There is no harm for those who do not spend the night at Mina during the days of Tashriq

Dear pilgrims,

There is no harm on you in not spending the night at Mina during the days of Tashriq (11th, 12th, 13th)

Of the most important questions that occupy the minds of some pilgrims is spending the night at Mina during the days of Tashriq whether for those who have camps in Mina or those who left Mina and cannot go back to it at night.

The people of knowledge have two views on spending the night at Mina during the days of Tashriq:

A view of obligation and a view of desirability. According to the view of the majority who adopts the obligation of spending the night at Mina, spending the night at Mina during the days of Tashriq is overlooked if a person cannot do it because of the general texts of the Shari`ah which states that there is no obligation with inability as Allah's Saying: "Allâh burdens not a person beyond his scope." And Allah's Saying: "So keep your duty to Allâh and fear Him as much as you can." The Prophet (peace be upon him) said in the Hadith of Abu Hurayrah (may Allah be pleased with him):  "And if I command you to do something, then do it as much as you can." [Reported by Al Bukhari (7288) and Muslim (1337)].

As for the second view, spending the night at Mina during the Days of Tashriq (11th, 12th, 13th) is Sunnah not obligatory which is one of the two narrations reported from Ibn `Abbas (may Allah be pleased with him) as it is the view of the Hanafy school of Fiqh and one of the two views of Al Shafi`y, Ahmad, and Ibn Hazm which is the most correct to me. Ibn `Abbas (may Allah be pleased with him) said: "When you throw the pebbles, spend the night where you desire." [Reported by Ibn Abu Shaybah (14379) with a good chain of transmission]. So, it is not obligatory to spend the night at Mina during the night of `Arafah since the obligations of Hajj need a special command. As for the Prophet's action, it does not indicate obligation. As for the Prophet concession for shepherds, it does not indicate obligation but desirability as will be mentioned later. So, if a concession is preceded by a command, it is opposite to a command such as giving concession to the woman who waits for her `Iddah after the death of her husband to apply perfume after the end of menstruation. Um `Atiyyah (may Allah be pleased with her) narrated: "We were forbidden to mourn for more than three days for a dead person, except for a husband, for whom a wife should mourn for four months and ten days. (while in the mourning period) we were not allowed to put kohl in our eyes, nor perfume our-selves, nor wear dyed clothes, except a garment of 'Asb (special clothes made in Yemen). But it was permissible for us that when one of us became clean from her menses and took a bath, she could use a piece of a certain kind of incense." [Reported by Al Bukhari (5341) and Muslim (938)].

However, if it is not preceded by a command, it indicates a permission such as the Hadith reported by Muslim Al Qurry who said: "I asked Ibn `Abbas (may Allah be pleased with him) about Mut`ah (Tamattu) in Hajj, and he said it was allowed, but Ibn Az-Zubayr used to say that it was not allowed. He said: The mother of Ibn Az-Zubayr narrated that the Messenger of Allah (peace be upon him) allowed it, so they entered upon her and asked her. He said: 'We entered upon her and we saw a larger blind woman who said: The Messenger of Allah (peace be upon him) allowed it.'" [Reported by Muslim (1238)]. So, Tamatu` Hajj is desirable and no opposite command was given, but the given command exhorted to it, and Asma' and Ibn `Abbas (may Allah be pleased with them) stated it was a concession.

So, a concession -which is defined by scholars of jurisprudence is what has been authentically proven against a Shari`ah-based proof to a preponderant contradictory matter- is not the concession reported in all Shari`ah texts.

And the permission of the Prophet (peace be upon him) to `Abbas (may Allah be pleased with him) and to shepherds not to spend the night at Mina indicates it is a Sunnah without commanding them to leave the throwing of pebbles since it is obligatory. So, if spending the night had been obligatory, he would have given concession for them.

And Allah knows best.