On Determining Canonical Times and the Manner of Fasting During Long Days, Abolqasem Fanaei (3)

Abolqasem Fanaei: So far, our discussion has been focused on determining canonical times in region (C). The reason we began our discussion by examining canonical times in region (C) was that we wanted to demonstrate that the prevailing paradigm in traditional jurisprudence is not adequate or effective for determining canonical times in this region. And it is only by abandoning this paradigm and reforming it that the problem of canonical times in region (C) can be properly resolved. However, the consequences of adopting the new paradigm are not limited to this; rather, this paradigm also opens the way for revising canonical times in regions (A) and (B). Avoiding contradiction requires that we also commit to the consequences of this paradigm elsewhere.

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1. Statement of the Problem

In the preceding parts of this series of articles, we divided geographical regions into three regions: (A), (B), and (C). Region (A) had two characteristics: first, the sun rose and set there, and second, the difference between the length of day and the length of night in this region was, by common understanding, insignificant and negligible. Region (B) also had two characteristics: first, the sun rose and set there, and second, the difference between the length of day and the length of night in this region was, by common understanding, not negligible. And region (C) had one characteristic, which was that the sun did not rise or set in this region.

So far, our discussion has been focused on determining canonical times in region (C). The reason we began our discussion by examining canonical times in region (C) was that we wanted to demonstrate that the prevailing paradigm in traditional jurisprudence is not adequate or effective for determining canonical times in this region. And it is only by abandoning this paradigm and reforming it that the problem of canonical times in region (C) can be properly resolved. However, the consequences of adopting the new paradigm are not limited to this; rather, this paradigm also opens the way for revising canonical times in regions (A) and (B). Avoiding contradiction requires that we also commit to the consequences of this paradigm elsewhere. In the previous part, we pointed to five components of the old paradigm that cause its ineffectiveness and their alternative components in the new paradigm.

2. The Prevalent Fatwa Regarding Canonical Times in Regions (A) and (B)

In this section, we will speak about canonical times in regions (A) and (B). As far as I know, the overwhelming majority of Shiite jurists issue the same fatwa regarding the determination of canonical times in these two regions and introduce the same criterion for determining these times to Muslims residing in these two regions. This criterion is the break of dawn, sunrise, the sun's zenith, and sunset according to the local horizon. Regarding fasting, the well-known fatwa is that those who live in these two regions, if they are capable of fasting, must fast, even if the length of the day in the month of Ramadan is 23 hours or 1 hour; and if they are not capable, the fast of Ramadan is not obligatory upon them, but they must make up for that fast outside the month of Ramadan, even if the length of the day outside Ramadan is less than 12 hours, for example, 4 or 5 or even 1 hour.

In the view of these jurists, the difference in common understanding regarding the negligibility of the difference between day length and night length in region (A) and its non-negligibility in region (B) plays no role in understanding the rulings related to prayer and fasting and determining canonical times in these two regions. In fact, these jurists do not recognize the separation of these two regions from one another, meaning they believe that no religious effect follows from this separation. Their jurisprudential reason for justifying such a view is that the natural/atmospheric signs mentioned in the Quran and narrations are not specific to region (A) and are also available in region (B).

But it seems that these fatwas are based on two methodological errors and one empirical error. These three errors are:

(1) An incorrect understanding of the principles and rules that form the basis of linguistic communication among rational people, and

(2) Taking the relevant verses and narrations out of their context and setting,

(3) Ignoring the empirical fact that some of these criteria, such as the break of dawn and sunrise, are not readily accessible to ordinary people today, even in Mecca and Medina, and that in using these criteria they are compelled to rely on mathematical and astronomical calculations.

But before explaining this claim and the argument in its favor, it is necessary, by way of introduction, to pay attention to a few points.

3. The Two Stages of Inference in the Traditional Paradigm of Ijtihad

The common method in jurisprudential inference is a two-stage method. In the first stage, jurists strive to find a reliable verse or narration that resolves their doubt and clarifies the ruling on the subject. If such a verse or narration is available, the jurist has the right/is obligated to issue a fatwa based on it. But if such a verse or narration is not available, jurists are compelled to proceed to the second stage. In this stage, the jurist has the right/is obligated to issue a fatwa based on "practical principles" (al-usul al-amaliyya).

However, as we have seen, the problem that traditional jurisprudence faces in this case is that for determining the canonical times in region (c), neither a verse nor a narration is available, nor can one resort to practical principles. On the one hand, because the natural/atmospheric signs mentioned in the verses and narrations do not exist in this region, these verses and narrations have no indication whatsoever in this case. On the other hand, in this specific case, resorting to practical principles is impossible.

4. The Nature of the Obligation of Prayer and Fasting and Its Role in Determining Canonical Times

One of the presuppositions that hinders the efficacy of the traditional paradigm of ijtihad in adequately solving the problem of canonical times in region (c) is the assertion of the "simplicity" (basata) of the obligation of prayer and fasting. But even if we abandon this assertion and accept that the obligation of prayer and fasting is "composite" (murakkab), this new presupposition will merely allow us to prove the principle of the obligation of prayer and fasting in region (c), but the problem of determining the times for prayer and fasting will still remain. To solve this problem, we are compelled to revise the existing paradigm, which is incapable of solving it, and replace it with a new paradigm.

Therefore, whether the duty is simple or composite plays an important role here, although only part of the problem under discussion and its solution depends on this presupposition. If the obligation of prayer and fasting is "simple," then jurists are obligated to act upon the principle of exemption (bara'a) and, based on it, issue a fatwa on the non-obligation of prayer and fasting in region (c). Because in this assumption, the obligation of prayer and the obligation of fasting would be a simple duty that has conditions, and due to the impossibility of fulfilling those conditions in region (c), we must say that the verses and narrations expressing these two duties do not include Muslims residing in this region.

It is clear that if the obligation in question is simple, in a place where there is neither any sign of the break of dawn nor of sunrise and sunset, the verses and narrations in which the obligation of prayer and fasting is conditioned upon the break of dawn, and sunrise and sunset, will have no indication whatsoever of the obligation of prayer and fasting. For example, the verse that says: "... eat and drink until the white thread of dawn becomes distinct from the black thread of night, then complete the fast until nightfall..." (Al-Baqarah/187), which indicates the start and end times of fasting, will not include the residents of region (c) due to the non-occurrence of these two natural/atmospheric phenomena in that region. Therefore, in the first stage of the common method of inference in jurisprudence, the canonical times in region (c) cannot be determined, and the jurist is obligated to proceed to the second stage and see what the practical principles require in this case.

Among the practical principles, two—"presumed innocence" (barāʾa) and "presumption of continuity" (istiṣḥāb)—can be applied to this case. After the lapse of these two simple obligations from the Muslims residing in region (C), we doubt whether they have another, similar obligation that would require them to perform the prayer and fast without those conditions. This doubt is a doubt concerning the very existence of a new, simple obligation, and in cases of doubt about the principle of obligation, the principle of presumed innocence prevails. However, applying the principle of presumed innocence in this case, and holding that prayer and fasting are not obligatory at all for Muslims residing in region (C), contradicts both the evidence indicating the extraordinary importance of prayer and fasting, the rule of the shared obligation of the legally responsible (mukallafīn) in rulings, and the rational/reasonable rule of "al-maysūr" (the attainable), which we will discuss later. Therefore, one cannot resort to the principle of presumed innocence in this case. The other practical principles are also inapplicable here, because either their subject/condition is not realized in this case, or, like the principle of presumed innocence, their result—exemption from obligation—is unacceptable. In fact, it can be said that the evidence indicating the importance of prayer and fasting compels jurists to abandon the assumption of the simplicity of the obligation of prayer and fasting and to accept that the obligation in these two duties is "composite."

But if a jurist accepts that the obligation we are dealing with in this case is composite, meaning that the principle of the obligation of prayer and fasting is one duty, and the obligation to perform these two duties at specified times is another duty or duties, then he can claim that the verses and traditions concerning the obligation of prayer indicate two duties, not one, and the verses and traditions concerning the obligation of fasting indicate three duties, not one. In the case of prayer, these two duties are:

(1) The principle of the obligation of prayer, and

(2) The obligation of prayer at specified times.

And in the case of fasting, these three duties are:

(1) The principle of the obligation of fasting,

(2) The obligation to begin the fast from the break of dawn, and

(3) The obligation to continue the fast until sunset.

In this case, if fulfilling duties (2) and (3) becomes impossible for a group of Muslims, such as the residents of region (C), the principle of the obligation of prayer and fasting (= duty (1)) will remain in place, because that part of the verses and traditions indicating the principle of the obligation of these two duties will also include the residents of region (C), even if the other part of these verses and traditions indicating the obligation of prayer and fasting at specified times does not include them. However, under this assumption, we are compelled to determine the canonical times for prayer and fasting in region (C) using criteria of which there is no mention in the Qur'an and the Sunna. And determining these criteria requires a change and reform of the prevailing paradigm in ijtihād.

But the consequences of accepting this presupposition—namely, the composite nature of the obligation of prayer and fasting and the resolvability of these duties into two or three distinct duties—will not be limited to region (C) and will also have very important results for understanding the "times" and "manner" of prayer and fasting in regions (A) and (B). For one cannot say that the obligation of prayer and fasting in region (C) is composite, but in regions (A) and (B) it is simple. Likewise, the consequences of recognizing the new paradigm will not be limited to the issue of determining canonical times in general or the issue of determining canonical times in region (C) in particular.

5. Some Consequences of the Resolution of the Obligation of Prayer and Fasting

If the obligation of prayer is resolved into two distinct duties and the obligation of fasting into three distinct duties, such a resolution will logically entail the following consequences:

(1) The times for prayer and fasting in region (C) must be determined based on criteria other than the break of dawn, sunrise, and sunset at the local horizon.

(2) The criteria mentioned in the Qur'an and traditions for determining canonical times do not have

In the first and second parts of this series of articles, we examined consequence number (1). Now we turn to the subsequent consequences. There is no doubt about this empirical fact: today, the majority of Muslims, even those living in Mecca and Medina, do not use sensory observation of natural/atmospheric signs to determine their canonical times. On the one hand, the advancement of empirical sciences and the technology based on these sciences has made it possible for Muslims to use astronomical and mathematical calculations and clocks to determine the canonical times for their prayers and fasting, thereby substituting a new criterion for the criteria mentioned in the Qur'an and the Sunnah. On the other hand, the existence of natural obstacles, such as artificial light and tall buildings, has caused the criteria mentioned in the Qur'an and the Sunnah to now practically lose their efficacy, even in Mecca and Medina; the presence of artificial light and tall buildings in large cities has practically deprived Muslims of the ability to observe the horizon at the time of dawn, to distinguish the whiteness of morning from the blackness of night, and to observe sunrise and sunset. These criteria are effective in a simple society lacking modern facilities.

However, jurists have not yet fully recognized this substitution, although they do not oppose it. In their view, what is important is that Muslims residing in regions (A) and (B) attain customary certainty regarding dawn, sunrise, meridian, and sunset, whether this certainty is obtained through sensory observation with the unaided eye or through the astronomical and mathematical calculations of astronomers. The criteria mentioned in the Qur'an and the Sunnah for determining canonical times are events that occur in nature in the two regions (A) and (B). What is relevant here is the knowledge of the occurrence of these events, not the means by which this knowledge is obtained.

Nevertheless, one might ask: if we suppose that the Noble Prophet (PBUH) were sent today, would the revelation sent down to him emphasize the same criteria currently found in the Qur'an and the Sunnah for determining canonical times, but Muslims would be asked or permitted to translate these criteria into clock time themselves by relying on astronomical and mathematical calculations, or would the Holy Lawgiver, from the outset and within the Qur'an itself, have substituted specific hours of the day and night for the mentioned natural/atmospheric criteria, relieving Muslims of the burden of astronomical and mathematical calculations?

7. Canonical Times and the Requirements of Daily Life in the Modern World

The distinction between the essential and the accidental in Sharia, and the necessity of cultural translation/interpretation of religious texts, tells us that a Sharia founded upon ease and facility would have criteria for determining canonical times that possess the greatest compatibility and harmony, and the least friction and incompatibility, with the criteria people use to determine their customary times. If the daily life of human beings in the new world, whether Muslim or non-Muslim, revolves around the clock and not around dawn, sunrise, and sunset, why should their religious life revolve around a different axis and be regulated according to a different criterion?

In truth, the claim is that the mention of the natural/atmospheric criteria in the Qur'an and the Sunnah was not because these criteria have "intrinsic relevance" / are "devotional," with an unseen, otherworldly wisdom hidden behind them, but rather because these criteria were the best and simplest criteria available at the time of the Qur'an's revelation and for centuries thereafter. Of course, the possibility of an unseen, otherworldly rationale always exists, and contrary to the claim of some religious reformists, this possibility is not confined to the domain of worship but also exists in the domain of transactions; however, this mere possibility is not sufficient to justify and accept the traditional, literal interpretation of the relevant verses and narrations and to prefer it over the cultural interpretation of these verses and narrations. Also, as we shall soon see, the separation of the domain of transactions from the domain of worship is not justifiable from this perspective.

In the prevailing paradigm of traditional jurisprudence, these considerations are called "istiḥsān" (juristic preference). Istiḥsān is a type of conjectural rational/empirical proof/reasoning that, due to its conjectural nature, lacks authority, and acting upon it is deemed forbidden. However, we have previously shown that jurists who practice ijtihad within the shadow of this paradigm are compelled, when determining the canonical times in region (c), to violate this paradigm and recognize the authority of conjectural rational and empirical proofs. Not to mention that the majority of Muslims residing in regions (a) and (b) rely on the clock to determine their canonical times, even if they do not thereby attain knowledge or certainty.

Furthermore, the question of the authority or lack thereof of a specific type of proof is an epistemological question, not a jurisprudential one, and therefore speaking of religious prohibition or permission in this matter is meaningless.[1] In other words, when it comes to acting upon conjectural proofs, from the perspective of reason and reasonable people, there is no difference between "rational and empirical proofs" and "transmitted proofs" that would justify epistemological discrimination between these proofs. And since the judgment of reason or the convention of reasonable people in this case is based on a general criterion that exists both in conjectural transmitted proofs and in conjectural rational and empirical proofs—and this criterion is proximity to reality/the greater probability of truth over falsehood—the Sacred Lawgiver cannot ignore this general and common criterion, recognizing the authority of transmitted proofs while denying the authority of rational and empirical proofs.

8. The Wisdom and Rationality of God and Its Role in Deriving Religious Rulings

Not to mention that it can be claimed that transmitted proofs also exist in favor of the claim under discussion, including proofs that emphasize the ease and leniency of the Sharia, and verses and narrations that point to wisdom as one of God's attributes. One who believes that "God is Wise" is compelled to recognize wisdom as the "framework" of the Sharia in the Preserved Tablet. The Wise God is wise in creation and wise in legislation. And one who recognizes this framework is compelled to accept its epistemological consequence. "Sharia within the framework of wisdom" necessitates "jurisprudence within the framework of wisdom." This consequence is: "the falsifiability of juristic interpretations of religious texts in light of wisdom." If the Lawgiver is wise, the jurist who seeks to discover the ruling of such a Lawgiver must also be wise. Otherwise, they will err in discovering and understanding the ruling of the Wise Lawgiver. The meaning of this statement is that if an interpretation of religious texts and the fatwa based on that interpretation is incompatible with God's wisdom, this incompatibility suffices for the invalidity and lack of authority of that interpretation and fatwa. The epistemological and ethical duty of jurists requires them to weigh and balance their understandings of the Quran and narrations, and their fatwas based on these understandings, against the scale of wisdom and rationality.

In the prevailing paradigm of derivation in traditional jurisprudence, the principle of this reasoning is recognized. However, the validity of its conclusion is limited to cases where we have "certainty" and "conviction" regarding the incompatibility of an interpretation and the fatwa based on it with God's wisdom. And since the mere rational possibility of a rival view, no matter how weak, prevents certainty and conviction regarding the conclusion, this reasoning will practically lose its efficacy and will have no application in jurisprudential derivation.

For example, in our present case, it is said that perhaps there is an unseen, otherworldly wisdom that requires the canonical times to always be determined based on the natural/atmospheric criteria found in the Quran and Sunna, not based on an artificial and conventional criterion like the clock, and the mere existence of such a possibility would nullify the reasoning that God's wisdom requires determining the canonical times in the modern world based on the clock from the outset.

But the new paradigm elaborated in the previous part of this series of articles says: regarding the compatibility or incompatibility of a specific interpretation of religious texts, and the fatwa based on that interpretation, with God's wisdom and rationality, a stronger preponderance of opinion suffices, and there is no need to attain certainty and conviction.

The reason for this is that when the interpretation itself and the fatwa based upon it are, at best, reliant on conjectural evidence/reasons, why should we demand certainty and certitude to invalidate or abandon that interpretation and fatwa? And why is the mere existence of stronger conjectural evidence against that interpretation and fatwa not sufficient in this case? The traditional paradigm of ijtihad says: if the stronger conjectural evidence is transmitted (naqli), we have the right to abandon the weaker conjectural evidence based on it. But if it is rational or empirical, we do not have the right to do so. Whereas such an epistemological discrimination between transmitted conjectural evidence and rational and empirical conjectural evidence is compatible neither with the judgment of reason in epistemology (i.e., epistemological intuitions) nor with the social contract of the wise and their behavior in their daily lives.

9. The Necessity of Replacing the Criterion for Determining Canonical Times with a New Criterion

On this basis, it can be claimed that if the Holy Prophet (PBUH) were sent forth as a prophet today, he would introduce another criterion for determining canonical times to Muslims, and that criterion would be the "clock."[2] Because today, the regulation of times in daily life, even in Mecca and Medina, is done using the clock. This criterion also has the advantage of being accessible and easily followable in all three regions (A), (B), and (C). In fact, if one accepts this criterion, the separation of these three regions from one another would also lose its necessity and relevance. However, to use this criterion, the interval between the canonical times in Mecca or Medina must be considered, because this interval is of substantive relevance.

The meaning of this statement is that instead of the religiously obligated and the emulators substituting other criteria for the criteria mentioned in the Quran and the Sunnah in the practice of religious commands, jurists are obliged, with regard to the exigencies of daily life and the difference between the customary "context"[3] in which we live and the customary context in which the Quran was revealed and the narrations were issued, to culturally translate/interpret the relevant religious texts.

This point is accepted by the overwhelming majority of traditional jurists: that the heavenly and sacred religion and Sharia inevitably must borrow the "language" of its first audience from them and present its theoretical and practical teachings to its audience in the mold of this language. In fact, it is due to the acceptance of this presupposition that knowing the common customary language of the era of revelation is a fundamental pillar of jurisprudential deduction from the Quran and the Sunnah.

But traditional jurists do not recognize this point: that the heavenly and sacred religion and Sharia, in addition to borrowing the "language" of its first audience, inevitably must also borrow their "culture," "history," and "geography," including the criteria they used for regulating times and conducting their daily lives.

The break of dawn, and the rising, culmination, and setting of the sun were not completely new and unfamiliar criteria that the Holy Lawgiver had invented and brought forth from Himself; rather, they were recognized and accessible criteria with which the people of that time lived and by which they regulated their daily lives, their sleep and wakefulness, and their activity and rest. This was the only and best criterion available at the time of the revelation and for centuries thereafter. But now that these criteria are not easily accessible and the daily lives of the general public no longer revolve around them, and another criterion is available that everyone uses to discern and regulate times and conduct their lives, why should the Holy Lawgiver not change His mind? The Holy Lawgiver is not only holy but also wise and rational. What wise reason would such a Lawgiver have for not replacing the accidentals of His Sharia, which He borrowed from His first audience, with the accidentals with which His current audience lives? What reason does such a Lawgiver have to grant sanctity and eternity to those accidentals and impose them on those who do not deal with those accidentals in their daily lives?

10. Why Are Canonical Times Among the Accidentals of the Sharia and Not Its Essentials?

The sacred Lawgiver’s borrowing of customary matters does not render those customary matters sacred, and this rule also holds true for customary times. Just as the Arabic language is not sacred and could have been replaced by another language, the culture, history, and geography of Mecca and Medina are likewise not sacred and could have been replaced by another culture, history, and geography (the nobility of a place derives from its inhabitant). The stability and eternity of the Sharia lie in the stability and eternity of its essentials, not in the stability and eternity of matters that the sacred Lawgiver borrowed from His initial audience. Literalism leads to Salafism.

To confirm this point, it suffices to suppose that the Noble Prophet (PBUH) lived at the same time, but his place of residence was not Mecca and Medina, but the North Pole. In this supposition, both the language of the Qur’an would change, and the culture that this language carries, and the criterion for determining canonical times. Yet the essence/essentials of the religion of Islam would still remain in place. If the Noble Prophet were a resident of the North Pole, prayer and fasting would remain in place, but it would have been impossible for God to introduce the break of dawn, sunrise, and sunset as canonical times to him and, through him, to other people. And now that He has introduced these criteria, they should not be considered as essentials of His Sharia, especially considering the tangible, empirical reality that the exigencies of life in the modern world have compelled most Muslims to practically abandon these criteria and act according to other criteria.[4]

On this basis, it can be claimed that what possesses subject-specific relevance and desirability is the “length” of the fast and the “time interval” between daily prayers, not the criteria mentioned in the Qur’an and the Sunna for determining this length and time interval. As we saw in the preceding sections, some traditional jurists recognize this claim for region (c) and determine the canonical times in region (c) based on the length and time interval between the canonical times in Mecca and Medina. However, they do not accept the validity and applicability of this criterion to regions (a) and (b).

The criteria mentioned in the Qur’an and the Sunna for determining canonical times have three characteristics: first, at the time of the Qur’an’s revelation and for centuries thereafter, they were easily “accessible” to the general Muslim public. Second, these criteria were “conventional,” and following them did not impose hardship on the early Muslims, and third, their daily lives revolved around these very criteria, and following them did not disrupt the daily lives of Muslims nor disturb their times of work, rest, sleep, and wakefulness. The religious lifestyle was in complete harmony with the customary lifestyle that the nature and geography of the place of revelation imposed upon them. That the Qur’an continually, including in the verses concerning the obligation of fasting, emphasizes that God does not desire hardship for you and makes things easy for you, precisely means that the compatibility and conformity of these two lifestyles with one another is maximal, not minimal. And Muslims can easily follow the commands of their religion with the least necessary change in their daily lifestyle. The ease of religion lies in the ease of following its commands.

If the Muslims of that time were told that the time for the morning prayer is from the break of dawn until sunrise, it was with regard to the fact that daily economic and social activities also began during these same hours, and people’s appointments for collective tasks were also arranged on this basis. And if they were told to fast from the break of dawn until sunset, it was with regard to the fact that the length of the day in that region was “conventional” and its difference from the length of the night was customarily negligible, and such a fast did not entail severe hardship or difficulty for the general public. Otherwise, Muslims would have protested or engaged in civil disobedience, or, as the Qur’an says, would have betrayed themselves, and God would have granted them a concession. Would a God who, because of the violation of some Muslims and their failure to abstain from sexual intercourse during the month of Ramadan, is willing to forgive them and make sexual intercourse during the night, which was previously forbidden/unlawful, lawful,[5] not be willing, due to intense heat, to reduce the length of the fast on long summer days, so that a great multitude of those who fast do not abandon fasting altogether and join the ranks of those who break their fast?

11. The Difference Between the Seminary Lifestyle and the Lifestyle of Ordinary People and Its Role in Deriving Legal Rulings

One of the important differences between the seminary lifestyle and the lifestyle of ordinary people—and I believe its traces can be followed in the understanding and interpretation of religious texts—is that the seminary lifestyle is “flexible” and follows a “spontaneous” and “variable” order. Firstly, the seminaries are closed during the month of Ramadan, and students and teachers either travel for preaching or go to places with pleasant climates, such as Mashhad, Damavand, Khansar, and Golpayegan, or to their own cities and hometowns, for rest and vacation. Those who stay in Qom and wish to continue their studies and research shift their working hours from day to night, after iftar, and move their sleeping and resting hours to the daytime.[6]

Unlike the daily life of ordinary people, the daily life and working hours of seminary students and teachers are usually regulated according to canonical times. For example, the start and end times of classes and discussions are arranged in such a way that they do not conflict with the preferred times for daily prayers. For this reason, some scholars do not accept or recognize the change from winter time to summer time, which is done to save energy.[7] In determining the start time of classes, expressions such as “one hour after sunrise,” or “one hour before canonical noon,” or “one hour before maghrib” are used. It is natural that those who have such a flexible lifestyle unconsciously assume that others can also live in this way, meaning that ordinary people are also able to regulate their conventional lives according to canonical times or shift their daily activities to the night during Ramadan. However, generalizing this lifestyle to the entire society would cause chaos and disruption in the order of affairs.

It is for this reason and similar reasons that the fatwas of jurists sometimes seem unreasonable and unacceptable to ordinary people. Is it reasonable for a jurist to issue a fatwa stating: “Those who cannot fast for 18 hours, fasting is not obligatory for them, but its qada is obligatory for them,” and then add: “In my opinion, such a fast entails severe hardship and difficulty for the general public”?[8] What kind of a Wise Lawgiver is this who, by His primary ruling, places a duty upon a group that He is then compelled, by His secondary ruling, to lift from the shoulders of most of them? “Where are you going?” and “What is wrong with you? How do you judge?”. If you yourself were the legislator, would you be willing for someone to attribute such a ruling to you, which you are attributing to the Holy Lawgiver?

Why, instead of saying: “If you cannot fast for 18 hours on hot summer days, fast for 9 hours on cool winter days, even if this fast imposes no austerity upon you and yields no spiritual or moral benefit,” do we not say: “If you cannot fast for 18 hours on hot summer days, but you can fast for 12 hours, then fast and do not deprive yourself of the virtue and the spiritual and moral blessings of fasting in the month of Ramadan?”.

Regarding prayer times, the problem that exists is that they are not compatible or harmonious with the hours of sleep, wakefulness, and daily life in the modern world. Currently, the morning prayer of many Muslims becomes qada, and no one performs its qada either. Why, instead of issuing a fatwa that a great multitude of the obligated practically do not follow, and their prayer becomes qada, and we attribute this to the weakness of their faith and religious commitment, do we not consider the daily lifestyle of our followers from the very beginning and tell them: “You who wake up at 7 a.m. and go to work at 8 a.m., perform your morning prayer in this same time interval,” instead of telling them: “Wake up between 4 and 5 a.m., perform your morning prayer while drowsy, and go back to sleep, and if you do not wake up for prayer, it is no problem; you have until the end of your life to perform its qada.” This is taking the morsel around the head, and it is unlikely that a Wise Lawgiver would issue such a ruling.

12. The Relationship Between the Religious-Spiritual Lifestyle and Daily Life, and the Separation of Jurisprudence from Ethics and Spirituality

A religious and spiritual lifestyle must be as compatible and harmonious as possible with the demands of people’s daily lives, so that friction between the two does not cause people to distance themselves from religion and spirituality. The morning prayer is meant to keep worshippers away from corruption and impurity until the next prayer, to restrain them from abandoning what is right and committing what is wrong, and to sustain the presence of God in their minds, hearts, and lives. A purely legalistic view of religious rites and rituals empties these matters of their spiritual and moral content and substitutes the shell of religion for its kernel. The separation of jurisprudence from mysticism and ethics is a catastrophe. It is deeply regrettable that many jurists are both hostile to mysticism and reduce ethics to recommended and discouraged acts. The small number of them who are on friendly and intimate terms with mysticism and ethics erect an impenetrable wall between jurisprudence, mysticism, and ethics. When these same individuals enter the domain of jurisprudence and engage in deriving legal rulings, they disregard spiritual and moral considerations and attach greater importance to the form, appearance, and outward aspect of actions than to their content and inner reality. It is the separation of jurisprudence from ethics that permits jurists to teach Muslims in their manuals or on their websites about “traveling with the intention of avoiding fasting.”

Literalism, traditionalism, superficiality in interpreting religious texts, insistence on the literal interpretation of religious texts, separating the “rulings of the Sharia” from the “purposes of the Sharia,” inattention to the growing number of Muslims who do not fast and do not pray, and jurists’ ignorance of the demands of life in the modern world and its difference from the pre-modern world cause them to persist in their traditional understandings of religious texts and to attribute people’s distancing themselves from religion to the cultural invasion of enemies and the efforts of Muslim reformists.

Whereas a proper explanation shows that at least one of the causes of people distancing themselves from religion is that following religious injunctions in the traditional manner disrupts their daily lives. What sense does it make, after all, to advise a bakery worker, a taxi driver, or a farmer who is compelled to work for their livelihood during Ramadan to take leave during Ramadan, or to travel, or to change their job, so that they can fast? Suppose these individuals take leave, travel, or change their job. Shouldn’t someone else fill their vacant position? Is this new person’s situation any better than the previous one? Can they be given similar advice? Wouldn’t it be better for jurists, instead of devising such legalistic loopholes/impractical legal stratagems, to spend a single day of their lives alongside that baker, taxi driver, or farmer, or, if they consider such an act beneath their dignity, to at least use their power of imagination and imagine themselves in the place of such persons, and then, in light of this experience and perspective, endeavor to interpret the Quran and the traditions? The source of emulation for bakers must either be a baker himself or have undergone the actual or imagined experience of such work. Did the compassionate, wise, and rational God, who does not wish to impose hardship on people in His religion, only take into consideration the circumstances of the Muslims of early Islam, and does His compassion, wisdom, and rationality extend only to them?

13. The Role of Jurists is to Discover Legal Rulings, Not to Invent Them

It is true that the task of jurists is the “discovery” of a legal ruling, not its “invention,” but the method of discovering a legal ruling is borrowed from the wise people of the world, and the method of discovering the conduct of the wise is different from and prior to the method of discovering a legal ruling. It is also true that acts of worship are divinely prescribed and devotional, but the way to recognize acts of worship and the method of discovering their limits, boundaries, and conditions is not devotional. The point is that acts of worship, while being divinely prescribed and devotional, possess a rational framework and spiritual content, and every act of worship has essential characteristics and accidental ones. These accidental characteristics are neither divinely prescribed nor devotional, and are borrowed from the culture, nature, history, and geography of the place where the revelation was sent down.

Therefore, jurists, when seeking to discover the religious rulings pertaining to acts of worship and their conditions, limits, and boundaries, are obliged to consider which of these conditions, limits, and boundaries are “essential” and which are “accidental” and “local.” The absence of dawn, sunrise, and sunset in region (c), the unusual length of the day in region (b), and consequently the extreme hardship and difficulty of fasting during long summer days for the general inhabitants of this region, along with the incompatibility of this criterion with the criterion by which most people organize their daily lives in the modern world, are strong empirical and rational reasons supporting the claim that these natural signs are among the accidentals of prayer and fasting, not among the essentials of these acts of worship. However, in order to set aside the apparent meaning of the verses and narrations based on these empirical and rational reasons, we need a revision of the prevailing paradigm in jurisprudential ijtihad. This paradigm neither possesses the necessary capacity to take these considerations into account nor provides a rational and methodical basis for resolving the challenges of the modern age and newly emerging issues.

Dr. Kadivar, in one of his recent lectures, stated: “Acts of worship and rituals are tawqīfī (divinely prescribed) and taʿabbudī (devotional). Tawqīfī means that the principle of their legislation, the definition of their limits and boundaries, and the conditions for their acceptance depend on the will of the Lawgiver. The Lawgiver is God and His Messenger. The jurist, the mystic, the theologian, the philosopher, the scholar of ethics, and the religious scholar in general do not have the right to institute an act of worship.”[9]

These statements are susceptible to misunderstanding; they are a true word from which a false meaning may be intended. It is true that the Lawgiver is God and His Messenger, but both God and His Messenger are “Wise” and “Rational,” and wisdom and rationality constitute the “framework” of their legislation. If this presupposition is correct—and it is—its meaning is the precedence of wisdom and rationality over religion/Sharia, and consequently, the precedence of mysticism, ethics, and philosophy over jurisprudence and religious studies/Sharia studies. This precedence is, of course, an “epistemological” precedence and means that in jurisprudential inference, and when seeking to discover religious rulings—whether devotional or non-devotional—wisdom and rationality play a “falsificationist” role.

In other words, if God and His Messenger are both wise, mystical, ethical, and spiritual, then the jurist who seeks to discover the ruling of a Lawgiver with these attributes must also be wise, mystical, ethical, and spiritual, and must use wisdom, mysticism, ethics, and spirituality in their jurisprudence to correct their understandings and inferences from religious texts. Wisdom, mysticism, ethics, and spirituality are not only useful for the “institution” of religious rulings but are also helpful and illuminating in the “discovery” of these rulings.

Wisdom and rationality tell us that religious acts of worship, such as prayer and fasting, also, like other components of religion, have essentials and accidentals, and since this is the case, jurists need a paradigm that helps them distinguish the essentials from the accidentals. The existing paradigm neither recognizes the separation of essentials from accidentals in the Sharia nor provides jurists with a method for discovering the accidentals and distinguishing them from the essentials.

14. The Necessity of Separating Historical Islam from Spiritual Islam Regarding Acts of Worship, and How to Do So

Dr. Kadivar separates “Spiritual Islam” from “Historical Islam” in the realm of transactions, but he does not recognize such a separation in the realm of acts of worship, believing that acts of worship and their conditions, limits, and boundaries are part of the hard core of religiosity.[10] However, in our view, there is no difference between acts of worship and transactions in this regard. In both cases, we are faced with a combination of established and endorsed rulings, permanent and temporary ones, and absolute and “contextual”[11] ones. And the prevailing paradigm in ijtihad absolutely does not recognize such distinctions, neither in the realm of acts of worship nor in the realm of transactions.

There are two solutions to this dilemma.

(1) The first solution, which Dr. Kadivar advocates, is to preserve the traditional paradigm and claim certainty and conviction regarding the accidental/historical nature of accidentals/historical matters, and it appears that, in his view, such certainty and conviction is only accessible in the realm of transactions. The traditional paradigm permits jurists to set aside the apparent meaning of transmitted evidence in cases of certainty and conviction. But in our view, the claim of certainty and conviction in these cases is an unsupported claim, because the reasons that exist in favor of human rights, democracy, and such matters do not yield certainty and conviction.

(2) The second solution is the one proposed by the author, which consists of revising the traditional paradigm and recognizing the authority of rational and empirical presumptions / presumptive rational and empirical evidence. It is clear that these proofs are not exclusive to the domain of transactions (muʿāmalāt); rather, they are also available and citable in the domain of acts of worship (ʿibādāt). The traditional paradigm of ijtihad possesses no sanctity or inherent authenticity. This paradigm is not a part of religion itself, but a method for understanding religion. In reality, this paradigm consists of the reconstruction and formulation of the conduct of rational people in their daily lives by jurists, based on the jurists' understanding and interpretation of the conduct of rational people, and then applying it to the realm of religion and Sharia. In our view, the jurists have erred in this reconstruction, formulation, understanding, and interpretation, and this error is the source of the failure and inefficiency of the existing paradigm of ijtihad in responding to the practical questions of Muslims in the modern world.[12]

Praise be to God, first and last.

To be continued

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Endnotes:

[1]. On this matter, see The Ethics of Theology.

[2]. By 'hour' here, we mean the hour as an independent criterion, not the hour as an equivalent for the break of dawn, sunrise, noon, and sunset.

[3]. context

[4]. One might argue that Muslims have not abandoned these criteria, but have merely substituted a new method for the previous one in the process of identifying and ascertaining these criteria. The response is that, firstly, as we have seen, in region (C) these criteria themselves, regardless of the method of ascertaining them, are not available, and Muslims residing in this region are compelled to abandon these criteria. Secondly, if one insists on a literalist adherence to outward forms, why shouldn't we say that the method of ascertaining these criteria—namely, direct sensory observation with the unaided eye—also holds intrinsic significance, just as some jurists say regarding the sighting of the new moon that the new crescent is only established if seen with the unaided eye? In other words, it is true that what is mentioned in religious texts is the break of dawn itself, not the method of discovering it, but in cases such as this, one cannot rely on the unqualified apparent meaning (ẓuhūr iṭlāqī) of the Lawgiver's words, because the Holy Lawgiver was not in a position to elaborate on this aspect, nor did the original audience have any conception of the other methods that would later be developed for discovering the break of dawn. Therefore, the context and circumstances in which these verses were revealed do not permit us to say that sensory observation holds no intrinsic significance and that the method of discovering the break of dawn can be generalized to include new methods as well. On this basis, it can be said that by choosing the clock as the criterion for determining canonical times, Muslims have, in fact, substituted this criterion for the criteria mentioned in the Quran and the Sunna, and they have no alternative but to do so, because the criteria mentioned in the Quran and the Sunna are no longer as readily and easily available to them.

[5]. (Al-Baqarah/187). According to many commentators, this verse abrogates the prohibition of sexual intercourse during the nights of Ramadan, which, prior to the revelation of this verse, had been one of the invalidators of the fast. The verse also states the reason for this revision, which is the disregard of this ruling by some Muslims.

[6]. I personally attended some of the lessons held after iftar at the homes of certain Marajiʿ during the month of Ramadan.

[7]. I recall that during the time I lived in Qom, if someone wanted to make an appointment with another person during the summer, they had to specify whether they meant the old (winter) time or the new (summer) time, because many people did not set their watches to official time. And this non-compliance with official time did not cause any disruption in their daily lives.

[8]. On this matter, see, for example, Dr. Mohsen Kadivar's response to questions regarding canonical times and the manner of fasting during long days at the following website:

http://kadivar.com/?p=11145

Dr. Kadivar writes: "In non-equatorial regions where the day becomes very long during part of the year, when the holy month of Ramadan falls in summer, if the interval from dawn to sunset exceeds 16 hours, it causes hardship and difficulty for many fasting persons, and if it exceeds 18 hours, it can be said that this is the case for the generality of fasting persons in most instances. This, of course, is my subjective determination of the matter. It is clear that the discussion concerns lands near the poles, where there is day and night, albeit unequal, within every 24 hours, and not the poles themselves, where there is six months of night and six months of day, which has a different ruling... What is meant by dawn and sunset is the local horizon (not the horizon of Mecca and the Hejaz). The time of Mecca and the Hejaz has no relevance whatsoever in calculating the times for prayer and fasting... In regions of the northern or southern hemisphere where the length of the day is, for example, 20 hours in summer and, say, 8 hours in winter, one cannot pray or fast according to the horizon of Mecca under the pretext of the shortness or length of the day or night. If someone in their own region, which has different hours from Mecca (for instance, a 10-hour difference), prays or fasts according to the horizon of Mecca, their prayer and fast are invalid.... Observing the day length of Mecca, between 12 and 14 hours, in other parts of the globe has no relevance whatsoever to the matter of fasting, and lacks any credible religious proof.... Breaking the fast before sunset under the pretext of the fast becoming long or exceeding 14 hours (equivalent to the maximum fast in equatorial regions and Mecca) is an arbitrary preference (istiḥsān) without proof.... On the other hand, fasting in regions near the pole in summer, with days of about 20 hours, is a duty beyond one's capacity (taklīf mā lā yuṭāq) and causes severe hardship or difficulty for most believers. This is incompatible with the text: 'God desires ease for you, and He does not desire hardship for you' (al-Baqarah 185)... Reconciling the various aspects of the proofs necessitates that in such regions (with very long days of approximately more than 18 hours and less than 24 hours), where fasting all or some of the days of Ramadan causes severe hardship and difficulty for the majority of people, the duty of performing the fast on time (adāʾ) is lifted, but the duty of making up the fast (qaḍāʾ) remains incumbent upon the obligated person, to be performed before the next Ramadan, without being required to pay expiation (kaffārah).... We should bear in mind that although the inhabitants of such regions near the poles have this problem during the summer Ramadans, in the winter Ramadans, the length of their fast is, in turn, less than 12 hours. During fasts of seven or eight hours, they are also not required to observe the 12 hours of Mecca and will break their fast according to the local horizon.... The reason for the non-obligation of fasting for regions above 18 hours (from dawn to sunset) is the secondary principle of severe hardship and difficulty (ʿusr wa ḥaraj wa mashaqqat shadīdah), which is accepted by the overwhelming majority of jurists of both major Islamic schools. The figure of 18 hours is a means to an end and has no intrinsic authority. It is my subjective determination that fasting persons, in most instances, fall into difficulty beyond these hours. If someone falls into difficulty in fewer hours, their duty to fast is lifted, and making up the fast at a suitable time (before the next Ramadan) will be their responsibility. In other words, the determination of hardship and difficulty is a personal matter and rests with the obligated person themselves." (Ibid., emphases added by the author).

In the author's opinion, if Dr. Kadivar, and other respected jurists who think like him and believe in the efficacy of the traditional paradigm, had endeavored to find a 'religious basis' for their fatwa regarding canonical times at the North and South Poles, so that, in the shadow of that basis, they would refrain from issuing a fatwa based on 'arbitrary preference' (istiḥsān) in this matter, and then asked themselves, 'What difference is there between the North and South Poles and the regions near the North and South Poles that makes resorting to arbitrary preference permissible in the former and impermissible in the latter?', and 'What reason is there that God, on a specific day of the year, would tell Muslims living in equatorial and nearby regions, as well as Muslims living at the North and South Poles, to fast for a maximum of 15.5 hours, but tell Muslims living between these two regions to fast for 18 to 23 hours?', they would perhaps have refrained from issuing such unreasonable and irrational fatwas.

The issue of the rule of hardship (ʿusr wa ḥaraj) also concerns exceptional states and cases, not a state or case in which a duty for most people, or all people, or the generality of people entails hardship. If, as they say, fasting for more than 16 or 18 hours entails hardship for all or most people—which it does—this means that the unqualified scope of the proofs for the obligation of fasting does not include such a fast in the first place, not that it does include such a fast but the obligation of this fast is lifted from the shoulders of the generality of duty-bound persons by the rule of hardship. The hardship referred to in the fasting verses means that the fast made obligatory in the preceding verses is not one of hardship, and the generality of duty-bound persons can easily undertake such a fast, and undertaking this fast does not entail hardship for them. The hardship mentioned in these verses is different from the hardship spoken of in the rule of hardship. This is a “connected” (muttaṣil) contextual indicator, not a “disconnected” (munfaṣil) one, and it prevents the formation of an unqualified scope in the obligation of fasting. In other words, the hardship mentioned in the fasting verses is not a “secondary ruling” (ḥukm thānawī) consequent upon a “secondary title” (ʿunwān thānawī); rather, it expresses the nature of the primary ruling mentioned in the preceding verses. From this, one can well conclude that:

(1) The interval between dawn (ṭulūʿ al-fajr) and sunset (ghurūb al-shams) in Mecca and Medina and similar regions is what matters, not dawn and sunset according to the local horizon, which in region (B) entails hardship for the generality of duty-bound persons, and

(2) There is no evidence at hand on the basis of which one can claim that the maximum length of the obligatory fast for Muslims living in other parts of the world is greater than the length of the fast on the same day of the year in Mecca or Medina.

Dr. Kadivar has said: “Observing the length of the day in Mecca, between 12 and 14 hours, in other regions of the globe for the matter of fasting has no relevance whatsoever and lacks any credible religious proof... Breaking the fast before sunset on the pretext of the fast becoming long or exceeding 14 hours (equivalent to the maximum fast in equatorial regions and Mecca) is an arbitrary preference (istiḥsān) without proof.”

In response, I submit that this is absolutely not the case; rather, on the contrary, his own statement on this matter is based on an unwarranted generalization. By considering the totality of the verses, one can say that the relevant verses have no indication whatsoever that the length of the fast obligatory upon Muslims residing in other parts of the globe is greater than the length of the fast obligatory upon Muslims residing in Mecca and Medina. The principle of the shared obligation of duty-bound persons in rulings also requires that the length of the fast be approximately the same for all Muslims. Therefore, to justify the claim that “Muslims residing in region (B), compared to Muslims residing in Mecca and Medina, are obligated to undertake a much longer fast,” we need evidence, and in the absence of such evidence, the principle of exemption (barāʾa) prevails. At the very least, this contextual indicator renders the relevant verses ambiguous (mujmal).

Similarly, to justify the claim that “Muslims residing in region (B), compared to Muslims residing in Mecca and Medina, are permitted not to fast in the month of Ramadan during summer and to fast instead in winter, even if the length of the day in winter in this region is much shorter than the length of the day in Mecca and Medina,” we need evidence, and in the absence of such evidence, the verses and narrations indicating the obligation of fasting prevail. If this much shorter fast is a suitable substitute for fasting in the month of Ramadan, why should they not be allowed to undertake this same shorter fast in the very month of Ramadan so that they are not deprived of the spiritual and moral blessings of fasting in Ramadan?

[9]. http://kadivar.com/?p=11919

[10]. Ibid. The separation of spiritual Islam from historical Islam is equivalent to the separation of the essential from the accidental.

[11]. contextual

[12]. For further explanation on this matter, see The Ethics of Theology, especially chapters 2, 3, and 4.

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On Determining Canonical Times and the Manner of Fasting During Long Days (3)

Author: Dr. Abolqasem Fanaei

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Related Content:

On Determining Canonical Times and the Manner of Fasting During Long Days, Abolqasem Fanaei (1)

On Determining Canonical Times and the Manner of Fasting During Long Days, Abolqasem Fanaei (2)

On Determining Canonical Times and the Manner of Fasting During Long Days, Abolqasem Fanaei (3)

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