Another group held that neither of the two may wash the other, nor even perform dry ablution (tayammum) for him or her; this was the position of al-Layth ibn Saʿd, who said that the deceased should simply be buried without washing.
The reason for their divergence is the question of which should take precedence: the command or the prohibition. Washing the dead is commanded, whereas a man’s looking at a woman’s body—and a woman’s looking at a man’s body—is forbidden.
Whoever gives unrestricted priority to the prohibition—meaning he refuses to draw an analogy between the dead and the living by treating purification with earth as a substitute for water when water is unavailable—says that neither may wash nor perform tayammum for the other.
Whoever gives unrestricted priority to the command says that each of the two may wash the other.
Those who opted for tayammum did so because, in their view, the command and the prohibition do not actually conflict: both men and women are allowed to look at the parts of the body on which tayammum is performed. For this reason Mālik ruled that a man may give a woman tayammum on her hands and face only, since these are not part of her ʿawrah, and that a woman may give a man tayammum up to his elbows, for nothing of a man’s ʿawrah in his view is uncovered except the area between the navel and the knee. Thus, the necessity that moves the deceased from washing to tayammum, for those who permit it, is the clash between command and prohibition; they liken this necessity to the situation that allows the living to perform tayammum. The analogy is somewhat tenuous, yet it is adopted by the majority.
As for Mālik himself, his statements on this question vary. At one time he said that each performs tayammum for the other without restriction; at another he distinguished between close relatives unmarriageable in law (maḥrams) and others; and at yet another he distinguished within maḥrams between men and women.
From this it follows that he has three opinions concerning maḥrams:
- The most famous: each of the two may wash the other, but only over the clothing.
- That neither washes the other, but each may give the other tayammum—like the majority’s view regarding non-maḥrams.
- A distinction between men and women: a woman may wash a man, but a man may not wash a woman.
The reason for prohibition is that neither is allowed to look at the parts of the other’s body that must be washed, just as with complete strangers.
The reason for permission is the presence of necessity, and they are more excused in this regard than strangers.
The reason for distinguishing between the sexes is that a man’s gaze upon a woman is more strictly regulated than a woman’s gaze upon a man; evidence for this is that women are veiled from the gaze of men, whereas men are not veiled from women.
All scholars agree that a woman may wash her husband. They differed, however, over whether the husband may wash his wife. The majority allow it, whereas Abū Ḥanīfah maintains that it is impermissible.
Their disagreement turns on whether death is to be likened to divorce. Whoever likens it to divorce says that it is unlawful for him to look at her after death; whoever does not—namely, the majority—holds that whatever was lawful for him to look at before death remains lawful after death. Abū Ḥanīfah was led to liken death to divorce because he considered that if she were to die