectives to continuously achieve the objectives of Sharia in serving the interests of the people.

12- Allah, the Almighty, says: {The only reward of those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption and corruption is that they be killed or crucified or that their hands and feet be cut off on opposite sides or that they be exiled from the land. That is for them a disgrace in this world, and for them in the Hereafter is a great punishment, except for those who repent before you have overpowered them. And know that Allah is Forgiving and Merciful.} [Al-Ma’idah: 33-34].

In Muntaqa al-Akhbar reported by Ibn Abbas, as narrated by Imam al-Shafi’i in his Musnad, it is stated that: (If they kill and take wealth, they are killed and crucified. If they kill without taking wealth, they are killed but not crucified. If they take wealth without killing, their hands and feet are cut off on opposite sides. If they terrorize the road without taking wealth, they are exiled from the land.)

The question is: Can a highway robber’s repentance be accepted after committing crimes against lives and property, and not be subject to the prescribed punishments for such crimes? The verse is explicit in accepting such repentance if it occurs before they are overpowered, without distinction between Muslims and non-Muslims, as it implies generality. Allah says: {Except for those who repent before you have overpowered them. And know that Allah is Forgiving and Merciful.} [Al-Ma’idah: 34].

The acceptance of repentance is limited to the removal of the punishment for rebellion and corruption on earth, while other rights remain intact. The actions of the Companions were in line with this. For instance, al-Bayhaqi reports from al-Sha’bi that Uthman ibn Affan (may Allah be pleased with him) appointed the esteemed companion Abu Musa al-Ash’ari. When Abu Musa prayed the Fajr prayer, a man from Murad came and said: “What is the status of a repentant fugitive? I am so-and-so, who fought against Allah and His Messenger. I have come repentant before you can overpower me.” Abu Musa (may Allah be pleased with him) replied: “He came repentant before you could overpower him, so he should only be treated well.”

Similarly, in Jami’ al-Bayan fi Tafsir al-Qur’an by Abu Ja’far al-Tabari, it is mentioned that Ali ibn Abi Talib (may Allah be pleased with him) accepted the amnesty request for Harithah ibn Badr, who was a rebel during Ali’s caliphate. When Harithah approached and asked about the punishment for those who wage war against Allah and His Messenger, Ali replied with the verse: {The only reward of those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption…} [Al-Ma’idah: 33]. He then cited the exception: {Except for those who repent before you have overpowered them. And know that Allah is Forgiving and Merciful.} [Al-Ma’idah: 34]. When asked if this applied to Harithah ibn Badr, Ali confirmed that it did. Harithah was brought to Ali, who accepted his pledge and granted him safety.

However, during the time of the Tabi’un, with the passage of time, the ruling changed. Urwah ibn al-Zubair (may Allah be pleased with him), one of the seven jurists of Medina, rejected the acceptance of such repentance. Imam al-Tabari reports from Hisham ibn Urwah that they asked Urwah about someone who had committed punishable offenses and then came repenting. Urwah replied: “His repentance is not accepted. If it were accepted, it would encourage them and lead to great corruption.”

It is clear that the acceptance of repentance by Uthman and Ali (may Allah be pleased with them) and approved by other Companions was an application of the apparent meaning of the Qur’anic text: {Except for those who repent before you have overpowered them. And know that Allah is Forgiving and Merciful.} [Al-Ma’idah: 34]. This application achieved the Sharia’s objective of rehabilitating these individuals and reintegrating them into the Muslim community rather than allowing them to continue as adversaries and corrupters. This approach served a confirmed public interest.

However, Urwah ibn al-Zubair (may Allah be pleased with him) viewed the rejection of repentance before one is overpowered as necessary due to the resulting corruption in his time. He believed that accepting repentance could be a means to evade punishment and show defiance against divine prohibitions. This ruling aligns with the interest of deterring criminals from committing offenses and meeting the Sharia’s goals of deterrence and justice.

Here is the translation of the text into English:

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14- Allah Almighty says:
“For men is a share of what their parents and close relatives leave, and for women is a share of what their parents and close relatives leave, whether it be a small amount or a large amount—a fixed share. And when the division is made, the relatives, the orphans, and the needy should be given something from it and speak to them a noble word.” [Quran 4:7-8].

Allah Almighty also says:
“Allah instructs you concerning your children: for the male, what is equal to the share of two females. But if there are [only] women more than two, then for them is two-thirds of what he left; and if there is one [female], then for her is half. And for his parents, for each one of them is a sixth of what he left if he had a child. But if he did not have a child and the parents alone inherit from him, then for his mother is one-third. And if he had brothers [and sisters], then for his mother is one-sixth, from after any bequest he [may have] made or debt. Your parents and your children—you do not know which of them are nearest to you in benefit. [This is] an ordinance from Allah. Indeed, Allah is Knowing and Wise. * And for you is half of what your wives leave if they do not have a child. But if they have a child, then for you is one-fourth of what they left, from after any bequest they [may have] made or debt. And for them is one-fourth of what you leave if you do not have a child. But if you have a child, then for them is one-eighth of what you leave, from after any bequest you [may have] made or debt. And if a man or a woman whose inheritance is to be divided has no descendants but has a brother or a sister, then for each of them is one-sixth. But if they are more than that, they share a third, from after any bequest that was made or debt, not to harm [the heirs]. [This is] a decree from Allah. And Allah is Knowing and Forbearing. * These are the limits [set by] Allah. And whoever obeys Allah and His Messenger, He will admit him to gardens beneath which rivers flow, abiding eternally therein. And that is the great attainment. * And whoever disobeys Allah and His Messenger and transgresses His limits—He will put him into the Fire, abiding eternally therein, and he will have a humiliating punishment.” [Quran 4:11-14].

Allah Almighty also says:
“They ask you for a legal verdict. Say, ‘Allah gives you a legal verdict concerning the kalalah. If a man dies without children but has a sister, she will have half of what he left. And he will inherit her if she has no child. But if there are two sisters, they will have two-thirds of what he left. And if they are siblings—men and women—then the male will have the share of two females. Allah makes clear to you [the laws] lest you go astray. And Allah is Knowing of all things.’” [Quran 4:176].

All the aforementioned verses are from Surah An-Nisa, and there are some verses from Surah Al-Anfal that address some inheritance rules, though their implications are general.

Allah Almighty says:
“And those who believed afterward and emigrated and strove with you—these are of you. And those of blood relationship are more entitled to each other in the Book of Allah. Indeed, Allah is Knowing of all things.” [Quran 8:75].

Inheritance law derives its rulings from the Quran, the Sunnah of the Prophet, and the consensus of the Companions of the Prophet. Before Islam, however, Arab women were not given any share of inheritance on the grounds that they did not fight or defend the tribe. An Arab saying goes: “How can we give wealth to one who does not ride a horse, wield a sword, or fight an enemy?”

According to Ibn Abbas (may Allah be pleased with him), the Prophet ﷺ said: “Allocate the shares of inheritance to their rightful heirs, and what remains is for the nearest male relative.” [Reported by Bukhari and Muslim].

According to Jabir ibn Abdullah (may Allah be pleased with him), a woman came to the Prophet ﷺ with her two daughters and said: “O Messenger of Allah, these are the daughters of Saad ibn Ar-Rabi, whose father was martyred with you at Uhud. Their uncle took their wealth and left them without anything, nor can they marry except with a dowry.” The Prophet ﷺ replied: “Allah will decide about that.” Then the verse on inheritance was revealed, and the Prophet ﷺ sent to their uncle, saying: “Give the two daughters of Saad two-thirds, their mother one-eighth, and what remains is for you.” [Reported by the five hadith collectors except An-Nasa’i].

It is reported that this was revealed regarding Abdul-Rahman ibn Thabit, brother of the poet Hassan ibn Thabit, who died leaving a wife known as Umm Kihah and five daughters. When the heirs came to claim the wealth, Umm Kihah complained to the Prophet ﷺ, and the verse of inheritance was revealed.

According to Zaid ibn Thabit, he was asked about a husband and a sister (both from two parents) and gave the husband half and the sister half, saying: “I witnessed the Prophet ﷺ rule this.” [Reported by Imam Ahmad].

According to Huzayl ibn Sharhabil, Abu Musa was asked about a daughter, a granddaughter, and a sister, and he said: “The daughter gets half, the sister gets half. Go to Ibn Mas’ud, and he will confirm this.” When asked, Ibn Mas’ud said: “I have gone astray if I follow this. I will judge as the Prophet ﷺ did: the daughter gets half, the granddaughter gets one-sixth, and the remainder is for the sister.” [Reported by the majority except Muslim and Bukhari].

According to Qubaysah ibn Dhu’ayb, a grandmother came to Abu Bakr asking about her inheritance. He said: “There is nothing for you in the Book of Allah, and I do not know anything from the Sunnah of the Prophet ﷺ, so return until I consult others.” He then consulted and found that Mughira ibn Shubah reported: “I witnessed the Prophet ﷺ give her one-sixth.” Abu Bakr asked if anyone else was present, and Muhammad ibn Maslama confirmed the same, so Abu Bakr gave her the one-sixth. Later, another grandmother came to Umar, and he said: “You have nothing in the Book of Allah, but the share is that one-sixth. If you both agree, it will be divided between you. If one of you is alone, it will be hers.” [Reported by the five collectors except An-Nasa’i, and authenticated by At-Tirmidhi].

According to Abdul-Rahman ibn Zaid, the Prophet ﷺ gave three grandmothers one-sixth each: two from the father’s side and one from the mother’s side. [Reported by Ad-Daraqutni].

According to Al-Miqdad ibn Al-Aswad, the Prophet ﷺ said: “Whoever leaves behind wealth, it is for his heirs. I am the heir of one who has no wealth. I take responsibility for him and inherit from him. The maternal uncle inherits from one who has no heir, taking responsibility for him and inheriting from him.” [Reported by Ahmad, Abu Dawood, and Ibn Majah].

The foundations of inheritance are three: (1) an inheritor, (2) an heir, and (3) an inheritance right. Inheritance, as established by the Quran, Sunnah, and consensus of the Companions and their successors, is of two types:

1. Fixed Share Inheritance: In linguistic terms, “share” means a portion or fixed amount. Legally, it is a portion of the estate determined by religious texts. The fixed shares mentioned in the Quran are: one-half, one-fourth, one-eighth, two-thirds, one-third, and one-sixth. There is also a seventh share established by scholarly consensus: one-third of the remainder.
2. Inheritance by Kinship: Kinship is the inheritance of those who do not have a fixed share but inherit the entire estate if they are the only heirs, with the remainder going to those with fixed shares.

The Companions and subsequent scholars have also recognized other types of inheritance such as inheritance by “Radd” (residual inheritance) and by “right of kinship”. These types have been accepted by the Muslim community due to the strong evidence from the Sunnah.

The Prophet ﷺ said: “Learn the Quran and teach it, and learn the laws of inheritance and teach them to the people, for I am a man about to be taken away, and this knowledge will be taken away, and trials will appear until two people dispute over an inheritance issue and cannot find anyone to judge between them.” [Reported by Ahmad from Ibn Mas’ud].

He also said: “Knowledge is of three types: a clear verse, a standing Sunnah, or an equitable obligation. Everything else is superfluous.” [Reported by Abu Dawood and Ibn Majah from Abdullah ibn Amr].