Channel: Ismail Kamdar
In this presentation, Shaykh Ismail discusses two important maxims of Fiqh, ‘local culture is the deciding factor’ and ‘harm must be eliminated’ as well as their subsidiary maxims.
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Salam aleikum wa rahmatullah wa barakato Alhamdulillah wa salatu salam ala rasulillah. So before I begin very quick announcement, we are supposed to continue until just before Ramadan. Right. But because of everything that's going on, we will finish it next week. Right, the next week will be the final lecture. And then after that, we will conclude
right, I don't want to take a chance of gathering
unnecessarily so we have just we actually, if we just disagree can actually get finish our entire our entire syllabus for this topic. And what's interesting, I think of planets, but next week's topic is the principle that difficulty causes relaxation of the law, which is actually what we need to apply right now. So in short, when I do next week's presentation, I am going to link it directly to the whole Coronavirus situation and how we can apply the maxim to relax the law because of what's going on. Right so we have three Maxim's to cover, we'll cover two of them this week, and we'll cover the final one next week and then we are closed until Allah knows best when we will reopen
I will continue producing more content like this from home putting it up on my YouTube channel putting it up on Muslim Central but meeting in person and having classes it's a bit too risky right now. So next week will be the final one inshallah. Okay, so with that we'll begin
very quickly recap what we covered thus far.
We are now halfway through with our presentation on the arrival of the pic Maxim's and we said the different Maxim's are formulated to make Diaz easier right these are simple formula each of themselves 1000s of issues. We said there are five major Maxim's which all formal hubs agree upon. In the first week we discussed the maximum of intentions. Last week we discussed the maxim of conviction and and doubt this week we can discuss two Maxim's and we discussing two of them, because technically we covered them already in pseudo fake and in Makati to Sharia. So the two Maxim we're going to discuss this week are the removal of harm and the following of local culture. Right. Next
week we'll cover the final Maxim which is difficulty causes the loss of relax, which is essential for applying in our current situation. So we said the Ola ma Do you agree upon the maximum they disagree of what how to apply them? We said the first Maxim was actions are judged by the intention. The second one is conviction is not removed by doubt. And we showed over the past two weeks how these two are used for solving 1000s of IQ issues. So to jump right into it, let's get into this week's topic. Two Maxim's number one, a thorough user harm must be eliminated. This is the primary Maxim covering the fate of heroin. Right? In general, the general principle of our Sharia is,
whatever is harmful is haram. Why? Because harm must be eliminated. Now, we already covered this in the beginning of the year on democracy, the Sharia, because we said the primary goal of the Sharia is, what do we say is the primary goal of the Sharia
the attainment of benefit and removal of harm, and that's when we covered this, right.
This Maxim is actually taken directly from Hades. In fact, in some of the books of fake it is worded according to the Hadees. Right? So the Prophet sallallahu alayhi wa sallam said, Paula Rasulullah sallallahu alayhi wa sallam last door, while at the right hand should neither be inflicted or reciprocated. There are many different translations for this Hadees. But this one is LA, da, da, da, da da, you will find it in an hour with 40 Hadees. And you will find in some of the books have provided 50 the third Maxim is not called a w that is called da da, da, da, da, da da. That is the use the exact wording from the Hadees. Now,
are you familiar with a no, it's 40 Hades, what is the purpose of that book? And so what's the purpose of the 40 Hades collection?
It's a summary of 40 Heidi's 42 it's actually 4200 pieces, right? It's a summary. It's 42. Heidi's is that an hour we compiled which he believes anyone who learns and understands those 42 hypothesis understands all of Islam. So he went through 1000s of hypothesis, and he chose 42. He believes that anyone who knows these 42 Hadith says, this is all of Islam, and one of those releases is this one did not cause harm. Now the Hadees uses two forms of the word hub, the rod and the rod and the owner might have many opinions of what's the difference between the two generally
Dada means don't harm anyone, right? And the roll can mean different things. But the most common meaning is to not cause harm in retaliation. Do not like when seeking revenge on people out of spite for people out of malice for people to cause harm in that situation. Right. So somebody harmed you try to avoid harming them in return. Now there is some level that's allowed, but in general, it's prohibited. There are many verses of the Quran to confirm this as well. Right? So do not throw yourself into destruction.
This verse of the Quran, same principle,
all the verse of the Quran just stated, Allah has prohibited that which is harmful to us, right or the Allah has prohibited that which is evil, or that which is hobbies, all of these same category.
Now, this Maxim, you will find it in every single chapter of every single chapter of faith, you will find the application of this Maxim
when it comes to fasting, when it comes to Salah, Hajj, omura. Anything, you will apply this Maxim do not cause harm. So for example, if fasting is going to cause you to get sick, right, you should not fast, right? Because you're not allowed to cause harm. By the way harm in this Hadees refers to yourself as well. Lots of people don't understand that harming this Hadees includes harm to yourself and harm to you as a Muslim. We need to live our lives in a way where we don't harm ourselves or anybody else, which is generally how I prefer to translate this idea is to not cause harm to yourself or anybody else. So this means you take care of your own health, you take care of your own
life, you take care of your own mental health, all of that. And also you are careful in how you treat other people. So the hadith of Muslim who might Salima Muslim woman decided he was a believer is the one from whose hands and tongue other believers are safe is also proof of this principle.
This is one of the earliest Maxim's to be coined from the very earliest books of pseudo sick, you will find him talking about the removal of harm. It's one of the earliest things that you might realize about Sharia law, Sharia revolves around the removal of harm. And when it comes to the wrong this is the main Maxim, in general, going back to last week's Maxim. Last week, we covered the maxim, that thing the original state of anything is possibility of us looping. Alibaba, the original state of anything is possibility. So when we move from permissibility to prohibition,
when there is harm, that's when we move from permissibility to prohibition. So when something new is invented, it is halal, unless it can be proven to be what harmful, if it's proven to be harmful, then it becomes harmful, right. And so, this becomes the primary principle upon which we can declare anything new, if something new is proven to be harmful, it is harmful, okay. This will get examples of how this Maxim is applied. Most of the things that are haram or haram because they either harm people or society or the individual, alcohol harmful, Zina harmful drugs, harmful.
Murder, stealing, obviously harmful. So in general, whatever Allah has made Haram, he has made haram because it is harmful, right? alcohol, drugs, gambling, smoking all prohibited to eliminate harm from society. Why Allah allow us to drink alcohol or to gamble to stop us from causing harm to ourselves and to others.
on the other hand, certain levels of harm are tolerated if they
if they remove a greater harm. This is another principle you're going to cover in a subsidiary Maxim that certain levels of harm are tolerated if they prevent a greater harm. The best example of this is the HUD punishments. So in the HUD punishments is the harm
chopping off someone's head, and is there harming that? It chopped up someone's hand? That's how, why is it allowed?
It prevents a greater harm. That's why, right, the death penalty, is there harming that? Yes, you're literally taking a person's life, but it's allowed because it prevents a greater harm. So in those cases, where there is a greater harm and a lesser harm, then the greater harm is prohibited by allowing the lesser harm. Another example of this is the law or divorce. So divorce is allowed, even though it causes harm. Why? Because it can remove a greater right. So in the in the divorce, the psychological harm, there may be financial harm, especially for the children, there may be a lot of psychological harm. But in many cases, if you allow the Vantage to continue, it could be abused. It
could be worse things that happen. It could be
More serious problems that happen. So to prevent the greater harm, divorce is allowed, you know Sharia.
So many forms of harm are allowed because they prevent a greater harm. The best examples of this are the death penalty, Jihad and divorce in all three of these things, there is clearly harm in the death penalty you are taking a life when you engage in jihad, you are taking a life or lives when he is divorced, his psychological and sometimes financial harm, but in all of these cases, it is allowed because all of these things prevent greater harms. Okay, very quickly the subsidiary Maxim's governing this Maxim. So as we said, each Maxim has other Maxim's that must be that must be applied along with it. Number one, harm should be removed as much as possible. What does this mean?
This means that the Sharia recognizes that is impossible to remove harm 100% from this world.
What is the chance of ever having a society in which there is zero crime? Like it never happens for hundreds of years?
You're not going to get to that level? And people do understand sometimes that people argue against the show. Yeah, they'll see. But, you know, for example, the issue of HR, right? They say, oh, by the way, the job I still harassed, I guess for the harm, the job removes harm as much as possible, it still removes some level of harm, right? lands that have dead penalties still have crime. Yes, but the crime rates are lower than those countries that don't have that penalty. So the point of our Sharia is not to create a world with no harm, but is to remove as much as humanly possible, understanding that you cannot remove it altogether. In this world, they will be humble. Because this
world is what it's a test for us. This world is a test for so you cannot get rid of harm at 100%. You cannot have a society with no problems, no sicknesses, no crime, no abuse, no bad guys, that doesn't exist. That doesn't mean that we shouldn't try. So we try to remove as much as possible. And what is beyond that Allah will forgive us for because we did what is within our capabilities.
Number two, a harm should not be replaced by a similar harm.
So an example of this of the application of this is if someone is sick,
and the medication to cure them, will cause a similar or worse sickness or side effects. It would not be permissible for them to take their medication.
Because you're not solving the problem, you replacing it with another problem. Right. So that's the application of this principle in many other places as well. In general, when trying to remove harm, we should not replace it with a similar or greater harm. And another example of this very common today, in some parts of the world, like Syria, and Iraq is terrorism.
People who get involved in Islamic terrorism, they do so to remove harm. But in doing so they actually causing a greater right in the idealistic mindset that if they do this, and he established the halifa, whatever they go into, remove harm, they end up causing greater harm. So we have to apply this principle harm should not be replaced with a similar or greater harm, we have to replace it with something that's less harmful or not harmful.
Number three. Now, this principle is another principle of the Sharia, which even the West follows today, right? So like last week, we looked at innocent until proven guilty, one of the principles of the Sharia that you have adapted is another one, which is the lesser of two evils should be chosen. Now, again, when you look at all of these principles, you see our Sharia is very realistic.
Allah subhanho wa Taala send us the Sharia, that's realistic, because Allah knows you're not going to have a perfect life in this world. You're going to have situations we have to not be eliminated altogether, you're going to have situations we have to choose between greater harm and lesser harm. You're going to have to choose between in some situations, two evils there is literally no option there are two things that are haram and you have to choose between one of the two. In such situations the Sharia allows the lesser of the two evils. Now, the difference of opinion that appears amongst the older mice, figuring out what is the lesser of two evils.
What is the ratio to in many situations?
This becomes the issue of contention. So for example, do we close the masjid for the next few weeks? Do we have a complete shutdown of the masjid over the next few weeks? You will have Omar saying yes, you'll have all of our signal based on easy to agree to evil for the masjid to be closed and complete.
Do you agree to evil to take a chance and leave it open? Right in terms of the hungers caused caused by this pandemic, so, the lesser of two evils or this is normally applied, for example,
you either die or you eat something wrong, then the lesser of two evils is obvious, you eat something wrong, right. But the less obvious situations,
for example, someone having to choose between torturing, you know, life as he was, and being in situations that if someone's in prison, and they've been forced to torture their friends, you know, as part of the torture to them. And they forced to choose between suicide and torturing their friends, or killing their friends, what would be the lesser of two evils?
And these are situations that people actually have to face in some parts of the world. So we always choose the lesser of two evils. But it's not always clear what the lesser of two evils is. That's where the problem comes in. Nonetheless, whenever what'll happen is, whenever a situation comes up with the
only harmful options to allow, we'll list all of the harms of every option and find the one with the least harms. And then that will be the one that will be applied.
And another principle that's taken to assist with that is a private harm is tolerated to prevent a public harm. What does that mean?
applied to our situation?
If someone has the Coronavirus, they will self isolate so that nobody else gets it. This is tolerating a private harm to prevent a public con. That's the application of his Maxim, right? That, okay, I'm alone at home, I can go to work, I can't meet my friends, I can't attend classes, I can go to the masjid that's harmed a lot of harm happening to the individual in terms of the general life law being taken away and certain inconveniences. But that's a private harm, and the private harm will be allowed tolerated in Australia because of preventing a public harm. So another example of death is the death penalty. the death penalty is a private harm to prevent a public harm. A man's
hand is chopped off to prevent stealing, private harm one person's hand public harm, stealing and murder becoming rampant in society. Right. So there are many, many times where a private harm will be tolerated to prevent a public convening. When you are faced with a choice between either you being harmed, or the oma being harmed, the Muslim chooses to take the harm upon themselves so that everybody else stays safe. Another example of that is mastering a Muslim, for example, sacrificing the light to save the family.
Someone is attacking a family member and you're jumping away and you take a bullet for them. This is taking a private home to prevent somebody else from being harmed. This is something that will be omitted.
The next one goes directly to maqasid shalya. So what do we see was the primary muckleshoot of shalya. The attainment of benefit and the removal of harm, okay, what happens when there is a clash between the two? What happens if to attain a benefit you have to cause harm? What takes precedence, the removal of harm or the attainment of benefit? What's the more important goal of the Sharia the removal of harm, right, the removal of harm is the more important goal of the Sharia. So removing harm takes precedence over obtaining benefits, meaning, if to obtain some benefits, you have to cause some harm, then it's prohibited for you to try and obtain the benefit. This is why rebar is
When you engage in rebar based transactions, you could benefit of it but what's happening in the process, you are harming the rest of society. Because if you are gaining rebar, somebody else is being charged about. If you are gaining interest money, somebody else is being charged interest money. So if you are benefiting from the harm of someone else, right. So when there is a clash between benefits and harms, what takes precedence is the removal of pain or the removal of harm. So for example, the benefit of going to the masjid for taraweeh, or the removal of harm of preventing people from getting sick, which one takes precedence, removal of harm. So therefore, it's my opinion
that this year it would be better perhaps for everyone to better be at home. Right? Because the removal of harm takes precedence over the obtainment of benefit.
Okay, so that's the first principle which is the removal of pharmaceutical questions at the end. I just want to go to the second principle for today, which is our dogma hakama local culture is the deciding factor. Again, this is one of the five main Maxim's
agreed upon by all formal pubs and apply across 1000s of issues. What this Maxim means is that when there is a clash of cultures as long as every option is halaal, what do you follow local
Culture, whenever there is a clash of cultures, as long as all options are allowed, you follow the local culture. This is agreed upon by all the mishaps, and it's specifically strong in the Hanafi madhhab. Mr. Abu hanifa gave more precedence as as the 100 is after him to local culture than almost any of the other erupts. There are many issues of the equator happy mother follows culture above anything else. So, this is the principle of Earth in maximum form. So in fact, we call this both in my in our we call this a large atmaca local culture is the deciding factor. They both mean the same thing that you follow the local culture. And the simple definition of the maxim on issues which the
Quran and Sunnah are silent, local culture is given preference over anything else, on issues with the Quran, as soon as a silent local culture is given preference over anything else. So for example, there's a man have to cover his head.
When we were small, we're totally different. When I grew up, somebody changed your opinion to watch you. I don't know where that came from. But if you actually go with the principles of fit, the answer is what's the local culture? If we were living 300 years ago, I would have said it should not. Why? Because 300 years ago, everybody covered the heads, he was constantly indecent not to wear a hat outside the house, right, in almost any culture. Even the Western culture they had has to be outside the house, it was considered indecent for person not to cover the hit today, I would say depends on which country you are in. So for example, when I travel to Kenya, or Saudi Arabia or
place that I will cover my head, why? Because that's the local culture of the land that I'm in
South Africa, America, Britain out of my head, because that's the local culture of the land that I'm in. So it's important that any country that you travel to, you respect the local culture, and you just according to local culture, as long as this has
the most important thing about this principle is that it keeps fichte flexible and universal.
people across the world don't have to be aerobicized to become Muslims. And our people need to know this. People don't need to be indianized to become Muslims. Every culture can be practice, within the force of Islam, a white man can become a Muslim and still follow white culture and African Zulu, of course, or they can become a Muslim and to follow into the Casa culture, right?
Someone from South America, Latin America can become a Muslim to follow the cultural Islam is flexible enough and universal enough to cover all the cultures. And this is why when the Sahaba moved to Syria, they started to just like the people of Serbia, they started to live like the people of Syria, they started to follow the habits and customs of the people of Syria. He did not try to make them like the people of Medina right they adapted to their culture, they did not try to bring the Medina culture with them.
jumped ahead of mature Okay, so there are many issues, which is Sharia has left open to cultural interpretation. The beauty of the Sharia is Allah subhanho wa Taala has revealed very general laws in many areas. He didn't reveal specific laws, he revealed general laws and left it open to cultural interpretation. The most clear example Allah says in the Quran, treat your wives well according to the culture. But as you know, Bill Maher was treat your wife Well, according to the culture. A lot did not stipulate how much money A man should give his wife every month, whether she should cook or he should provide the food, whether he should get a domestic work or not, whether he should get her
own car, not all of this is left up to what the local culture, whatever is considered good treatment of the wife in the local culture. That's what you are obligated to follow. Same with business. Allah has made business Hello.
Allah did not give details about a business who should provide transportation and whether they should be taxes? Or how much profit margin Are you allowed to have? How much stock Are you allowed to keep all that's left up to local culture, and all that's led up to deciding from place to place and culture to culture. So in general, this principle will be applied in the field of muamalat. Not in difficulty by doubt. Right? What am I that means social dealings by that means acts of worship, acts of worship, there's not a lot of things which are dependent on culture. There are a few but not a lot. But I'm a lot social dealings are dependent. A lot of it is dependent on culture, from how we
dress to what we eat, to how we shake hands, to how we greet each other to what's considered respectful to what's considered foul language or what's considered immodest behavior.
What are our business laws? What are marital rights? What our children's rights, what are the Educational Rights, all of these things are not defined by the Sharia they are left up to cultural interpretation. And each community should follow the local culture in these issues. And that is why I believe it is a major mistake to import fatwas from other countries. So major mistake in these areas to get a fatwa from Saudi Arabia or India or any of these parts of the world, because they don't know the local culture, they will make the effort to accommodate their culture, the local amateur media fatwas, according to the local culture.
So the rules have changed from place to place and time to time. What could be allowed, that the years ago could be prohibited today, or vice versa based on changes in culture? Again, we're not talking about Sharia, we're talking about thick. So for example,
look at language, they couldn't be a word, which was considered polite in the 1970s, but it's considered vulgar in 2020. So in the 1970s, you would say that culturally, that word is permissible to use in 2020 cultural use, either one is haram to use. Why? Because the culture has changed, same word, place to place. So it could be a certain hand gesture, has a good meaning in South Africa, but it has a vulgar meaning in Latin America. So it would be permissible to use those hand gestures in South Africa. But you'd be prohibited to use them in Latin America, because they have different meanings in different cultures. Right. So fick changes from place to place and time to time, there's
not one universal application of the method. And this is why you will find 100 v. fig is different in India than how it is in Turkey. And it's definitely talking about how used in Iraq and is different in Iraq or how it is in Egypt. Because in each of these lands, the Hanafi Fiqh evolved according to the local culture. And when they came to South Africa, the Hanafi Fiqh, again was supposed to evolve according to the local culture. Unfortunately, the mistake we made was importing Indian culture instead, there was a mistake we made, we focus more on preserving our culture instead of following the local culture. And that ended up messing up our faith.
So as it predominantly affects things like the pickup family pickup business and court cases, so let's look at the subsidiary Maxim's and this will give us an idea of how these things are applied, and the different Maxim's governing it to apply in the modern world. But before that,
also, local culture is also used for understanding Quran and Sunnah. Right? So understanding of Quran and Sunnah also, you will look at culture for understanding it. So for example, the verse of the Quran treat your wives Well, again, you look at local culture to figure out what do they mean by treat your wife who have
certain things in the in the Hadees? So for example, the Prophet sallallahu wasallam, the kind of homes that he provided for his wife,
do we have to provide the same type of home so our wives?
The prophets law exam slipped on the floor, he did not have a raised bed does not sit on a raised chair. Do we have to follow that? No, yeah, we have we interpret the sooner based on local culture, that this was the culture of his place in his time, before the cultural politics in our time, it used to making independent rulings. So coming up with new issues, new issues pop up, what is the peak of social media, social media never existed before, really, we have to invent a new form of social media based on the removal of harm and the application of local culture, because there is harm involved in social media and there are cultural sensitivities involved in social media. So we
have to apply both of these principles to figure out the fate of social media. And also by understanding words, just for understanding words, you need to add culture because words have different meanings in different cultures. There are certain words found in the Quran Hadees that meant something at that time, it means something completely different today. And so you have to look at what did he mean in that culture, you cannot take those words and give them the modern meanings. Right. So it's also used for the interpretation of words. Okay. To end up today's session, we are going to look at the subsidiary Maxim's
related to culture. Number one, common practice is considered evidence. What this means is that if something is commonly practiced in society, it is expected from the Muslims of that society and may even become watching. It may even become watching. So for example, if it is the common practice, that
there should be somebody who's not defined by Quran and Sunnah. It is a common practice that the bride's family pays for the wedding.
It becomes something that's expected you could even become watching. You move to another country where it's a common practice that the husband's family pays for the wedding. Now you followed that common practice. Maybe a new culture evolves over time with that
has been wiped together contribute towards the waiting, that now becomes the law. So the law will change based on whatever is the common practice, not isolated incidents, not individual practices, not the practice of another country, not what people do back home, what is the common practice of the land you are living in. So, if it is a common practice of your land that you're living in, that a woman expects a husband to provide for her domestic worker,
the older man could force a man to get his wife, a domestic worker who can afford it. Right? He could do that, because that is part of the local culture. So common practice has a lot of room to play in law. So for example, even 100 be tricky, even if it affects the effect of divorce, even if it's difficult divorce in 150. So for example, if a man tells his wife Get out of my house, the other man's have to look at the intention. The Hanafi madhhab looks at the culture that culture needs, Is that considered a divorce or not? Is that what men see when they divorced a wife or not? And that's what they will look at before deciding whether what's the common practice? Is it a common
practice at this town, that when a man wants to divorce his wife, it has to get out of my house, if it isn't, is considered a delicate matter, if it's not in the dark, right, so the common practice plays a role in
custom is only effective when it's constant and predominant, meaning constant means it's happening all the time, it's not something that happens occasionally, predominant means everybody's doing it. It's not something just one or two people in the culture are doing. So for example,
if it is the culture for that, that everybody, all the men, for example, cover the hands, right? their wrists, right, and that's what everybody does. And he's only one guy walking in our short sleeves, that will be considered mcru in that culture, because he's now going against cultural norms of modesty. But he is living in a culture, where it's normal for a man's arms to be exposed is not part of the setup, then it will be almost fine for him to do so because there's no constant invoices in his culture. Right? So a lot of things
you look at, when you're looking at something to see whether it's considered part of the culture or not, you're going to look at two things. Number one, is it constant is something that's all the time everywhere throughout the country, or to our society. And number two, is it predominant? Is it the majority practice? Or is it an isolated practice? Number three,
literal meanings are abandoned for customary meanings. So when someone says a word, or a sentence, that can be taken literally, or taken according to the local usage of the word, what do we go with?
We go with the local usage of the word. Right. So can you think of an example of that? What? What's the word that?
Yeah, hundreds again, it'll be fine.
Now, Yes, okay. That's a good example, to give somebody with a future fix, pick a bit more.
A word having double meanings, in our cultural, nothing can be done online right now it will ever come to you. And if it comes to a minor league, I'll mention it. But generally, the meaning of words change over time, in certain words, may have a literal meaning, but a different meaning in in other countries. So the examples they give in the book, Suffolk is the word dhaba. Right? The word dhaba means an animal. But in some cultures, it means a horse. So if you're living in a country with dhaba, means a horse. And you tell someone, I'll tell you a dhaba. And you give him a cockroach, and tell him why he means an annual, so I'm fulfilling my contract, it will not be acceptable because
you don't look at the literal meaning you look at what, what does he mean in this culture? What is what do people expect with this in this culture? So for example, let's say someone's selling pies, right? So you order pies, and you are expecting
pepper steak pies, mutton curry pies, right, and they send you an apple pie instead.
So in South Africa, you may be angry, and you may have the right to a refund. Because it's Africa, the more common usage for the word pie would be a safe way to pay. But in America, it would be the complete opposite. In America, if someone says they're selling pies, what are you expecting apple pies, and you're expecting savory pies. So the word pie has a different meaning a different culture. So you expect what it means in the local culture. You don't expect what it means in another country. Right. So this is again, words have many meanings. How do you solve these problems? If sometimes people can be a bit people can say something and somebody else can understand it differently.
If you look at what is the word commonly used to mean in the local culture,
oral communication and sign language are equal to written communication. So, the Quran mentions that when it comes to business, you should record everything in writing.
And that's the default. However, when it comes to testimony or evidence, oral communication, even sign language accorded an equal. So for example, if there is someone
who is beaut or deaf, and they need to be a witness, or they need to make a deal with someone and they use sign language, sign language is completely recognized for more communication now, Sharia based angles, right based on those same would talking if somebody said something, and they are witnesses to them saying it, it will be treated the same as if they are rooted in a contract incentives. So for example, if some, if Zaid said to Abdulla, I owe you $1,000. And yeah, and there's two witnesses to him saying that, that is equal to him signing in a contract that will your $1,000 even if he just indicated it through sign language, right, and is witnesses to that. So in
Australia, all forms of communication are considered to be equal and valid in the court. Although written communication is perhaps the strongest as far as evidence is concerned, oral communication can reach the same level when they are witnesses.
What is known by custom is equal to A stipulated condition. What this means is that if something is the norm in society, it becomes a condition. So for example, if someone is running a furniture store, and it's the norm in the country, that the furniture store provides transportation for the furniture to the house, then he didn't, nobody needs to stipulate in the contract that we provide transportation. For the furniture, it's understood by default, this is the custom, this is what's expected. And it can be logical upon him to do so because that is the local culture. Again, with a flick of marriage, the same thing will apply, if it is the local custom, for example. And that,
let's think of something
that would be a condition, if it's a local custom that a man gives his wife and allowance every month,
without them writing it down, it can become wild, you want him to give an allowance every month, because what is known by custom is equal to a stability condition. Right. So once something is a cultural norm, it becomes like a shaft becomes a key condition in fit in certain areas.
This applies double amongst in business law. So the majority of our field of business revolves around culture. And what is common practice amongst amongst businessmen and traders is equal to A stipulated condition. Right. So if something is known to be a business norm in a society, you don't need to say it's expected. It's why people want you to follow the business norms of that society. You cannot, for example, if you have suffered from South Africa, and you move to Canada, you must adapt to the local business culture and the local business norms. You cannot expect all of society to do business with you based on African culture. That's not fair to the community, you have to
adapt to their culture. So in business, this is mentioned specifically because the issue of customs are becoming stipulated condition, you will find this used primarily in difficult business, like how I mentioned with the example of transportation, there are many other examples of that as well. Do you have a receipt? Do you give out receipts? What's the refund policy? You know, what's what are the acceptable profit margins, all of these things are determined by the local business culture. That is how you figure it out.
Finally, perhaps one of the most important principles of physics that is not applied in our country, and that shouldn't be applied, changes of rules based on changes in culture should not be denied or should not be overlooked. Meaning when the culture changes, the fic must change. This is a principle of Oceania. When the culture changes, the fic must change accordingly. So for example,
if it was the culture of South Africa,
that the years ago, that's men were soaps and topis. Right, and today, that's not the culture of South Africa. The future should change accordingly. If it was the culture South Africa 30 years ago, in a certain words were acceptable to us. And today, those words are considered vulgar, obscene, or insensitive or hurtful if it changes and they now become not acceptable for Muslims to use, if it was the culture 10 years ago.
That this is the business was done in a certain way. But because of the change in culture is now the differently. Muslims people now change accordingly. And this is why, especially fick based on culture has to be revised every five to 10 years, because cultures are constantly transforming. We've all seen this throughout our lives, cultures are constantly transforming what was acceptable 10 years ago, might not be acceptable today, or what was unacceptable 10 years ago might be acceptable today. So fix changes, according to the culture and this should not be overlooked, this should not be denied, this must happen. This must happen. You cannot say islamically, it's wrong to
say, but my teachers patois was that. When it comes to issues with a cultural exchange, you cannot say, oh, but in a book written 50 or 100 years ago, the fatwa was that it doesn't matter. It was based on the old for that time, the old first change, the law must change accordingly. So this is a maximum effect found in all format tops, the change of rules, based on the change of culture should not be denied. That's one of the wording or the wording is it should not be overlooked. Meaning every single land that will MIT is the duty to revise every five or 10 years. you revise figuration on both Maxim's have you discovered new harms? If so, something that won't become around, right, as
the culture change, if, if so, then the book has to evolve with the culture. So for example, a fatwa made 100 or 200 years ago in India, saying it's not permissible for girls to go to school.
And it's part of it. In many of the books written 200 300 years ago in India,
it is not right to apply that fact White's Africa today. Why? Because the culture within which it was made, and the culture with which we live, are so drastically different than that. But what makes no sense to us, when we hear this like what what does it even mean? And how do you even apply that? I because the culture is so radically different. So you cannot take a fatwa from that time and apply today. They're even what was from 200 300 years ago saying English is how long? Are we going to apply that today? How do we pick and choose? Right? Because 300 years ago, the British were using English to colonize India, and to change the Indians away from Indian culture towards British
culture, and to move them away from Islam towards, you know, Christianity. So to curb that, that will try to stop Indians from learning English, right? So in that culture in that situation in the removal of harm, it makes sense. Can you apply that to Africa today? Because zero cents, so it has to change. fig has to change based on whatever is the local cultural base or whatever is the predominant practice. And although I might have to revive the pig every five or 10 years, based on these principles, every five or 10 years anything where new harms have been discovered, they have to revise the freaking updated. That's how the law of secrets smoking got updated from a crew to harem.
And culture is the same as culture changes, big changes, and this is something that has to be done. And again, it's the duty of the olema to do so. So with that, we come to the end of today's presentation.
Any questions will now deal with your questions for the remainder of our time?
Yes, what is the Okay, so good question. So in the country where the niqab is not coming out argue in Durban is quite common in
other parts of the country. It's not. Okay. So this is my honest view. I might get in trouble for this view. But my honest view is that niqab is a cultural practice. It's not necessarily part of the religion in some of the Muslims it is. It is wajib in some of the most helps a woman to cover their face. It's not necessarily makeup could be polka, it could be with a scarf, it could be whatever it some of them have to do regardless watch it to cover the face. But the dominant practice of Muslims throughout history is not covering the face.
So for example, Imam Shafi was of the opinion that covering the face is compulsory, which shall be contrary to what practices that
none of them every single Sharpie country, woman don't cover their face. And they all are finally they all move to the 103 opinion and that the Hanafi madhhab does not regard a woman's face as as aura in 100 female hug a woman does not have to cover her face. So my opinion is if a woman is covering her face, because it makes her feel more modest because it makes her feel closer to Allah because it's something that makes her feel more comfortable. There's no harm in doing that. Right. There's nothing wrong with her doing that.
she should also take into consideration cultural norms, and also harms and benefits. So personally, I know at least three sisters who used to be Nick hobbies and stopped wearing niqab because you were interfering with it our because they live in USA, Canada and UK, and they disgusted with me. They actually told me you know what, I'm not gonna be niqab anymore because I find it a barrier in doubt. And those sisters are studying for a job, and they are able to do a lot more power and play a much bigger role in society without the niqab. So I would again, say, follow the local culture. It's nothing, it wouldn't be wrong for him to any club in South Africa, because in this country, they
have freedom to weigh it. in Durban, specifically there is
there's no stigma attached to the club in Durban. hamdullah, we're lucky we have that. differently. I've actually had, I've actually told the sisters, for example, in France, I've told my students in France not to and
I told him, don't wait. In South Africa, tell them it's your choice, because we have the freedom. If you move to a country or you're traveling to a country, we all do a niqab, I would say Wait, follow the local culture, right? Because you're going to be the odd one out. So it is a thing which changes from culture to culture. The basic fact is that in the 100, females have a woman's aura is everything except her face, hands and her feet. And even the hands is difference of opinion. 100 female is up to the rescue up to the elbows. This difference of opinion if some of the 100 of them actually say that this part here is not all. I don't agree with that. But that is actually an
opinion upon in the hanafy method.
in the 100 female hub, a woman doesn't have to cover her face, or hands or feet, other Muslims are more strict. The feet all the other Muslims say the feet must be covered. The hands none of the Muslims and off see their hands must be covered the face in Egypt military must have a difference of opinion. Because even sharper you might even humble your Moloch all regarding the covering of faithful woman to be compulsory. But the molecule Allah of Spain did not regard as compulsory. They shall we will allow Malaysia to not call God is compulsory. Right. Many later, humbly scholars in Africa, it is compulsory, meaning none of the Muslims actually follow the founder that issue over
time, it became the norm in every culture in every mother for woman not to cover their face. So I don't see the issue for men not to cover the face and Durban I don't see as an issue for them to cover their face either. If, however, I will. My advice for women who do a niqab is if they travel to a land, where there is going to be some harm in them covering the face, either going to be the only person covering the face, or this genuine Islamophobia or even laws against it, you should not do it, they should uncover their face, right? Because it is not watching. And the clearest evidence for that is the Hadith in which the prophets voice I'm told his sister in law, asthma, or a smile
when a woman reaches puberty. Nothing should be seen of her besides this and this, and he pointed to the face, and he pointed to the heads. So that's really clear. And there's very clear evidence that many of the female Sahaba did not cover the face. Some of them did, some of them did not.
So it's not it's not watching. It's not a follow me though.
I mean, if you again, look, respecting cultures, if you are visiting
a community like that, he visited a couple your piece while visiting, even if you take it all the time to come off.
Discussion on obviously the
settlement, especially tomorrow.
listeners, because I'm opposed to the people who are as 100. So people are staying
committed to the chmod 700 to get around that. But let's say the left is a perfect example. You're only another one you want. You just need five
and everyone goes home to their families.
But the point being so now this is a real example. And I see some people out there and another Jesse for example.
So in this context, even the big one is Juma. Yeah. Would you be tempted to say even Juma must be restricted to this? So because this is just an arbitrary figure,
yeah, it doesn't, it doesn't really help in any way. Okay, so my teachers, other countries, they have all closed the masjid completely. There's no classes. There's no Salah. There's no drama.
It is not gonna be the rabito.
They tell everyone to pray at home. And that's my view as well. My view is that preservation of human life and health takes precedence over the spiritual benefits we get from the congregation. Now, Juma is a part of the key fire. It's a communal obligation. It's wajib on men. It is no excuse like illness. illness is a legitimate excuse not to go for trauma, or the fear of illness. The best thing to do is to look at the practices of the early Muslims whenever there was a plague. Well, how do they deal with the plague? Right. Now, when you look at the Sahaba and how they dealt with the plague, we don't have specifics about Juma. That's the problem. What we do know is how did they
solve the plague.
They were all told to go live in isolated themselves in the mountains. So every family is isolating themselves in the mountains, how they have been trauma
isn't everybody stayed away from everybody else until the plague went away? That's basically what they did. It is literally social isolation. Every family went to a different mountain and stayed there so that nobody spreads anything to anybody else until it's over. So, we can take from there that in cases like this, where there is something spreading fast throughout society, it could take people we can cancel any type of jemar type of gathering, because it becomes a matter of lesser of two evils. Yes, there is Harman canceling Juma, but there is greater harm in having Juma during this time, right. And again, I don't I people are taking the 100 people team to literally by the
President said gatherings of over 100 will be prohibited. That doesn't mean gatherings of less than 100 will be recommended. It doesn't mean that even I'm afraid to have gatherings this size. And there's only like 20 of us here. That's why I'm ending this next week. I was supposed to have it right into Ramadan. I'm ending it next week. Because I don't want to take a chance even with 20 people in a room. So my advice would be praised a lot at home. And if I was in charge of the masjid, I would actually see complete shutdown. I would say complete shutdown. Don't take any chances. There are different opinions some people see you maybe have 10 people coming to the masjid only just to
make sure some Jamaat is going on choose 10 specific people and learn those bits but for me I feel complete shutdown is the only way to stop this from spreading and to get rid of it before become something Allah knows best.
And the other questions
actually be more than social isolation did endure I think
it is. So ma'am. Maybe my students about 11 different races most middle of town, although people rely on each other place to go. So they end up missing maybe missing altogether because he's in another facility for that
particular Yeah. So
again, the principle that we not apply these principles Shall we not apply here which is the Hadees jhala without loku mosquito Allah media entire the pure Masjid. Meaning technically, you don't have to go to the mosque to pray. You can pray anyway, in your offers in a hallway in a corridor in your home in literally any way besides a toilet in a graveyard. So it's time to get creative with everything. Right? Find isolated places, even if it's a broom closet or whatever where you pray alone.
That would be better leaving the masjid open during the times it's taking chances. I mean, if one person goes into pre salah and somebody else comes into play salah and one of the two has it and you pass it on to the other person he goes back to his workplace, embassy and everybody his workplace no go home and pass it on to their families. Which defeats the whole purpose of closing the masjid. So why do we need to get creative with our pain in isolation?
overboard? Probably there is no nobody yet. Yes.
be looking at it. Yes. So vintage division. Specifically identify the point we are Yeah. There's nothing like that.
They go into
isolation while into overbought. We have an example right now
for the next five days
or five days, because he exposed himself yesterday.
Why don't we know what is it right now.
You see in South Africa, we have a bigger problem with this is that
a lot of people will have it won't even go for testing. Right? Because what's going to happen is upper middle class are getting it right. The Maids are coming to work for them, they're going to go home, they're not going to get tested, the equal spread throughout, and they live in informal settlements with everyone's right next to each other. Once you start spreading like that, in South Africa, we have no control over it. The people are not going to get tested. We all know how many people have it, it will just spread like wildfire. That's why we have to continue now and you have to take every precaution possible to stop it from spreading now, because the way we live in South
Africa, it spreads to spread too easily without us even knowing. In India, they're having the same problem. They can't they have no way of knowing how many people have it because they just don't have the means to test or what billion people how you just over billion people for it. Right? And you see how people live in the country is
Yes, and some people don't show any symptoms because it doesn't, it doesn't really affect some individual you'll just pass on from them to somebody else. So we can't take chances. It's best to just shut everything down until the pandemic is over.
Again, next week's I will final discussion and next week's topic is the final Maxim, which is a shocker to reboot ACL difficulties cause relaxation of the law. And one of those difficulties when we'll give you the full list, one of the difficulties is sickness, and more specifically plagues. Those are listed under difficulties that cause relaxation of the law. So when we study that next, we can all be subsidiary Maxim, you'll see exactly how this effect is worked out that we have an entire fleet to prevent these things from happening. The prophets law exam stated in an ad is that when a plague enters the area, if you're living in there, don't leave if you're outside, don't enter. He's
technically taught the idea of quarantine long before it ever became a medical practice. Right. And that's what the Sahaba did. That's how they contain the plague instantly, and it was spread to Medina, among other areas because of applying that Hadees. So it's not something new, it's something that has happened many every 100 years, something like this happens, I mean, 100 years ago with the Spanish influenza, right? And then 100 years before there was something else. So
it's something that happens, it has been presidents, what what makes it bigger today is we have international travel. And we have social media. international travel makes it spread faster social media, which makes the panic and the lies and the rumors and misinformation, the conspiracy theories spread faster. And so we have double problem like that.
In this rebellion,
yes. In this case.
What? Okay, this is a big one and an important one.
That's a good question. So, okay, this is a very important and realistic scenario. What happens if one of our Muslims passed away from it? janazah, who's
visiting the family sitting with their family? What happens to all these things?
So Allah knows this. But firstly,
Dr. I think this one's important for to get your feedback on. He's asking about if a Muslim passes away from this issue issue, like the hosel and the janazah. And all of that, you know, how do we,
you can give us the fifth part, which
physical copy of an iPhone, Mormonism is worth more than the physical copy. In a case like this,
you have to see, and also open it and
I can't see you wanting to punish this is because you can physically go and make yourself over.
And the one most scary thing about divorce is that if someone passes away from it, most likely their own family won't be able to attend at NASA, because they will be under quarantine. So that's a very realistic scenario to prepare yourself for that. If someone loses an elder living in the house with him through it, then the janazah will be without the family. Because you because they also have it or could have it. It'll have to be held by you have to figure out some other way to do it.
The future is
z it could be it could be no don't have possibly no it has that that's different. It's the reward of a Martin not a pic of a motto. It's two different things right? So someone passes away from a plague, they get the reward of Amata meaning all of these sins are forgiven. Right? But if you take the flick of a martyr, meaning a martyr when they die, we don't give them Oh, so you bury them in too close to died in order
that only applies to someone who died in a battle, if not the other type of martyrs.
In this case, we will assume the body have a quick janazah with five or 10 people in a Masjid and and bury it. There'll be no sitting with a family, no visiting the family not even the family attending
the full PPD
the gloves off, so basically, so maybe you need
to know, can you basically create the assumption
to get those things
done as it comes to the gray area actually
know, once you add in the ground stuff, and
whenever there's a person in this case where they see whatever they were
considering incinerated ingredients sprayed down,
distinguish between practice and practice.
Good question. So very good question. And there's so much discussion about in the books of fake, it's a very heated area. So the question is, how do we distinguish between what Suna and what Arab culture from the life of Rasulullah sallallahu wasallam. The best explanation I've got of that is the one I even assures opinion, which is, whenever the prophet SAW some stated a specific reward for or encouraged verbally, or he mentioned a punishment for not doing or, or Allah dislikes, if you don't do it, basically, whatever he linked to the religion, that is the sinner, or whatever he just did out seeing anything about it. That is the culture. So for example, the prophet SAW Some said, to
not eat with your left hand because she thought he should put his left hand. Now this is bringing religion into it. So now it becomes sooner to eat with your right hand. Right. But the prophets law Islam set on the Florida eight, he did not say any reward for sitting on the floor. He did not say anything wrong with sitting on the table and chair. He didn't say anything about it. He just sat on the floor and ate because that's what he's culture. So we won't see it should not to sit in a floor and eat we simply say there was the agriculture. So the clear is differences. What did the prophet SAW Islam say about it? If he said something specific. So for example, about the beards, he said, My
Lord has commanded us to let the beach grow. So yeah, it's clear he linked it to his Lord and a command. Right? But when it comes to covering his head, he didn't say anything about it. He covered his head because he lived in a desert. It was the culture of people living in a desert to a short covering, they had to protect them from the sand and the heat. Right so he didn't say any reward for agency any punishment for not doing it. He didn't say anything about it shouldn't covering the head becomes a cultural practice. So that's the main thing What did he say about it? If you can find any place where he linked it to Allah or to the religion or in any way then we will elevate it to the
level of Sunnah.
Any other questions?
stratification when it comes to cultural norms? For example, this take 1600s Turkey, the what is expected of the wife of somebody in Iran quite often is
something that is the Vizier, his wife versus the blacksmith like.
Okay, so the point the question is,
the question is the culture the city differ, it changes from time to time and place to place? His question is that a change from social status to social status, from one class to society to another? So for example, it may be the cultural norm, that upper middle class woman expects certain things from their husband, but low middle class women have a different level of expectations for their husband? And the answer is yes, the culture will change from level to level what's your, what's expected from me, you know, to put the example of what's expected from a blacksmith to provide for his wife will be different in that culture from what's expected for a
visitor to apply for his wife, right. So, culture does change like that. So for example, the cultural norms of Ganga are different the cultural norms have changed with the Phoenix agenda from the cultural norms of Overwatch we get that from the cultural norms of, of one inside the aldermen it's all one city, but there are so many different pockets of culture in the city.
certain expectations will change from one area to another. Obviously, if two people from this side of the country of the city are getting married, they're not going to have the same expectation that someone from the other side of the city, right? Then with a clash of cultures comes in either people marry from both sides to each other, then it becomes a problem is wherever they're living, that's where you're gonna follow the culture, whichever side they move into. So yes, culture doesn't just change from place to place, but it can even within a society as a multicultural society, you're going to look at the pockets of culture and what's what's their practices as well. It gets more
complicated nowadays, because of globalization. countries like South Africa and USA, where we literally are multicultural. I mean, look, here in Durban, we have
Zulu culture, culture, culture, white culture, colored culture, Malay culture, Indian culture, divided into many cultures, multicultural divided into upper middle class culture, lower middle class culture, divided into church and culture, Muslim culture, divided further and further and further,
we now have so many levels of culture, we can't just have a book of you can't have a book of things. You have to have individual level person, on individual basis, you have to do each person as they come in, someone comes in ask you, what should I give my wife, you have to look at the person what what races from what culture is from what's the norm in his family in his tribe, what's the norm in the suburb that he lives in? What's the normal from where his wife is coming from, you have to do get all of that and give each individual individualized fatwa. Because we don't have one culture, we have a mixture of cultures. Because easy fit is easier, or was easier in the olden days, because
turkey had one giant culture and Malaysia had one giant culture and India had one giant culture. But now because we are multicultural, this area of fit gets really complicated. And that's why I don't think you can really write a book on it or make a fatwa manual on it, you have to do each person individually.
So yeah, so Western culture, again,
that reads another dimension, because again, we have two sides. In our community, we have those who like Western cultures Haram. And we have those who have completely embraced the Western culture. And really what faith is all about is taking the good of Western culture and leaving the Haram elements. That's what it's all about. So there's nothing wrong with being a Western Muslim. As long as it's only the halal aspects of being a Muslim, we not jumping into the Haram aspects of it.
Unfortunately, because of the emotional approach we've taken, which is either West is evil, or which is, you know, our supreme leaders or
those two extremes, we haven't really maturely sat down and discussed it for me from a middle part, so if you look at it from a middle party are very good aspects of Western culture that we should adapt, adopt, and they are very negative aspects that we must run away from negative aspects of examples in our culture should have nothing to do with that good aspects, the level of environmentalism, right? The How romantic they are with their wives. Compared to Indian culture, it's a good aspect to to to adapt if you're living in the Western culture. So there's good and bad what Islam Islam does not label any culture as good or evil. And this is the mistake our forefathers
makes Africa is the label the Indian culture as the good culture and the Western culture is the bad culture. In Islam, it's completely neutral. all cultures are equal. There is no good culture or bad culture. It's every individual practices looked at separately, this practice is good, this practice is bad. So in the Indian culture, there are good practices and bad practices in the Western culture, do good practices and bad practices. And we have to look at each thing individually. So for example, adapt to the idea of Valentine's Day, we might say wrong, but the idea of Mother's Day, we might see it right. We might not see this. But what I'm seeing after discussion, we might see it right, even
though it's part of the Western culture, right? I mean, how many aspects of our life are taken from Western culture today? Everything from the way we dressing to the idea of going out to a restaurant at night, on a Sunday night, to the fact that we have Sundays off from work rather than Fridays. There's all Western culture. You can see Western culture is completely haraam. Don't take Sundays off work Sundays. I know how many people gonna follow that. So you have to take every culture has good and bad, you take the good and you leave the bad that includes Western culture.
Okay, anything else or should we close up now? Again, next week is our final discussion. And
after that, I'm going to produce more stuff online. If you have questions, what would be a good idea is if you have more questions over the upcoming weeks, you can email
To me or Sandy to me, I can produce YouTube videos answering those questions so we can still continue with the discussion. So inshallah
that's also possible
Okay, it's also possible you could if there's enough people interested do a live stream on YouTube or Facebook where we can do a live q&a in the future. Again, the point is the seeking of knowledge and the teaching of knowledge should not stop it just because of what's going on meeting in person should stop right. So inshallah it will be the final meeting in person after that we will take a break indefinitely until this is over. Anything else?
Sorry, near you.
Okay, so we then we will conclude to zakura hironaka da da da da da da, da da.