hobballah

الموقع الرسمي لحيدر حب الله

لغات اُخرى

The Illegitimate Child in Islamic Jurisprudence: A Reading and Rectification

تاريخ الاعداد: 2/9/2024 تاريخ النشر: 2/9/2024
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التحميل

Haidar Hobballah

 

Translated by Rida Jichi

 

Introduction

Our aim behind these pages is to tackle a subject that was discussed in Islamic jurisprudence in several chapters and different places, and that is the subject of ‘the illegitimate child’ (walad al-zinā). Muslim jurists stated that the illegitimate child is denied certain posts and positions, certain financial rights and other things such as leading the congregational and the Friday prayer, assuming religious reference authority (marji‘iyya) or guardianship authority (wilāyat amr al-muslimīn; general leadership), assuming judicial authority (al-qaḍā’), testimony, inheritance and blood money.

While any veracious (‘ādil) Muslim can be a judge, a leader of a congregational prayer, a witness in court or the like, Muslim jurists nonetheless state that this is prohibited for the illegitimate child and that this prohibition is a legal and legislative construction by the sharī‘a, not for punishing him – as he did not sin – but for other reasons.

The matter went even further. The illegitimate child, according to some jurists, was stripped of two major attributions:

The first attribution: Filiation and its relations, as some jurists considered the illegitimate child to be of no family since the Legislator invalidated his filiation and the parenthood of his mother and father and others. In other words, he was completely or almost completely cut off from familial life.

The second attribution: Muslimness, as some jurists ruled his infidelity (kufr) and the known associated rulings such as physical impurity (najāsa) and others.

In any case, we wish to read into ‘the illegitimate child’ in the Islamic jurisprudence, rectify the school reading and see the position of the sharī‘a towards him in this context.

We also point out that all our talk here revolves around the illegitimate child born from fornication (zinā), and not the child of mulā‘ana,[1] nor the child of [intercourse in the state of] ignorance (walad al-shubha), nor the foundling, nor the so-called phenomenon of street children and vagrants, nor the child of prohibited insemination (if we rule that it is prohibited such as the insemination of a woman’s egg with the semen of a man other than the husband), nor the child of a prohibited intercourse with the wife (such as the intercourse in the state of iḥrām or in the state of menstruation with the occurrence of pregnancy in such case). All of these do not correspond to the concept of fornication according to the sharī‘a even though some of them are prohibited as it is clear, for these children are only legally denied some of what the illegitimate child is denied, with some detail in the case of inheritance for the child of mulā‘ana, as is known.

We will start with the two aforementioned attributions since they are key to what follows them.

Familial affiliation of an illegitimate child

It is understood from the jurisprudential heritage that a child born from fornication is an illegitimate child, and for this reason the consequential rulings of legal filiation do not apply to him, hence he is not ascribed to his parents or father. The Prophetic narration says, ‘the child is [ascribed] to the [legal] bed (firāsh), and for the adulterer is the stone’,[2] and this means that the adulterer gets no outcome from his action except the stone [i.e., nothing], and therefore his child is not ascribed to him, nor is the family legal except that which resulted from the ‘[legal] bed’, meaning the matrimonial bed and nothing else.

It has also been mentioned in some narrations that an illegitimate child is of a slip (li-ghayya),[3] as if he has no trace and is not but a product of an act of fornication, valueless and inconsiderable, and this means that the Legislation stripped of him the elements of familial affiliation, so he became of no family.

However, some later scholars and especially sayyid Khū’ī argued that the concepts of paternity, filiation, maternity, brotherhood, paternal unclehood, etc. are real and existential titles not constructed by the sharī‘a. All that the sharī‘a did was denying the illegitimate child the inheritance, which is different from denying his ascription to his father and therefore uprooting him from his familial atmosphere. Hence the correct approach is to apply the familial consequential rulings to the illegitimate child, all except for inheritance due to relevant textual evidence.[4]

Facing this scene of division, we can comment:

Firstly: The famous Prophetic narration ‘and for the adulterer is the stone’, which is traced in both Sunni and Shiite reports, establishes a well-known jurisprudential maxim which is the ‘maxim of the bed’ (qā‘idat al-firāsh), and the application of this maxim is limited – as shown by the context of almost all of these narrations – to the case of adultery with a married or owned woman. In this case the sharī‘a prohibits – when in doubt – the adulterer from ascribing the child to himself, and stipulates that: whenever it is possible to ascribe the child to the woman's legal husband or owner (assuming she is a slave woman), then that should be applied, whereas the adulterer does not gain anything, as it is said [in Arabic], ‘he put a stone in his [opponent’s] mouth’, meaning he destroyed his opponent with a silencing reply, or when it is said, ‘he gains nothing but dirt’, meaning he gains nothing.

It is thus clear that this jurisprudential maxim does not aim to deny the relationship between an illegitimate child and his family at all, but rather aims to ascribe the child to the ‘[legal] bed’ when in doubt, and how far this is from our current situation where we jump in conclusion from this narrow circle to a general meaning! Scholars have also invalidated what was attributed to Imām Abū Ḥanīfa – in line with this incorrect understanding of the hadith – as he generalised it to the case of certainty about the child’s affiliation to the adulterer.

Accordingly, the Prophetic hadith and the texts based on it cannot be ascertained to conclude something broader than this. In fact, the text is specific to the situation where the fornicating woman is married or is a slave, and not any woman in general. This is signified by the textual indicator (qarīna) mentioning ‘[legal] bed’ here, and the hadith is not aiming to restrict filiation to the [legal] bed, as this is not established from its contexts.

In other words: it is not established that the hadith of the Prophet was issued absolutely in the position of constructing a general unrestricted law that a child is not ascribed to his parents except through the [legal] bed, and that the fornicating man obtains nothing. Rather, it is very likely – with the evidence of the contextual indicator of most, and maybe all, of the scenarios of issuance of this hadith, through both Sunni and Shiite reports – that what is meant in the hadith is the case of adultery with a married woman or a female slave, and so the child is ascribed to the woman’s husband, not the adulterer.

For all this, we found a large group of Sunni jurists acknowledging the lineage relation between the child and his mother but not his father,[5] and perhaps this is an indication to the reason that the child’s affiliation to his mother is clear, unlike that to his fornicating father where there is no [legal] bed, as there were no conclusive scientific means to ascertain lineage in those eras specifically.

Perhaps for this also it was attributed to some of the ancient scholars the opinion that a [illegitimate] child should be ascribed to his fornicating father if the mother did not belong a [legal] bed of marriage or ownership but the father ascribed the child to himself. Such scholars are Isḥāq b. Rāhwayh, ‘Urwa b. al-Zubayr, Sulaymān b. Yasār, al-Ḥasan al-Baṣrī, Ibn Sīrīn, and Ibrāhīm al-Nakh‘ī in a narration,[6] and ‘Atā’ b. Abī Rabāḥ, as is the opinion of shaykh Ibn Taymiyya.[7] It was also reported that Abū Ḥanīfa said, ‘It is acceptable if a man fornicates with a woman and she becomes pregnant with his child, that he marries her with her pregnancy and covers her, and the child is then [ruled] his.’[8] Some of the scholars rely on what Sulaymān b. Yasār narrated, that ‘Umar b. al-Khaṭṭāb would ascribe the children of the pre-Islamic era to [the parents] who claimed them at the time of Islam,[9] as some understood it as an attempt by ‘Umar to solve the problem of the children of illegitimate birth of the pre-Islamic era.

Perhaps the consideration of not ascribing the illegitimate child to the adulterer in the situation where the woman is married to or owned by another legitimate person, is grounded in that people could rarely ascertain the existential affiliation of the child to the adulterer in those times, so the child would be ascribed to the predominant situation. In addition, this would be a kind of punishment for the adulterer and an inclusion of the child in a legally constituted family, otherwise if we are certain that child is the adulterer’s – even through careful scientific examination – then it is necessary to adopt the Qur’anic ruling regarding the prohibition of ascribing a child to someone other than his real father, and the prohibition of adoption and claiming the child to oneself in this case when he is the child of the adulterer. For this, one should view the subject from this angle as well, and its elaboration is mentioned in the genealogical investigations. The issue also has scenarios related to the mulā‘ana and other situations.

Moreover, if we contemplate the ‘maxim of the bed’ (qā‘idat al-firāsh) in Islamic jurisprudence, we will find its application clear for the situation of marriage or the equivalent in ruling. The jurists differed about the case of confusion between two ‘[legal] beds’, such as the case where a woman divorced and then married another man and gave birth six months after her second marriage, to which of the two beds [i.e., marriages] should the child be ascribed? As is the case where visual inspection (qiyāfa) concludes with ascribing the child to other than the [legal] bed, and [they claimed] that this conclusion has no value because it is mere speculation. That is why they said that the husband cannot deny his affiliation to the child except by li‘ān[10] if it is based on his certainty that the child is not his. Li‘ān is a judicial ruling that lifts the ‘maxim of the bed’ as a result of the husband’s certainty that there is no relation between him and the child, and that this relation of lineage cannot be imposed on him by force. A review of the applications of the ‘maxim of the bed’ enables one to ascertain that it is specific for the situation of an existing marriage or the like, without the knowledge or the substantive judicial argument that dissociates the child from him [the adulterer], for the maxim is a general apparent judicial ruling applied in the situation of absence of knowledge of the lineage relation, with the existence of the matrimonial bed.

In addition to this, those of the opinion ruling the disconnection of the lineage relations are obliged in principle to apply the full corresponding consequential rulings, such as eliminating the requirement of blood money from the relatives in the situations of accidental killing, and the non-recognition of the effects of being a Hashemite if the father is a Hashemite, and dropping the obligation of sustenance (nafaqa) off the father (and mother) towards the child, and vice versa, and the absolute dropping of the parent’s guardianship over him, and the issues of breastfeeding, custody and some of their rulings, and some cases of the right-hand possession (milk al-yamīn) like the situation where he owns one of his ancestors, and the issue of killing a father for killing his child in the chapter of retribution, and so on. They also must consider this child as having no family at all if they generalised the disconnection of the lineage to both the father and the mother together when no [legal] bed is joining them, and this means that this child will not easily be issued a personal identity ascribing him to his father, or to both his parents (considering the different opinions regarding his affiliation to his mother). This leads to many effects on the child which should be noted, though we do not intend these effects to be considered evidence for the invalidity of this idea, but a warning. That is why these scholars were confused while trying to find a solution to many of these issues. The reader is invited to review their work, especially in Sunni jurisprudence.

In addition, the opinion which maintains the relation of an illegitimate child to his mother only and not his father means that only the mother would bear the responsibility of the child, while the father would be exempted, and thus we would be absolving him of it. This is also a social issue that one may not find in line with the legislative space of Islam, especially when the mother also was a fornicator.

Secondly: The expression ‘li-ghayya’ does not signify the child being legally disregarded. Rather, it is a description, because the narration says: a child is a li-ghayya and does not inherit, and this means that a child who is a result of an act of fornication and misguidance does not inherit, so the word li-ghayya is like the word li-zanya (belonging to an act of fornication) without any difference between the two. Hence, that word in itself does not signify except describing the child as an outcome of a slip, a fall, an act of fornication, nothing else. At least the hadith does not have an apparent meaning in other than this, and we will comment on this hadith in detail later when we discuss the inheritance of an illegitimate child.

Thirdly: What sayyid Khū’ī mentioned about the reality of these descriptions is correct, meaning that if we interpreted ‘father’ as the one from whose semen the child was born, this would be a realistic description. However, our discussion is not about this but rather about acknowledging the consequences of paternity for the fornicating father, or filiation for the resulting child. The words of sayyid Khū’ī are hence useful in countering the claim of primacy of non-paternity until it is proven by textual evidence. Also, it is not useful in any situation to argue that the sharī‘a can deny paternity, whether in claim or construction, as a step to fully deny its effects based on this being the right of the Legislator, and that the existential reality of paternity does not prevent that here. The main point of evidence for those who claim the denial [of paternity] here is the text that drops the construction of paternity, not the absence of the text confirming paternity, which is worthy of reflection.

Accordingly, combining the words of sayyid Khū’ī – along with the absoluteness and generalisations mentioned in the various chapters – together with the observations that we noted above regarding the evidence advanced by those who deny the familial relation, proves the establishment of these relations.

It may be said: that the cause of inheritance is lineage, hence denying inheritance means denying that lineage.

But it can be replied to with what the sayyid Faḍlullāh stated, that lineage implies (yaqtaḍī) inheritance, and it does not call for its effect unless the Legislator does not prevent the implier (muqtaḍī) from affecting what it implies (yaqtaḍīhi),[11] and this matter is in the Legislator’s control, because these relations – I mean the relation between lineage and inheritance – are not existential, but rather constructive and legislative, as is clear. Hence the Legislator can acknowledge lineage with denying inheritance, as is the case with denying it in situations of ḥajb (blocking),[12] killing, infidelity and so on, while acknowledging lineage in all of these.

Perhaps what points to the correctness of what we have reached is that a large group of Muslim jurists do not permit the illegitimate child to marry any of his supposed maḥrams[13] in the family from which he actually is, meaning that if a man engages in fornication with a woman and she gives birth to a girl, it is prohibited for that man to marry this girl, likewise his children are prohibited from marrying her, and so on, although the lineage relation has supposedly vanished according to the popular jurisprudential claim. For this reason, some Sunni jurists make a distinction by saying that the illegitimate child is a child of prohibition [of marriage], not a child maḥramiyya,[14] to prohibit him from marrying his relatives who have been legally stripped of the characteristic of kinship to him.

There is no clear nor explicit evidence for these distinctions, however. If the lineage relation is completely denied, how do we then know that it is impermissible for the child to marry his real relatives who have been denied kinship to him already?! Many of the pieces of evidence they mentioned were based on juridical preference (istiḥsān). The strange thing is that they referred to Qur’anic texts that implicitly acknowledge that the child is the child of the fornicating man and fornicating woman and the like, but still they legally denied him this attribute. In my speculation, this is only due to their inconsistencies on the matter and due to how troubling these results that they reached were. Therefore, you find those who consider the prohibition here to be a measure of precaution in marriages, but I do not see what requires the necessary precaution in this case specifically, provided the established evidence for detaching the lineage, unlike the other cases in which they did not consider the precaution! That is why you find some who included the [illegitimate] daughter in the category of the stepdaughter on the basis that she is the daughter of his mawṭū’a (woman who is gone into),[15] although there is no such thing in Islam as the prohibition of [marriage to] the daughter of the mawṭū’a if there was no marriage contract with this woman in the first place, as the Qur’an stipulates that the mother is ‘of your women whom you have gone into’ [Qur’an 4:23], and it is assumed here that the mawṭū’a is not the man’s wife. If this saying were true, it would be necessary to prohibit the marriage of the fornicating man to the other daughters of the fornicating woman, even if they were from another man, and I do not think anyone issued such a ruling.

In my understanding, the opinion of some Shāfi‘ī and some Mālikī jurists[16] permitting this marriage between the fornicating man and his real daughter is congruent with their principles and consistent with their theories.

Based on that, [even] if we ascertain based on scientific evidence that she is his real daughter, he should still be permitted to marry her in accordance with the law of detachment of lineage! Perhaps this alarming sign points towards the invalidity of such jurisprudential theories, and towards the incorrect understanding of the law of ‘the child is [ascribed] to the [legal] bed (firāsh)’ since the Prophet did not wish to disconnect the real lineage relations, rather he wanted us not to act on the possibilities and assumptions that lift and cancel ascribing the child to the matrimonial bed, in order to organise matters and prioritise [ruling the possibility of] the matrimonial bed over other possibilities.

Therefore, the correct approach is to apply all the consequential rulings of familial relations, whether the prohibitions or the permissions, to the illegitimate child, except what was excluded by evidence. Besides, the primacy is for the ‘purity of the birth’ when it is probable, and accordingly the father cannot pay his zakat to him since he is his child whose sustenance is obligatory on him, and zakat is not paid to the one whose sustenance is obligatory on the payer. Also, the rulings of the ‘aqīqa[17] apply, alongside all the other rulings for children, sustenance, maḥrams, marriages, and so on, except what was excluded by evidence.

Religious affiliation (to Islam) of an illegitimate child

It is clear that an illegitimate child falls into a number of situations:

1- That he is not of age of reason nor of age of selecting a religious path, like the case where he is a little child, his parents are non-Muslim, and automatically they have included him with them. The ruling about him here is his infidelity.

2- That at least one of his fornicating parents is Muslim, but the child becomes of age of reason and maturity (bulūgh) but disbelieves in God and His Messenger. It is clear here also that the ruling about him is his infidelity.

3- That at least one of his fornicating parents is Muslim, and the child is little.

4- That his parents are both non-Muslim, or both Muslim, or only one is Muslim, and the child becomes of age of reason, accepts Islam and utters the two testimonies (shahādatayn).

Here, in the third and fourth cases, it is asked: is the child ruled Muslim whether by grouping him with one of his Muslim parents or according to his own uttering of the two testimonies, or is he – despite this – still ruled non-Muslim and the corresponding consequential rulings are applied to him?

Contrary to the majority of scholars, shaykh Ibn Idrīs al-Ḥillī (598 AH) ruled the infidelity of an illegitimate child and arranged based on this a set of rulings such as the prohibition of marrying him – because the Qur’an prohibited marrying the infidel (kāfir) –, the inadmissibility of his testimony, and the disregard of his emancipation, because all of these are conditional on the absence of infidelity, whereas an illegitimate child is [supposedly] infidel.[18]

If this theory is correct, it may explain all the rulings that were issued about the illegitimate child, such as denying him the right of religious reference authority, guardianship authority, judicial authority, leading the congregational prayer, leading the Friday prayer, inheritance, testimony and so on, as the jurists require stripping these off the infidel, according to the popular opinion among them.

The view of the infidelity and physical impurity of an illegitimate child was attributed to sayyid al-Murtaḍā and shaykh al-Ṣadūq as well. It was rather claimed that there was consensus (ijmā‘) and no difference of opinion on this.[19]

The basis for ruling the infidelity of an illegitimate child is what indicated his physical impurity, which are the following:

1- The report of al-Washshā’, on the authority of al-Ṣādiq (peace be upon him), ‘That he disliked the residue [of food and drink] of [each of] the illegitimate child, the Jew, the Christian, the polytheist, anyone who opposed Islam, and above all the residue of the nāṣib[20].’[21]

2- The report of Ibn Abī Ya‘fūr, ‘Do not bathe from the well which collects the residual wash water of the bathing place, for it has the residual wash water of the illegitimate child, and he is not pure for seven fathers.’[22]

3- The report of al-Daylamī, on the authority of al-Ṣādiq (peace be upon him) saying, ‘The illegitimate child says, ‘O Lord, what is my fault?! Nothing of my situation was of my making!’ Then a caller calls to him and says, ‘You are the worst of the three, your parents sinned so you grew up on them, and you are an abomination, and only one who is pure shall enter Paradise.’’[23]

This narration was also reported by Abū Hurayra in the Sunni collections, with a similar content that confirms that he [the child] is the worst of the three.[24] But there was an objection from ‘Ᾱ’isha to Abū Hurayra on this hadith, as ‘Ᾱ’isha and Ibn ‘Abbās reported that he is the worst of the three if he performs the act of his parents, and not absolutely, and that Abū Hurayra was confused about the matter.[25] Scholars have provided extensive interpretations of this narration, which we will skip so that we do not prolong the discussion with some of the excessive interpretations. It was also narrated from al-Ḥasan al-Baṣrī that he said that the child of the female fornicator was called the worst of the three because his mother said to him, ‘I am not your father by whom you are called’, so he killed her, and so he was called the worst of the three.[26] Therefor that sentence is a reference to a specific person and a specific incident, not to every illegitimate child.

4- The report of Zurāra, on the authority of al-Bāqir (peace be upon him) saying, ‘There is no good in an illegitimate child, not in his skin, nor in his hair, nor in his flesh, nor in his blood, nor in any of him. The ark could not board him while it boarded the dog and the pig.’[27]

5- The report of Muḥammad b. Muslim, on the authority of Abū Ja‘far (peace be upon him) that he said, ‘The milk of a Jew, a Christian, or a Magian nurser is to me more favorable than the milk of an illegitimate child, and that he would not see an issue with the milk of an illegitimate child if the master of the woman forgave that who fornicated with her.’[28]

6- The hadith of ‘Alī b. al-Ḥakam, on the authority of Abū al-Ḥasan (peace be upon him) that he said, ‘Do not bathe with the residual wash water collected from the bathing place, for in it is bathed after fornication, and in it bathes the illegitimate child and the one who hates us the ahl al-bayt, and this is the worst of them all.’[29]

7- The report of Ibrāhiīm b. Abī Ziyād al-Karkhī, on the authority of al-Ṣādiq (peace be upon him), that he said, ‘The signs of an illegitimate child are three: bad presence, longing for fornication, and hating us the ahl al-bayt.’[30]

8- The report of Abū Khadīja who said, I heard Abū ‘Abdillāh (peace be upon him) saying, ‘An illegitimate child is never good, and his value is never good.’[31]

9- The other report of Abū Khadīja, on the authority Abū ‘Abdillāh (peace be upon him) that he said, ‘If any of the illegitimate children were to be saved, then the wanderer of the Children of Israel should have been saved.’ Then he was asked, ‘And who was the wanderer of the Children of Israel?’ He said, ‘He was a worshiper who was told, ‘An illegitimate child is never good, and no deed would ever be accepted [by God] from him.’ And so, he went out wandering in the mountains saying, ‘What is my fault?!’’[32]

10- The mursal [33] report of al-‘Ayyāshī, on the authority of Ibrāhiīm, on the authority of Abū ‘Abdillāh (peace be upon him) that he said, ‘Noah boarded the dog in the ark, but he did not board the illegitimate child.’[34]

11- The report of Naṣr Al-Kawsaj, on the authority of Maṭraf the servant of Ma‘n, on the authority of Abū ‘Abdillāh (peace be upon him) that he said, ‘The sweetness of faith does not enter the heart of a Sindhi, a Negro, a Phoenician, a Kurd, a Berber, one from the Heights of Ray, nor one whose mother conceives him illegitimately.’[35]

12- The report of Sa‘d b. ‘Umar Al-Jallāb, he said, ‘Abū ‘Abdillāh (peace be upon him) said to me, ‘God Almighty created Paradise pure and purified, so no one enters it except one who has a good birth.’ Abū ‘Abdillāh also said, ‘Blessed is he whose mother was chaste.’’

The content of the report was also mentioned in the report of ‘Abdullāh b. Sinān.[36]

13- The report of ‘Abdullāh b. ‘Amr, on the authority of the Prophet that he said, ‘No child of a female fornicator shall enter Paradise, nor an obliger [who reminds of his own givings], nor a disobedient [to parents], nor an addict to khamr (wine).[37] The report was narrated as a marfū‘[38] hadith on the authority of Mujāhid, on the authority of Abū Hurayra. A similar report was narrated on the authority of Abū Hurayra that an illegitmate child shall not enter Paradise, nor his children, nor their children.[39]

Mullā ‘Alī al-Qārī said about this hadith, ‘Ibn Ṭāhir and Ibn Al-Jawzī claimed that this hadith was fabricated, but it was narrated by Abū Na‘īm in al-Ḥilya on the authority of Mujāhid, on the authority of Abū Hurayra from the Prophet. Al-Dārquṭnī found it faulty with that Mujāhid did not hear it from Abū Hurayra.’[40]

Al-Ajlūnī said, ‘An illegitimate child shall not enter Paradise. It was narrated by Abū Na‘īm on the authority of Abū Hurayra as a marfū‘ hadith, and al-Dārquṭnī found it faulty with that Mujāhid did not hear it from Abū Hurayra, and he said in al-Maqāṣid, ‘Abū Na‘īm, al-Ṭabarānī and al-Nasā’ī included it [in their collections] but with confusion. Rather, it was narrated on the authority of Mujāhid, on the authority of Abū Sa‘īd al-Khudrī, on the authority of ‘Abdullāh b. ‘Amr b. al-‘Aāṣ, as I explained in a part. Ibn Ṭāhir and Ibn al-Jawzī claimed that the hadith was fabricated and is not healthy. Al-Nasā’ī also narrated it on the authority of ‘Abdullāh b. ‘Amr with the wording: An illegitimate child shall not enter Paradise.’ Al-Ḥāfiẓ Ibn Ḥajar said, ‘The scholars interpreted it – on the assumption of its authenticity – to mean: If he performed the act of his parents, and they [the scholars] agreed that the hadith should not be taken by its apparent meaning. Another interpretation was mentioned that what is meant by it [the illegitimate child; lit. the child of fornication] is one who persists on fornication, just like the witnesses are called [in Arabic] the people of [lit. the children of] the records, and like the brave people are called the children of al-Ḥārith, and like Muslims are called the children of Islam.’’[41]

And they mentioned that in the chain of transmission is Sālim, on the authority of Nabīṭ, on the authority of Jābān, on the authority of ‘Abdullāh b. ‘Amr, and that it was not known that Jābān had heard from ‘Abdullāh, nor had Sālim from Jābān, nor had Nabīṭ.[42]

14- The report of Maymūna bint Sa‘d, the female slave of the Prophet. She said, ‘The Messenger of God, peace and blessings be upon him and his family, was asked about the illegitimate child, he said, ‘There is no good in him. A pair of shoes with which I perform jihād in the way of God is dearer to me than freeing an illegitimate child.’’[43]

15 - The report of Abū Hurayra, who said, ‘The Messenger of God said, ‘That I am blessed with a whip [to use] in the way of God Almighty is dearer to me than freeing an illegitimate child.’’[44] This report was at times narrated to be the saying of Abū Hurayra himself, and at other times was attributed to the Messenger of God.

All this is in addition to what was mentioned about his blood money and that it is eight hundred dirhams, so it is equal to the blood money of [one from] the People of the Book. Furthermore, it was declared in some of the narrations that his blood money equals that of a Jew, as we shall see.

If we combine all these together and add to them the rulings about the illegitimate child concerning judicial authority, testimony, guardianship authority, religious reference authority, leading the Friday prayer, leading the congregational prayer, and so on, then we arrive at the knowledge or the normative authoritativeness of his being non-Muslim, rather infidel, and the consequential rulings of infidelity would apply to him.

However, such reliance [on the narrations] is subject to several discussions, most notably:

Firstly: Some of these narrations are irrelevant to the matter at hand, such as the one with the issue of the residue [of food and drink] (report No. 1) where the ruling may be a devotional one (ta‘abbudī) not indicating physical impurity nor prohibition, just like what was mentioned regarding the residue of the menstruating woman and the junub[45] man, and it could be related to psychological distaste, not physical impurity.

Likewise, the report of favoring the milk of the Magian over that of an illegitimate child (No. 5) is concerned with the milk of the mother (that is the mother of the illegitimate child), not the child himself, and so the subject of milk here is related to its being produced from fornication, and there is no concomitance between this and ruling on the illegitimate child with it, knowing that at most the ruling would be the physical impurity of the milk or the prohibition of breastfeeding the child with it. This does not naturally yield the physical impurity of the illegitimate child by concomitance if he becomes of age, becomes Muslim and utters the two testimonies.

The same is the case with the prohibition of bathing with the residual wash water collected from the bathing place (No. 6), for there is no valid way to consider this to be indicative of the infidelity or physical impurity of an illegitimate child, rather, it may be indicative of the call for dissociating and distancing from everything related to fornication. Attesting to this is the additional mention of the residual wash water of the fornicator himself in the narration, while there is no difference between him and the non-fornicator from the perspective of physical impurity unless we rule the physical impurity of the junub man’s sweat resulting from the prohibited act and consider this residual wash water of his to be one associated with, and immediately following, his act of fornication. In some of these narrations, the reasoning provided is that the junub man – without any other qualification – bathes with it, even though the junub man is not physically impure, and therefore these texts are either calling for avoiding an accidental physical impurity or avoiding the residual wash water entirely, and they are not necessarily revealing the existence of an essential physical impurity.

Besides, the fact that his blood money equals that of a dhimmī[46] or a Jew does not indicate his infidelity even though it indicates it conjecturally. Rather, this is a devotional (ta‘abbudī) ruling, and the mere similarity is not evidence, as will come later, otherwise should a woman’s blood money being close to that of a Jew constitute evidence towards her nearness to infidelity?!

Secondly: Some of these narrations are false in content and conflict with the Noble Qur’an and the rule of reason, such as the report of al-Daylamī (No. 3), the second report of Abū Khadīja (No. 9), the report of al-Jallāb (No. 12) and other reports, for how can an illegitimate child be ruled to deserve punishment and entry into Hell while the Qur’an sets – in many Verses – the criterion for salvation to be faith, righteous deeds and piety, and states that God does not do anyone an atom’s weight of injustice,[47] and that everyone is rewarded for their deeds no matter how little,[48] whereas that child had nothing to do with what his father and mother did?!

Besides, how is it conceivable that if his parents repented, they would enter Paradise, whereas he would not enter it even if he repented, believed and did righteous deeds?! Even if he had disobeyed, he would have disobeyed without choice, unlike his parents who disobeyed by choice.

These narrations, therefore, cannot be assented to even if they had reliable chains of transmission.

Moreover, the Qur’an explicitly states that God will never allow the work of any male or female to go to waste,[49] so how did the efforts of the wanderer of the Children of Israel go in vain?!

Also, the report of Naṣr al-Kawsaj (No. 11) is false in content and has clear elements of nationalism. Otherwise, what does it mean that the sweetness of faith does not enter the hearts of the Kurds, Berbers, Negros and others?! Is this consistent with the general Qur’anic ethos in dealing with people on matters of faith and religion?!

How right the investigating scholar al-Muḥaqqiq al-‘Irīqī was when he appropriately said about this, ‘The sign of fabrication in this hadith is obvious, for the regional origin of a person had no effect on their success or misery, hence such false hadiths would be fabricated by those who wished to strike their opponents with the weapon of religion, so one would fabricate a hadith disparaging the tribe of his opponent, and the latter would do the same to the former. The market of fabricating hadiths in the disparagement or praise of countries and tribes became very busy at that time. Would then an intelligent believing person accept relying on such preposterous reports?’[50]

Thirdly: A number of these narrations have weak chains of transmission, so what remains is of no benefit due to the below:

a) From the chain of transmission point of view, the report of al-Washshā’ is mursal because he narrated it from the ones he mentioned. The report of Ibn Abī Ya‘fūr is weak by Ibn Jamhūr in the chain, and by being a mursal report. The report of al-Daylamī is mursal, in addition to the weakness of al-Daylamī himself who was accused of exaggeration and lying. The similar report of Abū Hurayra cannot be accepted due to the explicit report from ‘Ᾱ’isha objecting to his understanding and transmission of the hadith. The report of ‘Alī b. al-Ḥakam is mursal since he narrated it on the authority of ‘someone.’ The report of al-Karkhī is weak by Ibn Masrūr and others in the chain. The report of Abū Khadīja is weak by Muhammad b. Khālid al-Barqī, as his trustworthiness has not been established to me.[51] The report of al-‘Ayyāshī is weak by being mursal. The report of Naṣr al-Kawsaj is weak in chain due to al-Kawsaj himself, as he was very negligent [in transmitting], and the chain also contained Sahl b. Ziyād who is accused of weakness. The reports of al-Jallāb and ‘Abdullāh b. Sinān are weak in chain by al-Ḥasan b. Rāshid since his trustworthiness was not established, and the chain contains Muḥammad b. ‘Alī al-Kūfī whose trustworthiness was not established either, that is if we did not say that he was Abū Samīna the weak and liar himself. The report of Maymūna is weak by Abū Yazīd al-Ḍabbī (al-Ḍannī) whose trustworthiness was not established, rather he has been declared ‘unknown’, and Ibn Ḥazm had the opinion that Isrā’īl who was mentioned in the chain is weak, and there is a certain discussion about this man among them [the scholars]. We also already presented a discussion about some other reports so we will not repeat.[52] In addition, we do not act by the later hadith of Abū Hurayra due to Abū Hurayra himself, as we do not proceed with his narrations.

Apparently, the other report of Abū Khadīja has a reliable chain of transmission, as do the reports of Zurāra and Muhāmmad b. Muslim. Some of the reports about the blood money are deemed sound (ṣaḥīḥ) according to them [the scholars], as will come. Note that none of these reports were mentioned in the two collections of Ṣahīh according to the Sunnis.

Accordingly, the reports with a sound chain of transmission are:

1- The report of Zurāra (No. 4), which conflicts with the Noble Qur’an, the honorable Sunnah, and the judgement of reason, as we said a while ago, and so this report is not reliable.

2- The report of Muhāmmad b. Muslim (No. 5), but we said that it is irrelevant to the rulings of the Muslimness and ritual purity of an illegitimate child.

3- The other report of Abū Khadīja (No. 9), but we said that it conflicts with the Noble Qur’an, the Sunnah, and the rule of reason.

Accordingly, no report with a sound chain of narration nor a sound content has been found through which the rulings of infidelity or physical impurity of an illegitimate child can be issued. Rather, the indicative texts among these reports – as we have explained – are none but reports often with weak chains of transmission, weak content, or both, so no personal confidence (wuthūq) in the issuance of these can be attained.

Fourthly: If we accept the indication of some narrations towards the physical impurity, such as the narrations of the residue [of food and drink] and the residual wash water, then these establish the physical impurity, not the infidelity or punishment, due to the possibility that the title ‘illegitimate child’ is one of which the physical impurity is a consequence without the mediation of the title of infidelity, and there is no evidence for their concomitance necessarily. In principle, it is possible to conceptualise the ruling of physical impurity applied to one with the title ‘Muslim’ since these rulings are constructive, as it is clear.

Fifthly: shaykh al-Anṣārī, sayyid al-Shahīd al-Ṣadr and others mentioned that the narrations of the residual wash water and its likes indicate psychological distaste at most, despite the textual indicators saying that he is not pure for seven fathers, and comparing him with the dog, the nāṣib and so on.[53]

This is an existing possibility, even though its specificity is not apparent until the objections are joined together, or as sayyid Moḥsin al-Ḥakīm said, that the expression that the nāṣib is the worst of them reveals intending non-physical contamination.[54]

Sixthly: The expression ‘disliked’ mentioned in the report of al-Washshā’ (No. 1) can join with the technical term makrūh (discouraged), not ḥarām (prohibited), as it contains no indication towards prohibition or physical impurity, as some jurists have stated,[55] which is good and reinforces – as al-Ṣadr stated – that the ritual purity of the Christian and the Jew has already been established, so that text does not imply the physical impurity [of an illegitimate child] by their presence in it.

Seventhly: [Note] What shaykh al-Anṣārī mentioned, that the conclusion these reports achieve at most is the non-Muslimness of the illegitimate child, which does not establish his infidelity, except by denying the intermediary state between infidelity and Muslimness. Al-Shaykh al-Baḥrānī opted that an illegitimate child has a state between faith and infidelity, and for this it is obtained from the texts that he does not enter Paradise, but he does not go to Hell either.[56]

However, and to be fair, this position is excessive since the Qur’an mentions that people are either in Paradise or in Hell. They are either nearest to God (muqarrabūn), people of the right, or people of the left, and their positions in the Hereafter have been specified to be Paradise or Hell. When the phenomenon of illegitimate children had such a clear presence in the hadith and historical heritage, how come that the Noble Qur’an did not refer to it, but rather issued promises, prizes, and laws of reward and punishment in an absolute way that could be understood to signify abstention from specification?!

Strange is what shaykh Yūsuf al-Baḥrānī and shaykh Jawād al-Tabrīzī mentioned that a believing illegitimate child will be rewarded – on the Day of Resurrection – in Hell, meaning that his reward will come to him while he is in it.[57] This is due to the flowing of the constructive jurisprudential mentality to the theological mentality, and is in total disagreement with the general ethos of the Holy Qur’an, despite the indication to such fate for an illegitimate child in some weak narrations which suggest that no one shall enter Paradise except for one with pure birth,[58] and such is the report of Ayyūb b. Ḥurr, on the authority of Abū Bakr, who said, ‘We were with him and ‘Abdullāh b. Ajlān was with us, so ‘Abdullāh b. Ajlān said, ‘We have a man who knows what we know, and it is said that he is an illegitimate child’, so he said, ‘What do you say?’, I said, ‘This is what is said’, so he said, ‘If that is the case, a house in the hellfire will be built for him from a shield that repels off him the glare of Hell, and his sustenance will be brought to him.’’[59]

All of this disagrees with the speech of the Noble Qur’an, which loudly announces from beginning to end that the criteria for entering Paradise and Hell is faith and righteous deeds, and that God promised Paradise to those who believed, and God certainly does not break the promise. Besides, I did not understand the meaning of putting him in the hellfire while his sustenance is brought to him without torment! What is the value of his life in such a compulsive option?!

The mentality of specification can apply in the rulings [of sharī‘a], but is very difficult to apply in a discussion like ours after all this Qur’anic, and other, affirmation that there is not for man except that [good] for which he strives, and that his effort is going to be seen,[60] and that no bearer of burdens will bear the burden of another,[61] and that verily the noblest of you in the sight of God is the most God-conscious of you,[62] and that indeed, We honored the progeny of Adam,[63] and others. This is in addition to the notion of Divine Justice in which the ‘Adliyya believes.

Hence, I do not assent to these narrations, and I suspect their fabrication. Even if we say that it is not incumbent on God to reward, and that His promise is specific to the one who is not an illegitimate child, as mentioned by sayyid al-Khumaynī,[64] this remains in conflict with the apparent meaning of some of these narrations, such as the one mentioning that he shall not be saved, just like the wanderer of the Children of Israel, and the one saying that there is no good in him and that he is worse than the dog and the pig, and that the shoes are better than him. These reports do not relate to the issue of Divine Benevolence with reward, but rather refer to a real feature in the illegitimate child which is contradicted by the external reality and the reasoning for Divine Justice. If the context of such narrations was concerned with not entering Paradise, as it is not incumbent on God to reward, then it would not have been suitable to rebuke the illegitimate child in himself, but rather it would have been more suitable to praise him and portray him like anyone else, except that he would not be given the reward.

Eighthly: Sayyid al-Khumaynī mentioned that these texts can be understood within the context of the many narrations that use the term kufr to mean disobedience, such as the kufr of the one who neglects the prayer, for example, and so there is no reason to understand them to signify the conventional infidelity.[65] However, this could be accepted had the texts used the word kufr only. The reports that we have before us determine that he will enter Hell, that he is physically impure, that there is no good in him ever, that he is so much worse off than the dog and the pig that Noah’s ark could not board him, that the shoes are better than him, and that he is eviler than others, and so on. These expressions – regardless of the other objections – do not carry the interpretation that sayyid al-Khumaynī suggested, as it is clear.

Ninthly: Some scholars attempted to resolve these hadiths by saying that an illegitimate child is stripped of his faith just before his death, and this is the reason for such rulings. However, al-Mīrzā al-‘Ᾱmulī responded that had this been the reason behind all the rulings issued on him then all the consequential rulings of Muslimness should be applied to him until his death, and that the effects of his illegitimate birth should only apply in the hereafter specifically.[66]

We can add to his words – may God’s mercy be upon him – that if this were the case, then why is it reported that he will enjoy a house in the Hellfire? This disagrees with the Qur’anic pronouncements on punishment.

Tenthly: The report of al-Karkhī (No. 7) contradicts reality, as there are many illegitimate children in the world who do not hate the ahl al-bayt since they have not heard of them in the first place. The hatred with the assumption that they have heard of them is not apparently signified from the narration either, neither does the combination of the three characteristics mentioned by this narration occur in many of the illegitimate children.

Eleventhly: Some scholars, such as sayyid al-Murtaḍā, attempted to provide the interpretation that these texts are informing us about the reality of the illegitimate child even if he showed faith and righteousness. The reports then tell us that every illegitimate child is bad and malicious, and chooses corruption, no matter how good he may appear to be to us, hence we do not acknowledge the effects of veracity (‘adāla) in him even if they were clearly showing, since the Legislator informed us that he is unveracious in reality.[67]

The reply is: In the rational understanding, this leads to denying free will, for what is this coincidence that has come together such that all the illegitimate children in particular, and without exception, chose corruption to be deprived of Paradise?! This can only be understood to be a creational effect on them because creation is their common denominator. The strange thing is that sayyid al-Murtaḍā rejects some reports as solitary (akhbār āḥād) but still accepts the report that ‘an illegitimate child shall not enter Paradise’ and considered it providing of knowledge! These are excessive positions and interpretations to escape the predicament of such texts that contradict the speech of the Qur’an and the judgment of sound reason.

Twelfthly: As previously stated, some of them mentioned that these hadiths [mentioning the illegitimate child, lit. the child of fornication] are understood to mean the performer of fornication, not the illegitimate child, as it is said ‘the children of Islam’, meaning the Muslims.

But this is bizarre, for any observer of the wording of these narrations sees clarity in that they mean the illegitimate child, otherwise what does it mean that he is like that for seven fathers or to his children and their children, and similar expressions?! The interpretations mentioned by some scholars are due to their struggling to understand these hadiths according to the principles of Islam, the Qur’an and reason. These are hadiths narrated by dozens of Shiite and Sunni leading scholars of hadith, where sayyid ‘Alī al-Mīlānī mentioned the names of fifty leading Sunni scholars who cited these hadiths in their books.[68]

Thirteenthly: The contemporary sayyid ‘Alī al-Mīlānī mentioned that these hadiths are understood to refer to the predominant situation in the illegitimate children, and that this does not deny the occurrence of righteousness in some of them in a few cases.[69]

This is a good attempt, except that it did not take into account the set of stances in various chapters towards the illegitimate child. The issuance of such reported sayings will offend the righteous illegitimate child, so what is the point in informing us that most of the illegitimate children will be bad, and then we judge them, their lineage and ancestry that they will be in Hell, that shoes are better than them, that they are worse than others, and that there is no good in their body or soul, whereby we create a negative social perception of them which results in creating an unhealthy atmosphere towards the righteous from the illegitimate children?! Where is justice in this matter?!

The main question here is: If this analysis were correct, why would the reported texts inform us in this way and then severely judge him?! Knowing that if an illegitimate child was a Muslim, he will enter Paradise even if he enters Hell for a while because of his lack of righteousness, as it is popular among the scholars of Islam. The reported texts, however, emphasise that he will never enter Paradise. How then do we combine this interpretation with the example of the hadith mentioning the wanderer of the Children of Israel who was supposed to have been righteous?! The same applies to the aforementioned report of al-Daylamī, and to the report of Zurāra which indicates that an illegitimate child has no good in him at all, neither in his flesh, nor in his skin, nor in anything of him, and to the report of Abū Khadiīja that there is never good in an illegitimate child, and the like. So, do these reports create a healthy perception of the illegitimate child in society if people live by them, or do they, on the contrary, create a negative perception, as their apparent meaning indicates that he is stripped of goodness entirely?!

All this while we do not have any scientific evidence that most of the illegitimate children are in fact corrupt, neither have we conducted any scientific census confirming this matter. And if the principle is predominance, where then does this predominance originate from? If it originates from his being an illegitimate child, then we resort back to the original theological dilemma of Justice. If it originates from the surrounding social environment where the child is not brought up in a sound way, then this is something that many street children, children of torn families and others share with him. What then demands focusing this sharply on the illegitimate child?! If this were the reason, the sharī‘a should instead call for embracing the illegitimate child and creating an alternative familial environment for him to inhibit his deviation. Nevertheless, the general atmosphere that the hadith texts generally present to us in the chapters on the illegitimate child suggest the exact opposite.

In a final statement: It is unreasonable to assume that the hadiths point to the predominant situation in an illegitimate child. In addition to the fact that they are unjust to the righteous illegitimate child who reads or hears them, these hadiths are meaningless in the likes of the report with the wanderer of the Children of Israel, or the likes of those reporting that he will not enter Paradise, or that he will be placed in a house in the hellfire and enjoy the blessings there. If the righteous enters Paradise, why would he be placed in a house in the hellfire despite his righteousness?! Moreover, this disagrees with the context of the report of al-Daylamī, and that of Zurāra after it. Rather, if the principle was predominance, it would have been more appropriate to point to it in order to preserve the Qur’anic standards of reward and punishment, given the sensitivity of the subject and to ward off any confusion in understanding.

Accordingly, what is correct is that an illegitimate child is like all other people. If he utters the two testimonies, then he is Muslim and the consequential rulings of Islam apply to him, in adherence to the general legal principles of sharī‘a in this context, in adherence to many of the reported texts that outlined for us both the real and apparent Muslimness together, and in adherence to the many texts that clarified the criteria of reward and punishment with God, and pointed out that God does not do injustice, that He fulfills His promise, that He is Generous and Benevolent, and that the criteria to Him is faith and righteous deeds. Otherwise, a pure-born, corrupt, immoral person should be better in the sight of God than a righteous, pious illegitimate child, such as the wanderer of the Children of Israel! For this reason, al-Ḥurr al-‘Amilī said that what agrees with the principles of Justice is to reward the illegitimate child with his deeds, and nothing else.[70]

In addition, it has not been reported in history that Muslims and the mutasharri‘a (followers of the sharī‘a) have treated the illegitimate children in their societies as infidels, killed them, collected the jizya tax from them or discussed these angles of jurisprudence. If an illegitimate child was infidel and his actual or apparent infidelity was already established in the minds of the mutasharri‘a, then what is the value of the reported statements that he must not lead the people [in congregational prayers] or that he must not be a judge? Such reports signify that the ahl al-bayt wanted to deny him a right, and if he were infidel and his infidelity known, even only apparently, there would have been no need for such statements, but rather they would have focused on his infidelity and that the consequential rulings of Muslimness would not apply to him.

If his infidelity – even the apparent one only – were already established in the minds, then aspects of his interaction with people would have been evident in the texts in terms of marriage, but we do not find this. Neither did we hear that Islam presented a position against the illegitimate children in the Arabian society distinguishing them from Muslims or considering them infidels, even in the apparent sense, especially that the child – no matter how young – would be considered infidel, denied Paradise and many civil rights, and even ruled with physical impurity, according to the unqualifiedness of these texts, while the father and mother would be considered Muslim and may enter Paradise if they repent!

Also, the report of Ibn Abī Ya‘fūr, saying: Abū ‘Abdillāh (peace be upon him) said, ‘The illegitimate child is left to perform deeds. If he does good, he will be rewarded with it [good], and if he does evil, he will be rewarded with it [evil]’,[71] is in accordance with the Qur’an and is most agreeable with the [legal] principles [of sharī‘a] but is also weak in chain of transmission. In addition, the fiṭra (original disposition of mankind) and akhdh al-mīthāq (taking the covenant from mankind) imply that he is Muslim and it is possible for him to be Muslim, so if his compulsive birth strips him of the chance to faith even predominantly, and consequently he is punished or not rewarded, then this is contrary to the religious way of fiṭra, and contrary to presenting the argument of his accountability (ilqā’ al-ḥujja) before God Almighty, whereas we see the reported texts applying the consequential rulings to him on the basis of his bad deeds and infidelity, not on his illegitimate birth.

And I believe that anyone who reads these texts without excessiveness, interpretation or ideologisation will clearly sense their contradiction to the clear Qur'anic attitude towards the issue of human value, and that there is no consideration for genealogy on the Day of Resurrection, nor any value in all these criteria, but rather the value is in the good deeds that can generate from all human beings, each according to their ability, and that God does not do anyone injustice at all. So imagine yourself reading a hadith that says, ‘There is no good in a Kurdish, Iraqi or Persian, and they will never see Paradise, and shoes are better than them’, would you accept this hadith and find it consistent with the teachings of justice and kindness, and with the Qur’anic method of justice in dealing with people, or would you instead consider it fabricated, not proceed with it, nor act on it whatsoever?!

And if the purpose were to curb fornication by frightening fornicators, then why should it be through injustice and distorting the image of a child who had nothing to do with everything that happened?!

And if the purpose were to explain the negative impact of fornication in general on the child, there exist many things that negatively impact in general the human beings, while we did not find this severity about them in the reported texts!

And if the purpose were to deter people from sympathy with the illegitimate children so not to encourage them to commit immorality, then this comes at the expense of the illegitimate child himself, especially after being denied a set of civil rights according to the opinion of many jurists as we will see, God willing. Hence, it is better to take him from his parents and embrace him instead of leaving him an outcast in society by creating a negative culture against him, which would encourage him to follow the practice of his father and mother instead! For when we rule his doom permanently or largely, we encourage him towards corruption and tempt him with it instead of saving him from it. And when we rule his infidelity, we deny him integration into the Islamic society, as if we are telling him, ‘you have to go and integrate into an infidel society in order to appreciate yourself.’ And if the Prophet was promoting such concepts, he might deter some people from joining Islam when they are illegitimate children even in a religion other than Islam. Should all this large group of critical notes not disturb our confidence in the issuance of these texts and motivate us to not rely on them?!

I find it probable that these texts were issued during the Abbasid era in which indecency soared and the talk about illegitimate children increased. So, these texts were fabricated to confront these phenomena, or to degrade the performance of some historical figures, due to their religiosity, by accusing them of relating to unknown fathers. As in known, this has occurred many times in a number of figures even in the early days of Islam (al-ṣadr al-awwal), and all of this increases the probability of fabrication of these hadiths and drops our confidence in them.

Accordingly, what is correct is to say that an illegitimate child is like all other people with regards to applying the consequential rulings of Muslimness or infidelity to him according to all other legal principles of sharī‘a, and that he is held accountable against faith and righteous deeds only, so it is incorrect to unqualifiedly rule his infidelity.

Leadership of the congregational and Friday prayer by an illegitimate child

What is known among the Imāmī jurists is that an illegitimate child must not lead the congregational prayer or what requires congregation such as the Friday prayer, without distinction whether the led are pure by birth or not. Consensus (ijmā‘) was even claimed on the matter.

Some Sunni jurists ruled that the leadership of an illegitimate child is makrūh (legally discouraged), but if he stepped forward and took the lead, then it would be permissible. This opinion is known to be adopted by the Ḥanafī school and some of the Shāfi‘īs, based on the idea that an illegitimate child has no father to educate him, and so he will likely be ignorant, which would repel people away from the congregation if he were to lead.

Others were of the view that what is makrūh is not his leadership of the prayer, but his being an appointed imam [by the Islamic state] (imam rātib), and this was adopted by the Mālikī jurists, and perhaps was also the opinion of al-Shāfi‘ī.

Aḥmad [b. Ḥanbal] and the Ḥanbalīs had the opinion that his leadership is not makrūh in an unqualified sense, under the condition that he possesses all the remaining characteristics. This was also attributed to ‘Aṭā, Sulaymān b. Mūsā, al-Ḥasan, al-Nakh‘ī, al-Zuhrī, ‘Amr b. Dīnār, Isḥāq, Dāwūd, Ibn al-Mundhir and others.[72]

Many jurists have usually expressed this condition as ‘purity of birth’, and accordingly, if the purity of his birth is doubted, then it is impermissible to pray behind him, based on the ‘primacy of non-purity.’ We will see that this contradicts the texts containing the restriction that he should not be an illegitimate child, and not containing the restriction that he should be pure by birth, for the principle of istiṣḥāb (continuity of the previous state) can be applied in case of doubt in order to deduce that he is not an illegitimate child. Perhaps it was for this reason that some of them interpreted the condition of ‘purity of birth’ as ‘not being known to be an illegitimate child’, as was all indicated by sayyid Muḥsin al-Ḥakīm.[73]

The basis for the ruling here is a group of Imāmī narrations from the ahl al-bayt, while there is no Sunni narration on the subject, nor a Prophetic narration. For this reason, as we have seen, the Sunnis relied on constructive aspects based on juridical preference (istiḥsānī) which is unsound, for we are supposed to require the leader of the congregational prayer to have the knowledge about the prayer and be righteous, and then there is no need for an additional condition such as the purity of birth to discover his knowledge and righteousness. If the absence of his father around him were a justification for assuming his ignorance about the religious matters, then what about the orphan, whose impermissibility to lead should then be ruled?!

In any case, the most notable narrations here are the following:

The first narration: The reliable report of Abū Baṣīr, on the authority of Abū ‘Abdillāh (peace be upon him), who said, ‘Five should not lead the people in any situation: a leper (al-majdhūm), one with vitiligo (al-abraṣ), an insane, an illegitimate child, and a Bedouin (al-a‘rābī).’[74] The indication of the narration towards the conclusion is clear.

The second narration: The reliable report of Zurāra – according to the popular opinion on the authority of Abū Ja‘far (peace be upon him): I said to him…, and he said, ‘the Commander of the Faithful [Imām ‘Alī] (peace be upon him) said, ‘None of you should pray behind a leper, one with vitiligo, an insane, a maḥdūd,[75] or an illegitimate child, and an a‘rābī should not lead the Immigrants.’’[76] The indication of the narration towards the conclusion is also clear. Its chain of transmission is reliable according to the popular opinion, and it contains Ibrāhīm b. Hāshim al-Qummī.

It could be said that its apparent meaning is the prohibition of praying behind these people, which does not correspond to the invalidity of the prayer, as it could be an independent ruling of action (ḥukm taklīfī) in the circumstance of congregation, not that it invalidates the prayer and congregation, just as when you say, ‘Do not look at the prohibited while you are praying’, as will come.

The third narration: The report of Muḥammad b. Muslim, on the authority of Abū Ja‘far (peace be upon him), that he said, ‘Five should not lead the people, neither should they lead them in the obligatory prayer in congregation: one with vitiligo, a leper, an illegitimate child, an a‘rābī until he emigrates, and a maḥdūd.’[77]

This report is also indicative, but is weak in chain of transmission, as sayyid al-Khū’ī pointed out,[78] due to weakness in Ṣadūq’s path to Muḥammad b. Muslim in the mashyakha (appendix of chains of transmission), as is correct, so it is appropriate to agree.

The fourth narration: The report of al-Aṣbagh b. Nabāta, he said, ‘I heard ‘Alī (peace be upon him) say, ‘Six are inappropriate to be greeted, six are inappropriate to lead the people, and six in this nation are from the manners of the people of Lot. As for those who are inappropriate to be greeted, they are the Jews, the Christians, the people of the dice and chess, the people of wine, the Oud (‘ūd) and the tanbur, the people who find joy in insulting mothers, and the poets. As for those who are inappropriate to lead the people, they are: the illegitimate children, an apostate, an a‘rābī after the migration, a drinker of wine, a maḥdūd, and an uncircumcised...’’[79]

This narration is weak in chain of transmission, as it includes Abū Jamīla, and he is the weak and accused al-Mufaḍḍal b. Sāliḥ himself.

In addition, the expression mentioned in the narration is lā yanbaghī (it is inappropriate). This expression can indicate prohibition and can also indicate legal discouragement (karāha) and calling for distancing, so it does not necessarily denote prohibition in the ruling of action (ḥukm taklīfī) or situation (ḥukm waḍ’ī). What supports this possibility is that the same expression was used for the subject of those who are greeted, even though there is no disagreement about the permissibility of greeting the six categories mentioned in this regard, or at least some of them. Therefore, the indication of this narration – like its chain of transmission – is weak.

The fifth narration: What al-Muḥaddith al-Nūrī included from the book of Ja‘far b. Muḥammad b. Shurayḥ, on the authority of ‘Abdullāh b. Ṭalḥa, on the authority of Abū ‘Abdillāh (peace be upon him), that he said, ‘[The following] should not lead the people: a maḥdūd, an illegitimate child, an uncircumcised, an a‘rābī, an insane, one with vitiligo, and a slave.’[80]

This report is weak because the path to it is basically unclear, rather the reliability of Ja‘far b. Muḥammad b. Shurayḥ is not established, and if ‘Abdullāh b. Ṭalḥa is al-Nahdī himself, then he is unknown, which means that the report is weak in chain and source.

Besides, this report is an anomaly and is unique regarding the subject of the slave, while there are narrations opposing it on that topic.

The sixth narration: The report of al-‘Ayyāshī, on the authority of ‘Abdullāh (‘Ubaydullāh) al-Ḥalabī, on the authority of Abū ‘Abdillāh (peace be upon him), that he said, ‘The appropriate thing is that no testimony from an illegitimate child is admissible, nor should he lead the people [in prayer]. Noah did not board him on the ark while he boarded the dog and the pig.’[81]

This hadith is weak in chain because the path of al-‘Ayyāshī to al-Ḥalabī is unclear, in addition to the weakness of the content of the report – by analyzing its last part – as we said previously.

The seventh narration: The sound report (ṣaḥīḥa) of Zurāra, he said, ‘I heard Abū Ja‘far (peace be upon him) say, ‘If four [men] testified before me that a man committed fornication, and among them was an illegitimate child, I would punish them all [as maḥdūd], because his testimony is not admissible, and he must not lead the people [in prayer].’’[82]

This narration is complete in its indication and chain.

The eighth narration: The report of ‘Alī b. Ja‘far, on the authority of his brother, he said, ‘I asked him about the illegitimate child, is his testimony accepted? He said, ‘Yes, his testimony is (not)[83] accepted, and he must not lead [in prayer].’’[84]

We will talk about this report in the discussion on the testimony of an illegitimate child.

These were the main hadiths mentioned regarding the leadership of the congregational prayer by an illegitimate child, and we can mention here some comments:

The first comment: Regarding seeking evidence in the narrations of the topic, the investigating scholar shaykh al-Iṣfahānī mentioned that these narrations enumerated a group of people the prayer behind whom is inappropriate, although it was established that it is permissible to pray behind some of them – as indicated by the other narrations – such as the one with vitiligo. The narrations that did not mention the one with vitiligo are unreliable in chain here, while the ones that included him are reliable in chain. How do we then deduce from the expressions ‘should not lead’ and ‘none of you should pray behind…’ the intention of prohibition when there is certainty that it is not very much the intention in the case of the one with vitiligo? For this reason, shaykh al-Iṣfahānī chose caution in the issue.[85]

This objection is valid and customary (‘urfī) as well. At least it weakens the conclusive personal confidence (wuthūq) on the matter. That is why many jurists did not issue rulings of impermissibility of praying behind a slave, an uncircumcised, a leper and one with vitiligo, despite the presence of these titles in these narrations here. When multiple titles are present in one narration under one expression, and it was established that the matter is not compulsory for some of these titles, it customarily (‘urfan) weakens the personal confidence (wuthūq) in the indication of that expression towards compulsion. When he says, ‘Five should not lead the people’, and it is proven with other evidence that the prevention (nahy) regarding two of them is only a discouragement (karāha), then the expression’s indication towards the compulsory prohibition (ḥurma) regarding the rest becomes uncustomary when the expression is one in the narration. This is not a valid argument according to the principles of the school of al-Mīrzā al-Nā’īnī in understanding the obligation and the like through reason. However, we view such principles as uncustomary.

None of the aforementioned reports is safe from this objection except that of Zurāra (No. 7), as it did not mention those titles next to the illegitimate child. As for the rest of the narrations, their situation has been shown.

The second comment: The number of narrations that are indicative in themselves here is seven, including three with a sound chain according to the popular opinion, and two according to us. According to the principle of ‘authoritativeness of the solitary report whose issuance is conjectured’ (ḥujjiyyat khabar al-wāḥid al-ẓannī), the sound from the narrations can be relied upon. On the other hand, according to principle of ‘authoritativeness of the solitary report with confidence in its issuance’ (ḥujjiyyat khabar al-wāḥid al-muṭma’ann al-ṣudūr), it is difficult to obtain confidence (iṭmi’nān) in their issuance on the matter of our discussion given the eight narrations whose situation is as follows:

A) Six (or five) of them are weak in chain, two (or three) are sound in the chain, and one (or two if we say that the sound are three) of the two sound narrations are weak in their indication towards the compulsion [of prohibition] as previously mentioned.

B) One of the group of narrations is weak in content, and that is the sixth narration.

C) The fourth narration has principally a weak indication in itself.

D) Each of the narrations No. (1-2-3-5) has a weak indication according to the aforementioned first comment, that is, by combining them with the rest of the texts reported on the congregational prayer and the conditions of the leader.

Accordingly, all the indicative narrations whose content is not weak fall down against this argument except the sound report of Zurāra (No. 7), which on its own is not enough to yield personal confidence (wuthūq) in issuance, hence it is adhered to the existence of a general directive that an illegitimate child should not lead, but this directive is not compulsory.

Perhaps what supports all this is that if the Prophet issued such a ruling during his lifetime (assuming that no part of the religion was left unclear by the time of his demise), it would have raised questions in light of the existence of the phenomenon of illegitimate children in the Arab society according to some opinions, yet we do not find a trace for this in the Prophetic texts. However, this is only a supporting argument and not evidence.

The third comment: If we review all these narrations, except that of Zurāra, we will find the recurring expression ‘leading the people’, which very probably means the public prayers, such as the Friday, the Eid and mosque congregational prayers. As for the group prayer with a few people or with only one person in the house or somewhere else, it is not clear that this is considered by these hadiths. In other words, perhaps what is forbidden is his volunteering to lead public prayers, not every prayer in general, which is suggested by the word ‘the people’ in these texts, so think about this carefully.

Indeed, the report of Zurāra was mentioned in prohibiting the led worshipers from following a leper, one with vitiligo, a maḥdūd, etc. in prayer, so it does not signify what was just mentioned, but at the end it has the expression ‘and an a‘rābī should not lead the Immigrants’ which perhaps supports the possibility which we raised in understanding these hadiths. On the other hand, [denying the illegitimate child leadership in prayer in] the report of al-‘Ayyāshī may be intending self-specificity [about the leader of prayer, regardless of the setting or who is following].

The fourth comment: If we review these narrations, we will find that they have two modes: one mode prohibiting the person himself from stepping forward to lead or prohibiting the others from following this person in prayer, and another mode informing that so-and-so should not lead the people, which makes it possible that this here is a ruling of action (ḥukm taklīfī) to leave stepping forward [to lead] or leave following, not that it invalidates the congregational prayer or that the consequential rulings do not apply to it. In none of these narrations here was reported what came in other narrations of non-applicability of the consequential rulings of congregation to this following [of the leader], and accordingly, what is understood here is the impermissibility for him to step forward to lead and the impermissibility of following him in prayer, not the invalidity of the congregational prayer if it occurred and the people followed.

To sum up: the prohibition of leading the Friday prayer and the congregational prayer for an illegitimate child has not been reliably proven based on the opinion that restricts authoritativeness to those reports with confidence in issuance, although it is best to be adhered to by observing precaution due to the reported narrations, and the precaution is emphasised regarding public prayers.

Testimony of an illegitimate child

What is known among the Imāmī jurists is the inadmissibility of the testimony of an illegitimate child even if he was veracious, and his testimony is not recognised in the simple matters nor otherwise, whether the illegitimate child is known to be righteous or not. Some of them ruled that his testimony is admissible in the simple matters if he was righteous. As for the Sunni jurists, perhaps what is popular among them – except for the Mālikī jurists – is the admissibility of his testimony on fornication. As for his testimony on matters other than fornication, it seems it is admissible to all of them by consensus.[86]

This, i.e. the inadmissibility of his testimony, was based on several grounds, most notably:

The first ground: The opinion ruling his infidelity and non-Muslimness, while considering that one of the conditions for accepting one’s testimony is their Muslimness and belief.

And it is replied that we have already presented that ruling the infidelity of the illegitimate child is incorrect, according to the popular opinion, so there is no reason not to take his testimony from this perspective.

The second ground: The specific texts reported on the topic, which are:

1- The report of Abū Baṣīr. He said, ‘I asked Abū Ja’far (peace be upon him) about the illegitimate child, is his testimony admissible? He said, ‘No.’ I said, ‘Al-Ḥakam b. ‘Utayba claims that it is admissible.’ He said, ‘Oh God, do not forgive his sin. God Almighty did not say to Al-Ḥakam b. ‘Utayba And it is indeed a remembrance for you and your people.[87]’’[88]

The path to this hadith in al-Kāfī is weak by Sahl b. Ziyād on one hand, and by Ṣāliḥ b. Al-Sindī on the other, but shaykh Ṭūsī has another path to al-Ḥusayn b. Sa‘īd al-Ahwāzī, on the authority of Aḥmad b. Ḥamza, on the authority of Abān, on the authority of Abū Baṣīr, but we did not find the path of the shaykh [Ṭūsī] to al-Ḥusayn b. Sa‘īd to be sound (ṣaḥīḥ).

Al-Ṣaffār also narrated it in al-Baṣā’ir, on the authority of al-Sindī b. Muḥammad, on the authority of Ja’far b. Bashīr, on the authority of Abān, and it is a sound chain if we ignore the discussion on the originality of the edition of al-Baṣā’ir that we have today.

Al-Kashshī also narrated it on the authority of Muḥammad b. Mas‘ūd, on the authority of ‘Alī b. al-Ḥasan b. Faḍḍāl, on the authority of al-‘Abbās b. ‘Ᾱmer, on the authority of Ja‘far b. Muḥammad b. Ḥakīm, on the authority of Abān, and this chain is weak by Ja‘far b. Muḥammad b. Ḥakīm.

Accordingly, this hadith has four paths to Abān, which are:

A- The chain of Kulaynī, which is weak by Sahl b. Ziyād and Ṣāliḥ b. al-Sindī.

B- The chain mentioned in Tahdhīb al-Aḥkām, which is weak in its path to al-Ahwāzī.

C- The chain of al-Ṣaffār, which is sound.

D- The chain of al-Kashshī, which is weak by Muḥammad b. Ja‘far b. Ḥakīm.

With the synergy of these four paths, it can be said that this hadith is sound until Abān, but it remains a solitary hadith from Abān to Abū Baṣīr to the Imam, so note and pay attention.

Still, the body of this hadith contains something odd. Why pray to God that He may not forgive the sins of a Muslim?! Is it not more in accordance with the teachings of Islam and the Qur’an to pray for his guidance, uprightness and forgiveness of his sins instead? Unless it is said that the texts rebuking him are many, that some of them accuse him of lying, and that he is a very, very bad person.

But also, how is that Qur’anic verse relevant to our discussion? Unless ‘your people’ is interpreted to mean the ahl al-bayt, as stated in some narrations, though this disagrees with the apparent meaning of the noble verse in both its customary (‘urfī) and linguistic understanding. The Qur’an’s use of the word ‘people’ is clear in indicating the broad meaning of a one’s origin, tribe, clan and nation, not strictly one’s people of household, hence the content of the narration is ambiguous, from my point of view. That is if we say that al-Ḥakam b. ‘Utayba was an Arab. However, if we say that he was not an Arab and that he was the servant of a woman from Kinda, then the hadith may be analysed from the perspective that he was not versed in Arabic, neither had a deep enough understanding [of religious knowledge] to give fatwas, whereas only the Arabs, i.e. Muhammad and his people, know the language. Still, this method of criticism seems unclear. If this mechanism in evaluating people was correct, then many non-Arabs should be challenged on the matter of ijtihād, unless it is said that this evaluation is not absolute but rather is based on concluding the limitation of the religious knowledge of al-Ḥakam b. ‘Utayba.

In any case, the hadith indicates that the testimony of an illegitimate child is inadmissible absolutely, as is clear.

2- The report of Muḥammad b. Muslim. He said, ‘Abū ‘Abdillāh (peace be upon him) said, ‘The testimony of an illegitimate child is not admissible.’’[89]

The indication of the narration is clear. However, although all the narrators in its chain of transmission are trustworthy, we have repeatedly said that what Muḥammad b. ‘Īsā narrates on the authority of Yūnus cannot be declared to have a connected transmission due to a suspicion of disconnection (being mursal), hence there is no evidence to prove the authenticity of the narration.

3- The sound report of Zurāra. He said, ‘I heard Abū Ja‘far (peace be upon him) say, ‘If four [men] testified before me that a man committed fornication, and among them was an illegitimate child, I would punish them all [as maḥdūd], because his testimony is not admissible, and he must not lead the people [in prayer].’’[90]

The report indicates that the testimony of an illegitimate child is inadmissible, and it is possible that this is specific to his testimony on fornication only, though it is only a possibility but not that very improbable, especially after some Sunni jurists specified the rejection of his testimony to the case of testifying on fornication.

4- The report of al-Ḥalabī, on the authority of Abū ‘Abdillāh (peace be upon him). He said, ‘I asked him about the testimony of an illegitimate child, and he said, ‘No, neither the slave.’’[91]

The chain of transmission is weak in the path to al-Ahwāzī, but it is sound according to the popular opinion.

Nevertheless, it may be said that the indication of this narration is weak here because it conflicts with a group of reliable narrations that indicate the admissibility of the testimony of the slave and the owned. These narrations, mentioned in their place, are presented from the angle of conformity to the Qur’an, as stated by sayyid Khū’ī, sayyid Gulpāygānī and others.[92] Accordingly, and considering the unity of context in the expression, it is difficult to understand from denying the [admissibility of the] illegitimate child’s testimony in this narration that it indicates its strong inadmissibility. And so, if the jurist accepts that [the testimony of the slave and the owned is admissible] there, the indication of this narration in relevance to our discussion here is weakened further, based on the unity of context and expression.

5- The aforementioned report of al-‘Ayyāshī, on the authority of al-Ḥalabī, on the authority of Abū ‘Abdillāh (peace be upon him), that he said, ‘The appropriate thing is that no testimony from an illegitimate child is accepted, nor should he lead the people [in prayer]. Noah did not board him on the ark while he boarded the dog and the pig.’[93]

As mentioned before, its chain of transmission is weak, as is its content.

Accordingly, there are five narrations, two of which are reliable, and accordingly the testimony of an illegitimate child is not accepted. On the other hand, this is contrasted with the weakness of the content of the fifth narration by noting its ending as mentioned above, in addition to some questioning around the content of the first narration as we have alluded to, as well as the weakness of the indication of the fourth narration after adding the narrations of ‘the slave’ to consideration, with the possibility of contradiction – even only in general – by the two narrations following soon, in addition to the text of shaykh Ṭūsī following soon, adding to all this the expressions of generality in the Qur’an and the Sunnah indicating the acceptance of his testimony, if we say that there is a generality. Hence, obtaining certainty about the issuance of an absolute denial of testimony of an illegitimate child is problematic. Nonetheless, according to the principle of ‘authoritativeness of the solitary report of a trustworthy reporter’ (ḥujjiyyat khabar al-wāḥid al-thiqa) there is no problem ruling the inadmissibility of the testimony of an illegitimate child.

On top of the above, it is possible – even if not very probable – that denying the illegitimate child testimony is specific to his testimony on fornication, or on that so-and-so is an illegitimate child, because of the possibility of benefit in that, and the lifting of the probability of lying in the testimony.

However, this group of narrations is opposed by another group, namely:

The first narration: The report of Abān, on the authority of ‘Īsā b. ‘Abdullāh, he said, ‘I asked Abū ‘Abdillāh (peace be upon him) about the testimony of an illegitimate child, and he said, ‘It is not admissible except in the small matters, if you see goodness in him.’’[94]

The indication of the hadith is clear, and its reliability is based on authenticating the path of Ṭūsī to al-Ahwāzī, and it is sound according to the popular opinion as mentioned above. However, al-Ḥurr al-‘Ᾱmilī assumed the possibility of taqiyya in it[95] while nothing necessitates this, but rather, it is possible to adhere to the fact that it is a specifier to all other narrations since it has a more restricted circle of application than them.

On the content of the narration, sayyid Khū’ī mentioned that ‘small matters’ and ‘big matters’ are not things that have a reality, but rather they are relative matters, for there is not a thing except that it is small in relation to one thing and big in relation to another. So, there is no benefit from this content that the narration presents, hence it is not proceeded with.[96] It appears that sayyid Sabzawārī - albeit by gesture – adopted sayyid Khū’ī’s objection here.[97]

This objection has been addressed with a correct response mentioned by sayyid Kāẓim al-Ḥā’irī, that the concept of ‘small matters’ and the like is one of the customary (‘urfī) concepts, which is therefore referred to the custom (‘urf),[98] and if it is not established to be a small matter, then it is referred to the requirements of the aforementioned generalities.

Some scholar mentioned that the indication of this hadith refers to the absolute dropping of the testimony of an illegitimate child, and so it has no contradiction with the previous narrations in the first place, neither in the general nor in the specific, because a ‘small matter’ without restriction has no value, and therefore testimony on it has no meaning. However, this is a matter of discussion[99] since it is very disagreeing with the apparent meaning, although al- ‘Allāma al-Ḥillī adopted it.[100]

The second narration: The report of ‘Alī b. Ja‘far, on the authority of his brother, he said, ‘I asked him about the illegitimate child, is his testimony admissible? He said, ‘Yes, his testimony is admissible, and he must not lead [in prayer].’’[101]

The apparent meaning of this hadith is the admissibility of the testimony of an illegitimate child in an absolute sense, and that he should not lead. Hence, it completely contradicts all of the above hadiths, and that is why al-Ḥurr al-‘Ᾱmilī and others assumed it was issued in taqiyya.[102]

But this hadith faces problems:

Firstly: What is mentioned in the book Masā’il ‘Alī b. Ja‘far from which al-Ḥimyarī transmits this report, is that ‘His testimony is not admissible, and he must not lead [in prayer].’[103] Even al-Ḥurr al-‘Ᾱmilī himself transmits it from the book Masā’il ‘Alī b. Ja‘far,[104] so the transmission of one hadith by the same narrator is conflicting, which at least drops both hadiths. Therefore, we stick to the indication of the first group of narrations with no conflict.

Secondly: The above narration was transmitted by al-Ḥurr al-‘Ᾱmilī as well in Wasā’il from Qurb al-Isnād by al-Ḥimyarī, but what is found in the edition of Qurb al-Isnād by al-Ḥimyarī is ‘His testimony is not admissible, and he must not lead [in prayer]’,[105] and with it the two transmissions are dropped in this context.

This discussion is good if there is an established path to the edition of Qurb al-Isnād that we have today. Otherwise, the matter will be confused. In any case, it is a contextual indicator (qarīna) that weakens such textual formulation this hadith.

Thirdly: The narration with the textual formulation containing the admissibility of the testimony of an illegitimate child goes back to ‘Abdullāh b. al-Haṣan, on the authority of ‘Alī b. Ja‘far. But the reliability of ‘Abdullāh b. al-Haṣan has not been established, therefore the narration is weak in chain.

Thus – with the popular avoidance of this narration – it is not considered reliable. It is most likely that the copy of [al-Ḥurr al-‘Ᾱmilī] the author of Wasā’il was edited, as reported by some scholars.[106] When the question is in the affirmative form, and if the response in the narration was saying ‘Yes’, then it is more suitable to be followed by a sentence in the affirmative rather than the negative. When a person asks, ‘Do you wish to go to the market?’, you say, ‘Yes, I wish to go’, and you do not say, ‘Yes, I do not wish to go.’ When someone asks, ‘Is it permissible to wear silk?’, you say, ‘Yes, it is permissible’, and you do not say, ‘Yes, it is not permissible.’ This is the requirement of the prevailing custom in the method of expression, even though both methods are correct linguistically and grammatically.

What is obtained so far is that the testimony of an illegitimate child is absolutely inadmissible, or at most it is admissible on the small matters, according to the principle of ‘authoritativeness of the solitary report of a trustworthy reporter whose issuance is conjectured’ (ḥujjiyyat khabar al-wāḥid al-ẓannī al-thiqa) but not [according to the principle of authoritativeness of] the report whose issuance is known (ḥujjiyyat al-khabar al-ma‘lūm al-ṣudūr).

However, in contrast to all this, shaykh Ṭūsī stated that, ‘The testimony of an illegitimate child, if he is veracious, is admissible on fornication and other matters, according to some people, and this [opinion] is robust, but the reports from our companions indicate that his testimony is not admissible.. Some of them said, ‘The testimony of an illegitimate child is inadmissible. Our opinion is the former.’’[107]

It appears that al-Shahīd al-Thānī adopted this, as he said after transmitting the words of shaykh Ṭūsī, ‘The mere opposition of the reports of our companions does not necessitate denying that which he found robust, because it is permissible to turn away from reports for reasons that require it. This occurred with him many times, and the justification of turning away is clear, since the generality of evidence from the Qur’an and Sunnah towards the apparent acceptance of the testimony of a veracious person includes the illegitimate child, and then most of those who disagreed with us adopted that opinion.’[108] This position of al-Shahīd al-Thānī came after he judged the weakness of the chain of transmission of the reports according to his principles, except for one report that was of a limited indication according to him.

Sayyid Ṭabāṭabā’ī raised doubts on Ṭūsī’s judgment of robustness to be his opinion,[109] but this is not clear after considering the last part of his words.

In any case, what shaykh Ṭūsī mentioned is unclear considering his principles, especially since he is one of those who transmitted to us the reports on the illegitimate child, let alone if we also say that he deems these reports as solitary (akhbār āḥād) which do not rise to the level of ‘knowledge about issuance’ (al-‘ilm bil-ṣudūr), when the authoritative report is specifically the one known to have been issued, and so they are not acted upon.

Anyway, we will mention a general comment on the entire reported texts on the illegitimate child in the conclusion of this research, God willing.

The third ground: What some Sunni scholars mentioned for rejecting the testimony of an illegitimate child on fornication itself, where they mentioned that an illegitimate child is accused of being keen on sympathy, meaning on the existence of someone like him in being an illegitimate child. If a person has someone sharing his situation, the calamity will be eased up on him, because if it is widespread, it feels easy, but if it is rare and specific only to some, then it feels tremendous. It is usual that whoever does something reprehensible, he likes to have peers in it, as ‘Uthmān said, ‘The fornicating woman wishes that all women fornicate’, and accordingly the illegitimate child is suspected of wishing others to share with him being of illegitimate birth and that fornication is spread among people so that no disgrace would follow him. Hence, rejecting his testimony here is not because the condition of veracity is not met in him, but rather it is due to the suspicion that is inseparable of his being an illegitimate child. For this also they rejected his testimony in everything related to fornication, such as slander (qadhf) and li‘ān.[110]

The reply is: This argument does not apply to the predominant situation, let alone the constant uniformity (iṭṭirād dā’imī), since his [assumed] trouble is not from fornication, but from illegitimate birth, so it is possible to consider the accusation if he wanted to testify on a person with an illegitimate birth because it has an assumed benefit for him. As for his testimony on fornication in principle, it is not strongly relevant to the accusation against him. Rather, if the above accusation were true, then it is necessary to not accept the testimony of the fornicator in fornication cases even if he repents and makes amends, nor that of the killer in murder cases, nor that of a husband in defending another husband against his wife and so on, and it is known from the sharī‘a that this is something not adopted except in very limited cases.

This is in addition to the fact that the idea of ​​disgrace is only in the light of a conservative society concerned with the issue of lineage. Hence, it is not suitable to generalise this to societies that no longer see much shame and disgrace in his being an illegitimate child such that he would desire the spread of such situation. This basis is only preferential and does not stem from clear textual evidence, nor from evidence for uniformity nor predominance.

The result is the inadmissibility of the testimony of an illegitimate child, based on the principle of ‘authoritativeness of the solitary report of a trustworthy reporter whose issuance is conjectured’ (ḥujjiyyat khabar al-wāḥid al-ẓannī al-thiqa). On the other hand, on the basis of ‘authoritativeness of the report whose issuance is known’ (ḥujjiyyat al-khabar al-ma‘lūm al-ṣudūr), the reports here do not rise to the level of certainty of their issuance, nor do they exceed the count of fingers of one hand, and contain some of the aforementioned observations. Although the strong conjecture does exist here, it is not sufficient according to this basis [of authoritativeness], and the origin of the popularity is clearly based on a discussed evidence (madrak).

Blood money of an illegitimate child

It is known that the blood money for an illegitimate child is that of a Muslim, and some scholars ruled that it is eight hundred dirhams, equaling the blood money of a dhimmī, which was the opinion of shaykh al-Ṣadūq and sayyid al-Murtaḍā. It appears that the opinion of Ibn Idrīs is that an illegitimate child does not have a blood money, due to the ‘primacy of no liability’ (aṣālat barā’at al-dhimma)[111] and it seems that he bases this on the child’s infidelity – according to his opinion – and that the blood of every infidel goes to waste except that which is excluded by evidence, whereby the illegitimate child was not excluded by evidence if the narrations below in this section were not considered.

The reported texts relied upon here are some narrations:

The first narration: The report of Ja‘far b. Bashīr, on the authority of some of his narrators, that he said, ‘I asked Abū ‘Abdillāh (peace be upon him) about the blood money of an illegitimate child. He said, ‘Eight hundred dirhams, like the blood money of a Jew, a Christian, and a Magian.’’[112]

This narration is exactly what shaykh Ṭūsī transmitted on the authority of Ja‘far b. Bashīr as well.[113]

The second narration: The report of ‘Abd al-Raḥmān b. ‘Abd al-Ḥamīd, on the authority of some of his masters, who said, ‘Abū al-Ḥasan (peace be upon him) said to me, ‘The blood money of an illegitimate child is the blood money of a Jew, eight hundred dirhams.’’[114]

The third narration: The report of Ibrāhīm b. ‘Abd al-Ḥamīd, on the authority of Ja‘far (peace be upon him), that he said, ‘The blood money of an illegitimate child is the blood money of a dhimmī, eight hundred dirhams.’’[115]

These are the three main narrations on the topic, and they agree on indicating that the blood money [of an illegitimate child] is eight hundred dirhams, whereas the blood money of a Muslim is ten thousand dirhams.

Analysing the chain of transmission of these narrations is important here, and this is as follows:

1- The first narration is mursal, and the mursal reports of Ja‘far b. Bashīr are not reliable, nor is the statement that all his reporting sources (mashāyikh) are trustworthy, as we have attained in the science of rijāl.

2- As for the second narration, it is also weak in transmission, as is clear.

3 - As for the third narration, it is the one on which sayyid Khū’ī relied here and agreed with shaykh al-Ṣadūq and sayyid al-Murtaḍā but disagreed with the popular opinion. The reason is that the chain of transmission contains ‘Abd al-Raḥmān b. Ḥammād, whose reliability is based on the reliability of each narrator in Kāmil al-Ziyāra, so the narration becomes reliable to him.[116] And since sayyid Khū’ī changed this opinion at the end of his life – and this change of opinion is correct as we have attained in the science of rijāl –, this narration is also weak in chain.

Accordingly, on the topic there are three narrations with weak chains, so no personal confidence (wuthūq) in their issuance is attained to conflict with the generalities and principles, although the following report of Ibn Sinān does conflict. Hence, the correct position is that the blood money of an illegitimate child is that of a Muslim, and if he is an infidel then the corresponding consequential rulings are applied to him.

But on the topic remains the narration of ‘Abdullāh b. Sinān, on the authority of Abū ‘Abdillāh (peace be upon him), who said, ‘I asked him, and I said to him, ‘May I be your ransom, how much is the blood money of an illegitimate child?’ He said, ‘The one who spent on him is given what he spent.’ I said, ‘He died, and he had money, so who inherits him?’ He said, ‘The Imam.’’[117]

This narration seems to contradict both the generalities and absolutes mentioned on the blood money on one hand, and the three previous reports indicating that his blood money is eight hundred dirhams on the other hand, so it is necessary to resolve their conflict first. Solutions have been mentioned:

The first solution: What al-Madanī al-Kāshānī (1366 AH) mentioned that the basis for their reconciliation is that this narration is specific to that illegitimate child who has not yet reached the age of maturity and not yet expressed the two testimonies, while the rest of the narrations can be understood to apply to the period after that. The reasoning is that if he were of age of maturity, adult and married, then his inheritance should go to his wife and children, but the narration directs his inheritance to the Imam.[118]

This reconciliation is possible, but there is no indicator to it in the text at all. Just as this is possible, it is also possible that this report is an anomaly (shādhdh) that conflicts the totality of reports on inheritance and blood money. The possibility of reconciling it does not mean it is valid in this way, provided that spending on him is not specific to case where he is minor, rather it is a concept that includes the state of maturity and beyond, where the child usually remains in the custody of his parents to spend on him.

The second solution: What sayyid Ṭabāṭabā’ī, sayyid Khānsārī (1405 AH) and others mentioned, that the implication of this hadith is that the spender is given what he spent, which may be less than eight hundred dirhams at times, and may exceed the blood money of a Muslim at other times, but this is rejected by consensus, hence what is required is the eight hundred dirhams.[119]

This reconciliation is stranger than the previous one, as the hadith was understood on the presumption of consensus on eight hundred dirhams, in a way very contrary to the apparent meaning. Why did the imam then not say in the reply that his blood money is eight hundred dirhams?! Why did he replace the expression in such a strange way?!

However, what could be meant here is ruling the weakness of this hadith due to consensus and all the scholars’ turning away from it, which is what sayyid Khū’ī did when he did not proceed with this hadith.[120]

And the correct way to deal with this hadith is as follows:

Firstly: It contradicts all the narrations on the topic of blood money and inheritance, despite their diversity, which further prevents attaining confidence in its issuance.

Secondly: It contradicts the agreement of all the jurists as it appears, which reveals turning away from it, which also further prevents attaining confidence in its issuance.

Thirdly: It concomitantly requires that his blood money is sometimes raised above that of a free Muslim, which is strange, odd and opposing the general direction of the narrations on the illegitimate child and others, and this further prevents attaining confidence in its issuance.

Fourthly: Shaykh Ṣadūq narrated this hadith on the authority of Yūnus b. ‘Abd al-Raḥmān, but he did not mention his path to Yūnus in the mashyakha, as al-Ḥurr al-‘Ᾱmilī also stated in the conclusion of Wasā’il,[121] so the hadith is mursal in the path of Ṣadūq. As for shaykh Ṭūsī, he has several paths to Yūnus, but they all either pass through Muhḥammad b. ‘Īsā b. ‘Ubayd on the authority of Yūnus – and we have said that although these two men are trustworthy, it is not established that they were in contact, but rather this is very doubted – or pass through each of Ismā‘īl b. Marār and Ṣāliḥ b. Al-Sindī, where the reliability of first is founded on [the reliability of] Tafsīr al-Qummī, which was not established sound, and that of the second is founded on [the reliability of] Kāmil al-Ziyāra, which was not established sound either. Also, Ṣāliḥ b. al-Sindī is not one of the direct reporting sources (mashāyikh) of Ibn Qūlawayh to say he is reliable.

Accordingly, the hadith has no reliable chain of transmission, and it is not reliable, especially according to the principle of [requiring] personal confidence (wuthūq) in a report’s issuance, which is the correct opinion.

The result of the analysis is that the blood money of an illegitimate child is that of anyone else, whether he is Muslim or otherwise, free or otherwise, with no difference between him and others in anything, in agreement with the popular opinion.

Religious reference authority (marji‘iyya) of an illegitimate child

Is it possible for an illegitimate child to become a religious reference authority (marji‘ taqlīd) such that others can refer to him for fatwa, with his meeting all the conditions of religious reference authority, or not? Is it possible – based on the decoupling between the religious reference authority (marji‘iyya) and guardianship authority (wilāyat al-amr) – for him to assume the position of leader and guardian of Muslims or not?

It is clear that – following the rule – if an illegitimate child reaches the level of ijtihād, then he is obligated to act according to his opinion, due to his surety (qaṭ‘) about the real ruling (al-ḥukm al-wāqi‘ī) or the apparent ruling (al-ḥukm al-ẓāhirī). It is clear that it is not permissible for a mujtahid to refer to someone else, however, the discussion here is about others referring to him, whether the others are a few or many, and whether these muqallids are illegitimate children or not.

There are no specific reported texts on this issue, but it appears that the jurists have the view that it is not established that an illegitimate child can assume [any of] the two positions of religious reference authority and guardianship authority.

This is based on a set of evidence:

The first evidence: The consensus that an illegitimate child should not assume these positions.[122]

The reply to it is clear, as most scholars have not addressed this issue previously, so no real consensus can be attained, knowing that this consensus is very likely to be madrakī (based on a discussed evidence), as will follow from other aspects.

The second evidence: The primacy of non-authoritativeness of the sayings and fatwas of an illegitimate child, and his non-guardianship over others. Those who are not illegitimate children are surely excluded from that primacy, but the illegitimate child remains covered by the primacies of: non-authoritativeness of fatwa, and non-guardianship.[123]

And the reply to this is: The restriction of purity of birth was not mentioned in any of the pieces of evidence, whether textual or non-textual, that indicate the authoritativeness of the fatwa and prove guardianship, so what is the reason for not considering these in the case of an illegitimate child?! Neither the conduct of the rational people (al-sīra al-‘uqalā’iyya) nor the generalisations contain anything of this sort. Agreed, if we say that an illegitimate child is infidel, then it is possible to talk about the weakness of some of the pieces of evidence in the two topics of taqlid and guardianship.

The third evidence: What was mentioned by more than one of the jurists, of relying on the ‘evidence of priority and tenor’ (dalīl al-awlawiyya wal-faḥwā), that is, when considering the narrations on the topics of testimony and leadership of the congregational prayer, supported by the rest of the narrations on the illegitimate child, it can be understood from them that he cannot assume the positions of religious guardianship and reference authority, by priority. Hence, if he is not permitted testify nor be a leader of a congregational prayer, how could he be permitted to be a leader of Muslims?! Or how could he be permitted to be a religious reference authority?! This is in addition to the psychological distaste towards him as he has no social standing.

Some of them have expressed this evidence as ‘tanqīḥ al-manāṭ al-iṭmi’nānī’,[124] and it is understood from it the desire of the Legislator for perfection in the those who assume such positions, when it is known from the sharī‘a that illegitimate birth is a deficiency, and is hence not accepted for such positions.[125]

However, this reasoning was discussed from perspectives:

Firstly: What sayyid Taqī al-Qummī mentioned, that the ratio legii (milākāt; rationale) of rulings are not attained by us, and what is derived at most from this perspective is the conjecture about the conditionality of purity of birth in the religious reference authority, and for this reason sayyid Taqī al-Qummī did not build on the validity of the condition of purity of birth.[126]

This is a good argument, were it not for the idea of ​​‘priority’, as it is based on the textual indication from the reported text, so the evidence itself for prohibiting him from testimony and leading the congregation indicates that he shall not lead in what is superior to them such as the religious reference and guardianship authorities, by priority. The custom understanding (‘urf) from the prohibition of those [testimony and leading the congregational prayer] is the prohibition of these [two authorities], so the discussion by sayyid al-Qummī is good, but it needs to be complemented by what is to come.

Secondly: That which sayyid Riḍā al-Ṣadr referred to some of,[127] and which came to my mind before I read what he said, and the conclusion of which – with clarification and modification in the statement by us – is that leadership of the congregational prayer may have its own particularity that the jurists did not flow to other positions, including those scholars who required the purity of birth in the religious reference authority. The weak, sick person does not lead in prayer the healthy one, nor does the traveler lead others, nor does the one with a deformity lead others, nor does the weak reciter lead others even if it was due to a defect from birth, nor does the uncircumcised lead others, nor does the maḥdūd lead others in prayer. And with the scarcity of leaders, precedence for leadership goes to one with the brightest face [from piety] or the eldest, the most preceding in joining Islam and immigrating, and so on from the rulings of the congregational prayer. However, no jurist required any of these conditions in the [general] leadership the of Muslims (imāmat al-muslimīn) nor in the religious reference authority, and all of this weakens the probability of the claimed priority and reinforces what sayyid Taqī al-Qummī mentioned earlier.

In fact, the witness also has particularities. Otherwise, the report of a trustworthy reporter if he was an illegitimate child becomes non-authoritative, by priority, for if he had one other witness or three other witnesses with him, his testimony would not be admissible, so how could his report on his own be accepted, especially in what he reports on the authority of the ma‘ṣūm (infallible), for example?! In fact, they did not mention this in the discussions of the solitary report and the authoritativeness of the hadith. Therefore, flowing the [rulings from the] discussion on the judicial authority to the discussion on generation of fatwas or assuming guardianship authority has nothing pointing to it, because there may be extra particularities and restrictions in the case of judicial authority.

As for the talk about the general taste of the Legislator, it was previously stated that most of the narrations that establish this general taste are weak in chains, and some of them are rejected as the content conflicts with the Qur’an and the judgement of reason. There is nothing [of the narrations] indicative and reliable except what is mentioned on leadership of the congregational prayer, testimony and inheritance. The particularity of the latter is clear. As for the former two, priority is not understood from them in such a way that restricts the unrestricted and specifies the general, as we mentioned. This is in addition to the discussions on them as presented earlier.

As for saying that illegitimate birth is a deficiency whereas the position of religious reference authority and guardianship authority is superior, it is incorrect absolutely, for many characteristics are deficiencies yet the jurists did not require their absence in the religious authority and the [general] leader, whether the deficiencies are in the physical or social aspect. If his father was an illegitimate child or his family was known for moral and social decadence, he would [still] be permitted to step forward. Rather, the general religious principles and the conditionality upon knowledge, faith and righteous deeds in directing the people requires the primacy of non-deficiency in what relates to other than these three [positions] unless proven by evidence. These are the general Qur’anic criteria, whereas considering illegitimate birth as a deficiency in itself – regardless of what was mentioned above – is a popular or Arab tradition.

For many [jurists], freedom is not a condition in the leader of the congregational prayer, the judge, the witness, the leader of the Muslims, nor the religious reference authority, although it is also a customary deficiency, so how is it appropriate for the leader of the Muslims to be owned by someone?! Everyone who claims that freedom is not a condition in these must then not accept the tenor of this evidence – I mean the inadequacy due to deficiency – here.

           Agreed, if there is a temporal or customary particularity that prevents his stepping forward, and that it could cause corruption, then it is possible to accept it under the secondary consideration, but the discussion here is about requiring it as condition in the primary consideration.

It is noteworthy that some jurists have recently permitted taqlid of the woman, her being a judge, her leadership of the Muslims, or her assumption of high positions in the state, such as the presidency and heading ministries, even though the texts reported her invalid leadership of men, and restriction in considering her testimony.

Thirdly: Some skepticism was presented about requiring purity of birth in the leader of the congregational prayer, according to al-Muḥaqqiq al-Iṣfahānī, and so it is only a condition for perfection, not a principal or necessary condition, in the leader. So, if priority is to be considered, purity of birth would be a condition for perfection. Also, we already presented a commentary on the texts reporting the prohibition of his testimony, so we will not repeat.

The fourth evidence: What some contemporary jurists mentioned that most of the man-made and religious systems do not assign the illegitimate child high posts. This is also the requirement of suitability between the successor and the one succeeded, i.e. the infallible (ma‘ṣūm) whose legality of birth is required up to Adam (peace be upon him). Thus, this ruling is in accordance with the most prestigious societies, because people would not want him as a leader.[128]

And the reply is: If it is intended by this to support or attempt to persuasively justify the man-made thought and those who are influenced by it, then that is fine, but if it is intended to establish evidence for it or establish it as the conduct of the rational people (sīra ‘uqalā’iyya), then this is not clear at all. Since when did man-made laws alone constitute legal (shar‘ī) evidence?! The strange thing is that the apparent meaning of that phrase indicates that all of this is a legal ijtihādī evidence, despite it being devoid of reported texts and proofs. And how do we know such suitability in particular between the successor and the one succeeded, even though many of the conditions are not considered in the representative of the infallible (ma‘ṣūm), such as the Muslimness of his parents, for example, or that he is a Hashemite or from Quraysh or so?! This aspect is constructive and is not suitable for anything other than supporting. That is if it is established that the man-made laws stipulate as such.

The fifth evidence: To adhere to the requirement that the guardian of the Muslims should be from Quraysh. When it is assumed that there is no lineage relation between the fornicator and his family, in such a case he [the child] cannot be designated [as authority] due to his not being from Quraysh after the sharī‘a ruled the disconnection of his lineage relation.

This evidence is based on the necessity of the ruler being from Quraysh, but no absoluteness for this evidence has been established, and we have also established that the lineage relationship remains standing. Hence, this evidence which may be presented in the Sunni community is inaccurate.

In addition, to indicate the permissibility here, it may be relied on the appointment of Ziyād b. Abīh by Imam Ali (peace be upon him) over a part of Persia, although it has been reported that Mu‘āwiya ascribed him to Abū Sufyān.

A response was that it was not the Imam who appointed him directly, but rather his governor, and that he was born on [the existence of] the [legal] bed of ‘Ubayd, and the child is [ascribed] to the [legal] bed, so ascribing him to Abū Sufyān is what was contrary to the legal (shar‘ī) standards. This has also been mentioned in some of the reported texts attributed to the Imam, and the issue is a matter of discussion which can be reviewed in its place.[129]

Accordingly, no reliable evidence has been established for the requirement of purity of birth, neither in the religious reference authority nor in the leader of the Muslims, let alone all other political, economic and social positions apart from the above.

Judicial authority of an illegitimate child

Similar to not permitting an illegitimate child to assume religious reference or guardianship authority, more than one of the Imāmī jurists, especially the later ones, ruled not permitting an illegitimate child to assume judicial authority either. As for the Sunni jurists, the popular opinion among them is that they did not prohibit him from assuming judicial authority, but some of the Mālikī jurists had some opinions. Some of them ruled it permissible for him to assume judicial authority, but that he should not judge in matters of fornication, which was the opinion of Saḥnūn. For the Mālikī jurists, analogy (qiyās) with the rejection of his testimony was used to infer the rejection of his judicial authority, and the discussion of their evidence was presented there. Aṣbagh believed that it is permissible for him to assume [judicial authority], and that he can judge in matters of fornication and others. Abū al-Walīd al-Bājī absolutely rejected his assuming of judicial authority, justifying that the judicial authority is a position of loftiness and purity like the [general] leadership, and what is appropriate is that people would not hasten to criticise him. The Shāfi‘ī jurists ruled that it is recommended (mustaḥabb) for the judge to be of a known lineage.[130]

Requiring purity of birth in [the person] assuming judicial authority was based on the following:

1- The tenor of what indicates the inadmissibility of his testimony and the invalidity of his leadership [in prayer],[131] supported by consensus.

We already presented the reply to this, so we will not repeat. Perhaps for what we said there the investigating scholar al-Khānsārī commented here by saying, ‘Think about it (fa ta’ammal[132]).’[133]

2- Consensus, as sayyid Gulpāygānī considered it to be the main basis, since all the pieces of evidence are weak.[134]

Assuming the minor premise [that there is consensus] of this was accepted, this [consensus] is likely to be madrakī, according to ‘Allāma Mughniyya and others.[135]

3- The psychological distaste of people towards the illegitimate child, hence it is not correct to assign him such a position.[136]

The reply is: This is only a constructive juridical preference (wajh i‘tibārī istiḥsānī), as al-Muḥaqqiq al-‘Irāqī says.[137]

4- It is what the honour of such a critical position requires, lest it be demeaned in the eyes of the common people, for it is a position that only a prophet or a successor of a prophet can assume.[138]

The reply is: the sharī‘a is founded on [considerations of] benefits and detriments, and people should modify their moods for the benefits of the sharī‘a. It is not right to deny people their rights because others have been socially raised on a certain situation, provided that being an illegitimate child [in judicial authority] could be found in individual cases, and this does not disqualify the judicial authority, otherwise it would be necessary to stipulate that the judge should not have any characteristic that would demean his position in judging before people, such as not coming from a family that has a social derogation on its part, something which no jurist adhered to.

As for it being a critical position that only a prophet or a successor of a prophet can assume, there is no difference in it between an illegitimate child and others, because closeness to the position of prophethood and imamate is only by virtue of knowledge, faith and righteous deeds.

That saying may be correct if we establish the infidelity or maliciousness of the illegitimate child in himself, but since he is like all other people, such inference is not correct.

The strange thing is that al-Muḥaqqiq al-‘Irāqī, who suspected fabrication and disagreement in the narrations on the infidelity of an illegitimate child and attacked them severely by accusing them of conflicting with the definitive Qur’an and Sunnah, and despite his acknowledgment that the requirement of the generalities is permitting an illegitimate child to assume judicial authority, since they have no shortcoming [in generality] nor specification, nevertheless – after rejecting all these pieces of evidence – he leans towards requiring purity of birth,[139] and I did not understand the rationale behind this!

All of this in addition to the fact that the fall of the prestige of the judicial authority position when it is assumed by an illegitimate child is specific to some societies, so if it is supposed that there is a society that does not mind such matters, then there is no meaning for this inference in his regard, hence it would have been appropriate here to detail the discussion rather than talk in absoluteness.

With the absence of reported texts on the matter, and the invalidity of the tenor argument, prohibiting him of the judicial authority becomes a case where God the Almighty’s saying that no bearer of burdens will bear the burden of another[140] should be applied, as ‘Allāma Mughniyya thinks.[141]

5- The evidence's turning away (inṣirāf) from [intending] the illegitimate child.[142]

But this is not clear, for what is the reason for such a turning away? If it is the small number of candidates for the judicial authority position who are illegitimate children, then this does not necessitate the turning away, as it was established in the science of uṣūl al-fiqh. If it is meant that he is not Muslim since the evidence indicates ‘a man from among you’, then the apparent and real Muslimness of an illegitimate child was already presented. Rather, the one using this evidence also views this, so the rationale behind the claim of the turning away is not clear after the illegitimate child’s being mujtahid, knowledgeable, veracious, Muslim, male, believer, and so on. Even the claim that this turning away is initial (badawī), as mentioned by some contemporary jurists[143], is also not clear, and were it not for the existence of a jurisprudential opinion [already], it would not have occurred to anyone that the reported texts turn away from [intending] the illegitimate child.

6- The primacy of the inadmissibility of his ruling and judgment.[144]

The reply to this was presented in the discussion on his religious reference and guardianship authorities.

These are the main pieces of evidence presented by Islamic jurisprudence on the subject. The jurisprudential problem here is that the jurists, despite their acknowledgment that there are no texts on the subject, and since the time of al-Muhaqiq al-Hilli and not before, rely on these aforementioned pointers.

And the conclusion of the discussion is: No reliable evidence was established to indicate that an illegitimate child is not fit for the position of judicial authority, without a difference between the arbitration judge and the appointed judge, provided that he fulfills all the conditions required in a judge. This also shows that there is nothing prohibiting him from assuming any of the posts in the field of public or private judicial work, including the positions of Chief Judge or Head of the Judicial Authority.

The inheritance of an illegitimate child

It is popular among the jurists that there is no inheritance between an illegitimate child and his father and his father’s relatives: neither does he inherit from them, nor do they inherit from him. Some jurists ruled that the same applies to the mother’s side: neither does he inherit from his mother or any of her relatives, nor does she or her relatives inherit from him. Every jurist who ruled the disconnection of the lineage relation between the [illegitimate] child and his father ruled denying the inheritance between them. Similarly, every jurist who ruled the disconnection [of the lineage relation] between the [illegitimate] child and his mother ruled denying the inheritance between them as well.

However, some jurists specified the ruling of denying the inheritance to the father’s side [only] and understood the texts of disconnecting the inheritance as being specific to the father’s side and does not include the mother or her relatives. Such is the example of many Sunni jurists who were of the opinion that the lineage relation between the child and his mother remains standing, as well as the example of shaykh Muḥammad Isḥāq al-Fayyāḍ from the Imāmīs, where he specified the ruling of denying the inheritance to the father’s side [only].

This ruling of inheritance is specific to the illegitimate child with his parents and relatives. As for his inheritance with his wife or children, the jurists did not rule disconnecting the inheritance link here, rather, he inherits from them, and they inherit from him.

And in every place in which we have established the disconnection of the inheritance link, the jurists ascribe the inheritance to the rest of those who deserve it, but if they were not deserving, neither does the illegitimate child nor any of his relatives receive it, but rather it belongs to the shar‘ī authority (al-ḥākim al-shar‘ī). So, if an unmarried illegitimate child dies having neither children nor a wife, his money belongs to the shar‘ī authority, unless we rule the [right of] inheritance for his maternal relatives, and they were present, then they inherit.

According to the two ideas of ‘Muslimness of an illegitimate child’ and ‘primacy of his familial affiliation’, which were previously presented, the rule requires that an illegitimate child inherits like any other child, and consequently the impediment denying his inheritance from the father’s side or both sides should be searched for.

The basis for the impediment – after excluding the like of consensus, due to the clarity of its being madrakī – is the specific hadith texts, where the Holy Qur’an has no appearing exact mention or trace of the various issues related to the illegitimate child. These texts are:

The first narration: The report of al-Ḥalabī, on the authority of Abū ‘Abdillāh (peace be upon him), he said, ‘Any man who performs a sexual intercourse with a female slave of a people unlawfully (in ḥarām), then buys her and claims her child, he inherits nothing from him, for the Messenger of God said, ‘the child is [ascribed] to the [legal] bed (firāsh), and for the adulterer is the stone’, and no one gives an illegitimate child inheritance except a man who claims the son of his female slave.’[145]

Initially, there are four chains of transmission for this hadith:

A- The chain of Kulaynī to Ibn Abī ‘Umayr, on the authority of Ḥammād, on the authority of al-Ḥalabī, and in the path is Ibrāhīm b. Hāshim.

B- The chain of Ṭūsī, in al-Istibṣār and Tahdhīb, to Ibn Abī ‘Umayr, through his path to al-Ḥusayn b. Sa‘īd, but his path was not established sound to me.

C- The path of Ṭūsī, in Tahdhīb, to Ibn Abī ‘Umayr containing al-Bazūfarī whose reliability was not established.

D- The path of Ṭūsī to al-Ḥusayn b. Sa‘īd, on the authority of al-Qāsim b. Muḥammad, on the authority of ‘Alī b. Abī Ḥamza al-Baṭā’inī, on the authority of al-Sādiq (peace be upon him), which is weak by ‘Alī b. Abī Ḥamza at least.

Thus, it appears that this hadith, in reality, has two chains of transmission which are:

1- The chain to Ibn Abī ‘Umayr, on the authority of Ḥammād, on the authority of al-Ḥalabī, and this is the chain of Kulaynī and Ṭūsī.

2- The chain to al-Qāsim b. Muḥammad, on the authority of ‘Alī b. Abī Ḥamza.

The two chains share – generally – the path to al-Ḥusayn b. Sa‘īd in the books of Ṭūsī.

The common link of the hadith then is: Ibn Abī ‘Umayr and al-Qāsim b. Muḥammad. The first is trustworthy, and the second is either the weak al-Iṣfahānī, or the unknown al-Jawharī.

Accordingly, the hadith is not established to be sound in chain to me, but the popular opinion is that it is sound in chain.

However, this narration does not indicate denying the inheritance between the fornicator and his illegitimate child. Rather, at most it indicates – especially with the qarīna of presence of the Prophetic hadith in it – that when the adulterer commits adultery with the female slave, she belonged to the [legal] bed of the first owner, and the rule requires that the child is ascribed to the first owner, so he is his father, and for this there is no inheritance between the adulterer and this child due to not establishing his being his child in the first place. For this reason, al-Muḥaddith al-Baḥrānī indicated that the narration is understood in such a way that the buying occurred after the conception of the child, as is apparent in the report.[146]

All of this means that in every situation where the ‘maxim of the bed’ is applicable, the child is not ascribed to the adulterer, rather it is ascribed to the man of the [legal] bed (legal husband or owner), which is different from denying the inheritance of the illegitimate child after establishing his ascription to his father, like when she [the fornicating woman] was neither married nor a slave, or certainty was attained – through precise medical and laboratorial examinations – that this child is his.

In other words: Unless the lineage affiliation of the child to the fornicator is established, there is no inheritance between them, but if it is established, then this is outside the scope of this narration, and at least there is doubt about any absoluteness in it. And the expression ‘claims her child’ is also a pointer to what we are saying, in terms of not establishing the affiliation of the child to him.

However, the narration then does face a problem concerning [mentioning] selling this female slave, because she is a mother of a child, but this is another topic that should be discussed in its place.

To sum up, the claim is to deny inheritance between the fornicator and the illegitimate child, although the context of the hadith is the failure to establish the lineage relation after having the ‘maxim of the bed’ which is specific for cases of doubt.

All this besides the specialisation of this hadith to the fornicating father, not including his relatives, the mother or her relatives. Rather, its apparent meaning indicates denying the father the inheritance, and there is no indication in it that the illegitimate child is denied inheriting the father, so note carefully.

Also, exactly similar to this narration – due to a similarity in wording – is the report of ‘Alī b. Sālim, on the authority of Yaḥyā, and other reports as well,[147] but it is weak in one of its chains due to the suspicion of disconnection (irsāl) between Muḥammad b. ‘Īsā and Yūnus, and [is weak] in some other chains by Abū Jamīla, and there is also a weakness in chain considering ‘Alī b. Sālim [in it], as he is unknown. There is, however, a sound chain which is the chain of Ṭūsī in Tahdhīb, from al-Ḥasan b. Muḥammad b. Samā‘a, on the authority of Wahīb, on the authority of Abū Baṣīr.

The second narration: The report of Muḥammad b. al-Ḥasan al-Ash‘arī, he said, ‘Some of our companions wrote a letter to the second Abū Ja‘far (peace be upon him) with me, asking him about a man who fornicated with a woman, then he married her after pregnancy, and she gave birth to a child who was the most resembling of him from the creation of God, so he wrote in his handwriting and seal, ‘The child laghya / li-ghayya (is inconsequential / of a slip) yūrath / lā yuwarrath ([he] is inherited not / [he] is bequeathed not).’’[148]

This hadith has a path to al-Ash‘arī that is weak by Sahl b. Ziyād, and has another path containing ‘Alī b. Sayf. Ṣadūq and Ṭūsī narrated it through their path to al-Ḥusayn b. Sa‘īd, on the authority of al-Ash‘arī, in more than one place. Ṭūsī also narrated it through his path to al-Ṣaffār until al-Ash‘arī.

Regardless of the weakness of some of them, these paths end with Muḥammad b. al-Ḥasan al-Ash‘arī al-Qummī, known as Shanbūla, an unknown man whose trustworthiness has not been established, according to sayyid Khū’ī,[149] and for this reason al-Majlisī judged this narration as unreliable in chain.[150]

As for the indication of the hadith, if we read the word as laghya (inconsequential) then it is a description of the illegitimate child, hence denying his inheritance from any of his relatives is ruled absolutely. However, if we read the word as li-ghayya (of a slip), meaning of an error from the father, it then means that he is a child of an act of fornication and error from the father, and this error is the impediment denying the inheritance, and the specialisation [of the narration] appears. In fact, the word yūrath ([he] is inherited not) can mean the specificity that his father does not inherit from him because he got him in a prohibited (ḥarām) way, but it does not mean that he [the child] does not inherit from his father or mother or any of his relatives. Perhaps the question of the questioner was at that time about the father’s inheritance from him – reading the word as yūrath (is inherited) and not yuwarrath (is bequeathed) – so the answer came as such, since it does not make sense to specify the answer to inheritance if the question was general, and what we raised establishes at most that the fornicator does not inherit from his illegitimate child as a punishment for him, or denying the inheritance of all his relatives from him, not denying his inheritance from them.

The third narration: The report presented earlier of ‘Abdullāh b. Sinān, on the authority of Abū ‘Abdillāh (peace be upon him), who said, ‘I asked him, and I said to him, ‘May I be your ransom, how much is the blood money of an illegitimate child?’ He said, ‘The one who spent on him is given what he spent.’ I said, ‘He died, and he had money, so who inherits him?’ He said, ‘The Imam.’’[151]

This hadith completely cuts off the inheritance between him and his family from the side of the father and mother, even on the part of the wife and children assuming that he is an adult so that no one inherits from him.

However, the narration does not indicate that an illegitimate child does not inherit from his relatives from all sides, assuming the death of one of them, not his own death.

In addition, we already presented the weakness in chain of this narration, and rather the presence of defective elements in it which make it one of the anomaly (shādhdh) reports, lacking authoritativeness and reliability, so we do not repeat.

These were the original reported texts relied upon to rule denying an illegitimate child the inheritance and disconnecting the inheritance link between him and his father, mother and their relatives.

And it has been shown that they are either weak in chain, few in number, or incapable in indication, where they do not indicate denying the mother’s side, nor denying the illegitimate child himself.

In contrast, there are other narrations that conflict with them if we understand from them the generality of the absolute relatives. What must be stated is:

1- The report of Yūnus, he said, ‘The inheritance from an illegitimate child for his relatives from the mother’s side is [similar to] that of the inheritance from a child of mulā’ana.’[152]

This narration makes the ruling of an illegitimate child similar to that of a child of mulā’ana in that he is inherited only by the mother’s side, according to some details in the case. Perhaps this narration is the presented evidence (madrak) of what was attributed to Ṣadūq, Abū al-Ṣalāḥ al-Ḥalabī and Abū ‘Alī, and what shaykh al-Fayyāḍ ruled recently, regarding the inheritance between an illegitimate child and the mother’s side.

But the narration is maqṭū‘a (lit. cut off; not attributed to the infallible), since Yūnus did not attribute it to any of the Imams, and for this reason shaykh Ṭūsī assumed when he mentioned it that it is a personal doctrine of Yūnus that does not obligate us to anything, and perhaps that is why shaykh Kulaynī included it at the end of the chapter as well.

In addition to that, its narrator on the authority of Yūnus is Muḥammad b. ‘Īsā, and the suspicion of being mursal (disconnected) in this chain has already been presented.

2- The report of Ḥanān b. Sadīr, on the authority of Abū ‘Abdīllāh (peace be upon him), he said, ‘I asked him about a man who fornicated with a Christian, she bore him a boy, he confessed about him and then died, and he did not leave a child besides him, does he inherit him?’ He said, ‘Yes.’’[153]

The chain of this report in this form suffers from the suspicion of being mursal (disconnected) between Muḥammad b. ‘Īsā and Yūnus, as we mentioned earlier.

3- The other sound report of Ḥanān b. Sadīr, he said, ‘I asked Abū ‘Abdīllāh (peace be upon him) about a Muslim man who fornicated with a Jewish woman, and she gave birth to his child, then he died without leaving an heir.’ He said, ‘and he said, ‘His child is handed over the inheritance from the Jewish woman.’ I said, ‘A Christian man fornicated with a Muslim woman, and she gave birth to his son, then the Christian man died and left money, to whom belongs the inheritance from him?’ He said, ‘His inheritance goes to his son from the Muslim woman.’’[154]

It seems that the phrase ‘from the Jewish woman’ was delayed, so what is meant is not ‘the inheritance from the Jewish woman’, rather the inheritance should be handed over to ‘his child from the Jewish woman.’ Otherwise, the answer to the question would not have occurred in the first place, and this was also what Majlisī favoured.[155]

Shaykh Ṭūsī understood this narration not in absoluteness, but in the context of the fornicator acknowledging and ascribing the child to him.[156] The meaning of this is the detail in discussion (tafṣīl) on the ruling of inheritance of an illegitimate child, between the case where the fornicator acknowledges him, then the inheritance occurs, and the case where the fornicator does not acknowledge him, then the inheritance does not occur. Perhaps for this reason he drew a similarity with the child of mulā‘ana in the previous narration, because inheritance does occur between a child of mulā‘ana and his father assuming he acknowledged him, otherwise not.

As for ‘Allāma Majlisī, he suggested understanding it probably in the context of absence of knowledge about the fornication, or the occurrence of intercourse with ignorance (waṭ’ al-shubha).[157] As for the al-Muḥaqqiq al-Najafī, he dropped both reports due to their conflicting the reliable texts, rather the consensus, and their inclusion of the oddities.[158]

The right thing to be said is that this report is valid for restricting the other reports, and is not conflicting with them, because these reports indicate with their generalities and absoluteness that an illegitimate child does not inherit, while this one indicates that he does if there was no inheritor on one side, and one of the two fornicators was Muslim and the other was not. So, why is it not maintained here to restrict bequeathing to him to this particular case, and the ruling of not bequeathing in other situations remains in accordance with the requirements of the previous narrations, assuming the absoluteness in their indication which they understood?

This is according to the foundations of the people [who hold this opinion]. As for our understanding from the previous narrations, that they intend to deny the father inheriting his child, not the other way around, these two narrations here completely confirm what we have reached, because they are talking about bequeathing the illegitimate child, and they have accepted bequeathing him, as if what is established in the minds of the questioners is that there is no inheritance between the fornicator and his child, so the question came about bequeathing the child, after it was already established to them that the father does not inherit from this child.

Besides, what shaykh Ṭūsī mentioned here is an acknowledgment of the inheritance between the fornicator and his [illegitimate] child assuming the fornicator acknowledges him, as some Sunni jurists ruled, and this is a strong breaker of the alleged consensus that there is absolutely no inheritance between the two, especially after we add what was attributed to Ṣadūq, Abū al-Ṣalāḥ and Abū ‘Alī al-Ṭūsī. So, where is the consensus on the subject? And what is its scope then?

4- The mu‘tabara (reliable report) of Isḥāq b. ‘Ammār, on the authority of Ja‘far, on the authority of his father, that ‘Ali (peace be upon him) used to say, ‘An illegitimate child and a child of mulā‘ana his mother inherits him, and his half-siblings to his mother, or her cohort.’[159]

Shaykh Ṭūsī commented on this narration by saying, ‘It is possible that the narrator heard this ruling regarding the child of mulā‘ana and he thought that the same is the ruling on the illegitimate child, so he narrated it according to what he thought, not what he heard.[160]

Al-Ḥurr al-‘Amilī interpreted this hadith – in possibility – such that the man was a fornicator, while to the mother the act was [a case of] intercourse with ignorance (waṭ’ al-shubha).[161]

However, fairness requires that the interpretation mentioned by shaykh Ṭūsī is less likely,[162] and if we go that way [in method of interpretation], there will not be any settlement in understanding the narrations. That interpretation is rather based on unsubstantiated personal judgement par excellence.

As for the interpretation of shaykh al-Ḥurr al-‘Amilī, it does not have an indicator to it either, neither from this text nor from outside it, so it is difficult to accept it.

The narration is also clear in dealing with the mother’s inheritance from the child, not the child’s inheritance from her, and it appears that this reinforces that the problem statement was the inheritance of the fornicators from the child, not the other way around.

Accordingly, the correct way forward is that if we want to take what is reliable from the group of all the previous narrations and combine them together, we will arrive at the following conclusion:

1- The inheritance relation between an illegitimate child and his mother’s side is maintained because the like of the mu‘tabara of Isḥāq b. ‘Ammār restricts the previous absoluteness, assuming they contained such absoluteness.

2- We did not find evidence that denies the inheritance between an illegitimate child and his wife and children and their ilk, so the [main] rule applies.

3- The fornicator does not inherit from his illegitimate child, neither does his child inherit from him, as long as the ‘maxim of the bed’ applies, and its application is known, which is doubt about affiliation.

4- The fornicator does not inherit from his illegitimate child even if his affiliation to him has been established in shar‘ and reality, and perhaps this is a punishment for him. He must be assumed to be a fornicator [for this to apply], and if this [act] occurred from him with ignorance, these rulings would not apply. As for the mother, nothing as such was mentioned about her, even if she was a fornicator without compulsion or ignorance. To me, this – denying the inheritance to the fornicating father – is a matter of precaution, because only around two narrations have been established, one of them is sound in chain with a good enough indication.

5- There is no evidence to indicate denying an illegitimate child inheriting his father, mother or their relatives, so he inherits all of them, even if their inheritance from him was not established.

And I think that the conclusion we reached disagrees with the popular opinion, if not the consensus, of the jurists. God is the Most Knowing.

General Conclusion

An illegitimate child is like all other people in all rights, rulings and obligations in this world and the hereafter, except in:

1- Preferring him, and not his prohibition, for the leadership of the congregational prayer.

2- The dislike of his residue [of food and drink], according to the principle of ‘authoritativeness of the solitary report of a trustworthy reporter’ (ḥujjiyyat khabar al-wāḥid al-thiqa) specifically, and not that of ‘authoritativeness of the solitary report with confidence in its issuance’ (ḥujjiyyat khabar al-wāḥid al-muṭma’ann al-ṣudūr) which is the benchmark for authoritativeness of reports according to us.

3- Inadmissibility of his testimony, according to the principle of ‘authoritativeness of the solitary report of a trustworthy reporter’ (ḥujjiyyat khabar al-wāḥid al-thiqa), and not that of ‘authoritativeness of the solitary report with confidence in its issuance’ (ḥujjiyyat khabar al-wāḥid al-muṭma’ann al-ṣudūr) which for us is the correct [opinion], although observing precaution is valid.

4- Some details regarding others inheriting from him, and not his inheritance from others, as it [inheritance] is maintained for him, so he inherits from all his relatives, and he is not denied inheritance absolutely. Yes, his fornicating father does not inherit from him, only as a precaution.

As for the rest of what the Muslim jurists mentioned, they have not been established with reliable evidence, based on the [principle of] ‘authoritativeness of the solitary report of a trustworthy reporter’ (ḥujjiyyat khabar al-wāḥid al-thiqa), let alone that of ‘authoritativeness of the solitary report with confidence in its issuance’ (ḥujjiyyat khabar al-wāḥid al-muṭma’ann al-ṣudūr).

Perhaps these four peculiarities [above] of the illegitimate child are:

1- To punish the fornicator himself, like in inheritance.

2- To distinguish the legal lineage from others in order to give it importance over others, as some jurists said.[163]

A final question remains: Why all these reported texts discussing the illegitimate child in different scenarios exist?! Why this issue in the first place if there was no distinction between him and others in Islam?! Does this conclusion of yours not contradict with this general atmosphere of the texts?!

The reply is: The interpretation of the apparent meaning of all these texts can have rationales other than establishing a legal position of compulsion in the matter. We put this forward only as an analytical probabilistic hypothesis, to remove the confusion:

1- The general popular culture at the time and the nature of the issue of lineage among tribal societies naturally creates a somewhat conservative mentality towards the illegitimate child. This matter remained as such in more than one society until recently, as the influence of Western liberal culture led to a change in social conditions. Nevertheless, the illegitimate child is still viewed differently from all other children to this day.

2- Some political and social figures in Islamic history have been accused of illegitimate birth with the aim of degrading them before the public opinion or revealing such a fact about them. This is a well-known matter which has been circulated in the books of Muslim sects, and this helps in taking a negative attitude towards the illegitimate children among those who oppose these figures.

3- This general custom, as well as this political attitude towards this or that figure, can – hypothetically – help in creating a group of additional texts on top of the main point that the real texts wanted to put forward. The real texts wanted to focus on the ‘maxim of the bed’ and healthy lineages, and at most to deny the fornicator inheriting from his child, and to indicate the priority of [applying] the principle of the purity of birth over its impurity, and the priority of [applying] absence of customary defects in the social and political figures. However, the popular public mind at times, and the social and political mind at others, (may) have added fabricated texts to this initial image, so it turned every illegitimate child into a criminal who shall enter Hell or is denied Paradise, and to an infidel, to one who is more physically impure than a dog, a pig, or a nāṣib, and to being completely amputated from his family, and [amputated from] inheritance and maḥram relations with it, to be a nobody in society completely. It presented notions at least some of which contradict the sound reason, the Noble Qur’an, and the principles of the noble Sunnah.

This is a possible explanation, and the higher the percentage of odd texts, as in the texts on the Muslimness of the illegitimate child and his fate, the stronger the assumption that there was a group of fabricators who intended to rip the image of the illegitimate child completely in the religious culture, especially when we find a scarcity in these texts from what is transmitted from the Prophet Muhammad personally. Besides, other hypotheses can be put forward, but it is needless to prolong the discussion with them. And knowledge is with God.


[1] Mulā‘ana is the dissolution of marriage through the mutual invocation of God’s curse in court between the husband and wife when the man accuses his wife of adultery but does not bring four witnesses, and she denies. To avoid the punishment for wrongful accusation of adultery, the man is asked to do li‘ān (invoking God’s curse on himself if he was a liar). For the wife to avoid the punishment for adultery, she must also take part by invoking ghaḍab (invoking God’s wrath over herself if the man was truthful). Following this, the marriage is dissolved, and the ascription of the child to the husband, if applicable, is dropped. (The translator)

[2] See – for example – Kāfī, 5:491-492; Ṣaḥīḥ al-Bukhārī, 3:5,39.

[3] See – for example – Kāfī, 2:323, 7:163,164.

[4] See Khū’ī, Encyclopedia of Imām Khū’ī, vol. 3, Sharḥ al-‘Urwa al-Wuthqā, chapter of Purity, p. 64. Also Khū’ī, Encyclopedia of Imām Khū’ī, vol. 24, Sharḥ al-‘Urwa al-Wuthqā, chapter of Zakāt, p. 143-144. Also Aḥkām al-Riḍā‘ fī Fiqh al-Sharī‘a, p. 77. Also Ṣirāṭ al-Najāt, 1:336.

[5] See Sarakhsī, al-Mabsūṭ, 17:154; Al-Muntaqā, 4:183, 6:254; Asnā al-Maṭālib, 3:20; Al-Mughnī, 6:228.

[6] See Al-Mughnī, 6:228; Zād al-Ma‘ād, 5:425.

[7] Al-Baghlī attributed it to him in al-Ikhtiyārāt al-Fiqhiyya, 477; And Ibn Mufliḥ in al-Furū‘, 5:526, but he mentioned both opinions without indicating a preference in Majmū‘ al-Fatāwī, 32:112.

[8] See al-Mughnī, 6:228; Al-Jawhara al-Nayyira, 2:82; Ḥāshiyat Ibn ‘Ᾱbdīn, 3:49

[9] See al-Muwaṭṭa’, 2:740; Al-Bayhaqī, al-Sunan al-Kubrā, 10:263; Ibn ‘Abd al-Barr, al-Istidhkār, 7:171.

[10] See mulā‘ana previously in the footnotes. (The translator)

[11] See Muḥammad Ḥusayn Faḍlallāh, Fiqh al-Mawārīth wal-Farā’iḍ, 2:330, 331, Notes from the Lecture of Sayyid Faḍlallāh, by Khanjar Ḥamiyya, publication of Dār al-Malāk, Beirut, First Edition, 2000.

[12] The existence of relatives from one layer of the inheritance hierarchy blocks the relatives from lower layers from receiving inheritance. These layers are: 1) parents and children, 2) siblings, 3) uncles. (The translator)

[13] Those who are prohibited to someone [in marriage]. (The translator)

[14] The state of being a maḥram. (The translator)

[15] See Kharashī, al-Ḥāshiya, 3:207.

[16] See Asnā al-Maṭālib, 3:148; Tuḥfat al-Muḥtāj, 7:299; Mawāhib al-Jalīl, 3:462; Ḥāshiyat al-Ṣāwī, 2:402.

[17] A ritual animal sacrifice offered on the occasion of a child’s birth. (The translator)

[18] Ibn Idrīs Al-Ḥillī, al-Sarā’ir, 1:357, 2:122,353, 3:10.

[19] Al-Anṣārī, Kitāb al-Ṭahāra, 5:155.

[20] One who hates Imam Ali and the family of the Prophet and holds enmity with them. (The translator)

[21] Tafṣīl wasā’il al-Shī‘a, 1:229.

[22] Ibid, 1:219.

[23] ‘Ilal al-Sharā’i‘, 2:564; Ma‘ānī al-Akhbār, 412.

[24] See – for example – Aḥmad b. Ḥanbal, Musnad, 2:311; Abū Dawūd, Sunan, 2:241; Mustadrak, 2:204,205.

[25] See – for example – Musnad, 6:109; Majma‘ al-Zawā’id, 6:257; Mustadrak, 2:215; Al-Ṭabarānī, al-Mu‘jam al-Kabīr, 3:92; Silsilat al-Aḥādīth al-Ṣaḥīḥa, 2:282.

[26] Al-Bayhaqī, Sunan, 10:59.

[27] Tafṣīl wasā’il al-Shī‘a, 20:442.

[28] Kāfī, 6:43.

[29] Tafṣīl wasā’il al-Shī‘a, 1:219.

[30] Ibid, 12:283.

[31] Ibid, 17:301.

[32] Ibid, 20:443.

[33] Disconnected; Of a missing or unknown link. (The translator)

[34] Ibid, 27:337.

[35] Al-Khiṣāl, 352.

[36] ‘Ilal al-Sharā’i‘, 2:564; Al-Maḥāsin, 1:139.

[37] Sunan al-Dārimī, 2:112; Al-Bayhaqī, al-Sunan al-Kubrā, 10:58; Al-Nasā’ī, al-Sunan al-Kubrā, 3:177; Ṣaḥīḥ Ibn Ḥabbān, 8:176; Al-Haythamī, Mawārid al-Ẓam’ān, 4:354,356.

[38] Without mentioning the path or chain of transmission from the origin. (The translator)

[39] Al-Zayla‘ī, Takhrīj al-Aḥādīth wal-Ᾱthār, 4:76-77; Al-Ṭabarsī, Jawāmi‘ al-Jāmi‘, 3:613.

[40] Al-Asrār al-Marfū‘a fil-Akhbār al-Mawḍū‘a, 371.

[41] Kashf al-Khafā’, 2:372; Mawāhib al-Jalīl, 3:462; Fatāwā al-Lajna al-Dā’ima, 3:350; Ibn al-Jawzī, al-Mawḍū‘āt, 3:109-111; Al-Ṭaḥāwī, Mushkil al-Ᾱthār, 1:370.

[42] Al-Bukhārī, al-Tārīkh al-Ṣaghīr, 1:298.

[43] Musnad Aḥmad, 6:463; Mustadrak, 4:41; Musnad Ibn Rāhwayh, 5:108; Al-Mu‘jam al-Kabīr, 25:34.

[44] Abū Dawūd, Sunan, 2:241; Mustadrak, 2:214-215; Al-Bayhaqī, al-Sunan al-Kubrā, 10:58-59 w.

[45] A man who is in a state of major ritual impurity due to sexual intercourse or discharge of semen. (The translator)

[46] A free subject of non-Muslim minorities living under Muslim rule. (The translator)

[47] Qur’an, 4:40.

[48] For example: Qur’an, 40:40, 99:7-8.

[49] Qur’an, 3:195.

[50] Al-‘Irāqī, Sharḥ Tabṣirat al-Muta‘allimīn (chapter of Qaḍā’), 301.

[51] Haidar Hoballah, Iḍā’āt fil-Fikr wal-Dīn wal-Ijtimā‘, 4:152-159.

[52] Al-Muḥallā, 8:72; On Abū Yazīd Al-Ḍabbī see Al-Dhahabī, Mizān al-I‘tidāl, 4:588.

[53] Buḥūth fī Sharḥ al-‘Urwa al-Wuthqā (the encyclopedia), 3:381; Al-Anṣārī, al-Ṭahāra, 5:157; Al-Ᾱmulī, Misbāḥ al-Hudā, 1:405; Murtaḍā al-Ḥā’irī, Sharḥ al-‘Urwa al-Wuthqā, 1:473; Khumaynī, Kitāb al-Ṭahāra, 3:472-473; Khū’ī, al-Tanqīḥ, 2:72.

[54] Mustamsak al-‘Urwa al-Wuthqā, 1:386.

[55] Buḥūth fī Sharḥ al-‘Urwa al-Wuthqā, 3:382-383; Al-Anṣārī, al-Ṭahāra, 5:157; Mustamsak al-‘Urwa al-Wuthqā, 1:386; Al-Ᾱmulī, Misbāḥ al-Hudā, 1:405; Fiqh al-Ṣādiq, 3:300;

[56] Al-Anṣārī, al-Ṭahāra, 5:158; Al-Ᾱmulī, Misbāḥ al-Hudā, 1:406 (but before the age of discerning right from wrong).

[57] Al-Ḥadā’iq, 5:195-197; Al-Tabrīzī, Tanqīḥ Mabānī al-‘Urwa (chapter of Purity), 2:203.

[58] See this in al-Ḥurr al-‘Ᾱmilī, al-Fuṣūl al-Muhimma, 3:266-267.

[59] Al-Barqī, al-Maḥāsin, 1:149. The chain of the narration is weak by Muḥammad b. Khālid Al.Barqī and others.

[60] Qur’an, 53:39-40.

[61] Qur’an, 35:18.

[62] Qur’an 49:13.

[63] Qur’an 17:70.

[64] Khumaynī, Kitāb al-Ṭahāra, 3:469-470;

[65] Ibid, 3:469.

[66] Al-‘Ᾱmulī, al-Ma‘ālim al-Ma’thūra, 2:245-246.

[67] See – for example – Al-Murtaḍā, al-Intiṣār, 501-502; Al-Shahīd al-Awwal, Ghāyat al-Murād fī Sharḥ Nukat al-Irshād, 3:329.

[68] Istikhrāj al-Marām, 1:397-381.

[69] Ibid, 1:373-374.

[70] Al-Ḥurr al-‘Amilī, al-Fuṣūl al-Muhimma, 3:268.

[71] Kāfī, 8:238.

[72] Ṭabarsī, al-Mo’talif min al-Mukhtalif, 1:191; Badā’i‘ al-Ṣanā’i‘, 1:157; Al-‘Ināya, 1:350; Nihāyat al-Muḥtāj, 2:182; Al-Majmū‘, 4:181; Al-Mudawwana, 1:178; Al-Muntaqā, 1:235; Al-Umm, 1:193; Al-Inṣāf, 2:274; Al-Tāj wal-Iklīl, 2:430; Al-Mughnī, 2:33.

[73] Mustamsak al-‘Urwa al-Wuthqā, 7:320.

[74] Kāfī, 3:375; Istibṣār, 1:422.

[75] One who is punished by the punishments stipulated explicitly by the sharī‘a, for crossing legal limits. (The translator)

[76] Kāfī, 3:375-376; Man Lā Yaḥḍuruhu al-Faqīh, 1:378; Mustadrak al-Wasā’il, 6:464.

[77] Man Lā Yaḥḍuruhu al-Faqīh, 1:378.

[78] Khū’ī, al-Mustanad, chapter of Prayer, vol. 5, part 2:399.

[79] Ṣadūq, al-Khiṣāl, 331; Mustaṭrafāt al-Sarā’ir, 638.

[80] Mustadrak al-Wasā’il, 6:464.

[81] Tafsīr al-‘Ayyāshī, 2:148.

[82] Kāfī, 7:396; Tahdhīb al-Aḥkām, 6:244-245.

[83] Some texts of this narration include “not” and some do not. (The translator)

[84] Tafṣīl Wasā’il al-Shī‘a, 27:376-377.

[85] Al-Iṣfahānī, Ṣalāt al-Jamā‘a, 208.

[86] Badā’i‘ al-Ṣanā’i‘, 6:269; Tabyīn al-Ḥaqā’iq, 4:226; Al-Umm, 6:226; Asnā al-Maṭālib, 4:355; Kashshāf al-Qinā‘, 6:427; Sharḥ Muntahā al-Irādāt, 3:594; Al-Muḥallā, 8:529; Al-Tāj wal-Iklīl, 8:179; Sharḥ Al-Kharshī, 7:186; Ḥāshiyat al-Dusūqī, 4:173; Mawāhib al-Jalīl, 6:161.

[87] Qur’an, 43:33.

[88] Kāfī, 1:400, 7:395; Tahdhīb al-Aḥkām, 6:244.

[89] Tahdhīb al-Aḥkām, 6:244; Kāfī, 7:395-396; Da‘ā’im al-Islām, 2:511.

[90] Kāfī, 7:396; Tahdhīb al-Aḥkām, 6:244-245.

[91] Tahdhīb al-Aḥkām, 6:244.

[92] Encyclopedia of Imām Khū’ī, vol. 41, Mabānī takmilat al-Minhāj, p. 127; Gulpāygānī, Kitāb al-Shahādāt, p. 192.

[93] Tafsīr al-‘Ayyāshī, 2:148.

[94] Tahdhīb al-Aḥkām, 6:244.

[95] Tafṣīl Wasā’il al-Shī‘a, 27:376.

[96] Khū’ī, al-Qaḍā’ wal-Shahādāt (taqrīr al-jawāhirī), 1:306-307; Mabānī Takmilat al-Minhāj, 1:110-111; Al-Langarānī, Tafṣīl al-Sharī‘a (al-Qaḍā’), 422.

[97] Muhadhdhab al-Aḥkām, 27:177.

[98] Al-Ḥā’irī, al-Qaḍā’ fil-Fiqh al-Islāmī, 410.

[99] Al-Tabrīzī, Usus al-Qaḍā’ wal-Shahāda, 507.

[100] Mukhtalaf al-Shī‘a, 8:490.

[101] Tafṣīl Wasā’il al-Shī‘a, 27:376-377.

[102] Ibid, 27:377; Khū’ī, al-Qaḍā’ wal-Shahādāt, 1:306; Mabānī Takmilat al-Minhāj, 1:110; Muhadhdhab al-Aḥkām, 27:177; Riyāḍ al-Masā’il, 13:308.

[103] Masā’il ‘Alī b. Ja‘far, 191.

[104] Tafṣīl Wasā’il al-Shī‘a, 27:377.

[105] Ḥimyarī, Qurb al-Isnād, 298.

[106] Al-Tustarī, al-Naj‘a fī Sharḥ al-Lum‘a, 6:379.

[107] Ṭūsī, al-Mabsūṭ, 8:228.

[108] Masālik al-Afhām, 14:224.

[109] Riyāḍ al-Masālik, 13:308.

[110] Al-Tāj wal-Iklīl, 8:179; Sharḥ al-Kharshī, 7:186; Mawāhib al-Jalīl, 6:161; Ḥāshiyat al-Dusūqī, 4:186.

[111] Al-Sarā’ir, 3:352.

[112] Man Lā Yaḥḍuruhu al-Faqīh, 4:153. Ibid 317.

[113] Tahdhīb al-Aḥkām, 10:315.

[114] Ibid.

[115] Ibid.

[116] Mabānī Takmilat al-Minhāj, 2:207.

[117] Man Lā Yaḥḍuruhu al-Faqīh, 4:316; Istibṣār, 4:183.

[118] Al-Madanī Al-Kāshānī, Kitāb al-Diyyāt (chapter of blood money), p. 33-34; Jāmi‘ al-Madārik, 6:181; Riyāḍ al-Masā’il, 14:193-194.

[119] Jāmi‘ al-Madārik, 6:181.

[120] Mabānī Takmilat al-Minhāj, 2:208.

[121] Tafṣīl Wasā’il al-Shī‘a, 30:110.

[122] Al-Ḥakīm, Mustamsak al-‘Urwa al-Wuthqā, 1:46.

[123] Shaykh ‘Abd al-Nabī al-Najafī al-‘Irāqī, al-Ma‘ālim al-Zulfā fī Sharḥ al-‘Urwa al-Wuthqā, 50.

[124] The reassurance-yielding refinement of the point which the ruling follows. In other words, determining from the text the actual subject of the ruling under the mentioned title (‘unwān). (The translator)

[125] Al-Ma‘ālim al-Zulfā, 50; Khū’ī, al-Tanqīḥ (ijtihad and taqlid), 235-236; Al-Mar‘ashī Al-Najafī, al-Qawl al-Rashīd fil-Ijtihād wal-Taqlīd, 1:437-442; Muntaẓarī, Dirāsāt fī Wilayat al-Faqīh, 1:364-367; Muḥammad Sa‘īd al-Ḥakīm, Miṣbāḥ al-Minhāj (taqlid), 54; Muṣṭafā al-Harandī, al-Furū‘ min Fiqh Ahl al-Bayt (ijtihad and taqlid), 1:216-218.

[126] Mabānī Minhāj al-Ṣāliḥīn, 1:34.

[127] Riḍā al-Ṣadr, Ijtihad and Taqlid, 114.

[128] Al-Harandī, al-Furū‘ min Fiqh Ahl al-Bayt (ijtihad and taqlid), 1:216-217,218, by Ḥasan al-Sayyid ‘Izziddīn Baḥr al-‘Ulūm, Dār al-Kawkab, Beirut, edition 1/2011 CE.

[129] Muntaẓarī, Dirāsāt fī Wilayat al-Faqīh, 1:364; Al-Ḥadā’iq al-Nāḍira, 7:326.

[130] Al-Muntaqā, 5:184; Ḥāshiyat al-Dusūqī, 4:131,173; Sharḥ Al-Kharshī, 7:142; Al-Fawākih al-Dawānī, 2:219; Asnā al-Maṭālib, 4:279.

[131] Al-Yazdī, al-‘Urwa al-Wuthqā, 6:418; Al-‘Irāqī, Sharḥ Tabṣirat al-Muta‘allimīn (chapter of Qadā’), 11; Al-Qaḍā’ wal-Shahādāt (taqrīr baḥth Al-Khū’ī by Jawāhirī), 1:32; Mabānī Takmilat al-Minhāj, 1:11; Muhadhdhab al-Aḥkām, 27:40; Tabrīzī, Usus al-Qaḍā’ wal-Shahāda, 16; Al-Langarānī, Tafṣīl al-Sharī‘a (kitāb al-Qaḍā’ wal-Shahādāt), 49; Al-Ḥā’irī, al-Qaḍā’ fil-Fiqh al-Islāmī, 77; Fiqh al-Ṣādiq, 25:21; Faḍlullāh, Fiqh al-Qaḍā’, 1:96-97.

[132] An expression used by the jurists and uṣūlīs to express their criticism and disapproval of a point. This is opposite to their use of the expression ‘fa ta’ammal jayyidan’ (think [about it] carefully), which expresses approval.

[133] Jāmi‘ al-Madārik, 6:5.

[134] Kitāb al-Qaḍā’, 1:24; Muhadhdhab al-Aḥkām, 27:40.

[135] Fiqh al-Imām Ja‘far al-Ṣādiq, 6:62.

[136] Muhadhdhab al-Aḥkām, 27:40.

[137] Sharḥ tTbṣirat al-Muta‘allimīn, 305.

[138] Ibid.

[139] Ibid.

[140] Qur’an, 35:18.

[141] Fiqh al-Imām Ja‘far al-Ṣādiq, 6:62.

[142] Khū’ī, al-Qaḍā’ wal-Shahādāt (taqrīr al-Jawāhirī), 1:32; Mabānī Takmilat al-Minhāj, 1:11; Al-Langarānī, Tafṣīl al-Sharī‘a (al-qaḍā’ wal-shahādāt), 49.

[143] ‘Abd al-Karīm al-Ardabīlī, Fiqh al-Qaḍā’, 1:61.

[144] Muhadhdhab al-Aḥkām, 27:40; Al-Langarānī, Tafṣīl al-Sharī‘a (al-Qaḍā’ wal-Shahādāt), 49.

[145] Kāfī, 7:163; Istibṣār, 4:185; Tahdhīb al-Aḥkām, 8:207-208, 9:346.

[146] Al-Ḥadā’iq al-Nāḍira, 24:330.

[147] Kāfī, 7:163; Tafṣīl Wasā’il al-Shī‘a, 26:275-276; Tahdhīb al-Aḥkām, 9:343.

[148] Kāfī, 7:163,164; Man Lā Yaḥḍuruhu al-Faqīh, 4:316; Istibṣār, 4:182-183; Tahdhīb al-Aḥkām, 8:182-183, 9:343.

[149] Mabānī al-‘Urwa (kitāb al-Nikāḥ), 1:276.

[150] Mir’āt al-‘Uqūl, 23:246.

[151] Man Lā Yaḥḍuruhu al-Faqīh, 4:316; Istibṣār, 4:183.

[152] Kāfī, 7:164. Istibṣār, 4:183.

[153] Kāfī, 7:164. Istibṣār, 4:184. Tahdhīb, 9:345.

[154] Kāfī, 7:164. Istibṣār, 4:184. Tahdhīb, 9:345.

[155] Mir’āt al‘Uqūl, 23:248.

[156] Istibṣār, 4:184; Tahdhīb, 9:346.

[157] Mir’āt al‘Uqūl, 23:247; Rawḍat al-Muttaqīn, 11:342.

[158] Jawāhir al-Kalām, 39:276; Jāmi‘ al-Madārik, 5:370; Al-Naj‘a fī Sharḥ al-Lum‘a, 10:493; Fiqh al-Ṣādiq, 24:471; ‘Alī Al-Bihbahānī, al-Fawā’id al-‘Aliyya, 2:405.

[159] Istibṣār, 4:184; ‘Awālī al-La’ālī, 3:338,509.

[160] Istibṣār, 4:184.

[161] Tafṣīl Wasā’il al-Shī‘a, 26:278.

[162] Kashf al-Rumūz, 2:471; Masālik al-Afhām, 13:240.

[163] Muḥammad Ḥusyan Faḍlullāh, Fiqh al-Qaḍā’, 1:96-97.