Commentary on Prohibited Gains

Commentary on Prohibited Gains

Bibliographic Information
Author: Muhammad Reza Nekounam (b. 1948)
Title: Commentary on Prohibited Gains
Publication: Tehran: Sobhe Farda, 2015
Physical Description: 152 pages
ISBN: 978-600-397-028-1
Cataloguing Status: Brief CIP (Cataloguing in Publication)
Note: Full cataloguing available at http://opac.nlai.ir
National Bibliography Number: 3787523

Introduction

Praise be to Allah, Lord of the Worlds, and blessings and peace be upon Muhammad and his pure progeny, and may the curse of Allah be upon their enemies.

In times past, I composed a commentary on the valuable and unique work, Prohibited Gains, authored by the eminent Grand Sheikh and Ayatollah, the erudite jurist Murtadha al-Ansari (may his noble secret be sanctified). This present treatise before the esteemed reader is that very commentary.

This precious book, Al-Makasib, is marked by high rhetorical quality but is often difficult to understand due to the complexity and similarity of its expressions and meanings, especially after repeated study and teaching. This complexity necessitates caution among all critics of the Sheikh’s discourse, since understanding and accurately apprehending his expressions with precision and certainty is more important than merely raising objections. Indeed, any valid affirmation requires a complete and comprehensive grasp of all facets of the Sheikh’s speech, which is itself challenging. Critique or rebuttal without such grasp is even more arduous, even though criticism and refinement remain possible for others, regardless of the Sheikh’s undeniable precedence and authority.

In sum, the Sheikh is a formal authority and a universal arbiter in the sciences of jurisprudence and principles thereof. His work constitutes the foundation of classical scholarship and is relied upon by the scholarly community throughout the seminaries, despite the existence of numerous juristic and foundational texts and other great scholars before and after him. Nevertheless, the Sheikh remains the central authority; no other book surpasses his rank or station. Furthermore, the Sheikh’s work is not limited to his own ideas, but draws extensively from the works of predecessors, earlier scholars, and contemporaries. The door remains open to successors in the tradition of Shia and Twelver jurisprudence, reflecting the ongoing pursuit of independent reasoning (ijtihad) and verification.

Among the critiques of his jurisprudential school is that it confines itself to normative and situational rulings alone. However, jurisprudence comprehends all knowledge revealed in the Shariah, including principles, branches, and ethics. It concerns itself with existent matters and those not explicitly found in jurisprudential texts, encompassing what is correct and incorrect, good and evil in actions. This was the method of the early scholars, as evidenced by the arrangement of topics in their works, which often begin with theological principles before addressing jurisprudential branches, sometimes blending theological discussions within jurisprudential works.

Hence, such a constricted view does not suit Shia jurisprudence, especially when it freezes thought on the superficial meanings of terms or limits itself to certainty in rulings only, omitting causes and underlying reasons entirely. Jurisprudence rests on three pillars:

1. Understanding legal meanings and religious realities based on sound texts and reliable evidence;
2. Recognising external circumstances and particulars related to rulings;
3. Grasping the actual causes and objectives embedded within legal rulings without reliance on analogy, juristic preference, or discretionary reasoning, which is common in Sunni fatwa methodology.

The claim, found among some critics, that recognising external matters is not the jurist’s concern is false and highly destructive, potentially leading to the decline of religious social order and restricting religious rulings to a narrow elite, disconnected from broader scholarly institutions.

Moreover, understanding causes and objectives should not be confused with personal analogical reasoning or juristic preference, which can distort Shariah rulings. Comprehending objectives is distinct from legislating the ruling. Jurists must apply rigorous principles to deduce rulings correctly, and without mastery of these principles, a person is not a true jurist but merely a memoriser of texts, even if their memorisation surpasses that of lay followers.

In reality, many contemporary jurists deviate from this ideal: some fixate on external forms and textual rules while neglecting causes and contexts; others over-rely on analogy and personal preference without thorough inquiry; yet others adopt an overly cautious approach, impeding sound reasoning. Consequently, much jurisprudence today is unclear, confused, and excessively cautious due to limited research, frozen thought, or poor understanding of objectives and contexts.

This situation has led to stagnation and widespread disagreement among jurists, even on major issues such as Islamic economics vis-à-vis the global imperialist system, with most issues plagued by ambiguities, contradictions, and confusion recognizable by experts and laypersons alike.

Accordingly, this commentary presents significant contemporary insights and derivations regarding these foundational jurisprudential principles, highlighting the peculiarities and differences from the prevailing jurisprudential school upon which the Grand Sheikh’s authority rested.

In conclusion, we ask God Almighty for success and the readers for benevolent prayers and good outcomes for their brother.

Praise be to Allah, Lord of the Worlds.

On the Permissibility and Prohibition of Ghosts and Statues

The question of the permissibility or prohibition regarding ghosts and statues was contingent upon the context and circumstances involved. Prohibition applied if the act was associated with any form of corruption—even outside the domain of polytheism or disbelief—such as promoting falsehood or spreading immorality. Conversely, permissibility was maintained if the act related to carving or using statues in contexts of goodness, benevolence, knowledge, literature, or craftsmanship without any insinuation of harmful or improper intentions. In matters of prohibition, no distinction was made regarding teaching, learning, or receiving payment if these were directly connected to prohibited activities.

Play, Amusement, and Vanity

Play is defined as activities that yield no benefit and lack purposeful significance. The scope of play encompasses a broad range of individuals including children, women, and ordinary people. The essence and nature of play is such that its purpose is contained within the act itself—there is no ulterior motive beyond the act for the participant, nor is there anything extraneous to it. Play is not limited to children and women, though its prevalence may be greater among them and among ordinary individuals.

In contemporary times, play manifests in numerous forms, many of which are governed by precise rules and standards akin to established sciences and arts, with many having reasonable and noble aims. However, colonial powers have often embedded malevolent agendas within these goals, leading to moral deviation and turning individuals away from higher and essential aims, which pertain to the human condition, as stated by God Almighty: “Blessed is Allah, the best of creators” (Quran 23:14).

Amusement (lahw) involves engagement in falsehood that diverts the individual from the truth. Although often conflated with play, amusement differs in that it may not necessarily involve play but always entails distraction from truth. Amusement lacks any rational purpose and is instead driven by base or nefarious desires. While amusement may not always appear as play externally, it remains fundamentally play and vanity. The ultimate aim of play is the play itself, whereas vanity entails an additional purpose, namely falsehood combined with weak or malicious intent. Both play and amusement are inappropriate for humans, who are inherently superior to such frivolities; moreover, amusement is worse than play, and those who indulge excessively in either are prone to heedlessness.

Vanity (laghw) denotes falsehood that yields no benefit and no additional harm beyond its inherent detriment. Often, vanity arises habitually and thoughtlessly, sometimes with a weak or unintended will, and its harm is generally less than that of play or amusement. Some forms of play may garner rational approval from many ordinary individuals, but this does not extend to those indulging in vanity. Amusement is regarded as the most excessive form of frivolity.

Vanity is considered a psychological disorder, requiring the individual’s attention to eliminate it by any possible means. The feasibility of doing so depends on the nature of the vanity, its duration, and the individual’s character.

The wisdom behind prohibiting play, amusement, and vanity for the responsible individual (mukallaf) is to assert the dignity and station of human affairs. The human condition is elevated and noble, making it unbecoming to engage in trivial or base acts. Islam encourages the individual to dedicate life to profound thoughts and noble pursuits aimed at ultimate goals.

Should one argue that human nature inherently inclines towards such trivialities, especially in the absence of higher aims and acquired virtues, then the response is that this lower desire belongs to the “commanding soul” (nafs al-ammārah), a derivative of the rational soul (nafs al-nātiqah), and not the soul in its entirety or perfection. The true human soul does not perpetually aspire to such illusory matters. A soul driven by such desires is in a state of fantasy and under the control of the commanding soul—this arises from the weakness of the rational soul.

On the other hand, a complete soul experiences attraction both to base desires and higher virtues; these are not contradictory but coexisting tendencies. However, the commanding soul’s yearning for base matters is much stronger and unbounded in its desire. While the soul remains under the control of the commanding soul, it remains unaware of anything beyond these desires. Yet, this does not indicate the goodness or truthfulness of these desires but rather their existence at a lower level within the soul. If a person obeys and follows the commanding soul, they become like an animal, with no concern but for these base matters. Conversely, if a person attains self-mastery and is capable of controlling their will, they become a rational human, relegating trivial matters to insignificance, even if these do not vanish entirely from their mind.

If it is argued that the soul at the lower stage requires engagement with such matters in detail, and that one should not reject them outright, the reply is affirmative; however, divine law prescribes suitable activities for this lower stage, and no excess is necessary, provided the individual is faithful and sound.

Gambling, Betting, and Contests

Gambling, betting, and contests are distinct entities, though they may occur together or separately in practice. However, their co-occurrence does not imply a unified meaning; conceptual distinctions remain.

Gambling (qimār) refers to playing with gambling instruments, even without a stake or wager, although stakes usually accompany it. The essential nature of gambling is the act of playing with specific instruments designed for gambling, while wagering is an external goal. Most gamblers seek profit through stakes in such play, deriving greater pleasure from this than other gains.

Motivations among gamblers vary: some pursue the thrill of gambling itself, indifferent to wagering; others focus on the monetary gain from stakes, treating the gambling merely as a means. Those solely concerned with gain from stakes, irrespective of the gambling instruments, do not fall within the category of gamblers but engage in a prohibited activity related to wagering.

Gambling is a Satanic pastime in all its forms and is absolutely forbidden, whether with stakes or without. Playing without gambling instruments does not constitute gambling, since the core meaning of gambling involves the specific use of these instruments. Stakes are an external objective, with the internal purpose being the play itself. Thus, gambling remains gambling even without stakes, as wagering is not essential to the term’s meaning.

Prohibition of gambling applies unequivocally to all its facets, whether explicit or implicit, since playing without gambling instruments does not qualify as gambling. Claims that some betting forms are gambling only because of their similarity to wagering are incorrect; they are not gambling by definition.

The rationale behind prohibiting gambling is to prevent believers from engaging in vain and false matters and from diverting attention from the truth, as indicated by the Prophet’s sayings: “The believer is occupied and thus avoids play” and “When God distinguishes truth from falsehood, which side will you be on? The side of falsehood.” There is no difference in this regard between gambling with or without stakes.

Betting (marāhanah) is playing without gambling instruments but with wagering, such as demonstrating ability, superiority, or boasting about extraordinary or excessive acts. Its prohibition is also unequivocal, even though it is not a form of gambling, despite its resemblance to wagering.

Betting’s prohibition is rooted solely in wagering, as it is an independent form of falsehood, separate from amusement and negligence.

Contests (mughālabah) without stakes, except where permissibility of competition is explicitly stated, are also prohibited—not because they constitute gambling or involve wagering, but due to their specific nature, i.e., winning in frivolous matters inappropriate for a believer.

Dice and chess are considered gambling instruments; both are forbidden regardless of wagering status, as they constitute vain play diverting the believer from the remembrance of God, and those who divert from God’s remembrance are engaged in falsehood.

All contests involving such vain, forbidden matters and their habitual practices are likewise invalid.

Illusions promoting such matters—like chess and others—or their purported spiritual qualities or association with knowledge or literature are delusory and misleading. Rational individuals should not rely on them. Promotion of such frivolities stems from malicious hands and flawed individuals exploiting genuine emotions.

If these trivialities were valid criteria for permissibility, then all prohibitions could be rendered lawful under false justifications, infiltrating modern sciences. Yet, contemporary harms, despite strict rules and refined methods, and even formal educational studies on some, remain under the control of Satan’s whispers. I seek refuge in God from Satan’s insinuations and rely upon God to ward off intellectual harms from the mind and inner insight, God willing.

Singing and Music

The distinction between singing and music is that prohibited singing in Islamic law pertains to voice and melody, whereas musical instruments used for rhythm are treated differently with distinct rulings. There is consensus on the prohibition of musical instruments intended for amusement; however, divergence exists concerning the prohibition of melodies and singing, whether singing is wholly forbidden or merely equal in prohibition, or if melody’s prohibition is broader or equivalent to singing.

Singing is the voice associated with entertaining or seductive tunes. The concept of “pleasant voice” and “Arab melody” raises the question of how these are reconciled with prohibitions. The answer is that sound cannot be absolutely prohibited, for that would negate the purpose of creation. Furthermore, pleasant sound is among the greatest gifts from God to creatures, whether humans or animals, or indeed from other natural phenomena, such as the darkness of night, light of day, the sound of water, or rustling leaves. Hence, sound cannot be categorically forbidden; rather, singing is understood as a voice intended for amusement in its manner rather than content, which is a separate matter.

It is impossible to declare prolonged or melodious sound absolutely forbidden, nor is prohibition intrinsically connected to such qualities. Sound can be forbidden without melody or with it; therefore, prohibition relates to a quality of sound, not melody per se.

In practice, the intention of amusement in singing is crucial. The content and context also matter. Songs with obscene or immoral content are clearly prohibited. Conversely, songs that promote virtuous themes or contain religious or patriotic messages may be permissible.

Sale of Items Without Permissible Utility

The statement: “The third category, concerning what is prohibited to earn through, is that which has no acknowledged permissible utility…”(1).

The invalidity of a transaction fundamentally arises from the absence of benefit in what is being traded. Anything whose benefit is forbidden by the law, yet possesses some benefit—even if rarely—its sale and purchase are deemed valid in cases where its benefit is indeed present.

A rare benefit is not equivalent to a nonexistent one, except in cases where no benefit is found at all.

All the particular items mentioned in this context are permissible to sell when they are useful. The prohibition historically attached to them stemmed from the inability to conceive their benefit at the time.

However, all of them hold numerous benefits for their communities, and the need for them exists not on an individual basis but among people collectively.

Sheikh Kamil elucidates this matter by stating: “There is no objection to affirming the permissibility of selling all that possesses some benefit,” though his focus on such consensuses is minimal because the existence of consensus was primarily due to the prior non-recognition of benefits in these items at earlier times. Such consensus is neither a definitive legal restriction nor does the law treat the rare benefit as if it were nonexistent—a wholly erroneous claim.

Therefore, there is no impediment to the sale of wild beasts by their skins, meat, and bones, regardless of whether they are slaughtered ritually or not, assuming their benefit is established in a manner free of any religious prohibition regarding them.

Deception by the Hairdresser

The issue: “The primary question concerns deception by the hairdresser…”(1).

Deception is universally condemned both intellectually and legally, and it appears in numerous instances across jurisprudence, including deception by the hairdresser.

The hairdresser’s practice in contexts related to adornment and cleanliness, provided it is free from trickery, is unquestionably permissible, as is her earning from such work and all common related matters.

Minor harm involved in the act—such as plucking facial hair or tattooing—does not constitute an issue, given the reasonable purpose and benefit derived from it. The interaction among women in these practices poses no objection, provided deception is absent.

All prohibitive narrations refer to instances involving deception, not the acts themselves.

The prohibition against covering the face with a cloth is not due to deception but rather because the act itself harms the face, as the wisdom behind forbidding it is that it tarnishes the complexion.

Similarly, forbidding the attachment of one woman’s hair to another’s is rooted in deception or the gaining of illegitimate reputation among women whose hair has been cut, aiming to secure marriage or due to their limited social standing and the risk of exposure to strangers; otherwise, the act itself is not objectionable.

Adornment of Men

The question: “The second issue concerns the adornment of men with what is forbidden to them…”(1).

The debate centers on whether the prohibition of men wearing silk and gold is economic or ethical in nature. The correct view is the latter, as with silk; and although the prohibition regarding gold is not conclusively established, denial of it categorically is not mandatory, nor is the reason for the prohibition confined to a single cause.

The prohibition against men imitating women and vice versa is rooted in ethical and rational grounds for preserving morality, and the legal ruling affirms this.

It is surprising that Sheikh, despite his elevated status and profound understanding of religious taste, wavers here, stating: “Several have admitted the lack of a clear proof for this ruling except the famous prophetic tradition, which is deficient in its indication,” and describing its implication as “the apparent meaning is effeminacy,” although imitation and effeminacy, while sometimes interchangeable, are distinct.

The act of imitation, if complete, does not require special intent; the prohibition concerns the type of behaviour in social convention.

In summary, hermaphrodites, effeminate men, and cross-dressers are all considered deficient in nature, their conditions acquired rather than innate, although the exact nature varies. Some are linked to voluntary acts arising from internal disposition, such as effeminacy, while others are clear natural deficiencies.

Effeminate men and cross-dressers, though not necessarily imitating men or women fully, are often used interchangeably in discourse. Citing effeminacy in this hadith does not prove that effeminacy is the intended meaning of imitation, although it is used synonymously.

The prophetic hadith regarding imitation is flawed, as is the narration concerning same-sex intimacy. However, the ruling’s essence—that imitation is forbidden—is sound, although its applications vary across times.

The Discourse of Sheikh al-Baha’i on Astrology and Related Issues

Sheikh al-Baha’i’s discourse is largely rational. Regarding the statement: “Since the astrologer is like a disbeliever, they are disbelievers except for the first three sects, as it appears there is no objection to the three sects being genuine disbelievers rather than merely being ‘like’ disbelievers,” this is not entirely correct and contains some ambiguity. This is because the term ‘like’ in this context does not mean metaphorically or as a reduction, but rather an equality between the false astrologer and the disbeliever, combined with the fact that others besides these three sects cannot be considered disbelievers or ‘like’ disbelievers without the basis for disbelief being present in them. Therefore, Sheikh al-Baha’i recanted and adhered to the principle of consistency, saying: “No narration clearly establishes the disbelief of the astrologer in the sense previously mentioned at the beginning of this issue, as real disbelief. Thus, he stated: ‘It is obligatory to return to whether the astrologer’s belief corresponds to one of the conditions that necessitate disbelief.’ What Sayyid, the commentator of al-Nukhbah, said regarding the beliefs of the astrologer applies to a particular group and does not encompass all astrologers whose beliefs are like that. The disbelief of the astrologer and the problem of stars and the blame in the law is relevant to this particular group and those similar to them, not all Muslim astrologers who adhere to the law and acknowledge the Truth Almighty with all His names and attributes, and who believe in the influence of stars and other matters that do not contradict the law either by disobedience or disbelief.”

Sheikh al-Baha’i’s statement in this regard is not complete, since the disbelief is not limited to those mentioned only, and this does not negate the disbelief of those who belong to this category even if they hold other different beliefs.

Moreover, the clarification by al-Bihar in this matter is not definitive either, although all critiques do not amount to proving the astrologer’s disbelief, even if some are explicit on this point. This is the content of the first section of Sheikh al-Baha’i’s discourse.

As for the second section of the fourth part of the Sheikh’s discourse, it holds that belief in the influence of stars is not legally problematic since the Ultimate Truth is the greatest Influencer if the influence of stars is considered secondary to the influence of the Truth. This belief is not a criterion for disbelief, although the actual influence of stars may not be as claimed. There is a clear distinction between disbelief and the corruption of a scientific doctrine.

The statement of Majlisi (may God sanctify his secret) in this matter lacks evidence for declaring disbelief of those who claim stars act by free will, and the Sheikh’s interpretation without evidence is similar to that of the martyr (al-Shahid). This forms the content of the second section.

The problem lies in believing the third type of influence according to Sheikh al-Baha’i’s discourse, either legally sinful or a form of disbelief doctrinally, although it is not true in relation to the actual influence of stars.

Similarly, the fourth type of belief—that the connection is like the relationship between the knower and the known—presents a problem from the perspective of disbelief but is not disbelief in itself, although the belief is not factually correct.

It must be noted here that not all events are causally linked; rather, the necessary causality governs all matters by God’s permission and care.

The life of the stars is accepted; however, it is neither voluntary nor compelled but rather innate according to its sphere. Connections in all worlds are real but linked to the realm of divine decree and destiny—some absolutely decreed, some linked to destiny, and change is necessary for them. The important matter is to know the mystery of destiny regarding these matters, which only the infallible saints (peace be upon them) fully comprehend. Others among the monotheists may learn it with variation in their capability, from weak to strong, according to their capacity for knowledge, purification, and the luminosity of the heart.

The right statement here is that of the Imam al-Sadiq (peace be upon him): “Much is incomprehensible, and little is productive.” The problem lies in belief, teaching, and practicing it as long as it does not clearly cause harm, prohibited principles, or corrupt results, and is not contrary to religious law or truth.

The meaning of the Imam’s statement: “The origin of calculation is true, but only those who know the birth of creation know it,” refers to the perfection of this knowledge, which is exclusive to the infallible saints, but it is possible and accessible for others, albeit to a lesser degree.

The narration: “Did the stars have a beginning?” is remarkable and contains divine secrets known only to a unique few, and the explanation of it is a special station, not a subject of jurisprudence.

All the supportive narrations in this topic relate to their original sources and are not negated by the ignorance of many astrologers regarding much of their knowledge.

The truth in all of this, broadly speaking, is that the science of astronomy and its mathematical principles is true and valid despite slight differences in calculations among experts. There is no objection to learning, teaching, applying, and related matters. This knowledge was part of religious sciences in early Islam and later fell into foreign hands due to many destructions of sciences among Muslims and religious scholars, though the recovery is astonishing and commendable.

As for its rulings and astrological influences, these are also undoubtedly true, but the influence is not by habit, narration, or necessity but by a special divine decree known only to the infallible saints. Knowledge of all this was held by the prophets and infallible saints. Knowledge outside this is minimal, hence the Imam al-Sadiq’s statement that much is incomprehensible and little beneficial. Teaching, learning, or applying all this is permissible, and there is no objection to the original matters unless there is improper teaching, false acts in principles or aims, opposition to the religion, or other potential harms. Historically, there were astrologers who were disbelievers with false beliefs, which is not linked to the origin of the science.

The origin of the science is true, and its rulings are true; the problem lies in their governance, types, and means of application in any context or for any purpose, not in their application per se.

Religion protects beneficial knowledge that reveals truths to people, provided there is no harm from it. Prohibitory reports occurred due to particular reasons, not regarding the original disclosure of truths and secrets.

Magic (Sihr)

The tenth: “Magic is generally prohibited…”

There is no dispute on the general prohibition of magic. However, the issue in the argument is whether magic is forbidden intrinsically, as magic, or because of the harm caused, or forbidden due to prohibited means, harmful ends, or associated unlawful matters. The difference between the two positions is that the first holds magic forbidden absolutely, even if no harm exists; the second states its prohibition is due to harm, and without harm, it would be permissible and lawful.

The truth is that magic is forbidden intrinsically, as its very nature is unlawful, and harm is either in its acquisition, principles, or goals, and necessarily accompanies its teaching, learning, or practice. It cannot be mastered except through sin because magic and related acts draw upon devils and are linked to the enemies of the noble angels, opposing the good spirits. The magician is a servant of evil spirits and sustained by them.

The harm resulting from magic is an inseparable effect, and magic would not be lawful without such harm, due to the inseparability of magic, harm, and prohibition. Without unlawful accompaniment, it would not be magic, since magic necessarily involves association with the devil.

Anyone who says magic is not proven forbidden and that there could be lawful magic without sin is ignorant of the true nature of magic and does not know it, having never met a magician in their lifetime.

Disagreement here stems from a misunderstanding of the subject and reality of magic, despite differing linguistic evidences, all pointing towards the explanation with guidance to the public concerning harm and damage.

“The magician is like the disbeliever”—meaning the magician promotes disbelief and denies truth. The analogy intends to show closeness of magic to disbelief both in deed and belief, and to explain the division of magic into types of disbelief rather than mere analogy.

“Whoever learns any amount of magic…” clearly indicates absolute prohibition.

Magicians who are disbelievers are not executed for magic, as their disbelief alone suffices for killing, and execution for magic itself is not mandated by Islamic law.

All linguistic and juristic definitions of magic contain many difficulties due to lack of full understanding of its reality.

The prohibition concerns humans only and does not apply to animals or others, nor can it apply to angels due to their superiority and power over magic and magicians. The magician’s power can never exceed the power of an angel.

All types of magic, despite their diversity, return to one matter: seeking assistance from devils, although the magician performs the act. This is the essence of magic.

Diviners and soothsayers are more sinful than magicians because the soothsayer acts as a ruler over magicians and is empowered by devils, who act on their behalf without needing actions or offspring.

Magic is inseparable from forbidden matters; anything lawful and free of prohibitions is not magic and does not carry its prohibition. The minimal prohibition is seeking assistance from devils or association with them.

Even magic intended to counter other magic is itself forbidden due to the principles involved. The hadith “It is lawful to untie and not to tie” is interpreted in several ways, including that only the cause of tie (magic) is forbidden, not the cause of untie (counter-magic). Others assert that all magic, whether for binding or unbinding, is forbidden due to its harmful means and ends.

Expiation for Backbiting

Secondly: The expiation for backbiting.

Backbiting entails a right for the aggrieved party, which is not waived except by their explicit relinquishment. The classification of this as a right is supported both by reason and revelation. Its removal depends on the satisfaction of the rightful party, supported by jurisprudential reports. There is no distinction between the accessibility or inaccessibility of the aggrieved party; the impossibility of obtaining their pardon does not nullify the right, as is consistent in other contexts. The traditions mentioning seeking forgiveness on behalf of the backbiter do not imply relinquishment of the right, but rather a means of hope and intercession on the Day of Judgement before God Almighty. This matter is unrelated to the existence or non-existence of the original right, and there is no need to further reconcile this with what has been stated. Multiple titles or difficulty in access does not extinguish the right.

The Sheikh’s statement that the lack of a right for the people is “not free from weakness,” as he indicated, is itself weak. The fundamental proof necessitates the permissibility of expiation whether or not it is feasible. Seeking forgiveness is not a means to extinguish rights across all categories discussed herein, but rather the discussion pertains to the status of the believers and the types of waiver among them through reconciliation, as mentioned in this context.

*”It is the right of a believer over another believer not to backbite him; the sanctity of his honour is like the sanctity of his blood.”*¹

The term “believer” here refers to all the faithful, higher and lower. The comparison of honour with blood is based on the fact that honour represents human dignity and social cohesion, just as blood is the cause of life within the soul.

Thirdly: Exceptions to Backbiting

If there is an interest in backbiting, the matter revolves around balancing the stronger of two interests. The instances of exception are not limited in number.

What is critical in this inquiry is who governs the permissibility or obligation of exceptions in backbiting? The lawgiver cannot determine this because it is a personal matter not subject to regulation. It is impermissible for the individual backbiter to self-judge, as humans are subject to their own desires and prone to error. Perfect individuals are scarce, and most are afflicted by moral failings, especially directing matters according to their inclinations. Hence, the determination of exceptions must lie with another authority, either by recognised jurisprudential discretion or by delegated judgement, although this too may raise problems regarding backbiting. Nevertheless, it is our view that self-permission for backbiting is impermissible.

*”If a sinner openly commits sin, he has no sanctity nor right against backbiting.”*²
*”He who casts away the garment of modesty has no protection from backbiting.”*³

The apparent meaning of these two traditions, from first to last, permits backbiting the openly sinful for sins other than the ones they openly commit. However, the authorities generally rule out sanctity and cite prohibitive evidence except for the particular sins known to be openly committed.

The statement: *”Even without intending a legitimate purpose…”*⁴

Notes and References:

¹ Al-Wasa’il, vol. 9, p. 45.
² Al-Wasa’il, vol. 7, p. 418.
³ Mustadrak al-Wasa’il, vol. 8, p. 461.
⁴ Al-Makasib al-Muharrama, vol. 1, p. 345, hadith 20.

Tawriyah

His statement: “As for Tawriyah…”(1).

Tawriyah is a form of deception used by the elite, without a conscious intention to deceive, where it is not considered a lie in the sense of matching the reality according to the speaker’s intent. However, in terms of the common linguistic understanding, it is considered a lie, because listeners interpret it differently. Additionally, Tawriyah has aspects of moral flaws, such as inciting ignorance, deceiving, and training the soul for betrayal, among other unethical traits. Despite these, it may be unavoidable in certain situations for sincere believers who cannot easily lie. Not everyone who lies habitually would resort to such a method.

It could be argued that there is no Tawriyah in spoken communication, where tone of speech is clear; however, it can easily occur in writing. In the Madarik (sources of Islamic jurisprudence), there is no specific attention paid to Tawriyah, and there is no clear teaching or rule from the lawgiver regarding it. Instead, it is practiced by the elite in cases of necessity, in certain situations. Therefore, common people are not bound by it, nor are they restricted by it in any of the Islamic jurisprudential domains.

His statement: “Because the cases of reporting neglect Tawriyah…”(2).

Tawriyah is a form of deception used by the elite, without any explicit teaching or codification from the lawgiver, and it is only practiced by the elite in exceptional circumstances. Hence, common people are not burdened by it, nor are they restricted by it in any manner, and there is no sign of it in all sections of Islamic jurisprudence.

His statement: “Then, the harm that justifies lying is the same harm that justifies other prohibited actions…”(1).

This sweeping generalization by him is incorrect because the justification for lying does not apply to other prohibited actions, such as adultery, murder, and so forth. Sins vary in nature, and the reasons that justify them are also diverse. Lying, in its absolute form, is not necessarily one of the greatest or most grievous sins. There are instances in the sayings of the infallible ones (Ahlul-Bayt) where their words appear to contradict reality. Additionally, some of their sayings could be considered as instances of backbiting, all of which occur due to the necessity of protecting the religion, the individuals, or their noble souls. While there may be a basis for actions, whether through lying or Tawriyah, the latter is preferred if possible. It is not correct to broadly apply the concept of “recommendation” to all rulings, as the Sheikh (may God rest his soul) did in his interpretation.

His statement: “The reformer is not a liar…”(2).

This means that in this type of deception, there is no reproach or corruption, and it does not imply that the absence of lying is understood as a general prohibition. As indicated in the narration of Isa ibn Hannan: “Every lie for which its owner is held accountable, except for the three types of lies…”(3)

“There are three types of speech: truth, lies, and reform between people…”(1); This does not imply that speech can only be classified into these three categories logically, but rather that news can be either true or false in an absolute sense. However, this type of lie, namely that which serves the purpose of reconciliation, does not contain harm but rather brings benefit and goodness.

Praise of Those Who Do Not Deserve Praise

His statement: “The twenty-first: Praise of those who do not deserve praise, or those who deserve blame…”(2).

The discussion is broader than just the title and reasoning. The overarching theme is to criticize those who do not deserve criticism or praise, or to remain silent when praise or blame is necessary. This includes both the worldly individuals, wealthy people, or oppressive rulers; because people, in terms of praise and criticism, show affection or hatred for individuals based on personal relationships. They praise those they are associated with and criticize those with whom they have strained relationships, or conversely, they praise those who are close to them. Therefore, the discussion is more general, and the Sheikh’s reasoning is more specific.

His statement: “And do not lean towards those who wronged…”(3).

This verse is related to the oppressive rulers and those who glorify the wealth-driven individuals. The discussion, in all its aspects, is rational, and it is clear that praise, in relation to worldly people, is generally superficial. The true saints are immune to this, except in cases of necessity. I ask Allah for guidance and protection from all of this.

His statement: “The twenty-second: Aiding the oppressors… This is one of the major sins…”(1).

Oppression is the root cause of all sins, both major and minor. Its origin is ignorance and deprivation from knowing Allah. Assisting the oppressors is one of the earliest manifestations of sin, and in many cases, it pertains to both individual and societal sins. Its ugliness and prohibition are self-evident, requiring no additional evidence except for understanding the specific cases and details. Assisting the oppressors has been a characteristic of despicable individuals, often those lower than the oppressors themselves.

His statement: “He has exited from Islam…”(2).

This means, in practice, not in reality.

His statement: “As for helping them in non-forbidden matters…”(3).

The criterion in determining help is the title, whether it is done suddenly or continuously. Assisting the oppressors in an unlawful act or otherwise is a different matter. What is stated in the narrations applies to the general title, not the specific action in terms of its permissibility. This is why it was said: “Whoever walks towards an oppressor to assist him, knowing that he is an oppressor, has exited from Islam.”(1), meaning not that he immediately engages in the act of oppression, but that the title itself, in relation to assisting them, holds the prohibition. The prohibition depends on the title of aiding the oppressor, not the specific action. Therefore, if someone becomes part of the oppressor’s entourage, there are two types of prohibition: first, the prohibition related to the very act of supporting the oppressor, and second, depending on whether the act itself is lawful or unlawful.

His statement: “Beware of the gates of rulers…”(2).

It is evident from this statement that rulers are the most obvious and ancient manifestations of oppression. The reason for avoiding them is due to their oppressive nature, and those who incline towards them will be in a state of deprivation and under the influence of devils, as they corrupt themselves in the process of building their worldly appearances.

(118)

Taking a wage for it, in terms of the return of the benefit to the other party, and the obligation of the act itself for the one receiving the payment, independent of the benefit returning to him, implies that the obligation concerns the actual performance of the task in practice, whereas the payment pertains to the benefit returned to him. This is an entirely rational matter, and the law only requires this. When it comes to obligations or limitations based on specific individuals, in relation to particular tasks, the worker must perform the work, while the wage is a separate issue. There is no difference in this regard between individuals such as a wet-nurse, a guardian, a doctor, or in cases of collective obligations, such as preparing the dead, teaching the ignorant, and performing the marriage contract, among others. There is also no distinction in these cases between acts that are recommended, disliked, or permissible. There is no objection to receiving a wage for an act that is disliked or permissible, even if the act is recommended, as long as there is a benefit returning to the payer, even though the heavenly reward might counterbalance the action without any issue, either from the perspective of worship or proximity to God, and the like. There is no objection either to the act of hiring or receiving wages for religious duties on behalf of the deceased, even for the living in certain cases, without contradicting the aspects of worship, proximity to God, and so on. The existing texts in all these matters clarify what is contained in the rational principles regarding the conditions of exchange, and the only valid contracts in hiring and receiving payment are those that are not prohibited by the law. There is also no objection to receiving payment for the call to prayer (adhan), not for oneself but for the benefit of others, even though the call may involve personal or broader benefits, including heavenly rewards.

(119)

Sale of the Qur’an

The statement: “Conclusion that includes issues: The first… a group of scholars have explicitly stated the prohibition of selling the Qur’an…”

Given the existence of narrations on the subject, the opinions or consensus regarding the prohibition or permissibility of selling the Qur’an hold little value, since the ruling is derived from these narrations.

The opinion of universal prohibition is a sign of insufficient scrutiny regarding the sale and purchase of the Qur’an.

The appearance of narrations…

The prohibition in the narrations regarding the sale of the Qur’an, assuming all the hadiths are authentic and trustworthy, is limited to the sale of the Qur’an as the literal “Word of God” or as the Qur’an itself. Otherwise, the fundamental permissibility of selling it is agreed upon in the narrations. There are even narrations that state that the prohibition does not apply to selling the paper that contains the Qur’an, the act of working with its verses, or its ownership, among other things.

In summary, the prohibition in selling and purchasing applies only if the subject is the “Word of God” or the Qur’an as such; otherwise, there is no prohibition in selling this book, even if it contains all the verses of God, as long as it is not treated solely as the Qur’an.

The narration: “Do not sell the Qur’ans…” indicates that selling it as the Qur’an is prohibited. Thus, the narration advises: “Buy the cover and the binding from him, but do not buy the ‘Word of God'”—that is, do not purchase it specifically as the Qur’an. However, buying the Qur’an as a work of a Muslim, or taking payment for its recitation or copy, involves no issue.

The reason for this prohibition is the sanctity and high status of the “Word of God,” and that it should not be treated as a mere commodity. This is why the narration states: “Say I buy from you the paper, the cover, and the labor involved in it, not the Word of God.”

Conclusion of the Issue:

Selling the Qur’an specifically as the “Word of God” is prohibited, but selling it in the form of paper, binding, or labor is permissible, even if it contains the Qur’an’s text. This position aligns with established legal principles and narrations. The prohibition, therefore, is related to the specific title of “Word of God” applied to the book, not to the physical text or material.

(120)

There is no need for further elaboration on the question of how the “act of writing” is related to the Qur’an. As mentioned, the writing of the Qur’an is deemed desirable for the quality of the work, and assigning wages in this context often leads to payments exceeding the standard wage, as seen in customary practices like those during weddings, funerals, and similar occasions. The evidence in these narrations suggests that the wages associated with writing are not specifically tied to the Qur’an itself, but to the physical act of writing.

(133)

To the extent possible, one should take what is due without causing harm to the individual or the society, whether the debts are related to the rights of God Almighty or to the rights of people, and whether the rightful owner is known or unknown.

Third Issue

The state’s actions in relation to all that is customary worldwide are considered permissible for the nation, even if the state is unjust or oppressive in what it does, supported by evidence from what the ruler takes from taxes and divisions.

Regarding what the ruler takes in a customary manner, it is permissible for one to accept it, even if the general rule would prohibit taking it, as the ruler is not entitled to it. What the unjust ruler takes, although the property remains in the ownership of the one from whom it was taken, can be accepted from the unjust ruler. There are many texts that permit this, in addition to claims of consensus and other legal and rational arguments regarding the necessity to avoid hardship and maintain order by accepting it.

(134)

Attention should be drawn to the following points:

First Point

The statement: “The first point is that the apparent statements of the majority, even of all scholars, indicate that the ruling is specific to what the ruler takes. Before the ruler takes the tax, it is not permissible to transact on it by purchasing what is owed by the user of the land…”

However, several scholars explicitly state that there is no difference, and even the second scholar declared consensus that there is no difference between receiving it or not.

The issue is whether the ruling is limited to what the ruler takes or whether it applies more generally. The second view is correct, because the rationale behind this ruling is based on the actual practice or force of state law, with no distinction between accepting or not accepting, as is evident from the reports. Additionally, the reasoning from rationality concerning avoiding hardship and maintaining order further supports this, and the act of taking is a general condition, not a limitation of the ruling.

(135)

Second Point

The statement: “Second, does the ruling on the tax, in terms of its exemption from the general principle that it is property wrongfully taken, apply only to those who take it? The unjust ruler has no right to take it at all, so the Sharia did not approve…”

The Sharia’s approval of the unjust ruler’s actions, based on the reality of the situation, requires observing the boundaries, even if the ruler’s actions are unlawful. Therefore, there is no difference between receiving or giving from the unjust ruler. Similarly, all transactions and relations with the state should follow the same principle. It is not permissible to steal state property or deny it, except when it is possible to hand it over to the jurist, without causing harm to the jurist or the people. Thus, going beyond the authority of the jurist or ruler in any form of governance is forbidden by Sharia and reproachable by reason. If the jurist has the possibility of leadership, the second option is not permissible; otherwise, the ruling of the ruler or the governing state must be followed. The narrations on this issue overwhelmingly support these principles, alongside the reasoning of the wise regarding the obvious disorder and hardship caused by abandoning the collection.

(136)

Third Point

The statement: “The solution of the tax and division taken from the lands…”

This applies only to that which is not part of the divine property designated for the Shia. If it is within the Shia’s jurisdiction, they should follow their judgment; otherwise, they must adhere to the ruler’s or governing state’s actions to avoid hardship and ensure the preservation of their position.

Fourth Point

The statement: “The apparent meaning of the reports and the consensus of scholars indicates a limitation…”

The resolution of taxes and division does not belong solely to the ruler claiming general authority. It includes anyone who gains control over a village or town through governance and state formation, in order to avoid hardship. However, it does not apply to those who gain control over a region in violation of the ruler’s authority, although they may seek to deal with those who are under their control, until the ruler can assert authority to defend the region. Based on this, there is no distinction between limited or broad authority, as the basis is power and governance. There is no difference in this between opponents or supporters, or Muslims and non-Muslims; although the narrations may refer to specific cases, this was due to the circumstances of the time of their revelation.

(137)

Fifth Point

The statement: “It is apparent that…”

There is no requirement for the tax to be taken from someone who believes that the recipient has the right to take it, regardless of whether the individual is a believer, a dissenter, or a non-believer. The underlying principle is that the tax is being taken by the unjust ruler from the land in question.

Sixth Point

The statement: “There is no fixed amount for the tax…”

The determining factor for the tax is the agreement between the state and the user of the land. It is a necessary matter for the ruler to ensure fairness and justice towards the subjects.

Seventh Point

The statement: “The apparent view of the scholars…”

Although the tax is a right of God Almighty, it is the Sharia’s approval in terms of taking and giving it to the ruler or from the ruler that ensures the avoidance of hardship and maintains the order in society. There is no requirement that the recipient of the tax must be someone who considers the recipient entitled to it, and this is also true for the Zakat (almsgiving) and shares in the division of wealth.

Eighth Point

The statement: “That the status of the tax lands depends on three things: First, whether they were opened by force…”

What the state takes from land in terms of finances can be subject to the same principles, even if it is not categorized as “taxed land,” as in the case of the properties designated as “anfal” (state-owned properties).

(138)

The statement: “The title of forced conquest is valid as long as it is recognized…”

The status of the forced conquest is valid until the time it is no longer recognized as such, and after that, no further obligations or judgments regarding the land apply. In this case, the dealings that follow do not bear any moral or legal responsibility, except for those who ignored the issue at the time, particularly with regard to lands like those in Iraq. Thus, subsequent transactions on these lands are valid, and there is no blame on those who act later.

The Second of the Three Conditions

The statement: “The second condition is the conquest by the Imam’s permission…”

The Imam’s permission is not established in the cases mentioned in the text, as these were all part of the “anfal” (state-owned properties). The Imam’s response to the Jew could have been a form of argumentation, but it should not be assumed that the Imam was necessarily pleased with this action, especially given that some actions were taken under duress by the unjust government or in response to ignorance among the people.

The Third Condition

The statement: “The third condition is the confirmation that the land opened by force…”

In this case, the situation of the land is comparable to that of the “anfal.” Proving the conditions of forced conquest is highly questionable, and the presumption should be that these lands are not subject to the prior rulings associated with such conquests.

Conclusion

The judgment on such lands in Iraq is no different from other lands, and the original laws no longer apply after the passage of time, with the exception of those who neglected these issues in the past.

This concludes the discussion of unlawful gains, according to Sheikh’s Makasib.

May Allah’s assistance be upon us.

In the month of Rabi’ al-Awwal, 1413 AH.

Appendix: Notes on the Book of Taqiya (Concealment)

Taqiyyah refers to the act of safeguarding oneself from harm by either complying with the actions of others or refraining from actions that would contradict the truth, particularly when it is necessary to avoid harm. It can be understood in various forms, and the explanation provided by Sheikh Ansari is somewhat general and limited to certain aspects. The wisdom behind the institution of taqiyyah, both in terms of religious law and rationality, is clear to rational beings, and it is an innate mechanism for protection in times of weakness. Anyone who disregards this protection will fall into calamities, or even annihilation. The general principles of taqiyyah reflect this.

Regarding the preferred or recommended use of taqiyyah, it is not merely a gradual move towards harm, but rather it is to avoid the overwhelming harm where the likelihood of harm is uncertain.

Taqiyyah as a concept should not be confused with showing apostasy or committing acts of disbelief for the sake of knowledge, as there is a distinction between taqiyyah based on protecting oneself and refraining from open declarations of disbelief, and leaving the disclosure to safeguard one’s faith. The latter is based on sincere belief and a readiness to face harm or even death for the sake of preserving one’s faith in God, which is fundamentally different from what would be deemed permissible under taqiyyah.

Moreover, taqiyyah applies to scenarios where it is necessary to avoid damage, and the mere act of showing disbelief under duress is not equivalent to actually committing it. It is not permissible to perform taqiyyah when it is unnecessary or when it violates one’s basic duties. Taqiyyah only applies when there is a genuine risk, and it should not be applied in situations where the danger is not significant or when it contradicts the essential duties of a believer.

In certain circumstances, where there is taqiyyah based on necessity, actions undertaken within this framework are valid, even if they initially appear to contradict the essence of Islamic principles. This distinction is crucial because while some acts, like prayer or fasting, may not invalidate the core ritual, certain actions outside their framework may not qualify as legitimate. The legitimacy of such actions is contingent on context, intent, and their potential to lead to harm.

Taqiyyah is described in the hadith as the “shield” or “protection” for a believer. This is metaphorical, indicating the protective nature of this practice in the face of external threats. Taqiyyah, when performed according to the guidelines and wisdom of the scholars, provides a defence against harm without compromising one’s core beliefs. The validity of this practice varies across circumstances, and it must be applied with wisdom and precision.

The specific time, place, and individuals involved in any given act of taqiyyah influence its permissibility. In some situations, taqiyyah is compulsory when the harm is imminent, while in others, it is optional. The imam or religious authority may sometimes indicate whether taqiyyah should be observed based on the particular threats at hand, but this should not be taken as an absolute rule for all times and places.

Finally, taqiyyah should be employed with caution. It is a means of survival and self-preservation, not an excuse for evading one’s religious responsibilities or avoiding the moral and spiritual obligations of faith. The concept of taqiyyah thus becomes a tool for the believer to navigate complex circumstances where their safety or wellbeing is at risk, ensuring that their religious duties are fulfilled in a manner that prioritises both faith and personal security.