Al-Ma'idah 5:103–108

The Definition of Bahirah and Sa'ibah

The names Bahirah, Sa'ibah, WasiIah and Hami are connected with customs prevailing during the days of Jahiliyyah. Commentators differ in their exegesis. It is possible that all these words were applied each to a different situation. We limit ourselves to the explanation given by Sayyidna Said ibn al-Musaiyyib ؓ as it appears in the Sahih of Al-Bukhari:

BAHIRAH, an animal the milk from which was dedicated in the name of idols, and was not used by anyone personally.

SA'IBAH, an animal which was released in the name of idols, like a bull in some rural areas of our time.

HAMI, a male camel having copulated with a particular number, which was also released in the name of idols.

WASILAH, a she-camel giving birth to female offspring continuously, uninterrupted by the birth of a male, was also released in the name of idols.

In addition to doing what was Shirk, these people were challenging the right of benefiting from the meat of an animal, or its milk, or riding it, declared permissible by Almighty Allah, and placing their own restrictions on their being lawful or unlawful - as if the office of making Divine laws belonged to them! And the cruel joke was that they took these polytheistic customs of theirs to be the source of attaining the pleasure and nearness of Almighty Allah. The answer to this was: Almighty Allah had never appointed these customs. If their elders did it, they fabricated lies against Him, and the ignorant masses accepted them. In short, a two-pronged warning has been given here by saying that the way it is a crime to invite hardships in Divine injunctions by asking purposeless questions, similarly, it is much more serious a crime that one goes about proposing things as Halal or حَرَام haram based on one's personal opinions and desires without the will and command of the Law-Giver. (Tafsir Usmani )

Sequence of Verses

Mentioned earlier was one ignorant habit of the disbelievers who were very rigid in their customs. There were many more of such habits which made Muslims grieve. Therefore, the text now addresses Muslims asking them not to worry about others. They have been asked to correct themselves first - and then try to reform others within the limit of what they can do. Onward from there, that their efforts bear fruit is something beyond their control. Therefore, for them the best course is: Do your own job and not the job of others.

Commentary

The Background of the Revelation of the Verses

Following forefathers was one of the many customs of Jahiliyyah which had involved them in all sorts of evils, and equally deprived them of all kinds of virtues too. As reported in the Tafsir Al-Durr Al-Manthur from Ibn Abi Hatim, if a lucky person listened to the truth and embraced Islam, he was put to shame on the plea that he had proved his forefathers to be no good since he took to another way at the cost of the way of his forefathers. It was this compounded error of theirs whereupon the following verse was revealed:

وَإِذَا قِيلَ لَهُمْ تَعَالَوْا إِلَىٰ مَا أَنزَلَ اللَّهُ وَإِلَى الرَّ‌سُولِ قَالُوا حَسْبُنَا مَا وَجَدْنَا عَلَيْهِ آبَاءَنَا

And when it is said to them, "Come to what Allah has sent down, and to the Messenger;" they say, "sufficient for us is what we have found our forefathers on."

In other words, when they were asked to turn to the truth and to the injunctions revealed by Allah Ta` ala, and to the Messenger who is, in all possible respects, the guarantor of good for them, then, they have no answer to give but that the customs on which we found our forefathers are sufficient for us.'

This is the master argument of Shaytan which made millions of people fall into error despite having at least average sense, knowledge and skills. Answering it, the Qur'an said: أَوَلَوْ كَانَ آبَاؤُهُمْ لَا يَعْلَمُونَ شَيْئًا (Is it so, even if their forefathers knew nothing ... ). For those who would care to ponder, this one sentence of the Qur'an has provided a correct principle to uphold when following a person or group or party - a principle which brings sight to the unsighted and reality to the ignorant and the heedless. It makes sense if those who do not know follow those who do, the uninitiated follow the experienced and the ignorant follow the learned. But, what does not make sense is that one elects to move away from the standards of knowledge, reason and guidance and ends up making the following of forefathers as preferred practice - without realizing as to where this leader of theirs is and to where would he take them yet having the compulsion to tag along behind him?

This is how some people take a mob of people as the yardstick of right and wrong. Wherever they see a lot of people going, they will start moving in that direction. This too is absurd - because the majority of people in this world is always that of those who are not the wisest or the smartest or the most virtuous in deeds. Therefore, following a mob of people cannot become the criterion of distinction between truth and untruth or good and bad.

Following an Undeserving Leader is Asking for Trouble

This sentence of the Qur'an gives everyone a clear lesson in wisdom - that none of these criterions are at all sufficient to help in choosing someone as a leader to be followed. The correct attitude is that every-one should first determine the aim of his life and the direction of his journey in it. Then, in order to achieve that purpose, he has to look for a person who has the knowledge of that direction and is himself proceeding to it. When one finds a person like that, then, tagging along behind him can certainly take one all the way to his destination. This is the reality underlying what we know as the Taqlid (following) of the Mujtahid Imams. They know دین Din and they follow it too. Therefore, those who do not know can, by following them, achieve the main purpose of religion, that is, the obedience to Allah and His Messenger, and the following of their commands. As for one who is already astray, who does not himself know the destination, or is knowingly going in a direction opposite to the destination, then, following him shall be, in the sight of every wise person, a waste of one's efforts and deeds, rather the signing of one's own warrant of destruction. It is a pity that in the present age of so-called knowledge and enlightenment, even the people of education and foresight are ignoring the fact that the greatest cause of world upheaval is the locked following of leaders who are incompetent, undeserving, and false.

The Criterion of Leadership

This sentence of the Qur'an gives two clear criterions of choosing a leader. These are having Knowledge (` Ilm) and Guidance (Ihtida' ). Knowledge means the knowing of the desired purpose or destination and the knowing of the methods to reach it, while having Guidance means moving towards the chosen objective. Combined together, it would mean constant effort based on sound knowledge.

To explain, it can be said that it is necessary to first find out - before making the choice of a leader - if he is fully conversant with the objectives and methods chosen to be followed. Then, it has to be seen whether he himself is traveling on the same path and in the same direction. And then, it has to be determined whether or not his conduct is in accordance with his knowledge. So, in order to take someone as a leader to be followed, it is necessary to test him on the anvil of sound knowledge and steady conduct. None of the other options based on ancestry and lineage, or being in the lead followed by masses of people, or being wealthy through money or property, or being in power and authority, not one of them is worthy of being considered as the criterion of leadership in the real sense.

An Effective Method of Criticism

At this place, the Qur'an has pointed out to the error of people who are used to following their ancestral customs blindly. However, right along with it, it has told us about an effective method which can be used when needed to identify the error of the other person, so that the addressee is not hurt or provoked. It will be noticed that the comment made in the text is not direct. It does not say that their forefathers were ignorant or astray. Instead of that, it employs a subtle interrogative style in asking if the practice of following one's forefathers could be reasonable in a situation when they did not have either knowledge or guidance.

Comfort for the Reformers of People

In the second verse (105), Muslims who sacrificed a great deal in their concern for reforming people have been comforted by saying that they had done their best to spread the call of truth and they had done their duty of conveying to people what was good for them. Now, if there were people who chose to stick by their error, that was not for them to worry about for their going astray will bring no loss to them. It was said:

يَا أَيُّهَا الَّذِينَ آمَنُوا عَلَيْكُمْ أَنفُسَكُمْ ۖ لَا يَضُرُّ‌كُم مَّن ضَلَّ إِذَا اهْتَدَيْتُمْ ۚ

0 those who believe, take care of your own selves. Those who have gone astray cannot harm you, if you are on the right path.

These words of the verse, if looked at outwardly, sometimes are taken in the sense that it is enough for one to only take care of one's own conduct, and just correct it when necessary. This would leave out the others who may keep doing what they do - there was no need to think about that. Such thinking is contrary to a great many very clear statements of the Qur'an where Bidding the Fair (al-amr bil-ma` ruf) and Forbidding the Unfair (al-nahy 'anil-munkar) has been declared to be an important duty in Islam and a singular distinction of the Muslim community. When this verse was revealed, some people faced doubts. The Holy Prophet ﷺ clarified by saying that the verse was not contradictory to the injunctions regarding the Bidding of the Fair. If they were to leave the mission of Bidding the Fair, they will be answerable for that. Therefore, Sayyidna Said ibn Jubayr ؓ has, in his Tafsir of the Verse as reported in Al-Bahr Al-Muhit, said: Keep doing what your religion obligates you with, which includes Jihad and Al-amr bil-ma` ruf (Bidding the Fair). If, even after doing all this, those who remain astray could bring no loss on you. A little deliberation in the words: إِذَا اهْتَدَيْتُمْ (if you are on the right path) of the Qur'an itself makes this explanation all the more clear as the converse of it shows that one who has abandoned the duty of Bidding the Fair is obviously not on the right path.

Reported in Tafsir Al-Durr Al-Manthur, is an event relating to Sayyidna ` Abdullah ibn ` Umar ؓ . Someone mentioned before him a serious dispute between certain people he named who were calling each other Mushriks (polytheists). Sayyidna Ibn ` Umar ؓ said: Do you think I am going to tell you to go and fight them? Never! Go, talk to them softly. If they listen, fine. If not, stop worrying about them. Get busy taking care of your own selves. After having said that, it was this very verse that he recited as the confirmation of his answer to their statement.

Sayyidna Abu-Bakr رضی اللہ تعالیٰ عنہ on Checking of Sins

Sensing the doubt generated by a surface view of the words of the verse, Sayyidna Abu-Bakr ؓ said in a Khutbah (address): You people recite this verse and use it out of context - that Al-amr bil-Ma` ruf (Bidding the Fair) is not required. Understand it very clearly that I have myself heard the Holy Prophet ﷺ say that people who see a sin being committed and do not try to stop it (to the best of their ability) then, it is likely that they too are seized by the divine punishment along with the actual sinners.

This narration is there in Tirmidhi and Ibn Majah. However, the words in Abu Dawud appear as follows: those who see an oppressor oppressing and do not stop him from his oppression (to the best of their ability), then, Allah Ta` ala will seize everyone in punishment.

The Meaning of Ma` ruf مَعرُوف and Munkar مُنکَر

From the details given earlier, we know that it is the duty of a Muslim that he should do what he can to check what is not permissible, or, at the least, show his dislike for it. Let us now find out what is Ma` ruf and Munkar.

The word, Ma` ruf is from Ma` rifah and the word, Munkar is from Inkar. Ma` rifah means to know, and to understand and recognize something after deliberation. In contrast, there is Inkar which means not to know, and not to understand and recognize something. These words are taken to be antonyms. The Holy Qur'an says: يَعْرِ‌فُونَ نِعْمَتَ اللَّهِ ثُمَّ يُنكِرُ‌ونَهَا (16:83). It means that they recognize the blessings of Allah by seeing the manifestations of His perfect power, but thereafter they deny them as if they do not know them. This tells us that, lexically, Ma` ruf signifies something well-recognized while Munkar refers to something unrecognized. Keeping this congruity in view, Imam a1-Raghib al-Isfahan has, in his Mufradat al-Qur'an, given the meaning of Ma‘ruf and Munkar as used in the terminology of the Shari’ ah. According to him, Ma` ruf refers to what is known to be good in the light of reason (` Aql) and revelation (Shar`). And Munkar means what is strange and unrecognized, that is, what is taken as bad. Therefore, Al-Amr bil Ma` ruf comes to mean bidding toward the Fair, while, Nahy 'anil-Munkar signifies forbidding from the Unfair.

There is nothing Legally Unfair in the sayings of the Mujtahid Imams

But here, the use of the words, Ma` ruf and Munkar, in place of sin and reward or obedience and disobedience, may perhaps be indicating towards the possibility that there can be two opinions in matters which are deep and in problems which require Ijtihad due to brevity or ambiguity left in the Qur'an and Sunnah - the basis on which sayings of Muslim jurists (fuqaha' ) differ - therefore, they are excluded from this scope. The brilliance of Ijtihad done by the great Mujtahid Imams is an accepted fact among scholars and jurists of Muslim Ummah. If two views are different about a religious problem, none of them can be considered to be censurable in Shari` ah1 (al-munkar ash-Shar` i). In fact, both the sides are included under Ma` ruf. In such problems, a person who considers one opinion weightier does not have the right to reject and censure the other in the manner it is done in the case of sin. This is the reason why, despite many differences in matters of Ijtihad and opposing opinions, it has not been reported anywhere that the noble Saba-bah and Tabi` in ever called each other sinners. Debates, dialogues, and polemics - they had all that. They presented their point of view, explained the reasons for their preference and did not hesitate in questioning what others had to say. But, nobody took anyone to be a sinner just because of this difference of opinion.

1. It must be noted here that the author is referring to the views expressed by the competent mujtahids who are equipped with deep knowledge of the Holy Qur'an and Sunnah and have expressed their bona fide view after doing their best to reach the truth. Conversely, if an incompetent person, Iacking the standard of knowledge required for ijtihad, declares a view based on his whims and conjectures, his view cannot be taken as a view based on ijtihad, therefore, he cannot claim immunity from 'Nahy anil munkar'. (Muhammad Taqi Usmani)

To put it briefly, it can be said that on occasions where Ijtihadi difference exists, every knowledgeable person (having the optimum subject knowledge) has the choice to take a side which is weightier in his sight. This much he can do. But, no one has the right to reject and censure what someone else has done by taking it as Munkar (evil and sinful). From here we learn that all those writings which spread mutual hatred and hostility in Ijtihadi problems and issues are not included under the purview of Al-Amr bil-Ma’ ruf or Nahy 'anil-Munkar (Bidding the Fair and Forbidding the Unfair). Opening a war front on the basis of such religious issues can only be because of unawareness or ignorance.

Sequence of Verses

Prior to this, there were injunctions relevant to religious considerations. Now some injunctions relevant to worldly considerations have been mentioned. The hint given is that the way Allah Ta` ala, in His mercy, helps His servants with better life in the Hereafter, He also takes care of better sustenance for them in the present world. (Bayan al-Qur'an)

The Background of Revelation

The event in the background of the revelation of the cited verses is that Budayl, a Muslim accompanied by Tamim and ` Adiyy, who were Christians at that time, travelled to Syria on a business visit. After reaching Syria, Budayl became sick. He made out a list of his things in writing and put it in his baggage. He did not inform his companions of the trip about it. When his sickness became serious, he called his Christian trip companions and made a will before them that they should deliver everything to his heirs. When they returned, they delivered everything to them. But, they took out a silver bowl which was polished with gold, or had gold inlay work on it, from the belongings. When the heirs found the list of things in the baggage left for them by the deceased, they asked the caretakers of the will if the deceased had sold something from the property, or was he very sick which may have compelled him to make unusual expenses. They answered their inquiry in the negative. Finally, the case came up for hearing before the Holy Prophet ﷺ . Since the heirs had no witnesses, the two Christians were put under oath. They declared that they had neither committed any breach of trust in what belonged to the deceased, nor had they hidden any of his things. In the end, based on the oath, the verdict was given in their favour. After the passage of some time, it was found that the two of them had sold that bowl to a goldsmith in Makkah. When asked, they said that they had bought it from the de-ceased. Since they had no witnesses at the time of purchase, they pleaded, they did not mention it earlier lest they be falsified.

The heirs of the deceased appealed in the court of the Holy Prophet ﷺ Now, contrary to the earlier situation, the executers of the will were claiming to have purchased the missing item while the heirs were denying it. In view of the absence of evidence, two persons closest of the deceased gave a sworn statement that the bowl was owned by the deceased and that the two Christians were liars in their oath. So, the amount of money for which they had sold it (1, 000 Dirhams) was made to be handed over to the heirs.

Commentary

'These verses are meant to give general instructions to the Muslims with regard to making will before death. The advice given is that the will should be evidenced by witnesses, so that they may prove the will in case of a dispute after the death of the testator. It has also been advised that two pious Muslims are chosen for witnessing the will. However, if the Muslim witnesses are not available, non-Muslim witnesses may also serve the purpose. The words 'two witnesses from you" signify the preference of Muslim witnesses, but the following words "or of two others not from you" point out to the permissibility of non-Muslim witnesses.

Then, the words "if you have some doubt" refers to a situation where the legal heirs of the deceased have a claim against the executors of the will, as in the case of Budayl the heirs claimed that a bowl of silver was delivered by the deceased to the executors. Since, in this case the heirs are the plaintiffs, they should produce witnesses to prove their claim, but on their failure to do so, the defendants, i.e. the trustees are required to declare on oath that they did not commit any breach of trust. For that purpose, the Holy Qur'an advises the judge by saying, you shall detain them after the prayer, and they shall swear.

Although it is not legally compulsory to take this oath in the mosque after a prayer, yet the Holy Qur'an has advised to take oath after a prayer, so that the sanctity of time and place may further persuade the people to give a truthful statement.

In the next verse the Holy Qur'an says, "Then, if it is discovered that the two had rendered themselves liable to a sin..." It means that they had given a false evidence, as in the case of Budayl they themselves admitted that the bowl was purchased by them which implied that the property of Budayl contained a bowl and their earlier testimony was false. At this stage they claimed that they had purchased the bowl from Budayl. They should have substantiated this claim by witnesses, but they failed to do so, therefore, the oath was given to the legal heirs of Budayl that no such sale took place to the best of their knowledge. It is this oath of the heirs which has been mentioned in the verse by saying, "then, in their place shall stand two others closest of those whose right has been taken away and they shall swear by Allah..."

Some Rulings

1. The person with whom the deceased leaves his or her property in trust with the request that it be given to someone is called Wasiyy (authorized guardian, executor, trustee, caretaker; plural: Awsiya' ). A Wasiyy can be one individual, or more.

2. That a Wasiyy should be Muslim and just, is better but not necessary, no matter whether the will is being made in journey or at home.

3. In a dispute, the complainant is called the Mudda'i (plaintiff) while the other party is Mudda` a ` alayh (respondent).

4. Witnesses from the Plaintiff are taken first. If he presents them as recognized under the legal norms set by the Shari’ ah of Islam, the case is decided in his favour. If he cannot do that, the Respondent is put on oath and the case is decided in his favour. However, if he denies it, the Plaintiff wins the case.

5. Taking oath at a particular time or place in order to make it more emphatic, as done in the cited verse, depends on the opinion of the judge - it is not required compulsorily. Its compulsory nature is not proved from this verse too, while the converse is proved from other verses and Hadith reports.

The Witness of a Kafir is Acceptable in the case of another Kafir

In the opening words of the verse (106): يَا أَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ translated as : ` when death draws near one of you, that is, at the time of making a will, the evidence (recognized) between you shall be of two just witnesses from among you, or of two others not from you,' Muslims have been commanded that at the time death draws near one of them, they should appoint two good and just men from among them as their Wasiyy (executor of the will), and if they do not have such people from their own, then, they can have two others (that is, from disbelievers).

It is from here that Imam Abu Hanifah has deduced the ruling that the witness given by disbelievers for each other is permissible. Since the witness of the disbelievers has been declared permissible in the case of Muslims in this verse, as obvious from: أَوْ آخَرَ‌انِ مِنْ غَيْرِ‌كُمْ (or of two others not from you), so the witness of disbelievers for each other is permissible as more suited. But, later on, the witness of the disbelievers for Muslims was abrogated under the authority of the verse: وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِّ‌جَالِكُمْ (And have two witnesses from among your men - 2:282). But, the evidence of disbelievers for each other remains valid as it was. (Qurtubi Al-Ahkam Al-Qur'an by Jassas)

The support for the position of Imam Abu Hanifah (رح) also comes from what a Hadith says about a Jew who had committed Zina (adultery). His people smeared his face with black soot and produced him before the Holy Prophet ﷺ . Looking at his condition, he asked for the reason. They told him that the man had committed adultery (Zina). After hearing the testimony of the witnesses, he gave orders that he be stoned to death (Rajm). (Jassas)

Two Words, Two Rules

1. The word, تَحْبِسُونَهُمَا (You shall detain them) in the context of this verse (106) tells us that a person who (genuinely) owes something to someone (having the right of return), the later can have him detained for the retrieval of his right, if and when needed. (Qurtubi)

The word, "Salah" in: مِن بَعْدِ الصَّلَاةِ (after the prayer) means the Salah or prayer of عَصر ` Asr. That this time has been chosen is because the people of the Book held it in esteem. Telling a lie at this time was particularly prohibited among them. This tells us that the placing of the restriction of special time or place for taking a solemn and sacred oath (Taghliz) is permissible. (Qurtubi)