Taswiya (equality and levelling: rows, bowing, zakat shares, wives, judges, gifts, shuf'a, public places, graves)

Taswiya means justice and fairness in the language, and its opposite is injustice. In the jurists' use it means equality in several matters: levelling the rows and the back in bowing, equal shares among the zakat categories, equal turns among wives, equal treatment of litigants, equal gifts among children, equal shares of pre-emption, equal use of public places, and levelling a grave. ^{1 2}

Levelling the rows in congregational prayer is a confirmed sunnah by agreement: no worshipper should stand ahead of another, and the rows should be closed so that no gap remains. ⁶

The fullest bowing is when the back and the neck of the worshipper are level, and his hands rest on his knees; the head is neither raised nor lowered, as the sound reports describe. ^{6 7}

The Hanafis, Malikis and Hanbalis allow giving to one category of the eight, and even to one person within it; neither the imam nor the owner must cover every category. They cite the practice of Umar, who gave the household of each family in the cattle sadaqa enough for its needs. ^{7 8}

Al-Nakha'i holds that if the money is large enough to cover the categories it is divided among them, and if small it may be given to one category. ⁸

The Shafi'is, and Ikrima, require covering all the categories when the imam or his deputy divides the zakat; if some categories are missing the rest are given to those present. An owner who divides it himself must cover the seven categories other than the collector if the recipients are confined to his town, and otherwise give at least three from each category. ⁸

Those who require equality hold that it is obligatory whether the imam or the owner divides, because God joins the categories with the conjunction of association, which implies equality; a report about the sadaqa, weakened by al-Suyuti and al-Haythami, is cited too. The imam must equalise among individuals of one category when their needs are equal; the owner is not bound to do so, but it is recommended when needs are equal. ^{8 3}

The jurists agree that the husband must divide his nights equally among his wives, even if he is sick, castrated or impotent, because the purpose of the turn is companionship, which is present without intercourse. Turns are also due to a sick, menstruating or post-natal wife and the others the jurists list. ³

The detail of turns while at home and on a journey, and on the first night of a bride, is set out under the entry on turns among wives. ⁴

The jurists agree that the judge must be even-handed between two litigants in everything: in the sitting, the glance, the gesture, the address, the welcome, the listening, the return of greetings and the look on the face. Reports to this effect are cited, including a saying that whoever is tried with judging among Muslims must be even in word, gesture and seat, and a letter from Umar to Abu Musa al-Ash'ari to the same effect. ⁴

Where several litigants come, the first to come is heard first; if the earlier one is unknown or they come together, lots are drawn. Travellers are given precedence if they are few and their delay would harm them, and women go first to protect their privacy, so long as their number is not large. ⁴

Equality between a Muslim and a non-Muslim litigant: the Hanafis and Malikis, and a weaker Shafi'i view, require equal treatment in all these matters, since raising the Muslim over the non-Muslim breaks the other's heart. The preferred Shafi'i view and the Hanbalis allow raising the Muslim over his non-Muslim opponent, citing the case of Ali and a Jew over a shield, which was heard by Shurayh, who rose for Ali and seated the Jew beside him; Ali said that if his opponent had been a Muslim he would have sat with him, but that he had heard not to treat the people of the book as equals in gatherings, and that Islam is exalted and not exalted over. ^{4 5}

The Hanafis, Malikis and Shafi'is hold equality among children in gifts recommended, not obligatory. They cite Abu Bakr, who favoured Aisha with a gift, and Umar, who gave his son Asim a share. ⁵

The Hanbalis, Abu Yusuf of the Hanafis, Ibn al-Mubarak, Tawus, and a narration from Malik hold equality obligatory. A father who favours one child sins and must make up the difference, either by taking back what was given to the favoured child or by completing the share of the other. They rely on the report of al-Nu'man ibn Bashir, whose father gave him a gift, and the Prophet ﷺ told him to take it back, bidding him to fear God and be just among his children and not to call him to witness an injustice. ^{5 9}

Equality between sons and daughters: most jurists read equality as equal gifts without preference, since the reports do not distinguish males from females. The Hanbalis, Muhammad ibn al-Hasan of the Hanafis, and a weaker view among the Shafi'is hold that the gift should follow the inheritance shares, so that a son receives twice a daughter's share. ⁹

If a father prefers one child, or gives a waqf to some and not others, Ahmad is reported to dislike it if it is done by way of favouritism, but to allow it where a child has dependants or a need. By analogy, endowments for those who study or for the pious, to encourage them, are allowed. ^{9 10}

The Malikis, Shafi'is and Hanbalis hold that co-owners take pre-emption in proportion to their shares. If land is held by three partners, one owning half, one a third and one a sixth, and the half-owner sells, the second takes two parts and the third one part. ¹⁰

The Hanafis, a weaker Shafi'i view, some Hanbalis, and a number of later jurists hold that co-owners divide the share by the number of heads, since the basis of pre-emption is the partnership itself and they are equal in it. ¹⁰

Jurists agree that public places, such as roads, open spaces around towns, mosques, rivers and springs, visible mines, salt, water, sulphur, kohl and pasture, are shared by all people, who have equal rights in them for passing, resting, sitting, trade, reading, drinking and watering. ¹⁰

No one may enclose such a place for himself or deny it to the public. The right belongs to whoever arrives first until he leaves; a report about Mina says that whoever arrives first has the better claim to its place. The use must not harm others; if people are harmed it is not permitted at all, on the principle that harm is not to be inflicted or returned. ²

The Hanafis, Malikis, Shafi'is and Hanbalis recommend raising a grave a span or a little more above the ground, when there is no fear of it being dug up by an unbeliever or someone else, so that it is known, visited, prayed for and respected. They cite that the Prophet's grave was raised about a span, and A'isha's description of the three graves as neither high nor flat, spread over a red gravel plain. ²

The sound view among the Shafi'is is that levelling the grave and making it flush with the ground is better than a ridge, since a report says the three graves were found flat. Most jurists dislike a large rise beyond a span unless there is need, such as a fear of digging, citing the Prophet's order to Ali to level a raised grave. ²