Hatem al-Haj – QWD023 Coherence of Sharia – Continuation of Second Maxim
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The speakers discuss various topics related to the "will" factor in legal cases, litigation, and litigation. They emphasize the importance of the "will" factor in legal cases and litigation, and stress the importance of the "will" factor in legal cases and litigation. They also discuss various scenarios and their implications for people's views of the legal system of Islam, including default assumptions and the need for certainty in actions. They stress the importance of certainty in actions and the need for conservative assumptions in actions.
AI: Summary ©
Bismillah, alhamdulillah, salallahu alayhi wa sallam, wa ala
alihi wa sahbihi wa man wala thamma amma
ba'd.
So, today, inshallah, we will go over al
-qawa'id, al-fawa'id, al-dawabit, the
guidelines and benefits of the second major legal
maxim, that's al-yafin la yazul bishak, certainty
is not overruled by doubt.
And I have one dawabit only and one
fa'ida only under this section, which is
ghalabat al-dhan mu'tabara fil ghalib.
That's predominant assumption is generally taken into account
or generally considered.
Generally taken into account or generally considered.
Ghalabat al-dhan mu'tabara fil
ghalib.
We started to talk about this last time.
Ghalabat is predominant al-dhan assumption or presumption
mu'tabara considered fil ghalib in general.
Fil ghalib in general.
So, ghalabat al-dhan mu'tabara fil ghalib.
Predominant assumption is considered in general or generally
taken into account or consideration.
And we've talked about the different degrees of
dhan and yaqeen, the spectrum.
And we said yaqeen is 0% and
100%.
And shak, doubt, is 50-50.
And dhan is anywhere from 51 to 99%.
And wahm, conjecture, is anywhere from 1%
to 49%.
And we said last time, la'ibrata bi'tawahum.
La'ibrata bi'tawahum.
This is the qa'ida.
The qa'ida says that conjecture is not
given any consideration.
Conjecture is not given any consideration.
And that would make perfect sense because the
qa'ida tells us that shak is not
given consideration against yaqeen.
Shak is the 50-50.
If you're talking about conjecture that is even
less than 50%, then of course, la'ibrata
bi'tawahum, conjecture is not considered.
And there are some nuances to this.
Sometimes they consider shak and sometimes they consider
even less than shak.
But that is the qa'ida in general
to be aware of.
And one of the applications of al-qa
'ida that we did not mention last time
and I would like to mention this time
before I proceed to addressing ghalabat al-dhan,
applications of la'ibrata bi'tawahum, is if you
have a pregnant woman die and her fetus
is inside her, what do you do?
A pregnant woman dies, her fetus is inside
her.
Keep in mind, they're talking about their circumstances.
Shak al-batn is not a caesarean section.
Shak al-batn is to open her stomach
up and get the baby.
This used to be not a caesarean section.
This used to be quite a messy thing
because they would do it with a knife
and stuff.
Now, so what do we do here?
This is a matter that is controversial among
the mazahib.
In our mazahib, we don't get the baby
out.
Because la'ibrata bi'tawahum will work in mazahib.
Even if the baby is alive, you don't
get the baby out because the sacredness of
her body is certain or not.
Certain.
The life of the baby is mutawaham or
certain.
Mutawaham.
It's a fetus inside.
Like we don't know if this is alive,
not alive.
So haya mutawahama.
It is assumed.
Assumed that there is a baby inside and
that baby is still alive.
Therefore, you don't get the baby out.
What about trying to bring it out from
the canal?
They allow women to do this.
They don't allow men to do this.
Because the sacredness of her body is certain.
The life of the baby is not certain.
So here la'ibrata bi'tawahum will overrule.
So this is one thing that I feel
a little bit uncomfortable about.
Because if there is a life, you know,
life is sacred, you want to save that
life.
Yes, there are many scholars who said you
open the abdomen and you get the baby
out.
But it is important also to know that
this is subject to discussion in our tradition
and in our madhhab.
The dominant view does not allow us to
open because it shows that our fuqaha, because
they talk a lot about al-fiqh al
-dhikr, and al-fiqh al-dhikr means male
-dominated fiqh.
And in all honesty, it is male-dominated.
And in all honesty, the fuqaha sometimes may
not be quite aware of problems that the
women have.
That's natural.
But there are no ill-intents there.
You know, the fuqaha were not trying to
subjugate and subdue women.
And they were well-meaning.
Therefore, you know how prized children are to
them.
And despite that, they are saying you don't
touch her.
You don't open her up to get the
child out.
Because her body is sacred.
So women were not basically a reproductive machine
for them.
Women were like sacred humans that are not
to be treated like a reproductive machine.
Had the thought of women as reproductive machines,
no one would have argued, Yes, get the
baby out.
Open her up, get the baby out.
But that's not the case here.
Then today, inshallah, we will try to be
as fast as we can.
Because we want, I wish I can finish
this.
I hope I will be able to finish
it.
Because it will be very helpful if we
get it all together.
Even if I go over by a few
minutes.
I will try to finish this particular qa
'ida.
غلبة الظن معتبر في الغالب Or predominant assumption
is considered in general or generally taken into
account.
So in the 159th qa'ida or maxim
of Ibn Rajab.
He is basically the one known for his
qa'ida in the Hanbali Madhhab.
In his 159th qa'ida or maxim, he
discusses a particular scenario.
Where you have غلبة الظن competing with defaulted
presumption.
الأصل إذا تعارض الأصل وغلبة الظن So غلبة
الظن.
If there is a conflict between الأصل which
is what?
Original or default assumption or presumption.
Original or default assumption or presumption.
Conflicts with apparent indicators.
Apparent indicators.
So I have an apparent indicator that is
pointing to one direction.
That is different from the default assumption.
The default assumption.
So then we will see how the applications
will make this clear.
But we will see here that they will
divide this into four different categories.
Four different divisions.
The first division is if the apparent indicator
is a legal proof.
Is a shari'a proof.
Is a shari'a hajjah.
Such as two witnesses.
There is a land.
Someone lives on the land.
So the default presumption is that it belongs
to them.
I have now two credible witnesses come and
testify on behalf of a claimant.
That this land is theirs.
And it was sold to them on such
and such day.
This is a shari'a hajjah or not.
Two credible male witnesses.
Shari'a hajjah.
So in this case, what am I going
to do?
Am I going to say we have two
competing factors here?
We have the default presumption that this person
on this land owns it.
And I have an apparent indicator.
No, I'm not going to say this at
all.
If it is a shari'a hajjah, it
rules.
Shari'a hajjah rules.
So two credible witnesses will rule.
Certainly, if there are other indications, things will
be investigated.
But if we're talking about default presumption and
two credible witnesses, two credible witnesses will rule
over the time.
Likewise, you know, because there are many, many
indicators.
It's not just two witnesses.
I don't know if I shared this particular
article that I wrote recently with you, or
not yet, in your folder.
But if I haven't, I will, inshallah.
It's about an article about the Muslims' stance
toward ethical crises and scandals and things of
that nature.
And I talk in this article about the
evidence in Islam or legally admissible evidence in
Islam.
It's not limited to the two male witnesses
that some people think about.
It's a lot more than this.
But anyway, I just wanted you to know
that shari'a hajjah and Islam is not
limited to two witnesses or one male witness
and two female witnesses or these things.
But then, the first one, you have hajjah,
shari'a, or legal evidence.
Here, so we have al-asn and al
-zahir.
Al-asn is the default presumption.
Al-zahir is the apparent indicator.
Apparent indicator.
So here, al-asn, here al-zahir, which
is the apparent indicator, will
always beat al-asn, will always overrule al
-asn.
Always overrule al-asn.
Because al-zahir is a legal evidence.
Al-zahir is a legal evidence.
Now, we have certain scenarios where, we have
other scenarios where al-asn will beat al
-zahir.
According to the madhhab.
We have other scenarios where al-zahir will
beat al-asn.
You may say that this is like this.
Number three is like number one.
Al-zahir will beat al-asn.
But they wanted to separate this to say,
there is no discussion here.
It's a hajjah shari'a.
You know, it's something that, you know, the
shari'a established to be a hajjah.
So there is no discussion here.
There is discussion here.
And then we have the last category is
when they disagree inside the madhhab.
Disagree inside the madhhab.
Does al-asn beat al-zahir?
Or does al-zahir beat al-asn?
Or overrule al-asn?
So let's take some examples.
So under this first category, we said the
witness of testimony of two people.
Testimony of one person when it's not in
court.
When one trustworthy person tells you, I saw
a dog lick this dish.
You go by what they say?
Yes.
One trustworthy person would, you know, you go
by what they say.
Again, at the same time, entrance of prayer
time.
One trustworthy person tells you.
The mu'azzin all the time.
Don't we just follow the mu'azzin?
Does everybody sort of check out if the
mu'azzin is right or not?
No.
So we follow the one trustworthy person.
Testimony of a single person also regarding the
entry of Ramadan.
And that's one of the positions in the
Hanbali Madhhab.
That testimony of a single witness starts the
month of Ramadan.
So sometimes the disagreements that you see between
people over the beginning and end of Ramadan,
some of these disagreements are not all related
to personality and are not all related to
be people being like, you know, as some
people think that people are just being egotistic
and everybody is clinging to their own positions,
but they are, they are based in disagreements
and disagreements.
Some of them are based in fiqh disagreements.
So this is the first category.
Is this category clear?
When you have a hajj al-shari'ah,
there is no discussion.
You go by the hajj al-shari'ah.
Hajj al-shari'ah is not always two
witnesses.
Someone tells you, you know, one trustworthy person
tells you the prayer time started.
The qibla is this way.
I saw a dog lick this dish.
You go by what they say because the
apparent indicator here, why would I disbelieve, you
know, that person?
We also go by one credible testimony in
accepting reports from the Prophet ﷺ.
Al-Hadith, you know, in the chain of
narration, if you have one credible person from
one credible person from one credible person, that's
an acceptable chain.
Okay, second category, instances where the original assumption
al-asl is upheld, ignoring the apparent indicators,
ignoring the apparent indicators.
So al-asl will be to the apparent
indicator.
I will ignore the apparent indicator.
I will go by the default assumption.
Here are some examples.
For instance, if you doubt whether you broke
your wudu or not, you still have your
wudu.
If you doubt if pure water has been
made impure or not, in this case, here
al-asl will beat.
If you doubt whether impurity have basically impurity,
whether it is ritual impurity or physical impurity,
you will go by al-asl until otherwise
proven.
And Ibn al-Laham, in his Fawa'id
al-Usuliyyah, says the following.
It says it's impermissible to sell items intended
for prohibited uses, such as grape juice, to
someone who would make wine or something similar.
Several of our ashab or fellows said this
applies if such knowledge is certain.
So here they disagreed whether, like, if you
sell grapes, for instance, to someone who would
make wine of the grapes.
Do you need to be certain that they
will sell, that they will make wine of
it, and that is when it becomes haram?
Or your predominant assumption, ghalabat al-dhan, would
make it haram for you to sell it?
So, you know, most of the ashab, most
of the fellows in the madhhab had said
you need to be certain.
You have to have ilm, not dhan.
Ilm, knowledge, certainty, not dhan.
But al-Imam Abu al-Abbas, that's Taqayddin
ibn Taymiyyah, he goes by ghalabat al-dhan
all the time.
He thinks that ghalabat al-dhan will always
overrule unless otherwise indicated.
So he basically tarada qa'idatahu.
He stayed committed to the qa'ida of
ghalabat al-dhan will rule.
And he also cited that the al-ashab,
that's our Hanbali fellows, had said that if
you have ghalabat al-dhan, that your tenant
will use whatever it is that you lease
out to them in haram purposes, that this
would be forbidden.
So he says they use the ghalabat al
-dhan here, and sales are like leases.
If you're saying you can't lease to them
if you have predominant assumption that they will
use it in something haram, you can't also
sell to them if you have a predominant
assumption that they will use it for something
that's haram.
Okay, another example where ghalabat al-dhan, purity,
that is ritual, and here are sales because
even though al-Imam Abu al-Abbas said
that predominant assumption will overrule, most of the
ashab said you need to have knowledge.
Predominant assumption will be ignored.
And then if a wife, after a prolonged
period of living with her husband, claims that
he failed to provide her with the obligatory
maintenance.
So a wife that's been living with her
husband for two or three years, and then
she goes to court and says that he
was not spending on me.
Now, you know, it may be a little
bit different nowadays.
It may be a little bit different nowadays
because it's maybe a little bit more possible.
But in their times, that was not actually
quite possible.
So why are you coming today to complain?
Why have you not complained before?
So the dominant position in the madhhab is
what?
We believe the wife or the husband who
says, because what does the wife have on
her side?
The asla or the apparent indicator.
Al-asla is that she didn't receive any
nafqa.
Because nafqa is a positive action, you know,
to give people, that's a positive action.
Non-existence is the original or default assumption,
non-existence.
I didn't get anything.
She didn't get anything.
Prove it that she got something.
The apparent indicator is what?
No, I mean, she's been living with him
for a couple of years and she hasn't
complained about it before.
So predominant assumption here is that he was
spending on her.
I mean, let's say she came after 15
years and said, he hasn't been spending on
me.
I need my nafqa.
So here, most of the ashab said, we
will believe the wife.
Remember what Abbas said?
No, it will be basically, we will go
by the apparent indicators.
Customary, the custom rules this out.
Customs rule this out.
If someone is certain about the presence of
purity or impurity in water and clothing, we
did talk about this in marriage, divorce and
related matters.
So we said this before.
If someone is in doubt whether they divorced
their wife or not, did they divorce their
wife?
No, they did not.
They did not.
Because what is the default assumption?
Default assumption is the continuity of marriage.
Continuity of marriage.
Marriage was established by certainty or not.
Yes, they got married, they had the witnesses.
Okay, now they are married.
That is called what?
Default assumption.
Default assumption will continue until we get out
of it by certainty.
By certainty.
So here, apparent indicators of zahir will be
disregarded, will be dismissed.
Because of the sacredness of the contract, it
will be dismissed.
So if you are thinking about whether you
said I divorced you or not, if you
are thinking about the conditions of divorce, conditions
of divorce and contingency, if you say, if
you do this or you do that, and
you are in doubt whether this happened or
did not happen, then we will go by
al-asda.
Al-asda is the continuity of marriage.
And we will disregard anything.
Even if ghalab al-dhan is what?
99%.
Now, is 99% yaqi?
It is very hard because we're just trying
to make things a little bit simpler.
But people in their minds, they can't really,
they don't have a meter for this.
But what they want to tell you is,
even if it is predominant assumption, even if
you think most likely, when you say most
likely, that is ghalab al-dhan, predominant assumption.
If you say, most likely I divorced her,
she is still your wife.
Most likely I divorced her, she is still
your wife.
Okay.
Now, doubt about the onset of fajr in
Ramadan.
If you're in doubt whether the fajr came
in or not, fajr has not come in.
Because fajr, not in Ramadan in general, but
if you're fasting, can you continue to eat
until you're certain that fajr came in?
Yes.
Because here, al-asl is what?
Baqa al-layl, the continuity of the night.
Not the entrance of the time of fajr.
That's not al-asl.
So that's another one.
Now the third category, instances where apparent indicators
of zahir are followed, ignoring the original assumption
al-asl.
So here, we will ignore al-asl, and
we will go by al-zahir.
We did it here, but here we have
a hajj al-saraiyyah, so we didn't have
to think about it.
We will do it here, and then we
will need to compare between this and this
and that category, and why did they give
precedence to al-asl over al-zahir, al
-zahir over al-asl, and why did they
disagree here.
At the end of our talk today, insha
'Allah, we will talk about this, we'll address
this.
So, the third category.
If one doubts after completing a prayer or
any other act of worship, if you doubt
after completing a prayer or any act of
worship, whether you fulfilled the conditions of the
prayer or not, after completing the prayer, you
doubt, did I pray three or four?
After completing the prayer, you doubt, did I
recite al-fatiha in the second rak'ah?
Did I, you know, make ruku'ah in
the third rak'ah?
You doubt something.
Then, what is al-asli here?
Al-asli here is that you have not
prayed, you have not done it, you have
not fulfilled the conditions, you know, you're not
clear of the obligation, you're still liable for
the prayer.
That is al-asli.
But al-zahir here is what?
The apparent indicator is what?
Apparent indicator is that when a Muslim performs
an act of worship, they perform it right.
When a Muslim performs an act of worship,
they perform it right.
So here, they gave precedence to al-zahir,
the apparent indicator, over al-asli, over al
-asli, the original or the default assumption.
And it's quite clear, you know, because if
people started to doubt what they have already
finished, the acts of worship that they have
already finished, this will lead to obsessiveness.
If someone predominantly assumes that the time for
prayer has entered, their prayer is valid.
So here you go by predominant assumption.
You go by predominant assumption for qiblah, you
go for the predominant assumption for the entry
of the time of the prayer.
If the predominant assumption is the time of
prayer entered, then, and we
said here after completion, in
terms of, okay.
Now, then breaking the fast is permissible based
on a predominant assumption.
Breaking the fast is permissible based on predominant
assumption that the time of maghrib is in.
A missing person's wife marries or remarries based
on predominant assumption.
So, you know, this is one of the
things that are a little bit difficult in
our tradition, you know, the wife of the
missing person, because some of the rules about
it are a little bit difficult.
But anyway, if, you know, that missing person,
we will give her, you know, in certain
circumstances, we will give her four years to
wait for him, or we will give him
four years.
She will be waiting for four years.
After the end of the four years, we
will allow her to get remarried for years.
Now the missing person in our times, you
know, many of the scholars, because there is
always a dialogue between the law and current
realities, always a dialogue.
So most of the scholars nowadays, they have
different fatawa, the majama, the scholars and so
on, because there is no reason for someone
to not be able to call or to
send like an email or something to say
I'm stuck here, you know.
But during their times, it was a little
bit different.
It was a little bit different.
So rules for the wife of the missing
person have changed, and this is one of
the things that changed with the passage of
time, because not, it's not because about time,
but because time and place are vessels for
circumstances and conditions.
You know, they, okay.
So anyway, when she gets remarried, what is
the default assumption?
The guy is still alive or not?
The guy is still alive.
Default assumption.
What's the apparent indicator?
It's been four years.
We haven't heard of him.
You know, it looks like he died or
something.
So that's the predominant assumption.
Here, the predominant assumption will rule, overrule al
-asr, will overrule al-asr.
If someone is raised in the abode of
Islam among Muslims, commits fornication, and then argues
I didn't know about it, I didn't know
it's haram, and you know, that.
What is al-asr?
Al-asr is he doesn't know, because knowledge
is a default assumption.
No, ignorance is the default assumption.
So al-asr here, he didn't know.
But the apparent indicator is what?
You know, you grew up in a Muslim
land among Muslims, no, please.
So here, the predominant assumption would overrule al
-asr.
Now, in support of this qaeda, grew up
in a Muslim land.
Okay, so in support of this qaeda, Shaykh
al-Saadi, rahimahullah, said, Iza qawiyat al-qara
'in quddimat ala al-asr.
Iza qawiyat al-qara'in quddimat ala al
-asr.
When the apparent indicators are strong, they are
given precedence over al-asr, or the default
assumption, if they are strong.
If the apparent indicators have become strong, they
are given precedence over the original assumption.
Now, the fourth category, scholars in the Hanbali
Madhhab disagreed among themselves whether we will give
precedence to al-asr or to al-zahir.
One of them is, if a dog inserts
its head into a vessel, and we don't
know if it licked or not, licked or
not, just inserted his head into the vessel,
but we're not sure.
So al-asr, it didn't lick.
Al-zahir, it licked.
So here, they will disagree.
They'll disagree.
Some of them will say it will go
by al-asr.
Some of them will say it will go
by al-zahir.
Clothing and utensils of non-Muslims.
Clothing and utensils of non-Muslims.
And this is something that you come across
because you live in non-Muslim lands.
So clothing and utensils of non-Muslims.
What is al-asr and what is al
-zahir?
Al-asr is that they are pure.
Al-zahir is that they are not.
Why is it al-zahir?
Because they don't follow the same sort of
rituals that we do, the same guidelines that
we do, and they may cook things in
the utensils that are not halal for us,
and things of that nature.
So we have three different positions in the
madhhab.
Permissibility, permissible, disliked, and prohibited unless washed.
Prohibited unless washed.
And so if it is prohibited, you know,
like the stronger position of the madhhab is
permissibility.
Unless you're quite confident, like you're certain that,
unless you're certain.
So certainty here will be overruled by certainty.
But if there is no certainty, the default
is permissibility.
Permissibility.
But these are all very strong positions in
the madhhab.
Permissible is strong.
Disliked is strong.
Prohibited unless washed also is somewhat strong, and
textually also it's strong.
And if it is basically, or prohibited
with a condition, with a contingency, it's prohibited
unless washed if the predominant assumption is strong,
that there is impurity.
So when is the predominant assumption stronger that
there is impurity?
For clothing, the clothing that are just like,
the clothes that cover the private parts, garments
that contact the private parts.
For utensils, the utensils are people who are
not careful about what they eat.
So people who slaughter the animals are not
halal for us.
And they also mentioned Christians versus Jews because
they eat pork.
So in this case, it would be prohibited
unless washed.
The default is easier for us.
In the madhhab, the default is permissibility.
Default is permissibility.
Because the Prophet ﷺ also was hosted, yes,
he was hosted by Jews, but it is
hard for us to basically address every one
of these details and to give it justice.
But there are evidences on the side of
the madhhab's chosen position of permissibility.
Clothes of children or those unmindful of purity.
There are three different opinions, three different opinions.
Clothes of children and those who are unmindful
of purity.
Disliked, not disliked, prohibited until washed.
So basically, the dominant position in the madhhab
is that it is disliked in the prayer.
Disliked in the prayer.
So when you hold your little baby in
the prayer, that is disliked until you're quite
confident that they are pure in their clothes.
Doubt in the number of prayer units.
So we have three different opinions that exist.
If two of the followers declare the imam's
error, okay, doubt in the number of prayer
units.
So if you're not sure whether you prayed
three or four, have you prayed three or
four?
The madhhab is, you pray three all the
time, whether you're the imam or the ma'moom.
But there are two different positions, other positions
in the madhhab.
One of them would say, investigate and go
by predominant assumption.
This is a position in the madhhab because
we have different reports.
One report the Prophet ﷺ said, One report
the Prophet ﷺ said, let him investigate and
go by predominant assumption.
Let him base it on certainty.
We have these two reports in the sunnah.
We have these two positions in the madhhab.
And then we have a sentence in the
madhhab in the middle, which says if there
are supportive indicators, such as an imam leading
the congregation, and no one is correcting him,
he goes by predominant assumption.
He goes by predominant assumption because there are
people there to correct him if he is
wrong.
So he goes by predominant assumption.
This position used to be supreme in the
middle generation of the madhhab.
The later generation of the madhhab, they dropped
to that position from the mu'tamid and they
authorized the position that we will always go
by certainty.
So base it on certainty, the lower number.
Clothes.
Okay, clothing.
And utensils.
And the one that we are talking about
here is number of units.
Number of rakaat.
Okay, now doubt in, so burial, burial.
If two people correct the imam, the imam
should go by the correction of two people.
Burial.
In the Islamic, so if you find someone,
we don't know their religion.
We don't know their religion.
You find them in the Islamic domain, you
find them outside the Islamic domain.
Is there a difference?
Yes, there is a difference because default assumption
outside the Islamic domain is what?
Not Muslim.
But is there another default assumption competing with
this?
كل مولود يولد على الفترة Every child is
born on the fitrah.
It's another competing default assumption, so we'll come
back to it later.
But default assumption in the land of Islam,
Muslim.
Default assumption in the land of, outside the
land of Islam, not Muslim.
So in the land of Islam, in an
Islamic domain, if you find someone and you're
not sure about their religion, if there are
no signs of belief or disbelief on them,
or if the signs conflict, if the signs
conflict, or there are no signs of belief
or disbelief on them, what do you do?
Muslim.
Default.
Yeah, find somebody in the land of Islam,
no signs on them, Muslim.
Default.
If only signs of disbelief are present, they
are not Muslim.
Only signs of disbelief.
However, they even disagreed in the madhab.
This is the dominant position.
They are not Muslim, but they disagreed in
the madhab.
So in the land of Islam, they disagreed,
even with signs of disbelief, whether they would
pray for them or not.
If they are not certain that they are
not Muslim, and there are just signs of
disbelief, you know, someone has a necklace with
a cross, it's a sign of disbelief.
But, you know, will we pray?
They even disagreed, because the default assumption here
in the land of Islam is that everybody
is Muslim.
But the dominant position is, if there is
a sign of disbelief, and you don't know
their religion, you don't need to extend the
final rights to them.
Conversely, in non-Islamic lands, if the deceased
bears a sign of Islam, they are prayed
over.
So, you know, keep a sign of Islam
on you.
I guess for the sisters, it's always easier.
They have, like, signs.
Conversely, so anyway, but they are prayed over.
Otherwise, they are not.
Another foundation presumption is that every child is
born on the fitrah.
So what about mixed halal and haram earnings?
So if someone has, their money is mixed,
you know, from haram and halal.
Keep in mind, if your money is mixed,
you go by predominant assumption and guesstimating how
much there is haram in the money, and
you donate it.
And you donate it.
It's a predominant assumption.
You go by ghalabat ad-dhan.
If the haram money cannot be determined accurately,
you go by predominant assumption and donate it.
Now, can I eat from your food?
Can I deal with you?
Can I eat from your food?
What should I do if your money is
mixed?
Here, in the Hanbali Madhhab, and I put
the note for you, just read it carefully,
because there is so much discussion about this.
It's a long footnote.
But I wanted to keep it here because
it is important.
You know, the long footnote from Al-Furwa
by Ibn Muflih.
And Al-Furwa is basically the broom of
the Madhhab.
It brings in all the different positions in
the Madhhab.
But you will find there four different positions.
Four different positions.
Maybe...
Okay.
Four different positions.
Permissible.
You know, it is permissible with dislike.
This is one position.
Impermissible.
Prohibited.
Prohibited.
But prohibited...
So we will have prohibited.
Period.
Prohibited if it is more than one third.
Prohibited if it is more than...
If it is the majority.
So majority is more than one half.
Prohibited if the haram in your money is
more than one half.
You know, eating from your food, like dealing
with you is prohibited.
One third.
That's another position in the Madhhab.
Or just prohibited.
And then impermissible.
Okay.
No.
Forget about this.
It's here.
So it's impermissible.
Period.
Impermissible if it is more than one third
or one half.
And permissible with, you know, karaha.
It's still somewhat disliked.
Which one is ultimately the position in the
Madhhab?
It is very, very difficult to judge because
at Imam Ahmad there are conflicting reports from
Imam Ahmad.
But you may say that if you know
specifically a particular, like a particular, like a
particular property or this money is haram, then
you must avoid this money.
If you are uncertain, you know, it's not
based on strong ghalabat al-dhan.
You're uncertain or the money is negligible, negligible
or you don't have that much certainty.
Negligible portion of the income is haram or
you don't have that much confidence that there
is haram.
On this side, it's halal.
It's halal for sure.
On the other side, if a specific property
is haram, haram.
In the middle between them, it is likely
permissible with dislike.
Likely permissible with dislike.
Because we have basically, even in furu'ah,
he will mention supportive evidence from like Abdullah
ibn Mas'ud, he said its benefit is
for you and its sin is on him,
you know, to eat from, like to accept
a gift from someone whose income is haram.
Its benefit is for you.
Its sin is on him.
So, it seems that this is the stronger
position.
It's dislike.
It's permissible with dislike.
And the degree of dislike is proportionate to
the degree of harma in his money.
You know, where is it coming from?
Haram and the portion of haram money in
his wealth.
So, the greater the portion of haram money
in his wealth, like someone, for instance, who
owns a liquor store, and that's all his
business.
He owns a liquor store, that is all
his business.
That's quite, you know, quite problematic.
So, here the degree of dislike, you know,
is certainly in the highest.
Or someone whose income is only from riba,
something of that nature.
Then, so these examples that we have given,
these different examples that we have given, show
us that sometimes they prioritize the apparent assumption,
or apparent indicators.
Sometimes they follow the default or presumption.
And sometimes they disagree.
So, let's try to make a synthesis of
this.
But before the synthesis, let me go over
some other applications that may clarify certain things.
You know, that when there is no conflict,
predominant assumption is often considered.
And here is an example.
Here is an example of how the scholars
sometimes find it a little bit difficult to
decide.
And why?
Because life is complicated.
Life is really complicated.
Let us say a woman, in her waiting
period, or even after her waiting period, she
may have gotten married yet, yet during her
waiting period, after her waiting period, she feels
something in her stomach.
I mean, is she pregnant or it's gas?
She feels something.
Now, what are you going to tell her?
You'll have to wait until you're confident you're
not pregnant.
Because if you're pregnant, you will have to
wait.
You can't get married when you're pregnant from
the first marriage.
You can't get a second marriage until you
verify.
So, what if she gets married?
This marriage is invalid.
This marriage is invalid.
Okay.
So, what if she gets married and then
feels something?
So, her waiting period ended in one month.
Can the waiting period end in one month
in the Hanbali Madhhab?
Yes.
Because the shortest duration of purity in the
Hanbali Madhhab is 13, not 15 days.
So, 13, 13, one day for Haid, 13
Tuhr, one Haid, 13 Tuhr, then you're done.
And then, so that is like 13 and
13, and between them, the one day, it's
pretty quick.
So, she's done in one month and then
she gets married.
And then she feels something.
What do we do here?
So, do we go by default?
What are the apparent indicators, default assumption?
Here, we will validate this marriage because the
certainty of marriage, certainty of marriage, this is
a marriage that happens, you know, she ended,
she finished her period.
Legally, Shari'i-wise, she finished her period.
I don't care if in reality, ontologically, she
finished her period or not.
Because ontologically, she may not have finished her
period.
You know, whatever it is that she got
in the middle that one day of Haid
that she got in the middle, this was
sporadic bleeding and this was not Haid.
She counted this as Haid.
But Shari'i-wise, her period ended.
You know, ontologically, it doesn't matter.
Shari'i, period ended.
So, when she got married, that marriage should
have been valid.
Now, she feels something.
Of course, this is not from this current
marriage because she's not going to start to
feel a baby right away.
So, she feels something and, you know, so
what are we going to do now?
Now, we will validate this marriage but we
will ask them to abstain from consummation.
Ask them to abstain from, you know, marital
relationships until things are sorted out.
Why?
Because, you know, Now, that
is why we will have to wait until
she verifies.
That's why he shouldn't touch her.
The second husband should not touch her until
we verify if she's pregnant or not because
that could be a pregnancy from the previous
marriage.
If this man is what?
But, do women feel something?
You know, when do women start to feel
the baby moving?
After four months, right?
Yeah, after four months.
You know, babies who move quicker than this
are miraculous.
But, you know, it would take four months
for the baby to start moving.
So, if we're going by the movement, it
takes about four months for the baby to
move.
And certainly, it's not just about the moving.
It's about also the size of the abdomen
and other indicators, other apparent indicators of the
presence of pregnancy.
So, in this case, the apparent indicator is
that this is a pregnancy from the previous
marriage.
Then, okay, so there are other examples of
their differences in acting upon a zan, or
predominant assumption.
So, in Al-Qawa'id wa Al-Faw
'id, Imam Ibn Al-Haram says, the author
of Al-Muharrar reported consensus that it is
prohibited for a woman.
Prohibited.
So, this is the author of Al-Muharrar,
Majd Ibn Taymiyyah.
He said that it is prohibited for a
woman to go, you know, to follow the
funeral and go to the graveyard.
Prohibited for a woman to visit the graves.
If she knows, it will lead to, it
will lead her to commit a prohibited act.
He says, if she knows.
When they say knows, means what?
Ilm.
Ilm means what for them?
Certainty.
Ilm is certainty.
Knows, when I say she knows, meaning she
ta'lam, certainty.
Assumes, ta'dhun, is different.
When she assumes, it's different.
But he said, if she assumes she will
be wailing, she cannot go.
So, ilm, knows, and here, assumes.
So, he said, if she knows that she
will do a prohibited act, she can't go.
If she assumes that she will be wailing,
she cannot go.
So, Ibn Al-Haram ta'qabahu, Ibn Al
-Haram basically commented on this.
He critiqued this.
He said, why are you differentiating between wailing
and other prohibited acts?
You either say knows all across or assumes
all across.
And then he also argues that they say,
they say, the Ashab, the fellows, including the
author of Al-Muharrar, they say that if
she knows, she will commit a prohibited act
in Al-Hammam, the bathhouse, or the man
will commit, if the man knows that he
will commit a prohibited act in the bathhouse,
then he should not go.
But if he assumes and doesn't know, is
not certain, then he can go to the
public bathhouse.
Therefore, he says, use knowledge, certainty, all across.
And in all honesty, particularly in our times
where things are very difficult, if we say
to people, if you assume something will be
haram, you can't do it, there will be
so much, there are so many restrictions.
Therefore, in our times, the kinder thing is
to say, if you know, something would be
haram.
Know means what?
Certain.
Something would be haram.
So the stronger, okay, from the foregoing, it
becomes clear that, so this is my synthesis
now, from the foregoing, it becomes clear that
the default stance among them is to act
upon ghalabat al-dhan, predominant assumption.
Yeah, they are acting most of the time
on ghalabat al-dhan.
They are not disregarding ghalabat al-dhan.
They are acting on ghalabat al-dhan most
of the time.
And let me tell you, when that is
the case and with the exceptions, it is
unequivocally the case that we will act on
ghalabat al-dhan or predominant assumption, apparent indicators,
if it is based on a sharia proof.
Based on a sharia proof.
Okay.
It also applies to matters grounded in Ijtihad.
Matters grounded in Ijtihad, we can't wait for
certainty.
We can't wait for certainty to know the
Qibla.
We can't wait for certainty to know the
entrance of the prayer time.
So these are matters that are based on
Ijtihad.
You just can't basically base them on certainty
because that would be paralyzing.
That would be paralyzing.
So predominant assumption will overrule.
Also where certainty is unattainable.
Certainty sometimes can be unattainable.
Like if a doctor tells you that if
you fast, this will cause deterioration of your
condition or this will delay your healing, things
of that nature.
Can a doctor be certain about these assessments?
No.
Certainty here is unattainable.
Or if a doctor tells you that you
need to sit down while you pray because
if you prostrate, this will cause you this
or that, etc.
The testimony of one Muslim trustworthy doctor in
the madhhab, one trustworthy Muslim doctor in the
madhhab, the testimony would allow you to follow
their counsel.
Now, does it have to be Muslim?
In the madhhab, yes.
The maliki said no, it doesn't have to
be Muslim.
You can go by the testimony of one
non-Muslim trustworthy doctor, physician.
But in the madhhab, it has to be
Muslim.
It's not that in the madhhab you have
to go to a Muslim doctor, but a
Muslim doctor is the one that will give
you the license to not fast.
The opinion of the Muslim doctor is what
gives you the license to not fast or
to pray sitting or to do things of
that nature.
You could always go to a non-Muslim
doctor, a physician, to do surgery on you.
But if he tells you you cannot fast,
then you will have to consult a Muslim
doctor.
But the maliki said it doesn't have to
be.
Okay.
Now, sometimes also certainty is difficult to achieve.
It's not unattainable, but difficult to achieve.
So if someone possesses both lawful and unlawful
wealth, and they are unable to figure out
exactly how much is the portion, then they
need to guesstimate.
Now, if there are communal obligations farood al
-kifaya, communal obligations farood al-kifaya, we will
have to go by a predominant assumption here.
How do we know that farood al-kifaya
have been fulfilled?
Like if we say farood al-kifaya, how
do I know that enough people went out
to Salat al-Eid?
If I assume, if I have a predominant
assumption that enough people went out to Salat
al-Eid, I may stay at home.
Don't do it, but, you know, that's what
farood al-kifaya means.
If you assume that enough people did it,
you don't have to do it.
Now, where...
Okay, so also we will go by predominant
assumption when it's supported by another foundational principle.
And where a decision must be made between
two possibilities.
You know, you go by predominant assumption where
you have two possibilities.
One of them is more likely than other.
But a decision has to be made between
the two possibilities.
Two women came to the wood and Suleiman
fighting over a baby.
Everybody is claiming that this is my baby.
They had two little babies.
You know, the wolf ate one of them.
And the one who's living, they're fighting over
the baby.
And how did Suleiman figure out who the
mother was?
He said, I'll split the baby between you.
I'll split the baby between you.
So, the mother quickly said, no, it's hers.
So, he...
Of course, like he figured from her compassion
that she would be the mother.
Had this been in our Sharia, what would
we have done?
Qafah, physiognomy, resemblance, kinship resemblance.
We would have gone by this.
And if this is not possible, then we
may have used Suleiman's idea, you know, but...
Yeah.
Then, next is to ward off doubts such
as resolving hesitation regarding the completion of worship.
So, sometimes we go by predominant assumption because
the contrary will result in obsessiveness and too
much doubt.
However, they sometimes abandon predominant assumption.
They sometimes abandon and stick to a lost
default presumption.
When do they do this?
Out of caution for acts of worship, such
as when they tell you, base it on
certainty.
You're in doubt whether you prayed three or
four, base it on certainty.
You prayed only three.
Due to the strength of the default assumption.
Due to the strength of the default assumption.
What is an example?
Marriage.
I doubt whether I divorced my wife.
The strength of the default.
The default is what?
Continuity of marriage.
And the strength of the default presumption will
make us disregard the apparent indicator.
Will make us disregard, most likely I divorced
her.
We will disregard the most likely because of
the strength of the default assumption.
A conflicting principle.
A conflicting principle can make us abandon them
or the ease of attaining certainty.
If certainty is easy to attain, then we
will usually disregard predominant assumption because certainty is
desirable or not.
If it is desirable, if it is feasible,
then we should go by it.
Certainty is always desirable.
If it is feasible, then you should go
by it.
Regarding one who acts upon ghalabat al-dhan,
is repetition required if they came to know
that they were wrong?
If you act on ghalabat al-dhan, is
repetition required if you came to know that
you were wrong?
Yes and no.
You know, repetition could sometimes be required.
The default is what?
Yes, repetition is required.
Because, لَا عِبْرَةَ بِالظَّنِّ إِذَا تَبَيَّنَ خَطَأُهُ So,
there is no consideration to dhan assumption if
it turns out to be incorrect or if
it becomes clear that it was incorrect.
لَا عِبْرَةَ بِالظَّنِّ إِذَا تَبَيَّنَ خَطَأُهُ But, is
this all the time?
Not all the time.
There are certain exceptions.
So, we know that we can base, you
know, our facing of the qibla and the
entrance of the prayer time are based on
certainty or ghalabat al-dhan.
Ghalabat al-dhan, predominant assumption.
Okay, so, we did our best and we
prayed and it turns out that we prayed
before the time came in.
And we did our best.
We prayed, turns out that the prayer time
has not started.
Do we repeat?
Yes, we do.
Okay, you did your best and figured out
the direction of the qibla and then came
to know afterwards that it was wrong.
Do you repeat?
No, you don't.
So, what's the difference?
The difference is that al-wajib, in the
first case, what is what you're liable for,
what's required of you in the first case,
to pray on time, inside the time of
the prayer.
As al-wajib.
The wajib in the case of qibla is
what?
To exert your best effort to figure it
out.
Not to basically face the qibla, but to
exert your best effort in figuring out the
direction of the qibla.
Have you done the wajib?
Yes.
And in this case, you don't need to
repeat the prayer.
But if you will have to say there
is a default in this case, the default
is what?
Repeat.
Repeat is the default.
Because, الظن الذي تبين خطأه the assumption that
is clearly, that has been proven wrong, is
not given consideration.
Is not given consideration.
لا عبرة بالظن إذا تبين خطأه قولوا قولي
هذا أستغفر الله لي ولكم And that was
actually great.
Because we just went like five minutes over
time.
Five or six minutes over time.
And we finished the whole section.
Alhamdulillah.
And I hope that you, that it was
not too fast.
Okay, good.
So we will come back at 9.20
insha'Allah for Al-Adhab Al-Mufrid.