f) The last contextual indicator we can cite is by employing another principle from legal theory on the narrations themselves. We have narrations that absolutely prohibit musical instruments, while another set of narration prohibits them based on lahw. Based on discussions in legal theory, this is a simple reconciliation where we can restrict the absolute nature of the first set with the second set of narrations.
Sayyid Khāmenī is the only jurist I have seen make this argument. According to Sayyid Khāmenī, narrations which prohibit musical instruments absolutely are like the reports of Sakūnī:
Imam Ṣādiq (a) said, that the Prophet (p) said: I prohibit you from dancing, wind instruments, string instruments and drums.
The report which he considers to be limited is the narration of Ḥumrān that we cited earlier:
…you will see women striving hard to impress the disbelievers and instruments of lahw will become manifest, while people will pass by them and no one will stop them.
If we will wish to employ this method, we must look at the chain of transmitters of these reports, especially the second one as we will use the second to restrict the absolute nature of the first one. The second report has two chains, the first of them is weak, but the second is authentic and reliable.
Even though this second report is reliable, the issue is in its signification. This is a very lengthy report which mixes matters that are prohibited with those that are simply detested ethically. For example, this same narration says if you see a society begins to utter a lot of praise and compliments to each other, this is detested, yet the narration puts it alongside fornication and other major sins; or it says that women will attend gatherings just like men do, while no one considers the former to be prohibited; or that a person will respect their neighbour out of fear of their tongue etc.
As it can be seen this report is not necessarily enumerating prohibitions, rather it is concerned with communal and social vices and things that are detested. Even though we can derive the undesirability of these matters, it is very difficult to use the part about music instruments as a definite restrictor. This is something Sayyid Khāmenī himself realizes1 in his discussions.
Let us assume we accept the meaning of the second narration regardless, but what is the relationship of these two narrations? The fact is, the second narration would still not be able to be used as a restrictor, because the two reports do not have a relationship of iṭlāq and taqyīd, rather their relationship is ‘umūm wa khuṣūṣ min wajh. One report is prohibiting a musical instrument and the other is prohibiting instruments of lahw, however musical instruments can either be used as lahw or not, and instruments of lahw themselves can either be musical instruments or some other instruments like gambling tools.
Even further, even if we ignore the previous point, we will still not be able to use the second narration as a restrictor because iṭlāq and taqyīd is not between muthbitayn – meaning two reports which are affirmative, rather it is between one affirmative and one negative. For example, we do not consider the relationship between these two propositions as iṭlāq and taqyīd:
A: Respect a scholar; B: Respect a righteous scholar
Sayyid Khāmenī also addresses this point but tries to respond to it,2 by saying if the ruling of a subject matter is one, then we can consider two affirmative propositions as a case of iṭlāq and taqyīd as there will be a conflict between them.
A: If you do ẓihār then free a slave; B: If you do ẓihār, its penalty freeing a believing slave.
We know ẓihār does not have more than one penalty, in other words the ruling of the subject matter is one; however we see that the first proposition is absolute, and the second proposition restricts it to a believer.3 This is a conflict, because what exactly is the penalty, absolute or restricted? Sayyid Khāmenī says this case applies in our scenario too.
However, the question is, how do we know there is only one ruling for the subject matter of lahw or musical instruments? In the case of ẓihār, we knew that there is one ruling for the subject and that too due to our knowledge of the cause of the penalty – we know ẓihār (which is the cause) does not result in two rulings. However, in the case of music instruments if we assume God has legislated an absolute ruling for it first, but a second proposition limits it to lahw, how do we know these two have the same ruling? If we even give a mere possibility that there may be multiple rulings, such as God could have prohibited lahw and secondly He could have prohibited musical instruments absolutely, this possibility of two rulings is enough for us to not be able to use this method.
A More Fundamental Point
We discuss the issue of lahw in two stages, first determining whether instruments of music themselves are absolutely prohibited or not; and the second is to determine whether instruments of lahw are absolutely prohibited or not.
However, we want to discuss an even more fundamental premise and that is whether lahw itself is prohibited or not in Islam. We saw most jurists did not consider lahw to be prohibited in and of itself, let alone in absolute terms, but yet they considered instruments of lahw to be prohibited. If lahw is itself not prohibited, then how can jurists conclude instruments of lahw are prohibited? In other words, you can do any act of lahw without using an instrument of lahw, it will be permissible, but if you use an instrument it will become prohibited.
Why did jurists consider instruments of lahw prohibited? It is very clear these jurists were not using verses of the Quran as their main argument, rather the thirty-odd narrations we have on the subject. However, when we look at these narrations we realize some of them are weak in narration and others do not really prove prohibition. We do have a few jurists in the past like Mullā Nārāqī in his al-Mustanad realized this issue and also some contemporary jurists such as Ayatullah Taqī Qomī.4
In the next lesson, we will briefly analyze some of these narrations and see whether there are any reports in there which have an authentic chain and their meanings prove the prohibition of instruments of lahw.