Ruling on making analogies with regard to concessions

Praise
be to Allah

Firstly: 

There is a difference of opinion among the scholars of usool
al-fiqh when it comes to making analogies with regard to concessions. Dr
‘Abd al-Kareem an-Namlah spoke of this difference of opinion in his book
al-Muhadhdhab fi ‘Ilm Usool al-Fiqh al-Muqaarin (4/1939), and stated
that the correct view is that allowing concessions on the basis of analogy
is valid. He responded to the evidence quoted by those who say that it is
not allowed by saying: Is it permissible to make analogies with regard to
concessions, like comparing snow to rain with regard to the permissibility
of putting two prayers together, on the basis that both of them may cause
inconvenience to the Muslim? There was a difference of opinion concerning
that, and there are two views: 

1.    

The first view is that it is permissible to allow a
concession on the basis of analogy, and there is nothing wrong with doing
so, if we know the reason for the concession and are certain of that reason.
This is the view of the majority of scholars, and it is the correct view,
because of the following evidence: 

(i)               

the general meaning of the evidence which confirms that
using analogy in sharee‘ah is valid, and that is based on scholarly
consensus, the Qur’an, the Sunnah and reason – as explained above – because
the evidence points to the fact that analogy is applicable with regard to
all shar‘i rulings, once the reason (for the concession) is known and well
established, and that reason is applicable with regard to the issue under
discussion, and all conditions for allowing the analogy are met, because
this evidence did not differentiate between one ruling and another. As
allowing concessions is one ruling of sharee‘ah, it comes under this general
concept.

(ii)             

A concession may be granted on the basis on a single
report (khabr waahid), therefore it may be proven through analogy, and there
is no difference between the two, because in both cases, they are based on
what is though most likely to be the case (and are not based on what is
definitive), so both are subject to error and mistakes. 

2.    

The second view is that it is not permissible to make
analogies with regard to concessions. This is the view of the Hanafis and is
also narrated from Imam Maalik and Imam ash-Shaafa‘i. 

The evidence for this view is as follows: 

(i)               

Concessions by nature go against evidence, so to suggest
that it is permissible to make an analogy to a concession will lead to many
instances of going against what is proven on the basis of evidence.
Therefore it should not be allowed. 

The response to that is that the shar‘i evidence may be
contradicted by the Lawgiver in order to serve a purpose greater than that
which may be served by means of what is proven by that evidence, based on
the concept of putting all the evidence together and giving precedence to
that which is more appropriate, and that is the role of the Lawgiver. If we
see that the same reason for which we were allowed to go against the
evidence is applicable in another case, then we should go against the
evidence in that case too. For then we would be more in harmony with the
evidence and not going against it. 

(ii)             

Concessions are a gift from Allah, may He be exalted, so
they should not be used beyond the specific cases in which they were
granted, because making an analogy for that which is not mentioned in a text
with that which is mentioned specifically in the text, in terms of shar‘i
rulings, is equivalent to expecting a concession from the One Who granted it
in the first instance in a case in which He did not grant a concession, and
that is not permissible. Therefore it is not permissible to grant
concessions on the basis of analogy. 

The response to that is that the basis for making analogies
is understanding the reason why the concession was granted, and the wisdom
behind prescribing the ruling. 

The fact that concessions are meant to make things easier
does not prevent us from applying analogies to them. So once we understand
the reason for which a particular concession was granted and prescribed, and
we find that reason to be applicable in another instance, this means that we
may apply that concession in the other instance, so as to multiply the
generous gifts of Allah and preserve the wisdom behind the concession from
being lost. 

Imam al-Haramayn said, responding to this evidence: This is
nonsense. All that people are enjoying of benefits is a gift from Allah, may
He be exalted. End quote. 

Based on that, if we know the reason for the prescription of
a particular concession, and we become certain that this reason is
applicable in another instance, in that case making analogy is valid.

However this analogy cannot be applied to the shortening of
the prayer, because the reason for shortening the prayer is travel, not
hardship. Therefore the traveller may shorten his prayer, whether he
encounters hardship or not, but the non-traveller cannot shorten his prayer,
even if he encounters hardship. 

Therefore the scholars have stated that it is not valid to
make an analogy with regard to a concession when the reason for which it was
granted cannot be applicable except in the situation for which it was
granted, such as the concessions of travel, because the reason of travel is
not applicable when one is staying in a place (and not travelling).
Similarly, it is not valid to make an analogy if we do not know the reason
for the concession. 

It says in al-Bahr al-Muheet fi Usool al-Fiqh (7/75): 

Ilkiyah said: We do not allow making an analogy with regard
to a concession if the concession is based on a particular reason that
cannot be applicable in any other scenario. Therefore it is not allowed to
make an analogy, because there is no common reason, such as comparing the
non-traveller to the traveller with regard to the concessions of travel,
because that would be an implicit rejection of the specific reason for which
the Lawgiver granted the concession. 

Al-Qurtubi said: There may be a differentiation between cases
where there appears to be no apparent reason for the concession, so no
analogy can be made, and cases where the reason is apparent, so analogies
may be made. 

I have seen in the words of some of the Maalikis a
differentiation between a case where the reason for the concession to which
something else is being compared is stated, in which case it is permissible
to make an analogy, and a case where the reason is not stated and is rather
figured out, in which case it is not permissible to make an analogy. As a
result of that, there are different views on this issue. End quote. 

For more information on the views of Imam al-Haramayn
concerning this topic, please see al-Bahr al-Muheet (7/79). 

Shaykh Ibn Baaz (may Allah have mercy on him) said: The
concession of travel is ongoing: it is applicable at present, it was
applicable in the past and will also be applicable in the future, because
the One Who prescribed it, Who is the Knower of the unseen, knows all
things, may He be glorified and exalted, and He knew the situation of people
at the time of prescription, and in the future, such as our own time. Allah
knows all things – may He be glorified and exalted – so if the law
(concerning travel) would be different in the future, He would have said: If
travel becomes easy or comfortable means of travel become available, then do
not shorten prayers or put them together. But the Lord, may He be glorified,
did not say this, and neither did His Messenger (blessings and peace of
Allah be upon him). The scholars said: Rather the reason for shortening the
prayers when travelling is because it is expected that one will go through
some fatigue and hardship, and the ruling in the case of expectation remains
applicable, whether that expectation materialises or not. So hardship is
expected when travelling, but hardship is not the prerequisite for
shortening the prayers. If travel is comfortable, on easy camels and at an
easy time, then shortening the prayer is still prescribed. Similarly,
nowadays with cars, planes, trains and spaceships, it is all the same; it is
still prescribed for the traveller to shorten his prayers and put prayers
together, even if travel is extremely comfortable, because when the
Messenger (blessings and peace of Allah be upon him) prescribed that, he did
not mention any restrictions, and in His holy Book, Allah did not stipulate
the condition that travel should be hard. Thus it is known that the
traveller may shorten his prayers and put them together, and he may break
the fast, even if travel is comfortable in a car or on a plane or in any
other means of transportation. Praise be to Allah in all circumstances. 

End quote from the Shaykh’s website on the following link:

http://www.binbaz.org.sa/node/19440

Secondly: 

With regard to delaying the prayer when food is served, the
reason is not that food is ready; rather the reason is that one may be
distracted and proper focus and humility may be lost or reduced. Therefore
it is valid to make an analogy between the serving of food and anything else
that may distract the worshipper and reduce his proper focus and humility. 

In his commentary on the hadith “There is no prayer when food
is ready, or when one is resisting the urge to relieve oneself” – narrated
by Muslim (560) – an-Nawawi (may Allah have mercy on him) said:

These hadiths indicate that it is makrooh to pray when food
is ready that one wants to eat, because this will be a distraction and will
lead to loss of perfect focus. It is also makrooh to pray when resisting the
urge to relieve oneself, which refers to needing to urinate or defecate. We
may add to this anything else that would similarly distract one and lead to
a loss of proper focus in the prayer. 

This ruling of it being makrooh applies where is still plenty
of time left for the prayer. But if the time is too short, and if he were to
eat or relieve himself and do wudoo’, the time for the prayer would end
before he prays, then in that case he should pray as he is, so as to observe
the deadline for the prayer, and it is not permissible for him to delay the
prayer. End quote. 

Al-‘Izz ibn ‘Abd as-Salaam (may Allah have mercy on him) said
in Qawaa‘id al-Ahkaam (1/38): The prayer may be delayed if there is
anything that would affect one’s focus, such as extreme thirst and hunger.
End quote. 

As for not attending the prayer in congregation because of
rain, the reason is not the rain itself. Rather the reason is the hardship
that results from walking to the prayer in the rain. Therefore the scholars
stipulated the condition that the rain should be heavy enough to make one’s
clothes wet, because this is what causes hardship. 

Al-Bahooti said in Kashshaaf al-Qinaa‘ (4/12): 

A person may be excused for missing Friday prayer and prayers
in congregation if he fears that some harm may befall his property, or could
affect his livelihood that he needs, or if he has let water run to irrigate
his crops or his garden, and he fears that if he leaves it it may result in
damage, or he has been asked to take care of something and fears that it may
be lost if he goes away and leaves it, such as a guard who is in charge of a
garden and the like. That is because the hardship that may result from that
is greater than merely getting one’s clothes soaked by the rain, which is a
valid excuse according to scholarly consensus. End quote. 

Similar to rain is anything that could cause harm in such
situations, such as intense wind, intense cold or mud. 

Al-Bahooti said in ar-Rawd al-Murbi‘ (2/362), when
discussing excuses for staying away from prayers in congregation: … Or if he
will be harmed by rain and mud. The same applies to snow, ice and hail, and
intense cold winds on a dark night. End quote. 

Shaykh Ibn ‘Uthaymeen said in ash-Sharh al-Mumti‘
(4/317): 

If he fears harm from rain or mud, i.e., if it is raining,
and if he goes out for Jumu‘ah or prayers in congregation, he will be harmed
by the rain, then he is excused. 

The harm that may be caused by rain is that he may be harmed
if his clothes are soaked, or because it is too cold, and the like. The same
applies if he fears that he may be harmed by mud. 

In the old times people used to suffer a great deal due to
mud, because the marketplaces were unpaved, and as a result of the mud
people might slip, so a person would exhaust himself in order to attend the
mosque. If that happens, then one is excused. 

But nowadays there is no issue of mud, because the
marketplaces are paved and there is no mud. The worst that may happen is
that you will find puddles in some low spots, but this does not cause any
harm to people’s clothes or feet. So in this case the excuse applies when
rain is falling, but once the rain has stopped, there is no excuse. But in
some villages that are not paved, this excuse is still applicable. End
quote. 

Conclusion: when the reason for the concession is known, and
the reason is applicable in another case, then making analogy is valid. But
if the reason for a particular concession is not known, or it is exclusive
to that situation and is not applicable to any other situation, then it is
not valid to make an analogy in that case. 

And Allah knows best.