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Legal Research in Tawaf around the Ka'bah
on the Second Floor of the Sacred Mosque
Writer: Sheikh Muhammad Jawad Fazel Lankarani (may Allah grant him long life)
Translated by Javed Akbari
In the present time in which the first storey of the Sacred Mosque is thirty centimeters above the roof of the holy Ka'bah, many different views have been put forth with respect to the permissibility or impermissibility of performing tawaf on the upper floor of the Grand Mosque. The same controversy would exist about the permissibility of performing tawaf on the underground floor, if one such ground is supposed to be built under the Mosque.
In the case of permissibility of circling the Ka'bah on the second floor of the Sacred Mosque, would it be bound to specific circumstances such as when the ground floor is overcrowded or when a pilgrim has to use a wheelchair if he is unable to perform tawaf on foot or in the existence of some other problems? Can he be free, in the first place, to choose between performing tawaf on the ground floor and on the second floor?
We will focus our research, in this connection, on specific areas of the topic under the following sub-titles:
1) Question concerning the boundary of tawaf
Obviously, one who does not consider any boundary for tawaf, the way is open to him to enter this discussion but those who consider a boundary for tawaf (as is the case with the famous stance), is the way open to them to enter this discussion?
It seems though that the answer is in the positive because this question is based basically on the assumption that if, for instance, a second or a third floor is built around the Ka'bah with its height exceeding the height of the Ka'bah, then we would have to discuss whether or not it is permissible to circumambulate the Ka'bah on it. Then the discussion would become a real necessity. Of course, at present such a discussion has no external manifestation.
2) Increasing the height of the Ka'bah
The impermissibility of destroying or reducing the building of the Ka'bah is indisputable and there is no one opposing it. However, as to raising and increasing the height of the building, there are two types of views (the law of circling the Ka'bah from a higher place would be different subject to those views):
A) In case of permissibility of raising the building by twofold or more, there is no doubt that circling around the raised part is allowed, even if the place of tawaf is higher than the existing building.
B) In the supposition that "it is permissible to increase the height of the building but it is not increased", the dispute would occur as to whether or not it is permissible to circle the Ka'bah from a place higher than the height of Ka'bah.
C) If we simply state that it is not permissible to raise the building of the Ka'bah, then seemingly there would be no difference as to the impermissibility of circling the Ka'bah from a higher place.
As per the existing evidences, it is permissible to increase the height of the Ka'bah because permissibility is the primary principle, and Ka'bah is like all other sacred places and buildings. As we can raise or enlarge the building of a mosque, we can also do the same with the Ka'bah. We should not consider the law concerning the Ka'bah as incontrovertible or binding to the extent that one should accept it in absolute obedience.
There are many traditions as proof of the permissibility of raising the height of Ka'bah building. One of them is the following tradition:
ذَكَرَ جَماعَةٌ عَنْ أَحْمَدَ بْنِ مُحَمَّد عَنْ سَعِيدِ بْنِ جَنَاح عَنْ عِدَّة مِنْ أَصْحَابِنَا عَنْ أَبِي عَبْدِ اللَّهِ (عليه السلام) قَالَ : «كَانَتِ الْكَعْبَةُ عَلَى عَهْدِ إِبْرَاهِيمَ (عليه السلام) تِسْعَةَ أَذْرُع وَ كَانَ لَهَا بَابَانِ فَبَنَاهَا عَبْدُ اللَّهِ ابْنُ الزُّبَيْرِ فَرَفَعَهَا ثَمَانِيَةَ عَشَرَ ذِرَاعاً فَهَدَمَهَا الْحَجَّاجُ وَ بَنَاهَا سَبْعَةً وَ عِشْرِينَ ذِرَاعاً»
It has been reported by a group of people from Ahmad bin Muhammad from Sa'eid bin Janāh from some of our companions from Abi Abdillah (Imam J'afar Al-Sadiq a.s.) that he said: "During the period of Ibrahim (a.s.) the Ka'bah was nine cubits high and it had two (eastern and western) doors, then Abdullah bin Al-Zubair reconstructed it (after it was damaged by Yazid's army) and raised it to eighteen cubits, it was then (after Yazid's death) destroyed by Hajjāj and reconstructed as high as twenty seven cubits[1]."
It is clearly understandable that the Imam's act of not prohibiting height increase (by Ibn-e Zubair and later by Hajjāj) is an evidence of its permissibility. But this narrative is not reliable because Ahmad bin Muhammad is in the chain of transmission; he shares the same name as a group of other narrators and it is not clear as to which one of them is the narrator. Although Najashi has authenticated "Sa'eid bin Janāh" and the authentication is available in Kamil al-Ziarat he who narrates from him is anonymous. Therefore, this narration cannot be used and treated as a valid reference for the above.
3) Inclusion of recommended tawaf
Apparently, the foregoing controversies do not apply specifically to obligatory tawaf; rather it is also applicable to a recommended tawaf. Therefore, if the distance between the Ka'bah and Maqam-e (station of) Ibrahim is the defined location for tawaf, there is no doubt that it would be necessary to observe the boundary in recommended tawaf as well.
The reason is the absoluteness of the narrations from which it is understood that the area of tawaf is the distance between the Ka'bah and the Station of Ibrahim. If one circumambulates from beyond the boundary, he is not considered to be a circumambulator. There is no reason to state that the general arguments include the "obligatory tawaf" only, as we also have no reason to say that they are different in terms of the law. Of course, according to some narrations, there are some differences between an obligatory and a recommended tawaf. Some of those differences are stated as under:
A) Purity is not required in a recommended tawaf as clearly demonstrated by reliable narratives. An authentic tradition reported by Muhammad bin Muslim says: "I asked one of the two Imams (a.s.) about a man who performed an obligatory tawaf without ritual purity, the Imam replied: he should make wudhu and repeat the tawaf. If it were a recommended tawaf, he should make wudhu and offer two units of prayers.[2]"
B) This is against Abu al-Salah's standpoint concerning the issue. He states that the absoluteness and generality of the narrations include recommended tawaf also. Thus, wudhu is mandatory in a recommended tawaf also.
C) Adding one round to the seven rounds is makrooh (undesirable) in recommended tawaf (whereas it is not permissible in an obligatory tawaf).
4) Partial or complete inclusion of the body in tawaf area
Is it obligatory for the circumambulator's body to be entirely within the boundary of tawaf, or it would be sufficient, if most parts of his body are in such a way that they are considered by Urf (custom) to be within? It appears from the arguments that customary applicability in this regard is sufficient. Thus, if most parts of a circumambulator's body are within the tawaf area and only his head is higher than the Ka'bah, his tawaf would be in order and there is no evidence by which to prove that the circumambulator's body should be entirely within the tawaf boundary. In regard to facing the Qibla, the author of Jawaherul Kalam states explicitly as such:
"If one is said to be facing the Qibla, it is sufficient although part of his body may not be in the direction of the Qibla and it is not necessary that one's entire body parts be set in the direction of Qibla. That is, if God orders us to face the Qibla, it would be sufficient for us to stand in the direction of Qibla in such a way that could be considered by "custom" as an external compliance of the order."
He further adds: "The how-about of facing the Qibla is a customary issue which the Shari'ah has no interference with. Apparently, if one is considered by the "custom" to be facing the Qibla, it would be sufficient, although some organs of the body, which have no role with regard to facing the Qibla, are not in the same direction. There is no difference between one who stands near the Ka'bah and one who is far from it. However, in Qawa'ed, it is mentioned that: if some parts of the body of the person who offers a prayer fall out of the direction of the Qibla, his prayer would be void. A similar saying is said to be available in the books: Nihāyatul Ahkām, Tahrir, Tazkirah, Zekrā, Bayān, Mujaz, Kashful Iltebas, Jame'ul Maqāsed and Qawa'ed.
Based on the thorough research we have conducted, the conclusion we reached is that nothing else is required besides facing the Qibla to the degree accepted by "custom". If it is said that "custom conformity" depends on facing the Ka'bah with all the body parts, then we would say that wherever there is the simple order as in "stand in the direction of Qibla", our conscience would deny the said claim outright."[3]
It appears that tawaf is like facing the Qibla in which "custom conformity" for the implementation of the Quranic verse «وَ لْيَطَّوَّفُوا» (you must circumambulate) is sufficient, so all body organs are not necessary to be within the tawaf boundary in such a way that if one's head or hand falls out of the periphery, it would be considered an invalidation of the circumambulation. Obviously, there is no Shari'ah-based or bound concept for "tawaf", nor has God made any change in its original meaning. Although God has mentioned some conditions for tawaf (such as purity and Hajarul Aswad as the starting and ending point), He has not offered any special procedure for tawaf itself.
Of course, if we consider an extended area for tawaf and consider the act to be permissible from the second floor, which is higher than the Ka'bah, there would be no benefit in our discussion and the talk about partial or complete inclusion of body organs within the boundary of tawaf.
5) Constructing buildings higher than the Ka'bah
Constructing buildings higher than the Ka'bah has been forbidden by some traditions. Some of the traditions are as under:
"It is reported by Muhammad bin Ya'qub, from Muhammad bin Yahya, from Muhammad bin al-Husain, from Ali bin al-Hakam, from Safwan, from al-Alaa, from Muhammad bin Muslim, from Abi J'afar (a.s.) who said:
«وَ لا يَنْبَغِي لاَِحَد أَنْ يَرْفَعَ بِنَاءً فَوْقَ الْكَعْبَةِ»[4]
Imam Baqir (a.s.) said, "It is not appropriate of anyone to raise a building higher than the Ka'bah".
The tradition has a reliable chain of transmission because according to late Ayatollah Khoei, Muhammad bin al-Husain in the chain of transmission is Muhammad bin al-Husain son of Abu al-Khattab[5] who is a trustworthy and respected person.
As for Ali bin al-Hakam, he is also reliable. As to Safwan, although he could be either "Safwan bin Mahran" or "Safwan bin Yahya", both of them are reliable. Another person whose name is mentioned in the chain of transmission is "al-Alaa" who is son of Razin (al-Alaa bin Razin); he is also a trustworthy and respected person.
Sheikh Mufid (may Allah bless him) has reported in his book "Al-Mughen'ah from Imam Sadiq (a.s.) as such:
«نَهَى أَنْ يَرْفَعَ الاِْنْسَانُ بِمَكَّةَ بِنَاءً فَوْقَ الْكَعْبَةِ»
"God or Imam (a.s.) forbade a man from making a building in Makkah higher than the Ka'bah."[6]
There are different views and standpoints about the nature of prohibition in these traditions. Some scholars say that the prohibition means only undesirability whereas others say that it means "prohibition". Irrespective of these differences, the question that comes forth naturally is: Does the prohibition in this tradition include all buildings of the city of Makkah including the buildings within the Grand Mosque? If so, it would mean that because of the greatness, sanctity and sacredness of the Ka'bah, God has forbidden construction of any building higher than the Ka'bah, even if it may be inside the Sacred Mosque. Or does the tradition include only personal buildings of people outside the Mosque?
It appears that the Imam's saying is absolute and there is nothing in the sentence to show that it refers to buildings only outside the Grand Mosque. The indefinite word (a building) used after the word "forbade" is another indication of the generality and inclusiveness of the statement. In addition, the relation between the ordinance and the subject is a context confirming the above explicit indication because the greatness and sanctity of the Ka'bah requires that its grand and superior status be preserved over all other buildings including the buildings inside the Sacred Mosque.
It can possibly be said in the absoluteness of the Imam's saying that performing tawaf on the present second floor is not valid because according to the researches made so far, the said floor is 27 centimeters higher than the roof of the Ka'bah. The reason for the invalidity of the tawaf is that we understand by way of the customary implication of the prohibition about constructing buildings that circumambulation is not valid on a surface which is higher than the height of the Ka'bah or it can be deduced that it is even not permissible for a man to be at such a place.
To be fair, this tradition does not include tawaf on a surface which is higher than the height of the Ka'bah because it prohibits constructing such buildings that are higher not people who do tawaf out of respect for the House of God. Therefore, the saying does not include circumambulating pilgrims in the same manner that the dignity of the Ka'bah, which is the main reason of the above injunction, does not include the buildings belonging to the Sacred Mosque that are considered as subordinate to the House.
6) Tawaf from a floor higher than the Ka'bah
A summery of this section, which is highly crucial to our discussion, is this that the famous position among the jurisprudents or even Muslims, as mentioned by Kashiful Ghita, is that the Qibla in terms of height is extendable to the sky and in terms of depth, it is extendable to the depth of the earth. It is not, therefore, restricted to a certain building. Apparently, the first person to state this explicitly was Zainuddin bin Ali bin Ahmad (better known as Shahid Thani) in his book titled Masalik. Then, Sayed Muhammad Ali Ameli and the author of Madarek as well as the latter generations of scholars until today have followed suit. Thus, it became an indisputable and widely accepted jurisprudential position among all scholars. [7]
The question that is raised here is whether tawaf can be similar in some way with Qibla so that the atmosphere higher than the Ka'bah or the part underneath it could be treated as the boundary of Ka'bah. In other words, is tawaf in these areas considered to be tawaf around the Ka'bah? If not, the aforementioned rules will be applicable exclusively to Qibla.
It appears from the traditions that the rules do not apply to Qibla only because some of the traditions are absolute which means that we can infer from them the "permissibility" of doing tawaf around the atmosphere of the Ka'bah.
Late Sheikh Saduq has narrated the following mursala (a narration where the chain of narrators is missing the name of the companion who reported it) from Imam Sadiq (a.s.):
«أَسَاسُ الْبَيْتِ مِنَ الاَْرْضِ السَّابِعَةِ السُّفْلَى إِلَى الاَْرْضِ السَّابِعَةِ الْعُلْيَا»
The pillar of the House (of God) is set at the seventh lower layer (floor) of the earth and stretches up to the seventh upper layer of the earth.[8]
Although this narration is mursala, the missing name in the chain of narration, as per the researches, does not harm its validity because the purport of the narration is clear and there is no such a context to show that the narration is applicable exclusively to Qibla (a.s.). It appears from the word "pillar" which means foundation that the atmosphere above the Ka'bah is not intended. Literally it means that the seventh floor under the earth up to the top floor is part of the Ka'bah. It should have the same meaning unless we say that the word "al-ardh" (earth) in the narration is not an antonym of "al-Samā" (sky) and that it has been used metaphorically in the sense that "the lower and upper levels (floors) of the earth" in the narration have been used to mean that the Ka'bah stretches from both sides i.e. the upper and lower sides.
The proof is in some narrations which have been used to explain the verse 12 of chapter Talaq [9] « اَللهُ الَّذِي خَلَقَ سَبْعَ سَماوات وَ مِنَ اْلأَرْضِ مِثْلَهُنَّ...» where it has been stated that the "upper earth" is intended for the seventh earth which is above the sixth sky (heaven). It has been narrated by Ayyashi through Husain bin Khalid from Imam Kazem (a.s.) that he opened his left palm and then placed his right palm on it whereupon he said:
«هذه أرض الدّنيا، والسّماء الدنيا عليها قبّة، والأرض الثانية فوق السماء الدّنيا، والسّماء الثّانية فوقها قبّة، والأرض الثّالثة فوق السّماء الثانية، والسّماء الثالثة فوقها قبّة ـ حتى ذكر الرابعة والخامسة والسّادسة، فقال والأرض السابعة فوق السّماء السادسة، والسّماء السابعة فوقها قبّة. وعرش الرّحمن فوق السماء السّماء السّابعة وهو قوله: « سَبْعَ سَماوات وَ مِنَ اْلأَرْضِ مِثْلَهُنَّ...»[10]
This (left hand) is the earth of the world, the sky of the world is above it like a tomb, the second earth is above the sky of the world and the second sky is situated above it like a tomb and the third earth is above the second sky and the third sky is situated above it like a tomb, until he counted the fourth, fifth and sixth, and then said: "It is God who has created the seven heavens and a like number of earths."
In this narration it is stated clearly that the Ka'bah stretches from both the upper and lower directions. In any case, there remain no doubt that such an interpretation bears the aforementioned implication.
According to some narratives related about Qibla, it is also stated that the Qibla stretches upwards. Abdullah bin Senan reports from Imam Ja'far Sadiq (a.s.) as such:
«...سَأَلَهُ رَجُلٌ قَالَ: صَلَّيْتُ فَوْقَ أَبِي قُبَيْس الْعَصْرَ، فَهَلْ يُجْزِي ذَلِكَ وَ الْكَعْبَةُ تَحْتِي؟ قَالَ نَعَمْ إِنَّهَا قِبْلَةٌ مِنْ مَوْضِعِهَا إِلَى السَّمَاءِ»[11]
A man asked the Imam (a.s.): I offered prayer at the top of Abu Qubais Mount, is the prayer I offered there valid while the Ka'bah was below me? The Imam (a.s.) answered: "Yes, the Ka'bah stretches from where it is up to the sky."
Apart from the the said narration in Ayyashi's commentary book, when we put Abdullah bin Senan's narrative beside the aforementioned mursala narration, we come to understand that Ka'bah is not used exclusively for the existing building, rather it stretches both upwards and downwards.
We can further add here that we cannot consider any difference between either side of the Ka'bah by saying that the Ka'bah stretches only upwards or only downwards. Ibn-e Senan's narration cannot provide any context as to the meaning of the mursala which is only about standing in the direction of Qibla. The two narrations are stated in the positive. In addition, where there are two positive statements, it is not valid to add a defining clause to one of them in the form of an adverb or a condition to change its over-all meaning.
Questions and Answers
Question 1: The apparent meaning of the narrations about tawaf is that, tawaf should be done round the very building of the Ka'bah. In this connection, the verse « وَلْيَطَّوَّفُوا بِالْبَيْتِ الْعَتِيقِ »[12] indicates also that circumambulation should take place round the Ka'bah itself, not its atmosphere. Consulting a dictionary specially about the word "حول" (round) which has been used in some narrations would confirm our point. Thus, when the sentence (طاف بالمكان) is uttered by someone, it means that he should make the place the center of his rotation, so he should rotate round the place, not above or below it.
Answer: Although the apparent meaning of the statment is as it was said, the narratives are dominant over it in the sense that the narratives interpret and extend a thing which is extendable. Similarly, the apparent meaning of the textual arguments about praying in the direction of Qibla is that it is necessary, at least for those who are there, to offer their prayers towards the Ka'bah building itself but the the narrative is eligible for extension with respect to praying in the direction of the Ka'bah. In view of the fact that the obligations revolve around circummbulation and facing the Ka'bah, there does not seem to be any difference between the two.
Question 2: As it is understood from some Quranic verses, it is obligatory on the person who offers prayers to turn his face towards Masjidul Haram. The Quran says:
« ...فَوَلِّ وَجْهَكَ شَطْرَ الْمَسْجِدِ الْحَرامِ وَ حَيْثُ ما كُنْتُمْ فَوَلُّوا وُجُوهَكُمْ شَطْرَهُ...»[13]
Turn then your face towards the Sacred Mosque. And wherever you are, during your prayers, turn your faces towards the Sacred Mosque.
This verse means that baitullah [House of God] has no interference with facing the Ka'bah during prayer. In regard to tawaf also, the duty of a pilgrim is not tawaf round the Sacred Mosque but tawaf round the Ka'bah, as the Quran says: « ... وَلْيَطَّوَّفُوا بِالْبَيْتِ الْعَتِيقِ »[14]which means that one should move round the Sacred House.
The Quran also says:
« ...وَ عَهِدْنا إِلى إِبْراهِيمَ وَ إِسْماعِيلَ أَنْ طَهِّرا بَيْتِيَ لِلطّائِفِينَ... »[15]
We advised Abraham and Ishmael to keep My house clean for the circumambulators.
Obviously, the word "house" in the above two verses refers to the Ka'bah not Sacred Mosque.
Answer: In the first verse, "Masjidul Haram" has been used to mean that it is the Qibla of Muslims in place of Baitul Muqaddas. The Muslims have been ordered to turn their faces from Baitul Muqaddas towards Masjidul Haram but there is no doubt that only who are in Masjidul Haram are obliged to turn their faces towards the Ka'bah. Those who are within the boundary of Haram, they should pray towards Masjidul Haram and those who are out of the boundary of Haram, they should pray in the direction of Haram. Therefore, the word "Masjidul Haram" in the above verse implies Ka'bah or the House and the mosque itself has no interference as to the injunction.
Of course, according to many or most of the scholars or as termed as "our companions" by Sheikh Tabarsi (may Allah bless him) in his book Majma'ul Bayan or according to the consensus claimed by Sheikh Tusi (may Allah bless him) in his book "Khilaf", the Qibla of those who are in the Sacred Mosque is the Ka'bah and those who are within the boundary of Haram, they should pray towards Masjidul Haram and those who are out of the boundary of Haram, they should pray in the direction of Haram. Therefore, no one entertains doubt that the Qibla of those inside the Sacred Mosque is the Ka'bah.
In any case, what we infer from the aforementioned arguments is that there is no difference, from this perspective, between doing tawaf and facing the Ka'bah. The evidence is that, if the Ka'bah building is supposedly eliminated, prayer would be permissible towards its empty atmosphere not towards the eliminated building. Also, tawaf would be obligatory towards the existing atmosphere and one would not be exempted of it, if the building is not there.
Indeed, the extension which includes tawaf does not include Sa'y between Safa and Marwah. Therefore, there would be no ground for thinking that Sa'y would also be permissible from the second floor in the same manner that tawaf is allowed because Sa'y should be performed in the distance between Safa and Marwah mounts, not above them. And there is no reason by which to prove that the atmosphere above the distance between the two mountains can be treated as the actual distance for Sa'y except for when the word "between" is not considered as opposed to "above", rather it is intended to indicate the beginning and end of the Sa'y area which is obviously incorrect.
Question 3: It is stated in some narrations that the angels come down to the earth and circumambulate the Ka'bah. Does it not mean that the Ka'bah building itself is the point for circumambulation otherwise the angels would not need to descend?
Answer: Such a conclusion cannot be drawn from the above narration because it is possible that:
A) The angels might have come down to be in the company of pilgrims who were doing tawaf.
B) They might have come down to gain more reward because doing tawaf round the Ka'bah building is undeniably more virtuous than when it is done from the atmosphere above it.
Question 4: If this Ka'bah extends for circumambulation also, in that case what would be the meaning of putting one's arms around (istilam) the Hajar al-Aswar (Black Stone) or the Yamāni Pillar?
Answer: Istilam or putting one's arms around Hajar al-Aswad or the Yamani Pillar can be done by making gestures also.
In any case, I believe in the permissibility and validity of doing tawaf on the second floor and I do not give up my stance with the foregoing spurious arguments. In other words, if istilam does not take place, even by gesture, from a distance, this would not weaken or damage the view.
Question 5: The 'custom' [urf] permits extension concerning facing the Qibla but it does not do so with respect to tawaf. That is, according to the Custom, in the first case there is no objection to facing the atmosphere of the Qibla. It is accepted and considered to be in order. As for tawaf around the atmosphere of the Ka'bah, the custom does not accept and consider it as a valid form of tawaf.
Answer: Firstly, we do not agree with you in this respect as we believe that 'custom' does not differentiate between the above two cases. Therefore, tawaf from above would be considered 'tawaf' even if the custom may not consider it so. And custom is sufficient when reason orders that it should be implemented just as when a master orders his servant to bring him water and the servant takes him a liquid that is considered 'water' according to the Urf, the master's order has been implemented in such a case.
Secondly, even if we accept what has been mentioned in the question, sometimes a legislator's view is different from that of the custom. For this reason, the divine legislator has considered the upper and lower atmosphere as a part of the Ka'bah and thus permitted praying and doing tawaf around it without having to consider any interference for the Ka'bah building itself.
Undeniably, there is the consensus of both Shia and Sunni sects that unlike praying in the direction of Qibla which can be done from anywhere, it is not permissible to perform tawaf from outside the Sacred Mosque. It should be done inside it. According to most scholars, it should be performed from within the distance between the Ka'bah and Maqam (Station) of Ibrahim whereas Sunni and some Shia scholars have said that tawaf should be done inside the Mosque. However, observing the boundary of tawaf is a different issue which is out of the subject of discussion.
To draw a conclusion from the above discussion irrespective of the mursala narrative which implied absolute validity of prayer and tawaf at the upper and lower atmospheres, it may be said that it is inferable from the arguments about Qibla and tawaf (in view of the singleness of the interpretation about both of them in which the criterion is the House) that since the upper atmosphere is appropriate for Qibla, it is also appropriate for tawaf. If this narrative were not there, it could have been said as such: Undoubtedly, this is an issue related to custom and the questions raised in the narrative is indicative of it because based on the customary orientation, people were offering prayers at the top of Abu Qubais mountain even though they were asking about it later but praying was done at the top of the mountain because of the very presupposition.
Another argument that can be added to the above is the generality of the Holy Prophet's saying«الطَّوَافُ بِالْبَيْتِ صَلاةٌ» [Tawaf of the House is tantamount to prayer]. It can be deduced from this tradition that since the Ka'bah extends from both the upper and lower levels for prayer, it extends for tawaf as well.
The argument substantiating the generality of this tradition is the exception of one case in the Prophet's saying. He said: «إِلاَّ أَنَّ اللَّهَ أَحَلَّ فِيهِ النُّطْقَ»[except that God allowed speaking in it.] The tradition has been narrated through Shia and it is available in 'Awali al-Laali[16]. However, despite it being mentioned in the said book, some scholars have made reference to it. For example, Sheikh Tusi in his book Al-Khilaf[17] and late Allama Hilli in "Mukhtalaf" said: "As it is obligatory to stand in prayer it is also obligatory to stand in tawaf." Also, in regard to modest covering, he has said: "Covering the private part in tawaf is necessary."[18]
Also, it has been reported that Ibn-e Idris gave fatwa in accordance with this tradition despite him being of those who does not act according to a tradition transmitted through a single narrator.
Zainuddin bin Ali bin Ahmad (known as Shahid Thani) says: "This law is substantiated by the generality of the prophetic tradition «الطَّوَافُ بِالْبَيْتِ صَلاةٌ» . Therefore, there is a consensus that any act in tawaf which is known to be having nothing in common with prayer is excluded."[19]
Late Mohaqiq Ardabili has said: "Tawaf around the Ka'bah is considered prayer, therefore whatever is necessary in prayer is necessary in tawaf also except for what is excluded by a reason."[20]
Late Tabatabai has said that the similarity between tawaf and prayer requires that tawaf be considered as prayer in all rules and aspects including cleanness from impurity. [21]
The author of Madarek has opposed them in this respect and said: "This narration is short of a valid chain of transmission and the text is equivocal"[22] but we can say that generality is deduced from the likeness and similarity between tawaf and prayer. That is, if the matter is taken into consideration irrespective of other things, it requires generality. Even if there were no "exception" in the narration, we could have deduced the said generality. Those cases which are proved to be particular to prayer should be excluded.
Question: It may possibly be said that this narration asserts that tawaf in some cases is like prayer but those cases are not clearly pinpointed making the text of the narration ambiguous. Furthermore, if we consider generality for the narration, it would imply a major exception, which is objectionable and unacceptable.
Answer: The absoluteness in the likening removes all sorts of ambiguities. Although exception may be major, it is not to such an extent as to be objectionable by custom.
In any case, there is no doubt that it is well-known among the scholars that most of them have relied on this hadith. If so, its weakness is made up by reliance of the majority to some extent and it is made clear that Grand Ayatollah Khoei's objection that says "it is not known if most scholars may have relied on it" is incomplete.[23] Moreover, late Ayatollah Hakim explicitly states that the weakness of the hadith is made up with the majority of scholars relying on it.[24]
Criticism of Views
It has been narrated through Imamiyah, from Mu'aviah bin Ammar from Imam Sadiq (a.s.) who said:
«...لا بَأْسَ أَنْ تَقْضِيَ الْمَنَاسِكَ كُلَّهَا عَلَى غَيْرِ وُضُوء إِلاَّ الطَّوَافَ فَإِنَّ فِيهِ صَلاةً...»
It is permissible for a pilgrim to perform hajj rituals without wudhu except for tawaf, because there is a prayer in it. [25]
The author of Jawaherul Kalam has made the following deduction from the above narration: "The mursala from the Holy Prophet has been originally like this: فی الطواف بالبیت صلاة There is prayer in the tawaf of the House. The proposition "fi" (in) has been removed from the beginning of the saying due to which tawaf is thought to be like prayer.
However, this deduction is imprecise and impermissible because according to some narrations – as we mentioned earlier – speech has been excluded in the tawaf. The narration says, «إِلاَّ أَنَّ اللَّهَ أَحَلَّ فِيهِ النُّطْقَ» which means that it is permissible to speak during tawaf. Perhaps, Al-Sheikh Muhammad Hasan al-Najafi's using of the narration as an argument[26] without "fi" in several parts of his book is a matter of contemplation.
One thing more to be added to the foregoing arguments is that, if tawaf from a higher place were not allowed, then height would also have been included in the boundary of tawaf. In that case, the divine legislator had to mention it as part of the boundary of tawaf as he has set part of the land of the Sacred Mosque as the boundary. It can therefore be concluded that tawaf from an upper place is valid and there would be no objection to it. If someone says that the non-existence of any reference for it in the narrations is that the issue had not been raised during the early period of Islam and it was not a necessity at that time, this reasoning is tangibly incorrect.
Tawaf on the First Storey according to Ahl-e Sunnat
What we have mentioned so far about doing tawaf from the Second Floor of the Sacred Mosque denotes the weakness of Shafe'ei's view in this respect. He is reported to have said: "If a roof is built over the Sacred Mosque higher than the height of the Ka'bah, it would not be permissible to perform tawaf on it."
It is inferred from Muhammad Hasan al-Najafi's saying that he is opposed to Shafe'ei. He writes, "As it has been narrated from late Allamah in Tazkirah, Shaf'ei's saying implies that, if the Ka'bah building is supposedly – God forbid – destroyed, it would not be permissible to do tawaf around the area. This saying is far from the truth and it is wrong." [27]
It is understood from Muhammad Hasan al-Najafi's saying that tawaf from the roof of the Grand Mosque, though it might be higher, is valid and most Sunni scholars are of the view that there is no objection to the tawaf done from an upper place. Nawawi puts their view as under:
"Sunni scholars say: If the Ka'bah is higher (as it is for the time being) than the roof top of the Sacred Mosque, it is permissible to do tawaf from the roofs of the Sacred Mosque but the author of Al-Uddah does not allow doing tawaf from there. However, Rāfei has objected him saying that if his view were correct, then it would imply that if the Ka'bah building were destroyed, it would not be permissible to do tawaf round its land while it is permissible. In this connection, Rāfei's saying is correct and Qazi Husain has expressed his certainty of the correctness of his view. He has stated as such: If a person performs tawaf from the roof of the Mosque, higher though it might be, his tawaf is valid. Then he mentions a general rule by saying that if the Mosque is extended, the area or the boundary of tawaf would also be extended and our companions are unanimous about it." [28]
Rahili says: "It is permissible to perform tawaf on the roof of the Grand Mosque, even though it might be higher."[29]
Supplementary Discussion
1. Tawaf from a short height: In case the Ka'bah building is not raised and it remains in its present height, we can say that tawaf performed from a little height, for instance 1 or 2 meters, does not render the tawaf invalid; it is still considered tawaf by custom and there would be no objection to it. Therefore, in the present circumstance, irrespective of the arguments that we mentioned, we can say that this much little height does not cause the tawaf to be considered as an invalid form of tawaf. Definitely, there is no doubt that the custom considers it as "tawaf".
2. Inclusiveness towards emergency and non-emergency situations: It is clear from the foregoing discussions that the validity of tawaf is not restricted to emergency situations; rather he who considers no boundary for tawaf can regard it as absolutely valid. God knows best.
3. Deputyship and its legitimacy: It can be deduced from the foregoing arguments that if tawaf from an upper place is valid in an absolute manner, then there would be no need to raise the issue of deputyship (doing tawaf through a proxy) except for the standpoint that considers a boundary for tawaf. Naturally, he who has this standpoint should say that doing tawaf through a proxy is necessary, so tawaf performed on a higher surface, according to it, is invalid. Of course, performing tawaf through a proxy is not because the first storey is higher than the roof of the Ka'bah; rather it is because it is out of the boundary of tawaf. Here the argument occurs that in accordance with the aforementioned standpoint in which there is a boundary for tawaf and deputyship is possible, it is obligatory on the pilgrim to choose a deputy. But if choosing a deputy is not possible and the pilgrim knows from the beginning that it is not possible for him to do tawaf through a proxy and he knows also from the beginning that he himself also cannot perform tawaf on the ground floor, in such a case, would his act of wearing Ihram be valid?
In this case, we can say that Hajj is not obligatory on him. The reason is that, he is unable to create a part or a condition which is a requirement of the Hajj as a whole. The obliged person is therefore considered to be incapable of performing the Hajj with its essential condition. For this reason, he is no longer under the obligation to perform Hajj. This argument is based on the principle established by late Mohaqiq Nayeni (may Allah bless him). According to his principle, the capability condition is understood from the general connotation of the injunction about Hajj, not through reason. In the case of incapability, he is not the addressee of the commandment. Moreover, according to most scholars it is rationally mean to oblige an incapable individual. If capability is not considered to be a condition for obligation and an incapable person is addressed in the same manner as a capable person, then in this case the obligation would include an incapable individual also with the only difference that the incapable person is excused for not carrying out the obligation. In such a case, the incapability to perform a part is equal to incapability to perform the entire Hajj. As a result, the said person is excused for not performing Hajj. This is the view held by late Imam Khomeini and Ayatollah Khoei (may Allah bless them).
In other words, where there is a single binding order which includes a composite of different obligatory acts and the obliged person is incapable of doing one of them, the remaining acts will also not be obligatory on him except for when there is a particular reason for its being mandatory, as it is in the case of prayer.
Question and Answer
1. It has been proved in its place that the common point between the possible and impossible acts is considered possible. Thus, if some parts of a "whole" are possible and some are not, the obligation would apply to the nature.
Answer: It is correct only when we talk of "general" and "particular" not of a whole and a part. Here the question deals with the second and in this case one should say: One who is unable to perform a part of the act is naturally incapable of creating the whole.
2. Since there is no concurrence between the "non-compulsoriness of Hajj" and "invalidity of Ihram" and no one has ever made such a claim, we can say that the Ihram is in order, even though Hajj is not obligatory on him. Given that there are ways to come out of Ihram garb, it is possible to come out of it.
Answer: Ihram is also one of the components of Hajj; if a pilgrim is unable to create one of its components, other components are not treated as impossible but the ordinance which includes "a compound obligatory act" does not include him. Since every component of the "compound" is not recognized as independent therefore, Ihram would not be valid in this supposition.
In view of the foregoing arguments, it becomes clear that a person who is unable to perform tawaf in its correct and legal manner and he is also unable to deputize someone, he will be exempted of the entire Hajj as his Ihram is also not correct.
Obviously, the capability to do hajj, though by proxy, is sufficient for the obligatoriness of Hajj, because one who is able to deputize someone in matters where deputyship is allowed is considered to be "capable". Thus, if a pilgrim is unable to perform tawaf and Sa'y but he is able to deputize someone to perform them and offer the prayers and do Taqsir (cutting short the hair), his Ihram and Umra would be in order.
Abstract and Conclusion
The conclusion that can be drawn from this research work is stated briefly as under:
1. It is permissible to raise the Ka'bah. No matter how much the height of the Ka'bah is raised, it would certainly be permissible to perform tawaf around the added height.
2. The narratives which forbid from making buildings higher than the height of the Ka'bah does not include the Sacred Mosque.
3. For the reasons that will be mentioned below, expanding the Ka'bah from the above and underneath the Ka'bah is not restricted to facing the Ka'bah during prayer; it includes tawaf also:
A) The mursala narration which Saduq has narrated from Imam Sadiq (a.s.) implies that "the pillar of the House (of God) is set at the seventh lower layer (floor) of the earth and stretches up to the seventh upper layer of the earth." Expansion is understood for both the upper and lower sides of the Ka'bah.
B) Irrespective of the mursala narration, it can be said that what is understood from the arguments about qibla and tawaf, given the single interpretation about both of them, is that, as the above of the Ka'bah is eligible for praying in its direction, it is also eligible for performing tawaf around it.
C) It can be understood from the overall similarity depicted by the narration «الطَّوَافُ بِالْبَيْتِ صَلاةٌ» that, in accordance with its general concept, we can use the narration to deduce "extension" in the area of discussion. We have proved that there is no objection to the narration in terms of the chain of transmission, meaning and general implications.
D) There is no doubt that in the present circumstance, tawaf performed on the second floor of the Sacred Mosque is considered tawaf according to the custom (Urf). Regardless of the aforementioned arguments, the customary applicability is sufficient for tawaf on the second floor as there is no Shari'ah-bound reality for tawaf. And it is understood from Muhammad Hasan al-Najafi's saying that, from this perspective, he also sees no problem in the tawaf performed on such a surface which is higher than the height of the Ka'bah.
E) One of the points mentioned as an evidence and confirmation was this that if the divine legislator considered a specific boundary with respect to the height, he had to mention it. Since he has not mentioned it, it is inferred that there is no specific boundary for the height of the Ka'bah.
Finally, since this research is new of its kind and I have seen no one making any attempt in this regard, naturally great precision is required and it is appropriate that the researchers and jurisprudents deal with what has been discussed in this writing in a more exhaustive, extensive and adequate manner.