The Issue of Female Travel in the Hanafi School- A Revised Reading

---

Abstract

The restriction Islam places on female travel is an area of considerable concern for Muslim women living in an increasingly cosmopolitan world. The prohibition of travelling relatively short distances without a chaperone is often seen as impractical and to many ‘irrational’. This paper investigates whether there is scope for leniency within the Hanafi school in addressing these concerns. I present here a thorough survey of the juristic tradition within the Hanafi school with respect to the fiqh of travel. It is found that the official position of the school rejects a set distance measurement as a definition of ‘travel’ and instead defines travel as the distance equal to three days’ journey. We conclude that the travel distance today would be considerably larger than currently assumed, which results in most journeys not qualifying as legal travel. As a consequence, women can travel across the whole of the UK without a chaperone.

---

Introduction

The Sharia has related certain legal rulings to travel including dispensations in the length of prayer, the necessity of fasting Ramadan and the prayer of Juma on Friday. The implications for female travel and the necessity to do so with a mahram is the one that motivated the current research. The current position held by all Hanafi scholars to the author's knowledge has it that a woman cannot travel unaccompanied without a Mahram to a location that is more than 48 miles (or up to 58 miles according to varying positions). Many women find this extremely limiting especially in the modern context when traveling much further distances has become the norm and in an increasingly global world a necessity for many professions. That being said, it is important to point out that most of the discussions in this paper traditionally focused on how travel impacts prayer as this was the primary concern for the jurists. This, however, is inconsequential to our aims, for once we have defined ‘travel', the legal ramifications whether they be in prayer or women's travel are equally implicated.

It is these concerns that have motivated a closer inspection of the fiqh of travel with a special focus on the Hanafi madhab. Does the madhab have any scope for another opinion? It is my thesis that not only does it have this scope, but more radically this may actually be the best understanding of the school. I will begin with a short preamble in which I will clarify certain preliminary points related to how the Hanafi school has understood the source texts on traveling. Following this, I will present my reasons for why the current understanding of the school on this issue is incorrect and in turn, propose a revised interpretation in light of the juristic texts of the school. I will then end by addressing the implications of my interpretation and answer briefly potential questions that might arise before presenting a short conclusion.

I recognise that there can and arguably should be a much broader treatment of the topic, which would include other legal schools and their historical views, and an appraisal of the Modernist viewpoint. I justify however my decision for limiting myself to the Hanafi school because firstly, it allows for a relatively brief yet comprehensive study of the topic. Secondly, it represents a distinct attitude toward the subject which we might call ‘rational’ which compares nicely with the more dominant ‘Tradionalist’ approach of the Shafis and Hanbalis. This secondary school which is much more literal in its assessment of the hadith on this topic will be referenced by way of comparison throughout the article. The Malakis perhaps also have an alternative view point which goes even further than the Hanafis in moving beyond the direct import of the hadith to asking questions about the actual illa (legal cause) of the legislation, and whether it is still appropriate to apply in different circumstances.

---

The Source Texts

The texts within the Quran and Hadith that are related to the issue at hand are many, and these vary depending on the school of law one is analysing. For the purpose of brevity and relevance, therefore, I will only present here the evidence the Hanafi scholars have used in deducing the fiqh of travel. There are two main hadith which the Hanafi’s use as evidence:

عن عمر ان النبي قال لا تسافر المرأة ثلاث أيام الا مع ذي محرم:

(Bukhari and Muslim)

The Messenger said ‘A woman may not travel (the distance) of three days without a familial guardian’

يمسح المقيم يوما وليلة والمسافر ثلثه أيام

(Muslim)

The Messenger said ‘The resident wipes (his khuffs) for a day and a night while the traveller does so for three days and nights’. [1]

There are some details given in the Hanafi works as to why these hadith are taken as the primary evidence for the fiqh of travel but without unnecessarily going into detail, for our purpose, it suffices to say that the reference to ‘three days/nights' was taken as the basis for the definition of travel.

Time not space

The critical point of distinction between the early Hanafi’s and the ‘Traditionalist’ schools was how they understood this reference to ‘three days/nights’. The Shafis and later Hanafis understood this within the context of other historical records which inform us of the particular journeys when the Prophet himself would shorten the prayer of not. They then simply took this as a more practical measure of the distance the Prophet was referring to here as ‘three days/nights’ and therefore immediately were about to give an equivalent average spatial distance which would represent there after the distance of legal travel.

The fundamental difference between the Hanafi’s and all of the other schools is how they understand this reference to ‘three days’/nights' travel (Hereafter, this will be referred to simply as three days as the jurists point out that the night was for rest and not actual travel).[2] While the other madhabs understood this as a defined, universal spatial distance, the Hanafi's were adamant that it is to be understood as a reference to time.[3] This meant most classical Hanafi scholars rejected any type of spatial quantification as the condition for travel. Instead, they maintained that the Prophetic injunction depended on factors like the mode/means of travel and the terrain which could not be pre-determined and, as such, are to be determined according to the time and place at the time of the investigation.

Time being the basis for the assessment of travel is an almost unanimous case within the school apart from later scholars who felt it was prudential to quantify it into the norm of their times, whether it be in leagues (فراسخ) or miles.[4] Interestingly early attempts to do this were met with stern objection from the likes of Imam Mirghinani in the Hidaya saying:

لا اعتبار بالفراسخ علي المذهب

‘There is no consideration given to calculations by leagues in the school,’

and Ibn Nujaim expresses ‘astonishment at such fatwas’ which he considers to go against the established position of the school.[5]

The Hanafi’s, with few exceptions, were very clear that this distance should be understood as a reference to time and not space. We have it from Imam Sarakhsi for example, that ‘there is no basis for measuring in leagues (فراسخ) because this differs depending on terrain and whether traveling by sea or by land'.[6] Ibn Abidin in his Radd al-Muhtar makes the same point, declaring that calculations based on a set spatial distance is ultimately arbitrary when one considers the natural factors that influence any given journey. Ibn al-Hummam points out the absurdity that might arise if one were to travel less than one of these pre-calculated distances by leagues (فراسخ), but end up due to the nature of the journey travelling more than three days. In such a case, according to the advocates of the ‘farasikh' position, the person would not be deemed a traveller, even though this would be conflicting with clear textual evidence (Nass) requiring that he is so. Furthermore, even when one considers the scholars who took up positions based upon certain spatial dimensions, one realises that the basis for these calculations was ‘their assumption that this equated to three days travel’.[7] This is an important point because I will argue later those scholars who maintain today a set distance for travel do so on the basis that previous scholars did the same. The misconception here is that a pre-modern calculation of distance is probative for all later times regardless of how this relates to the actual time of travel. I will elucidate this point more clearly below.

Interestingly, we do have reports that Abu Hanifa himself sanctioned the use of some predetermined distance in quantifying travel as three Marahil (plural of Marhala). However, as is made clear from the juristic texts, the marhala is a predetermined distance of travel, yes, but its basis of calculation is time. It is for this reason that the commentaries add that this position of ‘three marahil’ is only valid because it ‘approximately’ equates to three days’/nights travel. After Imam Mirghinani mentions the position of Abu Hanifa on Marahil, he follows this by saying “و هو قريب من الاول” (and it is similar to the first position). In a commentary on this statement, Imam Ayni clarifies that the the Marahil position is ‘similar’ in that it equates to ‘3 days travel’[8]:

أي التقدير بالمراحل قريب من التقديربثلاثة أيام و لياليها

Measurement by Marahil is similar to measurement of three days' and nights

The point to note here is that the yardstick by which the ‘marhala’ was measured was time, not space. Interestingly, Imam Ibn Maza mentions in al-Muhit al-Burhani that the basis of some jurists (Mashaikh) proposing certain spatial distances in leagues (farasikh) was the analogy they made with this narration of Marahil from Abu Hanifa.[9] As it is clear that Abu Hanifa was assuming that three marahil equalled to three days travel, one can deduce therefore that these later spatial quantities were in actual fact closely related to the time element involved in travel.

Shaikh Ahmad al-hajji al-Kurdi summarises the school's position well by stating

لا عبرة عند الحنفية للمسافة بل العبرة علي الزمن فقط علي المذهب

‘According to the Hanafi’s there is no basis for spatial distance, rather time is considered exclusively’.[10]

The Position of the Hanafi school on the requirements for travel

The first condition for travel is that the person must intend to travel a distance equivalent to a three-day journey. There are some details and disagreements within the school concerning exactly how much actual travel is to be expected in this period after taking into account considerations like mode of transport, rest stops and sleep, however, these need not concern us for now. In a later development of the current argument, it may be more suitable to tease out how one would quantify three days’ travel in today's world of fast transportation, but let us move on for now. We can assume basically that the requirement is that the distance that needs to be intended roughly amounts to what on average takes three days. Yet, how does one know what three day’s travel looks like before one can intend it?

Understanding the three Categories

There is an agreement among all of the jurists that only the average/typical form of travel is taken to be probative with respect to calculating the distance of three days’ travel. As a result, the earliest works all agree that there are only three ‘modes of travel’ that are to be considered in this process- 1. By foot 2. On camel 3. By ship. Assumed to be the “typical” mode of travel in the prophetic era, other non-standard forms of travel were given no consideration in determining legal rulings. This is because the assumption in law is that the sharia operates at the level of the typical (معتاد) case and not the exception (نادر).

There are some important details that are worth emphasising with respect to the categories outlined above. The Ulema made concerted efforts to specify what was typical, not only with respect to the modes of travel (three categories) but also the specifics of the journey too. This included details related to hours of travel and rest, wind speed (for ships) and the specific animals (non-caravan camel).[11] The goal behind these efforts was to determine the journey distance that would be representative of three days travel in the most typical case. It is clear that the emphasis and motivation behind these investigations were time and not distance in itself, as Mawsuli makes clear when he says:

'ينظر كم يسير في ثلاتة أيام فيجعل أصلا

‘He should determine how much distance he would cover in three days, and then make this the legal precedent'[12]

These texts and their stipulations about how one is to calculate an equivalent distance to three days’ travel are critical to appreciating the dilemma we find ourselves in. It is likely, contemporary Hanafi’s who hold to a mileage definition of travel do so because they understand these early Hanafi texts and their prescriptions outlined above as binding for later times. I would like to challenge this assumption as I believe it is directly in contrast with the spirit of the Hanafi position. Nevertheless, it is worth understanding the process of how we have got to where we are before we discuss an alternative. The prescriptions above helped determine a typical distance that was taken to be the base for travel at the time of the Messenger. This distance was later translated into the metric language of later jurists whether this be leagues as we have seen or miles/kilometres today. We shall discuss later why such an approach was unproblematic for most of Islamic history up until very recent times. I shall now present my case for why I believe the above process is no longer suitable, not because as some critics might assume I am questioning the principles in any way. On the contrary, I wish to uphold the classical position completely. I only wish to demonstrate that there has been a fundamental misunderstanding of those very principles.

Arguing against the status quo

The first supposition being made by the “mileage” Hanafi’s is that the hadiths must be restricted to the time of the Prophet ﷺ. The three-day journey being referenced in hadith is specifically and exclusively referring to a journey of the prophetic era and this becomes binding for all other times. Indeed, this assumption is not uncommon in Usul al-fiqh, as one who is acquainted with the science is well aware that often great efforts are made to discover the original meaning of Quranic and Hadith references. The case of khamr is a popular example whereby Abu Hanifa is said to have restricted the ‘filthiness’ of alcohol to fermented grape juice because he argued the linguistic meaning of khamr only includes this type of intoxicant. I don't believe the two cases are identical, however. In light of what has been said earlier, the hadith only mentions the fact that the travel should be one that takes three days’ (time); the assumption about the mode of travel is one not expressed by the Prophet. Therefore, the precedent of the likes of Khamr cannot be invoked in this case. However, it remains to be seen then why the classical ulema stipulated that only these three modes of travel be considered?

I believe the answer is because, in fiqh, rulings are always given for the typical case, not the exceptional. It is this operational axiom that governs the above stipulation. That is to say, in looking at the hadiths about travel, the scholars took the predominant and average paced forms of transport in order to rule according to the majority case. The limitation to the three categories is by virtue of their representing the predominant form of transport, not because of some other unique quality that they might possess. The scholars first sought to understand what three days’ travel might mean, and they were certain that whatever it meant it would have to be understood in such a way that it would reference the typical, every-day case. Once the typical case was determined, the exceptions were judged in accordance with it. So, if a journey by camel to a certain location was determined to take three days’, then even if a person reached the same location on a faster form of transport like a horse in less than three days, he would still be considered a traveller.[13]

The implication being made here, therefore, is that when the ‘typical' changes, so should the distance. In a time where journeys are not undertaken on a camel, why should we be concerned with whether the distance pertains to three days’ travel on camel? Before we can make this case more explicitly, however, there are still some details to be worked out. At this junction, it seems imperative that we ask ourselves what constitutes the typical case with respect to travel. We are fortunate that the Hanafi texts give us many clues to answering this question. It seems there are two factors that help define the typical case - 1. Terrain/route 2. Mode of transport. For the pre-modern Ulema, the first category was binary - land and sea, even though they did make a further distinction between travel by mountain and flatland. The second factor of the mode of travel has already been discussed in that they considered three cases- 1. walking 2. camel and 3. Ship. One can see there is an obvious overlap in content between the two categories but there are important details particular to each.

To take the mode of transport first, the jurists were careful to treat each of the three categories as distinct from one another. Ibn Nujaim spells this point out clearly when he says in the commentary of the passage in Qanz al-Daqaiq which introduces the three modes:

فصله ايماء الي ان ثلاثة أيام تعتبر في كل علي حدة

‘He separated each mode with the particle ‘or’ in order to allude to the fact that each mode of travel is considered separately with respect to calculating three days travel’[14]

One of the clearest examples of this is from al-Lubab, the commentary of Mukhtasar al-Quduri by al-Ghunaymi. He presents a scenario in which there are two routes to a single destination, one by land and the other by sea. Circumstance has it that while the route by land takes three days, the route by sea takes much less. Ghunaymi rules that the one who went by land is a ‘traveller' while the Seafarer isn't.[15] This example is quite enlightening. First, we see here that each ‘mode' of transport is taken as a separate case, such that Imam Quduri unequivocally declares ‘measurements of distance on land have no bearing when travelling by sea'. Secondly, while the actual destination of the two journeys is the same, the ruling is specific to either case. I also think it is quite telling that Ghunaymi doesn't mention any details about the distances involved in either journey - I assume this is because the distance is itself irrelevant, for the Hanafi’s are only concerned with ‘time’.

Is the distinction between the modes of travel particular to travel by sea and land? It would seem not, as we find in al-Muhit al-Burhani, Abu Hanifa is presented with a similar case on land whereby there are two (land) routes to the same destination and one meets the three-day requirement while the other doesn’t. Again Abu Hanifa rules that the first will be considered a ‘traveller’ while the second won’t. Imam Lakhnawi in his commentary on Imam Muhammad Shaybani’s al-Jami al-Saghir echoes this point in that he argues travel by mountain is measured in isolation ‘even if one can reach the destination quicker by flat land’, and travel by boat is measured over three days and this distance is made its asl (basis)’.[16] The above makes clear I feel that with respect to the ‘mode’ of travel the ‘typical’ journey is to be determined in each case individually. Imam Ayni sums up the present point well in

لا يعتبر السير في الماء بالسير في البر و المعتبر في البحر ما يليق بحاله كما في الجبل

‘Travel by sea is not taken into account when quantifying travel by land and travel by sea is measured in accordance with its own conditions, as is the case with travel on a mountain’

With respect to the second factor under consideration in determining a ‘typical’ journey, we find that differences in terrain/route can also have an impact on the case at hand. Many texts make the point that if travelling by mountain amounts to three days’ travel (because of the roughness of the terrain) while reaching the same location on flat land takes less time, the Mountaineer is considered a ‘traveller' while the other person isn't.[17] In this case, we find the determining factor is the terrain and not the mode of transport because in both cases the mode was by foot. Similarly, we have the case of destination which has two routes- the first takes less than three days, while the other takes three days; Abu Hanifa ruled that if someone takes the longer route he will be considered a traveller while the other person will not.[18] Therefore, it seems that the Hanafi jurists were always cognizant of the nuances of travel, and were careful not to overlook the fundamental yardstick of time in each journey. The jurists were primarily concerned with the time each journey actually took, and just in case it took the required three days’ they considered this as qualified travel. Their concern was not a universal distance that was based on the ‘route a crow flies’ type of metric.

Many of the jurists provided summary statements for the above cases, as we find in the case of Siddiq Nanotwi in his gloss on Kanz Daqaiq when he says:

ان السفر في كل مكان معتبر به لا بغيره

Travel in each ‘place’ (makan) is considered as representative for itself and not another (place).

The use of the word makan here, I think, can cause some confusion. Is he saying that land and sea should be taken as two generic ‘places’ such that all travel by land should be considered in some way as a united package and travel by sea in the same way? This interpretation seems at odds with what has already been said with respect to differentiating between different terrains on land. Rather I would suggest that his reference to ‘makan' should be understood to include ‘mode of transport', which means that regardless of whether it be on land or on sea or even by air, one should take into account the distance covered by the form of transport itself.

In light of the above discussions, we might feel quite confident in assuming the following:

1. The basis of ‘travel’ calculations are time and not spatial

2. Distance is determined according to the ‘typical’ case

3. The ‘typical’ case is subject to details related to terrain and mode of transport

4. The mode of transport is not limited to the three outlined classically.

The remainder of this paper will be dedicated to arguing in favour of point 4. What I am proposing is for the three days travel requirement to be extended to modern forms of transport. Seeing no reason why we should assume the hadiths about travel are limited to the prophetic era, and operating on the basis of the Hanafi school’s focus on ‘time’ of travel, I believe we are required to re-calculate the travel distance in accordance with modern modes of travel. I find precedent for this within the school, for jurists seem to be aware of potential changes to methods of travel and have stated that in such cases deciding what constitutes three days travel should be left to the people to decide. I cite here Imam Sarakhsi in al-Mabsut as evidence:

انما التقدير بالأيام والمراحل وذألك معلوم عند الناس فيرجع إليهم عند الاشتباه

‘Quantifying a distance is done according to the time it takes to travel (three) days and traverse (three) marahil. That is to be determined by the people, and in cases of doubt they are to be consulted’.[19]

I will treat the implications of this position in some detail later, but for now, it suffices to say that a ‘typical' journey by car over three days will amount to a travelling distance far greater than 58 miles.

The most obvious criticism of this view would be to ask why no later scholar ever updated the categories of travel as I suggest? Indeed, at first glance, this seems to be a reasonable point. However, I believe there is a reasonable response. Up until relatively recently (late 19th to early 20th Century), the Muslim world has generally travelled in much the same way as the time of the Messenger ﷺ. The use of donkeys and horses for travel, for example, resides fresh in the living memory of many in the Muslim world. Indeed, the first train that ran between Syria and Beirut was as late as 1895, almost 50 years after the passing of Ibn Abideen, and even after this date, it was by no means the norm of travel.[20] Car use in the UK was still fairly rare until the mid-20th century. Is it any surprise therefore that scholars have not addressed this issue until now? It is only now that travel has been revolutionised to such an extent that the categories outlined by the jurists have become all but extinct for most of the Muslim world. We must, therefore, ask ourselves what ‘travel' means today, and calculate the distance accordingly.[21]

A summary thus far

The Traditionalist/Shafi Position

After determining the locations that the Messenger himself would shorten prayers at, he simply took this as an equivalent yet more practical measure of ‘3 days/nights’. There seems to be little difficulty in determining how far these locations were and making this the basis of the travel limit. According to this position the travel distance was always a spatial distance.

The traditional/mainstream Hanafi position

While the early Hanafis rejected the converstion of 3 days/nights in to a universal spatial distance, later Hanafis (despite stern reprisal from the pillars of the school) saw it as practically prudential to provide a universal spatial distance. It is easy to see why, as many of the jurisprudential rulings require a pre-determined measure of travel in order to be applied. Take for example the shortening of prayer. One is allowed to shorten the prayer as soon as one leaves the local vicinity and is intends ‘legal travel’. This would be very difficult to determine unless one had a universal spatial distance at hand, otherwise each journey would first need to be experienced in order to determine if it met the 3 day/night time requirement.

For most of history however this difference between the earlier and later schools has not been much more than academic, as practically the distances were the same. This changed however with the Industrial Revolution and rapid increase in travel speeds that came with the train and later the automobile.

Pre-modern and Modern Hanafis, who had for centuries adopted that ‘later Hanafi’ position of a universal distances, continued to maintain the travel distance that had been calculated centuries earlier, which, due to changes in the fundamental assumptions of the calculation had been rendered obsolete. The original ‘time based’ position of the early Hanafis has all been forgotten and has ironically been replaced by a universal distance which they felt simply required updating by way of translation to another metric likes miles/kilometres.

---

What’s the ‘reason’ for this?

The Sharia is a legal system which might be reduced to the following objective

جلب المصالح ودفع المفاسد'’ which means ‘securing benefit and averting harm’. It is not my intention in this paper to discuss in detail the fairly complicated topic of legal causes, however, I think it would be helpful to reflect over some of the details in order to appreciate the full consequence of the status quo position (mileage position). Most Usuli scholars agree that the Sharia rulings related to travel whether they be dispensations of prayer or women having to travel with a chaperone are functional in achieving a benefit or avoiding a harm. In the case of the dispensation of prayer when travelling the ‘rational' for this is assumed to be alleviation of difficulty (رفع المشقة) and in the case of women, it is fear of molestation (خوف الفتنة).

At times the underlying wisdom associated with a ruling is revealed to us by the lawgiver but, in most cases, it isn't. In these later cases, however, scholars are still fairly confident in deducing the wisdom (hikmah) behind the ruling as in the two cases above. We mentioned earlier that one of the pre-suppositions later Hanafi scholars have made is that the hadith reference to three days’ travel can only be understood with respect to the travel norms of the Prophetic era. One of the benefits I see in my proposal, and one of the main weakness it seems to address in the ‘status quo’ position, is the fact that according to the predominant understanding, the fiqh of travel loses all of its “rationality”. If we are to assume that travel by car or train is to be measured according to the same standards of a camel or by foot, one ends up reducing the law to a “non-rational” directive (hukm ta’abbudi) bereft of any real accessible wisdom. A woman might ask why she is allowed to travel 45 miles but not 48 for example.

Does the latter case involve any rationally distinctive basis for the ruling? We might wonder how it might be that a woman can walk alone at night from Birmingham to Nottingham (less than 48 miles), but is in need of a chaperone if she travels by car to London in less than two hours. One is left with following the law merely because the law dictates it, and not because as most people assume, there is an underlying rationale behind it, which in most cases is assumed to be the aversion of harm and difficulty. This would be a tremendous shame for one of the greatest strengths of the Hanafi position vis-a-vis the other schools was the inherent appeal to rationality, while according to Shaykh Zada in Majma al-Anhur the other schools base their position solely on “non-rational” instruction.[22]

One might bite the bullet and accept the fact that the law of travel is “non-rational”, by which they mean that even if we can derive no pertinent wisdom one is bound to follow it nonetheless. I concede that, although intellectually unsatisfying, one may resign themselves to this position (and it seems many have). Interestingly, however, we have an example from one of the great Hanafi scholars who was equally agitated by this reasoning. Ibn Hummam in his commentary on the Hidaya rejects the above “non-rational” consequence. He asks us to consider the case of a miracle in which a wali travels huge distances instantaneously. According to the “non-rational” position, one would have to say that the wali is able to take the dispensation and pray qasr, however, he considers this to be the incorrect conclusion. He says:

هو بعيد الانتفاء مظنة المشقة وهو العلة

‘It is far from fulfilling the idea of alleviating difficulty while alleviation of difficulty is the actual illa’

He seems to argue that the actual legal cause behind the dispensations of travel is alleviating difficulty, and in cases where travel is exceptionally quick like a wali flying, or a car for that point, the illa is not found and, consequently, neither should the dispensation apply. In other words, if travel doesn’t involve difficulty, according to Ibn Hummam we should not consider it legal travel.

At this point it is worth admitting that Ibn Hummam’s argument, based upon alleviation of difficulty being the illa is not the mainstream view and it is likely to be rejected by those who hold the illa to be the text itself, relegating alleviation of difficulty to the more benign realm of hikma. I am willing to accept this, especially as his argument is not at all instrumental to my own. My argument works equally well if one ignores the idea of ‘difficulty’ altogether. I only mention it here to add nuance to the point about hukm ta’abbudi, and if it is later taken more seriously, it will add further potency to my proposal.

---

Going back to a spatial distance

With all that has been said in the forgoing, it would seem strange at this point if I made a case for quantifying travel using spatial dimensions. This is, however, exactly what I now propose we do. Let me explain away the confusion. The spatial dimension, whether it be leagues or miles, is not the basis of determining travel in the Hanafi school, yet that does not mean that it can’t serve a valuable purpose in some non-fundamental capacity. In order for the average person to understand and practice according to the new distance, it would make sense for this to be presented using a spatial metric (miles) instead of time. This was the actual reason why spatial calculations were made in the first place, for scholars eager to avoid confusion of the laity took steps to calculate a set distance to facilitate ease.[23]

In order to make sense of why certain Hanafis (all contemporary scholars) wholly accepted the spatial position in clear disagreement with the established position of the school, it seems the need to provide a legal ruling which was both comprehensive and uniform seemed too tempting. Unlike time, which tends to be situation specific, measurement by distance lacks this ambiguity (comprehensive) and is generalisable (uniform), which are virtues when giving fatwa. Although this at times causes slight discrepancies, as we saw with the varying distances offered by different scholars, I would suggest the benefits of using spatial distances largely outweighed these issues. Importantly though, it is vital that we remember the yardstick for all spatial distance was always the time it took on average to travel the said distance. The problem I have been pointing out is not with the use of a set spatial metric per se, but rather the fact that the current calculation (example-58 miles) is no longer connected to the base measurement of time. When the norm of transport changed, the scholars did not revisit the distance calculation which had been hitherto based on pre-modern modes of travel. The process by which later scholars came to values like 58 miles and the mistake they made in doing so might be better demonstrated below:

1. Determine the average time a certain route takes using the three classical modes of travel

2. Translate this into a standard spatial metric (example- 15 leagues)

3. When the norm of travel changed to cars on trains, these distances previously determined (15 leagues) were maintained unaltered. Simple translations were done to contemporise the metric from leagues to modern miles/kilometres.

One can now see that the problem occurs in step 3. By taking step 2 calculations as the base, later scholars failed to include the change that had occurred in travel norms into their calculations. This has meant that all current travel distances are rendered completely arbitrary and disconnected from the original concerns of the school.

If what I have argued is correct then there is a need to recalculate the travelling distance for contemporary society, however, there are a number of questions that have to be answered before this is done. Essentially what we must do is determine a ‘typical' form of travel over three days. However, as has been outlined above, we must be sensitive to differences in modes of transport (planes, cars) and routes of travel. I don't aim in this paper to resolve these issues, but a provisional worked example may help clarify my thinking. If we take a car to be the mode of travel, the following might be some of our considerations:

1. What is the average speed of travel?

2. How many hours a day does the average person drive for? Let's say 6 hours driving a day when one takes into account rest stops at service stations as well as sleep.

3. How many rests stops during the day?

4. How many hours of sleep?

We might take 50 miles/hour (estimation) to be representative of the average speed of a full journey by motorway. Allowing for breaks six hours of driving a day, taking into account rest breaks and sleep, we might estimate that over three days one would travel 900 miles (18 hours x 50 miles/hour). If this distance is taken to be the new travelling distance, we can easily see that there are very few car journeys that would qualify as legal travel. At least in the UK, the journey from top to bottom is 874 miles, which means one could travel anywhere in the UK without ever being a “traveller”. I am aware that there may be simpler and more accurate automated ways of calculating this distance, but the above I hope helps to provisionally show the type of distance that would now represent legal travel.

---

Implications

In this paper, a case has been made for a radically different way of viewing the fiqh of travel. If the above is correct, it will mean a new, much larger travelling distance than previously understood, which will have significant implications in the day-to-day life of Muslims. The following are some of the implications of the present study:

1. Samina is travelling from Birmingham to London by car. This journey amounts to at most three hours with breaks and, as such, Samina is not considered a traveller.

2. Samina is travelling from Birmingham to Turkey in an ambulance convoy. The journey including breaks for rest and a road legal driving pace will on average take five days. Samina is considered a traveller.

3. Samina is going from Birmingham to Australia. She will drive to the airport and take a plane the same day which in all will take her less than two days. Samina is not a traveller.

A few interesting points are highlighted in the three examples above. Firstly, very few day to day journeys will qualify as legal travel, which for women would mean they could complete these journeys without the need of a male chaperone. Secondly, comparing examples c and b one can see that distance is not the determining factor of travel but rather travel time is, and this is dependent upon the mode of transport. It would seem a natural consequence of this is that women can complete Hajj and Umrah without the need of a mahram (I am aware that there are legal requirements from Saudi Arabia that requires a mahram, but let’s assume this was not the case).

Additionally, one of the major strengths the case that I present here has is that it is something that we can rationalise and justify. I would speculate that most people would consider it reasonable if we expressed reservations at the thought of a woman travelling alone in a car across Europe while requiring women travelling from Birmingham to London to have a chaperone would be met with bafflement. Put differently, law must have the quality of ‘reasonableness', which is the virtue of being understood by its subjects. Our view presented here fulfils this requirement, which if forsaken results in people ignoring the law as irrelevant.[24]

There are many other implications of this argument in other areas of jurisprudence including the rules related to fasting, wiping over kuffs and much more which cannot be considered at length here. However, in most cases, it is fair to say the travelling dispensations will not apply. This may actually be the basis for a possible criticism of our proposal, for one might say that we are, in applying the above, removing from the sharia much of what has always been considered part of it. I don’t think this argument is sound because the dispensation is based upon an illa which is ‘travel’ and as in all such cases if the illa is not found we should not protest the loss of the dependent ruling (ma’lul). However, we digress; our main concern with this research was to see if there was scope in the Hanafi Madhab for women to travel without a mahram. It seems to be in most cases there is, for at least travelling around the UK in a car would not require her to have a chaperone.

---

Conclusion

This paper has been an effort to address an issue of considerable concern for Muslim sisters who feel appreciably restricted by the sharia limitations on their travel. Working from within the Hanafi school, we have seen that unlike the other schools of law, the Hanafi’s understood the instructions about ‘travel’ as a distance to be calculated with respect to time and not space. The legal jurists were very aware of peculiarities of different journeys and as a result was clear in avoiding universal distances and instead left it to be determined by the one travelling. In the rare cases where certain scholars did try and quantify a universal distance to represent all ‘travel', they were chastised for doing so. It is ironic therefore that with no known exception, all ‘modern' Hanafi scholars have adopted the position of universal distance. As a response to this, I propose a return back to the dominant position within the school. Some of the implications for my ‘revisionist' reading have been highlighted, and although if correct it will mean a solution for Muslim sisters wanting to ‘travel', I recognise the ramifications in other areas of jurisprudence. Further research needs to be done to define ‘typical' travel for today's transportation.

---

Bibliography:

ibn Abidin, Muhammad Amin, Radd Muhtar Hashia Durr Mukhtar (Beirut-Lebanon: Dar al-Marifa, 2007)

al-Ayni, Badr al-Deen, al-Binaya fi Sharh al-Hidaya (Beirut-Lebanon: Dar al-Fiqr, 1980), iii

———, Minhat Al-Sulook (Qatar: wazarat al-Awqaf, 2007)

‘Car Ownership | Explore 20th Century London’ <http://www.20thcenturylondon.org.uk/car-ownership> [accessed 11 May 2017]

Fadl, Khaled Abou El, Reasoning with God: Reclaiming Shari‘ah in the Modern Age (Rowman & Littlefield, 2014)

Ghunaymi, Abd al-Ghani, Lubab Sharh al-Kitab (Damascus Syria: Darul Ilm al-Hadith, 2001)

Ibn Hummam, Muhammad, Fath Qadir Sharh Hidaya (Beirut-Lebanon: Dar al-Fiqr, 2012)

Ibn Maza, Burhan al-Din, al-Muhit al-Burhani fi al-Fiqh al-Numani (Beirut-Lebanon: Dar al-Kotob al-ilmiyyah, 2004), ii

Ibn Nujaim, Umar b.Ibrahim, al-Nahr al-Faiq fi Sharh Kanz al-Daqaiq (Beirut-Lebanon: Dar al-Kotob al-ilmiyyah, 2002), i

Ibn Nujaim, Zainud Din, Bahr Raiq Sharh Kanz Daqaiq (Beirut-Lebanon: Dar al-Kotob al-ilmiyyah, 2010)

Itr, Nuruddin, I’lam Al-Anam Sharh Bulug Al-Maram (Damascus Syria: Damascus University, 2008)

Lakhnawi, Abu al-Hasanat Abdul Hayy, al-Nafi al-Kabir Sharh al-Jami al-Saghir (Karachi- Pakistan: Idarat al-Quran wa al-Uloom al-Islami, 1990)

———, Sharh Al-Hidaya (Karachi- Pakistan: Idarat al-Quran wa al-Uloom al-Islami)

Mulla Miskin, Abdullah al-Harawi, Fath Allah Al-Muin Ala Sharh Kanz Al-Daqaiq

Musali, Abdullah, Ikhtiyar Li Talill Mukhtar (Damascus Syria: dar)

Nasafi, Abdullah, Kanz Daqaiq (Karachi- Pakistan: Maktaba Bushra, 2010)

Shurunbulali, ‘Maraqil Falah’, in Hashia Tahtawi on Maraqil Falah, ed. by Ahmad Tahawi (Damascus Syria: Maktaba ilm Hadith, 2001)

‘Syrian Railways’, Wikipedia, 2017 <https://en.wikipedia.org/w/index.php?title=Syrian_Railways&oldid=774364738> [accessed 11 May 2017]

al-Uthmani, Zufar Ahmad, i’la al-sunan (Karachi- Pakistan: Idarat al-Quran wa al-Uloom al-Islami), i

wazarat al-awqaf, ed., Al-Mawsua Al-Fiqhiyya (kuwait: wazarat al-Awqaf, 1983)

Zada, Ibrahim b.Muhammad b.Sul, Majma al-Anhur Sharh Multaqa al-Abhur (Beirut-Lebanon: Dar Ihya Turath Arabi, 2012)

[1]Nuruddin Itr, I’lam Al-Anam Sharh Bulug Al-Maram (Damascus Syria: Damascus University, 2008), p. 93. [2] Umar b.Ibrahim Ibn Nujaim, al-Nahr al-Faiq fi Sharh Kanz al-Daqaiq (Beirut-Lebanon: Dar al-Kotob al-ilmiyyah, 2002), i, p. 345; Abu al-Hasanat Abdul Hayy Lakhnawi, Sharh Al-Hidaya (Karachi- Pakistan: Idarat al-Quran wa al-Uloom al-Islami), p. 98. [3] Al-Mawsua Al-Fiqhiyya, ed. by wazarat al-awqaf (Kuwait: wazarat al-Awqaf, 1983), p. 28. [4] Zafar Ahmad al-Uthmani, i’la al-sunan (Karachi- Pakistan: Idarat al-Quran wa al-Uloom al-Islami), i, p. 284. [5] Zainud Din Ibn Nujaim, Bahr Raiq Sharh Kanz Daqaiq (Beirut-Lebanon: Dar al-Kotob al-ilmiyyah, 2010). [6] Sarkhasi in al-Mabsut. For other references rejecting calculation by distance see Shurunbulali, ‘Maraqil Falah’, in Hashia Tahtawi on Maraqil Falah, ed. by Ahmad Tahawi (Damascus Syria: Maktaba ilm Hadith, 2001); Muhammad Amin ibn Abidin, Radd Muhtar Hashia Durr Mukhtar (Beirut-Lebanon: Dar al-Marifa, 2007); Muhammad Ibn Hummam, Fath Qadir Sharh Hidaya (Beirut-Lebanon: Dar al-Fiqr, 2012); Abdullah al-Harawi Mulla Miskin, Fath Allah Al-Muin Ala Sharh Kanz Al-Daqaiq. [7] ibn Abidin; Ibn Hummam. [8] Badr al-Deen al-Ayni, al-Binaya fi Sharh al-Hidaya (Beirut-Lebanon: Dar al-Fiqr, 1980), iii, p. 8. [9] Burhan al-Din Ibn Maza, al-Muhit al-Burhani fi al-Fiqh al-Numani (Beirut-Lebanon: Dar al-Kotob al-ilmiyyah, 2004), ii, p. 23. [10] (http://www.islamic-fatwa.com) [11] Ibrahim b.Muhammad al-Halabi, Majma al-Anhur Sharh Multaqa al-Abhur (Beirut-Lebanon: Dar Ihya Turath Arabi, 2012). [12]Abdullah Musali, Ikhtiyar Li Talill Mukhtar (Damascus Syria: dar). [13] Abd al-Ghani Ghunaymi, Lubab Sharh al-Kitab (Damascus Syria: Darul Ilm al-Hadith, 2001), p. 112; Ibn Maza, ii; Lakhnawi, Sharh Al-Hidaya. [14] Ibn Nujaim, i. [15] The same example is found in Abdullah Nasafi, Kanz Daqaiq (Karachi- Pakistan: Maktaba Bushra, 2010). [16] Abu al-Hasanat Abdul Hayy Lakhnawi, al-Nafi al-Kabir Sharh al-Jami al-Saghir (Karachi- Pakistan: Idarat al-Quran wa al-Uloom al-Islami, 1990). [17] Ibn Hummam. [18] Ibn Maza, ii; Badr al-Deen al-Ayni, Minhat Al-Sulook (Qatar: wazarat al-Awqaf, 2007), p. 188. [19] A similar point is made in Ibn Nujaim. [20] ‘Syrian Railways’, Wikipedia, 2017 <https://en.wikipedia.org/w/index.php?title=Syrian_Railways&oldid=774364738> [accessed 11 May 2017]. [21] ‘Car Ownership | Explore 20th Century London’ <http://www.20thcenturylondon.org.uk/car-ownership> [accessed 11 May 2017]. [22] Similar point stated in wazarat al-awqaf, p. 29., where Shafis and Hanbalis explicitly state that their position is a hukm Ta’abbudi. [23] al-Uthmani, i. [24] Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari‘ah in the Modern Age (Rowman & Littlefield, 2014).