Sunday, March 20, 2016

(Notes & Audio) The Philosophy of Islamic Jurisprudence

The Philosophy of Islamic Jurisprudence
by Shaikh Abdullah Faisal

Notes Typed Live by AT8 & AT19
Formatted and Edited by Shaikh Faisal & AT19

Saturday, March 19,  2016




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Islamic Jurisprudence is the Shariah 
  • a Qadi of a courthouse needs to know the legal arguments of the Shariah 
  • these legal arguments are called the philosophy of the Islamic jurisprudence
  • they are also referred to as maxims 
  • the experts of fiqh have gathered over 100 maxims
  • today we will cover 14 of these maxims 
  • these 14 were chosen because they happen to be the most popular among the fuqaha

WHAT ARE THESE LEGAL ARGUMENTS 

1. ACTIONS ARE JUDGED BY INTENTION

Imam Ahmad (bin Hanbal) said that "The principles of Islam are based on three hadith: The hadith of 'Umar that "deeds are judged only by intention," the hadith of 'A'isha, "Whoever introduces into our affairs that which does not belong, it is rejected," and the hadith of al-Nu'man b. Bashir, "The halal is clear and the haram is clear." [Jami’ al-Uloom wa al-Hikam, Ibn Rajab (1/61)] 

  1. Actions are judged by intention
  2. Anyone who introduces anything new into the deen not of it shall have it rejected
  3. What is Halal is Clear and What is Haram is Clear

    some scholars mention a 4th Hadith which is:
  4. Part of being a good Muslim is minding your own business
The importance of niyyah in Islam
  • All of our actions are judged by our niyyah
  • therefore, our niyyah determines whether our actions are accepted or rejected
  • our niyyah also determines whether or not we are guilty of a crime
  • an example of this is the story of Hatib ibn Abi Balta’a
  • who wrote a letter to tip off Quraish that the Muslims were coming to conquer Makkah
  • the Hadith is mentioned below: 

Narrated By 'Ali: Allah's Apostle sent me, Az-Zubair and Al-Miqdad saying, "Proceed till you reach Rawdat Khakh where there is a lady carrying a letter, and take that (letter) from her." So we proceeded on our way with our horses galloping till we reached the Rawda, and there we found the lady and said to her, "Take out the letter." She said, "I have no letter." We said, "Take out the letter, or else we will take off your clothes." So she took it out of her braid, and we brought the letter to Allah's Apostle. The letter was addressed from Hatib, bin Abi Balta'a to some pagans of Mecca, telling them about what Allah's Apostle intended to do. Allah's Apostle said, "O Hatib! What is this?" Hatib replied, "O Allah's Apostle! Do not make a hasty decision about me. I was a person not belonging to Quraish but I was an ally to them from outside and had no blood relation with them, and all the Emigrants who were with you, have got their kinsmen (in Mecca) who can protect their families and properties. So I liked to do them a favor so that they might protect my relatives as I have no blood relation with them. I did not do this to renegade from my religion (i.e. Islam) nor did I do it to choose Heathenism after Islam." Allah's Apostle said to his companions." As regards him, he (i.e. Hatib) has told you the truth." 'Umar said, "O Allah's Apostle! Allow me to chop off the head of this hypocrite!" The Prophet said, "He (i.e. Hatib) has witnessed the Badr battle (i.e. fought in it) and what could tell you, perhaps Allah looked at those who witnessed Badr and said, "O the people of Badr (i.e. Badr Muslim warriors), do what you like, for I have forgiven you. "Then Allah revealed the Sura: "O you who believe! Take not my enemies And your enemies as friends offering them (Your) love even though they have disbelieved in that Truth (i.e. Allah, Prophet Muhammad and this Quran) which has come to you... (to the end of Verse)... (And whosoever of you (Muslims) does that, then indeed he has gone (far) astray (away) from the Straight Path." (60.1) [Sahih Bukhari, Vol 5, Book 59, Hadith #572]

  • Hatib sent a letter to Quraish, not because he wanted to spy for the enemy
  • his intention was for Quraish to protect his family because he was from a weak tribe
  • if he had doubts about Islam, he would’ve been convicted as a spy and killed
  • because his intention was for Quraish to protect his family
  • his intention saved him from execution
  • another example to prove that our intention determines whether we are guilty of a crime
  • is a father buying a fast car for his son as a gift 
  • and the son speeds and killed a pedestrian
  • the son is a killer, but not a murderer
  • because it was an accident
  • and it was not his intention to use his car as a weapon to kill his Muslim brother
  • also, the man who said to his wife if you leave this home we are finished as a couple
  • would be asked by the Qadi if his intention was divorce
  • if he said NO my intention  was to scare her
  • then his words would not be counted divorce
  • whenever we do pious deeds
  • it has to be for the sake of Allah
  • if we do pious deeds to show off
  • it becomes shirk ar-riyah’
  • i.e. the shirk of showing off
  • the Prophet (saw) feared this shirk for his Ummah
  • the Hadith below explains further

Prophet (pbuh) said: “The thing I fear for you most is ash-Shirk al-Asghar (minor shirk). The Companions asked O’ Messenger of Allah, what is minor shirk? He replied, ‘ar-Riya’ (showing off), for verily Allah will say on the Day of Resurrection when people are receiving their rewards, ‘Go to those for whom you were showing off in the material world and see if you can find any reward from them.” (Reported by al-Imaam Ahmad, at-Tabaraani, and al-Bayhaqee) 

  • whenever we pray a salah
  • we need to make an intention for the salah
  • in order for the salah to be accepted
  • for example, we need to make intention for fajr
  • in order for fajr to be accepted
  • we need to make intention for dhuhr 
  • in order for dhuhr to be accepted
  • the intention is silent and it is in the heart
  • it is bid’ah to recite the intention out loud
  • the only intention we are allowed to recite out loud
  • is hajj and umrah
  • as for fasting in Ramadhan
  • we need to form an intention before fajr
  • in order for the fasting for that day to be accepted
  • the following Hadith explains further:

Hafsah (RA) reported the Prophet (SAW) as saying, “He, who has not formed an intention (to fast) before dawn, has not fasted”. [Sunan Tirmidhi (3/108) No. 730, Sunan Abu Dawud (2/329) No. 2454, Sunan al-Nasa'i (4/196) No. 2331, Sunan Ibn Majah (2/598) No. 1700, Sunan al-Darime (2/12) No. 1698, Musnad Ahmad (6/287) No. 26500] 
  • however, if the fast is sunnah
  • we have until dhuhr for form an intention

Why does Islam demand intention before every ibaada?
  • in order to keep hypocrisy at bay 
  • if Islam did not demand sincere intention
  • for every act of ibaada
  • people would do good deeds to show off
  • and expect Allah to accept it
  • and hypocrisy will become rife in the Muslim community
  • in this regard, Allah said: 

Say (O Muhammad SAW) : "Verily, my Salat (prayer), my sacrifice, my living, and my dying are for Allah, the Lord of the 'Alamin (mankind, jinns and all that exists). He has no partner. And of this I have been commanded, and I am the first of the Muslims." (Al-An'am 6:162-163)
  • even your dying has to be for Allah
  • like the Prophet (saw) said in the following Hadith: 
The Prophet (SAW) said, ‘He who fights to make Allah’s word (i.e. Islam) be superior is fighting in Allah’s cause.” [Saheeh ul-Bukhaari] 

2. THE PREREQUISITE OF A WAJIB IS ALSO WAJIB
  • for example, the salah is wajib 
  • and the prerequisite of the salah is the wudo 
  • therefore the wudo is also wajib 
  • the person who doesn’t perform wudu properly
  • will be in the Hellfire 
  • like the Prophet (saw) said in the following Hadith:
On the authority of ‘Abdullah ibn ‘Amr (RA) who said: The Prophet (SAW) stayed behind us on a journey and then caught up with us, and we were late in praying ‘Asr. We started doing wudoo’ and wiping out feet (not washing them properly), and he called out at the top of his voice: “Save your heels from the fire” two or three times. [al-Bukhari (163) and Muslim (241)] 

  • Another example is
  • to stay away from zina is wajib
  • the only way to avoid zina is to do nikah 
  • therefore the nikah is wajib 
  • another example is
  • you are not allowed to cheat each other with trading transactions 
  • therefore it is compulsory on the Islamic State to teach the traders
  • the rules and regulations for buying and selling 

3. ISLAMIC RULINGS CHANGE ACCORDING TO THE CHANGING OF TIMES
  • someone may ask a Qadi if they can divorce by text 
  • the Qadi will have to keep up with the modern times
  • so the Qadi will accept a divorce done by text 
  • Shaikh bin Baaz even allowed marriage over skype 
  • if no tampering took place
  • and provided that the husband and wife are in the same room at the time of the nikah
  • with their witnesses 
  • divorce over skype is also allowed 
  • Imam Shaafi wrote a book call Al Umm 
  • sometimes you will find two fatwas in this book 
  • because sometimes he was in one country where a different fatwa was needed for another issue 
  • you have to example who is asking the question before passing a fatwa 
  • the Prophet (saw) told an old man he can kiss his wife while fasting during Ramadhan
  • but he (saw) didn’t allow the young man to kiss his wife while fasting during Ramadhan
  • this is called hikmah
  • and hikmah is a gift from Allah
  • hence Allah said:

He grants Hikmah to whom He pleases, and he, to whom Hikmah is granted, is indeed granted abundant good. But none remember (will receive admonition) except men of understanding. (Al-Baqarah 2:269) 

4. CERTAINTY CANNOT BE OVERRULED BY DOUBT 
  • an example for this maxim is
  • the meat of the ppl of the book is halal 
  • because their slaughtering is accepted by Shariah
  • we cannot use doubt to pronounce their meat haram
  • another example is water
  • the water is pure and will be deemed pure
  • because we didn’t see any filth drop in the water
  • a person who makes wudu 
  • is considered to be in wudu
  • because he cannot remember breaking his wudu
  • this maxim also means
  • everyman is innocent until proven guilty
  • we are not allowed to use doubt
  • to punish a defendant
  • we have to abandon punishment
  • when there is doubt
  • the Hadith below explains further: 

Ibn Abbas (RA) narrated the Messenger of Allah (SAW) said: "Abandon the Hudood when there is doubt." [Musnad Abu Hanifa (Kitab al-Hudood) No. 4] 

  • you have to be sure before you punish someone 
  • if you are a Qadi and people give different testimonies 
  • you cannot demand for the person on trial to be killed for murder
  • the family of the victim will have to accept blood money 
  • there are two types of dalil: dhanne and Qat'ee 
  • Dhanne is doubtful dalil
  • Qat’ee is dalil which is certain
  • you are only allowed to punish a person when the dalil is certain [qat’ee]
  • because Allah said we should avoid doubts because some doubts are a sin
  • also, Allah said a doubt cannot take the place of the truth

Certainly, conjecture can be of no avail against the truth. Surely, Allah is All-Aware of what they do. (Yunus 10:36) 

  • conjecture means a doubt 
  • a conjecture cannot be used as the truth 
  • the story below about Mughirah bin Shu’bah is clear evidence that we are obliged to abandon the hudood when there is doubt

The case of Mughirah bin Shu`bah, in which `Umar punished Abu Bakrah and the other two eye-witnesses on the charge of false accusation. A critical study of the entire case shows that this precedent is not applicable to every case where the crime is not proved by proper evidence. The facts of the case are that Mughirah bin Sh u`bah, the Governor of Basrah, did not have good relations with Abu Bakrah, whose house was opposite to his house across the same street. One day the windows of the two houses were opened by a strong current of wind. When 'Abu Bakrah got up to close his window, he saw through the opposite window across the street Mughirah in a state of actual sexual intercourse. He asked three of his friends (Naf`i bin Kaladah, and Shibl bin Ma`bad) who were also sitting with him to stand up and witness what Mughirah was doing. The friends asked him who was the woman. Abu Bakrah. said that she was Umm Jamil. The next day a complaint to this effect was sent to `Umar, who immediately suspended Mughirah and appointed Abu Musa Ash`ari as Governor of Basrah. Mughirah along with the witnesses was called to Al-Madinah. When they were asked about the case, Abu Bakrah said that they had seen Mughirah actually committing sexual intercourse with Umm Jamil, but Ziad said that the woman was not clearly visible and that he could not say definitely whether it was Umm Jamil or not. During the cross examination, Mughirah proved that they could not have seen the woman distinctly from the place where they were standing. He also proved that there was a close resemblance between his wife and Umm Jamil. Besides this, circumstantial evidence also showed that during the Caliphate of `Umar, the governor of a province could not have committed this crime in his official residence, especially when his wife was also living with him. Thus the supposition of Abu Bakrah and his companions that Mughirah was having sexual intercourse with Umm Jamil, instead of his own wife, was nothing but a misplaced suspicion. It was for this reason that `Umar not only acquitted the accused but also punished Abu Bakrah, Naf`i and Shibl as slanderers. It is obvious that this isolated decision was based on the specific circumstances of the case and not on the principle that the witnesses must be' punished when they are not able to prove the charge by their evidence. (For details of this case, see Ahkam al-Qur'an, Ibn al-`Arabi, Vol. II, pp. 88, 89). 

  • when witnesses contradict each other in court 
  • the Qadi is obliged to throw the case out 
  • if they testify about someone committing zina
  • the Qadi is obliged to give 80 lashes to each witness as a slanderer
  • to accuse someone of zina
  • four witnesses have to see the pen in the ink

5. THERE SHOULD BE NO HARMING NOR RECIPROCATING HARM

  • example: someone sold you a fake Dell computer 
  • or a fake Gucci watch and charging the original cost of a designer Gucci watch
  • I saw people sell fake Rolex watches in the streets of Hong Kong while I was there is 1996
  • if someone buy a fake commodity 
  • they can take the matter to the Qadi and get a refund
  • because there should be no harming nor reciprocating harm
  • and the Prophet (saw) said anyone who cheats us is not one of us: 

Abu Hurayra (RA) reported that the Messenger of Allah (SAW), said, "Anyone who carries arms against us is not one of us. Anyone who cheats us is not one of us." [Sahih Muslim, Book 1, Hadith #182] 

  • if you want to sell a used car, you have to declare the faults in the car 
  • so as not to cheat your Muslim brother

6. THE PREVAILING CUSTOM OF THE PEOPLE IS A BASIS FOR JUDGEMENT IN SHARIAH

  • example: if the custom of the people is that verbal contracts are accepted 
  • then you can take a person to court for breaking a verbal contract
  • likewise, if a person should buy a faulty used car
  • that breaks down after one week
  • and the custom of the people is that you have 30 days to return faulty cars
  • then the buyer can take the matter to court 
  • and ask for a refund
  • because the prevailing custom of the people
  • impacts on the Shariah
  • when Islam enters a village or a city
  • we do not change the custom of the people
  • unless the custom is haram
  • for example, in some African countries
  • if a man has two or three wives
  • and he has a guest
  • he sends one of his wives to go and sleep with the guest
  • obviously Islam doesn’t accept this aspect of their custom
  • because it is adultery 

7. EVERYTHING IS HALAL UNTIL PROVEN HARAM

  • this maxim makes it easy for people to practice Islam
  • because Allah intends for us ease and comfort
  • Allah doesn’t intend for us difficulties and hardships
  • ibn Mas’ud use to say what the Muslims see as good, Allah also sees as good:
Ibn Mas'ud (RA) said, "Whatever the Muslims see as good is good with Allah, Whatever the Muslims see as bad, Allah sees as bad." [Mustadrak al-Haakim (3/83) No. 4465, classed as Sahih by Adh-Dhahabee] 

8. HARDSHIP BEGETS EASE 

  • whenever you suffer hardship, you should relax the rules 
  • to make it easy for people to practice 
  • in some countries in Europe, people fasted for 22 hours last year 
  • there is no need people to fast for 22 hours in Europe 
  • they are allowed to fast wit the timetable Makkah 
  • and limit the hours of fasting to 15 or 16 hours 
  • because hardship begets ease 
  • this fatwa is 100 years old 
  • some people who are fasting are ill, old or very young 
  • so we need to limit the hours of fasting to make the deen easy for them
  • about this, Allah said:

Allah intends for you ease, and He does not want to make things difficult for you. (Al-Baqarah 2:185)

And do not kill yourselves (nor kill one another). Surely, Allah is Most Merciful to you. (An-Nisa 4:29)

  • the following Hadith is about an incident 
  • where some people killed a man with the wrong fatwa
  • by making the deen a burden on him

Narrated By Jabir: 'We set out on a journey. One of our people was hurt by a stone, that injured his head. He then had a wet dream. He asked his fellow travellers: Do you find concession for me to perform tayammum? They said: We do not find any concession for you while you can use water. He took a bath and died. When we came to the Prophet (SAW), the incident was reported to him. He said: "They killed him, may Allah kill them! Could they not ask when they did not know? The cure of ignorance is inquiry. It was enough for him to perform tayammum and to pour some drops of water or to bind a bandage over the wound 
(the narrator Musa was doubtful); then he should have wiped over it and washed the rest of his body."' [Sunan Abu Dawood (1/93) No. 336, Sunan al-Daraqutni (1/349) No. 729, al-Sunan al-Kubra al-Bayhaqi (1/347) No. 1075] 

  • we are even allowed to eat pork to save our lives
  • like Allah told us in the following Ayah

Say (O Muhammad SAW) : "I find not in that which has been inspired to me anything forbidden to be eaten by one who wishes to eat it, unless it be Maytatah (a dead animal) or blood poured forth (by slaughtering or the like), or the flesh of swine (pork, etc.) for that surely is impure, or impious (unlawful) meat (of an animal) which is slaughtered as a sacrifice for others than Allah (or has been slaughtered for idols, etc., or on which Allah's Name has not been mentioned while slaughtering). But whosoever is forced by necessity without wilful disobedience, nor transgressing due limits, (for him) certainly, your Lord is OftForgiving, Most Merciful." (Al-An'am 6:145)

  • whenever the Prophet (saw) had something to do
  • he would chose the easiest way out
  • like Aisha told us in the following Hadith:

'Aisha (RA) reported: "Whenever the Prophet (SAW) was given a choice between two matters, he would (always) choose the easier as long as it was not sinful to do so; but if it was sinful he was most strict in avoiding it He never took revenge upon anybody for his own sake; but when Allah's Legal Bindings were outraged, he would take revenge for Allah's sake." [al-Bukhari (3560) and Muslim (2327)] 

9. THE ORIGIN OF THE SPEECH IS LITERAL

  • Whenever Allah says something 
  • we are obliged to take it literal 
  • unless we have evidence to prove that it is metaphorical
  • for example: when Allah said He has taken Muhammad (saw) 
  • by night on the journey of Israh wal Miraj
  • we have to believe that the Prophet (saw) went
  • to the seven heavens with body and soul
  • and not in a dream
  • also, when Allah said He created Adam (as) with His two hands
  • we are obliged to believe that Allah has two hands
  • but they do not resemble our hands
  • because Allah doesn’t resemble His creation in any way
  • about His two hands, Allah said:

(Allah) said: "O Iblis (Satan)! What prevents you from prostrating yourself to one whom I have created with Both My Hands. Are you too proud (to fall prostrate to Adam) or are you one of the highly exalted?" (Sad 38:75)

  • the clock on the wall has two hands
  • but they do not resemble the human hands
  • likewise, Allah has two hands 
  • but they are not like our hands
  • because Allah doesn’t resemble His creation
  • Ahmed Ibn Hanbal used the Hadith below 
  • as his hujjah that Allah has two eyes 

'Abdullah bin 'Umar (RA) said: One day the Messenger of Allah (SAW) mentioned Al-Masih Dajjal (the Antichrist) in the presence of the people and said, "Verily, Allah is not one-eyed but Al-Masih Ad-Dajjal is blind in the right eye which looks like a swollen grape." [al-Bukhari (7127) and Muslim (169)] 

10. A COMMAND MEANS FARD

This tenth maxim means whenever Allah or His Rasool (saw) commands us to do something, it means the commandment is fard. Unless we have evidence to prove otherwise.

  • the Mutazila are of the opinion that a command means the action is mustahab (recommended)
  • and not fard
  • however, the ulama use the story of Mughith and Barira to refute the Mutazila
  • who claim that an order from Allah or the Prophet
  • means the action is only mustahab

Narrated Ibn `Abbas: Barira’s husband was a slave called Mughith, as if I am seeing him now, going behind Barira and weeping with his tears flowing down his beard. The Prophet () said to `Abbas, "O `Abbas ! are you not astonished at the love of Mughith for Barira and the hatred of Barira for Mughith?" The Prophet () then said to Barira, "Why don't you return to him?" She said, "O Allah's Messenger ()! Do you order me to do so?" He said, "No, I only intercede for him." She said, “I am not in need of him.” (Bukhari, Vol. 7, Book 63, Hadith 206)

  • in the above Hadith Barira ask the Prophet (saw)
  • are you commanding me to stay with him?
  • and when the Prophet (saw) said no, she realized she didn’t have to stay with him
  • if the Prophet (saw) has said this was a command
  • she would be obliged to stay with her husband

11. A HARM CANNOT BE REMOVED BY ANOTHER HARM

  • exampe: the Egyptians use to live under the brutal dictatorship of Hosni Mubarak
  • then he was removed with a popular revolution called the Arab Spring
  • what the Egyptians did was haram because
  • they replaced Mubarak with democracy
  • according to Shariah law, you cannot replace one harm with another harm
  • hence, you are not allowed to use
  • kufr to place kufr
  • nor shirk to replace shirk
  • nor oppression to replace oppression
  • democracy is the greatest shirk
  • also, if your child is possessed by a jinn
  • you are not allowed to hire the services of a magician
  • to chase away the jinn
  • because his method of driving away the jinn is unislamic
  • his method is called black magic
  • his method is to use his jinn to chase away the other jinn

12. ALWAYS CHOOSE THE LESSER OF THE TWO EVILS

This legal argument means, whenever a Muslim is faced with a choice which contain two evils, he should always choose the lesser of the two evils because Allah said to fear Allah to the best of your ability. 

So keep your duty to Allah and fear Him as much as you can (At-Taghabun 64:16)

  • the Prophet (saw) implemented this maxim
  • when he told his sahabas to migrate from Makkah to Ethiopia
  • because Makkah was darul harb [controlled by Pagans]
  • and Ethiopia was darul kufr [controlled by Christians]
  • and the Muslims were not oppressed in Ethiopia
  • another example is if a Muslim man cannot find a Muslim woman to marry
  • and he has the option of marrying a Christian or a Jew
  • he should marry the Christian and shun the Jew
  • because Allah said those who hate Muslims the most
  • are Jews and Pagans

Verily, you will find the strongest among men in enmity to the believers (Muslims) the Jews and those who are Al-Mushrikun (see V.2:105), and you will find the nearest in love to the believers (Muslims) those who say: "We are Christians." That is because amongst them are priests and monks, and they are not proud. (Al-Ma'idah 5:82)

  • The Muslim in Burma are killed by the 1000's at the hands of the Buddhist
  • and the Buddhist are pagans
  • the Muslims in Kashmir are killed by the 1000’s at the hands of the Hindus
  • and Hindus are pagans
  • the Muslims in Palestine are killed by the 1000’s at the hands of the Jews
  • and Allah said Jews hate Muslims the most

13. THE GUARDIANSHIP OF THE PARENTS TAKES PRECEDENCE OVER THE GUARDIANSHIP OF THE STATE

  • This maxim means the parents have more say concerning the upbringing of a child than the state. 
  • It also means the parents have more rights over the child than the state. 
  • It is for this reason, the Prophet (saw) told a young man to go and look over his parents and that will be his Jihad:

Narrated `Abdullah bin `Amr: A man came to the Prophet (ﷺ) asking his permission to take part in Jihad. The Prophet (ﷺ) asked him, "Are your parents alive?" He replied in the affirmative. The Prophet (ﷺ) said to him, "Then exert yourself in their service.” Sahih al-Bukhari : Vol. 4, Book 52, Hadith 248

14. THE DOOR OF IJTIHAD IS OPEN UNTIL THE DAY OF JUDGEMENT 

  • Ijtihad means the independent judgement of the Qadi and the Fuqaha
  • the scholars apply ijtihad when something is not mentioned in Quran or Hadith
  • for example: artificial insemination
  • this matter requires ijtihad because
  • artificial insemination wasn’t done in the time of the Prophet (saw)
  • if the sperm was from a man to his wife
  • artificial insemination become halal
  • but, if the sperm is from a strange man to a strange woman
  • artificial insemination becomes haram
  • also, the issue of surrogate mothers
  • if the surrogate mother is a co-wife of the egg donor
  • it is permissible 
  • the issue of GM crops needs the ijtihad of the scholars
  • if GM crops do not cause tumor and cancer
  • they are permissible
  • otherwise, GM crops are haram
  • because the door of ijtihad is open until the Day of Judgement
  • Islam is applicable for all time and place
  • until the Day of Judgement