“Whoever imitates a people is from them.”
This hadith was related on behalf of four different Companions: ‘Abdullah bin ‘Umar, Abu Hurairah, Hudhayfa and Anas bin Malik [May Allah be pleased with them].
The narration of ‘Abdullah bin ‘Umar was related by Ahmed, Abu Dawod, al-Tabarani in al-Kabir through Abu Munib al-Jarshi but this chain is weak [tadhkira al-Maudu’at vol.1 Pg. 193]. However, al-Hafidh al-‘Iraqi noted that it is strengthened by the narration of al-Bazar from Hudhayfa, and Abu Na’im on behalf of Anas bin Malik, declaring it sound in his checking of the hadith of al-Ghazzali’s Ihyah [Takhri Ahadith al-Ihya vol. 2. pg. 343]. Imam al-Sanan’i mentions in Subula al-Salam that this hadith is strengthened by the narration of Abu Y’ala from ‘Abdullah bin Mas’ud [vol. 7 pg. 107.] Imam Ibn Taymiyyah mentioned this hadith staying, “It is a good hadith” [al-Fatawa al-Kubra vol. 3 pg. 315] and Ibn Hajar al-‘Asqalani mentioned it Bulugh al-Maram saying that Ibn Hiban authenticated it [Hadith # 1384]. Sheikh al-Bani commented on this hadith stating, “It is a good and sound hadith.” [Sahih wa Da’if Sunan Abi Dawod vol.9 pg. 31]
Fiqh of the Hadith
The Encyclopedia of Fiqh, compiled by the Kuwaiti Ministry of Religious Affairs under the entry imitating [tashabu], defines the word, according to the Arabic language, “To resemble another person.” It goes on to state, regarding its meaning and usage in Islamic Law, “This usage of the word by the scholars of Fiqh does not different from this meaning.” [al-Maws’u al-Fiqhiyah al-Kuwatiyah vol. 13 pg 1]
Seeking Clarity: Moving Beyond a Standardized Understanding of Tashabu
If we engage the classical Islamic legal texts we find the scholars divided this concept into the permissible, the forbidden, the disliked and, at times, the obligatory.
The Forbidden Tashabu and the One that Leads Towards Fisq:
The type of imitation of Non-Muslims that the majority of the scholars held as absolutely forbidden and considered a means for one to be an apostate are those things related to specific Non-Muslim identification, religious practices and beliefs. An excellent example would be a cross, the clothes of a priest and so one. This, according the sound opinion in the Hanafi school, the Malkis and the majority of the Shafi’s is absolutely forbidden takes one out of Islam [see conditions below] and falls under the legal axiom “[wearing] Clothes specific to the deniers of faith [religious clothing] is a rejection of faith.“
The classical example is the one who wore the headgear of the Zoroastrians or belt that symbolized one’s affiliation with the Christian faith worn in the Muslim state. One who did this, with a clear intention and after investigation, was declared an apostate. However, the scholars conditioned this stating: unless it was worn do to necessity, force or to protect one’s self from the heat or cold” [regarding the headgear of the Zoroastrians] or for one “Who needed to enter the lands of war.” [al-Mawsua’h al-Fiqhiyah vol. 13. pg.1]
Imam Khalil states [his words are in bold] in his famous text, “Apostasy is the rejection of faith by a Muslim explicitly [Sh. Dardir states, meaning an explicit statement such as “I associate partners, or disbelieve in, Allah.”] or a statement that demands it [Imam al-Dardir states, “Such as denying something known from the religion by necessity.”] or by an act which demands it like throwing the Qur’an in the garbage or wearing the belt specific to the Christians.” [Sh. al-Dardi adds, Meaning one wore a type of clothing specific to the non-Muslims. Sharh al-Kabir vol.4 pg. 301.]
Thus, it becomes clear that the forbidden type of tashabu is related to one’s wearing clothing specific to the non-Muslims religious identities and practices as articulated by the scholars above. Ibn al-Shatt al-Maliki stated, “One who wears the clothes specific to the non-Muslims is not considered a non-Muslim until he clearly states such. That is because, if he does so, his heart and limbs are in agreement.” Imam Abu Hanifa said, “One cannot leave Islam except through the door he entered it which is affirmation and attestation.” The Hanbalis considered it Haram only for one to wear such dress and did not declare one who did so an apostate. Imam al-Nawawi noted that one who did so should be judged on “his/her intention.” [al-Maw’suah al-Fiqhiyah al-Kuwatiyah vol. 13. pg. 2]
Based on that the scholars, regarding the issue above provided the following conditions for the ruling of apostasy and fisq:
- That it is done in the lands of the Muslims.
- That it was done not out of necessity.
- That one wore clothes specific to a religious articulation. The Malikis added that one should also be seen going to their places of worship.
- That the time in which those clothes were worn was a time in which those clothes were well known as clothes of the non-Muslims. What is sighted as evidence for this is the hadith of Anas, see Haq’s post, and Ibn Hajar’s commentary.
- That it was not done out of jest.
- The wearing of clothing and so forth not related to the above matters is considered permissible [is not the forbidden tashbu] as long as such clothing agrees with the Sacred Law. Once Hisham said to Abu Yusuf [the great student of Abu Hanifa] , when he saw the latter wearing sandals made from palm trees with iron, “You don’t see wearing that iron as a problem?” Abu Yusuf responded, “No.” Then Hisham said, “Sufyan, Thawr and Ibn Yazid disliked it because it is an imitation of Christian priests.” Abu Yusuf responded, “The Prophet [May Allah’s peace and blessings be upon him] wore sandals with hair on them that was worn by the Christian monks.” [al-Mawsua’h al-Fiqhiyah vol. 13. pg.3]. Ibn al-Qayyim notes, in Zad al-Maad, that when the Christians of Egypt sent the Prophet [may Allah’s peace and blessings be upon him] a gift of clothes made by them he wore them.
That was because such dress what not related to the monks specifically or the Christians of Egypt, but was a common feature of the society. Based on this, the scholars stated that wearing the clothes of people does not fall under the forbidden aspects of tashabu as outlined and conditioned above. In fact, they state that “No one has a monopoly on clothing.” Meaning clothes are one of the things which are shared amongst people from different cultures and faiths. However, some scholars stated that if one wears such clothes with an intention to imitate someone who is not a non-Muslim, or even a openly evil Muslim, then this is a sin.
- In November 1926. Mufti Abdul Majid Salim al-Azhari was asked about wearing western hats that had become fashionable in those days. In his response he stated, “If one wears a hat, not having the intention to imitate [the forbidden kind as outlined above] the non-Muslims, but to protect his/her self form the elements, then there is absolutely no sin in this what so ever.” [Fatwa al-Azhar vol. 5 Pg. 472].
I would think based on the authentic statement of the Prophet: “Allah is beautiful and he love beauty.“ We can add beautification above as well.
- Some years ago the Standing Committee on Fatwa and Research in Saudi Arabia was asked about a ruling on a type of hairstyle that had just appeared in the kingdom. They stated, “If the intention to wear such a hair style is not to imitate [as outlined above] the non-Muslims then there is nothing wrong with this if is from one of trends that have recently appeared amongst women………….we see no problem with this.” [see Fatawa of the Standing Committee vol. 7. Pg. 150]
Benefiting from the General Principles of Islam
There a few general principles and axioms in Islam that will help us engage our societies, avoid alienation [on both sides] and work with others towards goodness:
“The origin of things is permissibility unless there is a clear texts to the contrary”
This axiom, held by the majority, states that in the affairs of our daily life, the origin of such things is permissible unless there is a clear text to the contrary. This is based on the verse, “It is He who created everything in the world for you.” This means that for one to insinuate that something is forbidden or leads to rebellious behavior [fisqh] he or she would need a clear text about which there are no differences on, to declare such a ruling absolute. If there are differences amongst the scholars on the meaning of such a text, then he/she is free to follow the opinion he/she feels is closest to the truth. However, he/she is not allowed to declare someone who follows another opinion, founded on sound scholarship, as a fasiq, avoid praying behind them and so on. [See Ibn Taymiyyah’s treaty on the Unity of the Muslims corrected and checked by Sh. Abdul Fatah Abu Ghuda].
“There is no declaring something forbidden without a clear text.”
I addressed, by Allah’s grace, this axiom in the last section.
“Harm is Removed”
This is one of the core axioms of our law and it is agreed upon by the scholars. For many converts one of the first things we have to deal with, besides being told to change our names that our mothers and fathers gave us, is to adopt Islamic dress beyond what is obligatory. This is a disaster for many, not all, and can lead to further alienation from one’s family and friends. I know because this happened to me. The first time I wore a thobe my father said, “Boy you look like a doll.”
By doing so we are forcing people to understand and accept something that Allah has not required from them. This can, at times, make an already cloudy picture more cloudier, create further distance from one’s families and friends. So instead of focusing on faith, relationship with God, charity and benefiting the society, we are presenting a message based on clothing and fashion and classical theological arguments that have no relevance to contemporary society.
A Relevant Message
The Axiom: “Call to the Way of Your Lord with Wisdom”
I have a dear friend who is a religious leader. I have known him for a long time and have never seen him outside of a thobe and kufi. Once he went to a bank and a man came up to him and said, “That is awesome man! You did it! You look just like him! Happy Halloween dude your OBL costume is off the chain! Where did you get that beard man!”
It was Halloween and that poor man failed to realize that the brother was not in costume. That was his real, every day, everywhere he goes dress! I’m not censuring one from wearing such dress, as I do sometimes, but I think it should be done with wisdom and in the right time and right place.
“The mufti Carries People According to Their States and Abilities”
This axiom was mentioned by ‘Umar bin Abdul ‘Aziz who said, “Judgments will deal with people according to their sins.” al-Shatibi stated in al-Muwafaqat that the role of the mufti was to treat people “like a doctor treats the ill.” Thus, I am saddened by those scholars who are very forceful about such issues. Besides contradicting the majority and the Usol, many of them have never spent an entire day with a non-Muslim, watched Nick at Night or observed Lebron posterizing KG and so on.
This does not take away from their classical training, but it does, we must admit, damper their ability to articulate a religious expression that is Islamic and at the same time benefits the societies we live in. Even in most Muslim countries such people live in a box. If, and I’ve traveled a lot in the Muslim world, Muslims themselves feel alienated from such scholars, then what can we say of the non-Muslims and Western Muslim Youth of today? This is not an issue of Halal and Haram, but an issue of loosing our own. And that is a whole different discussion…
Imam al-Bukhari, in his Sahih, relates that a woman from Ethiopia came to Medina. Upon meeting the Prophet [may Allah’s peace and blessings be upon him] the Prophet [May Allah’s peace and blessings be upon him] responded in her language. Thus, until we can muster the fortitude to trust ourselves, our faith and our identities, we will not be able to engage an extremely mature society and, instead, focus on secondary issues of importance as a means of escape. For that reason, we find Muslims ready to engage each other over the slightest theological issues, but impotent when it comes to handling teen pregnancy, abortion, human rights, the plight of the poor, the environment, looking after converts, establishing institutions and building communities that don’t incubate the youth, but prepare them. Ibn al-Qayyim mentions that the qualities of the Mufti are two: knowledge of the faith and knowledge of the hood. [see ‘Ilam al-Muwaqi’in ‘An Rabil al-‘alamin vol. 1]
Based on that we are presented with a twofold crisis:
- A community of believers who lack literacy to engage their faith.
- A scholarly community who lacks popular culture literacy by which they can make things relevant and provide literacy to the above.
“The Changing of a Fatwa According to Time and Place”
This important principle was noted by Ibn ‘Abdidin in his Hashyiah, noted by al-Dasuqi al-Maliki in Sharh al-Kabir, Ibn Rushd, Ibn al-Qayyim and others.
What is meant here is that issues of ijtihad, where there is no binding consensus, are open for inspection and correction by the scholars due to environmental realities amongst other issues. The best example, given by al-Dasuqi Sharh al-Kabir is taking money for teaching religion. He mentions in the early days of the Ummah that most of the scholars held it forbidden to do so. However, in his age the 12-13th century A.H he states, “Today we know of no difference on taking money to teach. Because if teachers are not paid, no one will be left to teach.” This was due to the collapse of the waqf, corruption in the government and a rising tyranny that has gripped the Muslim world until today. The same can be said of fatwas regarding clothing and the like.
While certain movements are highly respected, they must be examined in the light of anthropology and sociology as well religious sciences. Because their environments surely had an effect on their ijtihads. This can be seen in the fatwa’s regarding dress and Western attire. Since most of these fatwas were written at time when the British Empire, France and others were killing and conquering the Muslim world, or during the Crusades, one could expect to see such fatwas that state it is a sin to wear Western clothing and so on. However, today is a different situation for many. We are living in the West and have nowhere to migrate. I was shocked at the argument of al-‘Allamah Dr. Ramadan Buti against Minority Fiqh stating that we in the West, if we need a special fiqh, should migrate. My question is to Dr. Buti: It is not possible for Westerners [from the USA] to even study in Syria [since many of them were, or are going to be, kicked out] let alone move there. Thus, such an argument, although from a highly respected and honored scholar, lacks any realistic direction for Muslims in the West. I say that with nothing but respect for Dr. Buti who I’ve met and found to be a great scholar and person of piety. However, “there is no order without a means” and “there is no obligation in the face of weakness.“
Finally, while one can certainly agree with the plight of our sisters and some of our brothers. I think the example of the guy in shorts and his wife in a niqab is not the norm. Let’s give the example of a guy in suit and tie and his wife in correct Islamic dress. Both, according to the majority, have fulfilled what Allah as obligated upon them. By confusing the kufi with the hijab or shalwar, we are playing a dangerous tune and confusing the rulings of Shair’ah. While emotions are important, it is more important to make sure they agree with the scales of rulings set by the Law. In this case, the Hijab is a fard, about which there is no doubt, where as the Kufi and the Turban are, at the most, highly recommended Sunnah for which one would not be punished for leaving according to the majority. Thus, let us practice restraint, stay balanced and let our feelings liberal, conservative, or otherwise, be guided by the law. Please forgive typos and lack of periods, my Unicode system went nuts!
Allah knows best
Suhaib Webb al-Azhari
Jazak Allahu Khair Imam Suhaib for this beautiful clarification. However, I think we need to differentiate between clothes that are worn by the ‘notables’ and ‘middle classes’ and the clothes that are worn by those growing up in the ‘hoods’.
Often times the clothes of the youth these days (both boys and girls) seems to be tight, skimpy, shows too much flesh and just not appropriate to be worn as Muslims.
Clear examples are clothing with images on them, T-shirs so short that when the brother goes into Sujud one can see his ‘butt crack’
I am not saying that we should not allow people to wear what they want or what they feel comfortable in. Just saying we need encourage clothes that are noble and modest.
Your brother from London
I think, perhaps, you should read the article again. All forms of clothing are conditioned that they meet what is acceptable according to the sacred law.
Respected DRJash, You have missed the point of the whole article. The article is not talking about the current “misunderstood” culture that youth follow beyond what Islam allows, rather it is talking about the “Islamic Concepts” or if you will, “what is the meaning of the word IMITATION, when Prophet (asws) said, “…he who IMITATES the disbelievers is from amongst them!”
Re read the article like beloved Imam Suhaib has said and it will help you more.
Secondly, this is for myself first and everyone else also, there is a beautiful book by Sh. Qaradawi called, “Islamic Awakening between rejection and extremism”. If you have not read it yet, please read it and try to eliminate or purify personal beliefs through Islamic beliefs that are required and mandatory for us. This will help us welcome reverts and new Muslims with much better results and less alienation.
Jazakallah khayr for the clarification.
us salaam alikuim
May Allah reward you for this post and the one about wearing white.
It is my observation that Muslim in western countries wear foreign cloths (ie thobs, kurta shulwar) when they get religious or for religious events. Psychologically it is considered the ‘better’ outfit to wear.
Shouldn’t Muslim students of knowledge to scholars focus on wearing more tradition clothes to their local in the public/private settings ?
Ahmed I agree with you. I prefer to wear cultural [is a much more correct word then traditional] dress when I attend such events.
Salaam alaykum Imam Suhaib,
Jazakallaah khayr for taking the time to share this, I benefitted from reading and learning this knowledge, alhamdulillaah.
The following was mentioned in the article above:
Can you cover the disliked and obligatory in a future article, insha’Allah?
Also, is this translated into English? If so, could I get a link to its location (if it’s on this site, I could not find it).
Shukhran Ustadh Suhaib for this excellent article. I have often wondered how my non-Muslim family members would consider Islam if it demands them to abandon their culture (and dress).
Exotic clothing (and costumes) may appeal to the more counter-cultural amongst us but it certainly doesn’t appeal to the average man on the street.
I refer everyone to read the excellent article of Dr. Umar F. Abd-Allah: “Islam and the Cultural Imperative” at http://www.nawawi.org
JAK, Sh.Suhaib for this timely and concise commentary on this hadith.
Please see my comments at the end of the article on “Wearing white.” No, although I’ve taught it a few times, unfortunately never completed it, the work of Ibn Taymiyyah, to my limited knowledge, is not translated.
Br. Isa: I liked your idea of fusing and Islamic Western identity on your other post [Shukur and so forth]
All the best
wa alaykom as salam wa rahmat Allah,
“By doing so we are forcing people to understand and accept something that Allah has not required from them. This can, at times, make an already cloudy picture more cloudier and create further distance from one’s families and friends. So instead of focusing on faith, relationship with God, charity and benefiting the society, we are presenting a message based on clothing and fashion and classical theological arguments that have no relevance to contemporary society.”
if the people only knew how much doing this negatively impacts the relationships individuals who want to be passionate about the deen but do not yet have a firm understanding of fiqh and knowledge … i was doing great alHamdullilah dressing modestly until the jilbab was correlated with piety central, and the niqaab enhancing that status. not with the people, just with you and your deen.
WHY can’t we just be balanced like the Prophet salAllahu alayhi wa sallam and not blow minor issues out of proportion? 🙁 if it’s shariah complaint, why do we insist it has to reflect a certain culture? especially if you’re not from a culture which has a specific type of dress!
may Allah forgive us and guide us..
Excellent explanation of the principle that to follow majarat al ‘urf is Sunnah unless it contradicts the Shari’ah.
Imam ibn Taymiyyah mentions the need or the necessity of following or resembling the manner of dress of the non-Muslims in certain instances:
“If the Muslim lives in a disbelieving country, whether or not that state is hostile with the Muslim states, he will not be obligated to expose himself as different than them. This is on account of the difficulties that doing so can pose. Indeed, it might become preferable or even obligatory for him to conform to their outward standards of appearance if there is a benefit for the faith in doing so like inviting them to Islam, a prevention of difficulties for the Muslims, or the realization of any other wholesome intention.” [Iqtida’ al-Sirat al-Mustaqim (176)]
as salaamu alaikum
Jazakallah khayr for the post Imam Suhaib. I have a couple of questions for you. My email should be listed above. You knew my brother from Edmond, Oklahoma well.
When you wrote…
“but impotent when it comes to handling teen pregnancy, abortion, human rights, the plight of the poor, the environment, looking after converts, establishing institutions and building communities that don’t incubate the youth, but prepare them.”
Reminded me of Sh. Khalid Yasin….he just came through to Dayton, OH last Friday. He’s doing big things with this purposetv.tv mashaAllah!
But you’re right in some sense of having no type of structure even in the Muslim countries themselves (besides having wack leaders).
1 point: Animals have more rights in the west than Muslims do in Muslim countries. “Fa ayna tazhabun?”
assalumu alaykum warahmatullah
Jazakallah khayr for the fantastic post you have written Imam Suhaib. I hope that you can write more posts with hadith in it, inshallah
assalumu alaykum warahmatullah
Hadith of Umar Ibnu al-Khtaab who related that the Propeht was asked by Jibreel about emaan, and said: “You affirm your faith in Allah, in His angels, in His Books, in His Apostles, in the Day of Judgement, and you affirm your faith in Al-Qadar, good and bad”.
As Salaamu Alaikum
Jazakallahu khair for the enlightening article Imam Suhaib. It really cleared a lot of things up.
A random question since it was mentioned briefly.
Are there any good resources in English about ‘waqf’/endowments and the Islamic perspective on these? For those of us interested in institution building for the Muslim Ummah in the future (things like Islamic schools and universities, da’wah organizations, non-profit organizations, etc.) it would be very, very beneficial.
I would just interject that clothes have an effect on the behavior of a person. It is for this reason that many private (and now even public) schools have policies mandating uniforms for students. It is for this reason that bankers are required to dress a certain way. Doctors wear white lab coats. Police offices wear uniforms. And although popular dress is not a uniform in the strictest sense of the word, it is nonetheless rooted in something and is emblematic of something. So we have to be careful as to how we clothe ourselves and how those clothes make us think and feel.
I mean, I have myself noticed how I feel when I put on my “Power Suit” and head to a big meeting. The mere fact that there is such a named item is informative. And I know, having been non-Muslim, that there are very few “fashions” that one wears that are message-neutral.
The whole concept and idea of fashion is to send a message about your personal style, taste, reputation, attitude, etc. So let’s be honest. We’re wearing these things because they make us feel a certain way and it is very likely that those same clothes also result in other perceiving us in a certain way whether we like it or not.
So this is not something to just be dismissed. We need to have our minds in the right place on this issue. And I simply have doubts that “getting your sag on” and “rocking your do-rag” or getting all “emo” or “goth” comes with neutral feeling and neutral perception vis-a-vis that style’s origins.
My 2 cents.
assalaamalaikum Ali I agree with you whole heartedly, growing up in the west, and non muslim till the age of 15, and then fully going sunnah at 21, i agree that clothes are truly a statement of ones outlook of self, and broader world view. i.e. women who want to be “FREE” tend to dress more provocatively, goths tend to be more rebellious toward the norm of society, “hip Hop” dress tends to be more Proud and Boastful like making a statement like “WHAT?!!!” etc… and while it may not be obligatory to dress with a thawb or kufi, it does send a message today to non muslims that you represent a spiritual state that is other then the world. because the “world” has there dress i.e. beach goers bikini, shorts, topless for men and in some cases for women, street clothes, i.e. skully, do rag etc… and also your persona also tends to throw a person off not ur dress. like if one thinks they are “holier then thou, nose turned up” this turns people off toward islam, not if one is humble, and communicative and shows that they are not anti social, then people feel more free to embrace someone who wears a thawb etc… I know because I have engaged and been engaged with this method for years… plus this is 2010 not 1844, so people know alot (in some respects) about islam…the the “hood” many people have family memebers in their family who are muslim, and wear thawbs…and in other aspects of america people are familiar with sufism, and Islam in general…i mean if someone see’s u in a thawb there not gonna say “Hey are you a buhddhist? or a monk??” i mean people have to give westerner a little more credit…. anyway this is longer then what i wanted it to be, but I just wanted to say Ali I agree with you….Assalaam alaikum
Ma Sha Allah,
I completely agree with the point here. The issue Suahib is tackling is when some of our scholars from the Muslim world either incorrectly issue fatwa’s for the non-Muslim world or when the followers of these scholars mistakenly spread and apply these fatwa’s in the west. I personally went through the neck tie dilemna. After going through a whole BOOK and talking to a few scholars on why it is Haram including the hadith at hand, I realized that it is a case of ignorance coming from a scholar. It is not representing the cross and it is only a type of formal dress which has nothing to do with religion and is now a worldwide dress. Muslims should not stand out by the cloths but by the speech and character.
This is another incentive for our western communities to encourage strong programs of thorough homegrown tarbiyyah with homegrown leadership.
As salaamu alaikum wa rahmatullah
One thing that wasn’t touched on in the article is that there is consensus that it is from the Maqaasid (aims) of Islamic law as Ibn taimiyyah has stated in Iqtidaah.. that muslims have been commanded to be inherently different from the kuffar, in appearance, habits, celebrations etc. So hadiths like the above mentioned one (man tashabaha bi qawmin …) should be taken in light with other commandments that order muslims to be different from the kuffar, such as the order to trim the moustache and leave the beard and other commandments. The sad reality is that many muslims have left the commandments of differing from the kuffar (in matters both waajib and mustahib) and in addition to that, have imitated them in matters that are essentially mubah which has lead to imitating them in other things which essentially may lead to actions, habits ,customs, etc. that contradict Islam or by no means becoming of an upright muslim.
asSalaamu alaykum Shaykh,
Does this extend to sisters? That is, would skirts and long shirts that fit the criteria of hijab (loose, not see-thru or too flashy) be valid? Or some other form of dress that fits the basic hijab criteria. (obviously plus headscarf that covers the chest)
I’ve seen several opinions on the matter, but I’m becoming more and more confused.
Your article was posted on another website where I left this comment. I hope you don’t mind if it is posted here as well inshahAllah
1. Dr. Buti in his speeches was not really telling the Muslims to move per se, but rather telling them that if they really and truly were unable to practise their religion in an individual capacity in the West then it was upon them to move.
There is absolutely no problem with this opinion and what its intention was – and Br. Webb does not touch on this – is it exposes the complete fallacy of a call for a “Western” Islam based upon the principles of necessity – this argument is false and no one lives under this intense situation in the West that permits them to change the fundamentals of the deen the way that the proponents of minority fiqh are doing, and if they did live under that threat then Buti’s words are true – it would be upon them to move. Simple
2. I find the article good in one aspect, but somewhat disingenious. No-one who is against the (false) concept of minority fiqh is against the concept for example that there are different opinions regarding what clothing to wear etc. etc. This is not the real issue – and so to mix the two together here I find misleading
3. The real problem of minority fiqh is not that it tells us we can wear shirts and trousers, since this is something FIQH (minus minority) already tells us. The problem with minority fiqh is that it tells us that in the west we can miss Jum’ah prayer if our boss tells us to, that we can take interest on mortgage because otherwise we would have to pay more rent, and so on and so on – breaking away and compromising fundamentals of the deen in the name of some “new” fiqh in the west.
Another point – one of the critics of Minority fiqh is Sh. Nuh Ha Mim Keller – also a fellow American, so it would perhaps have been more relevant to engage in his opinions rather than with Sh. Buti.
With all that – I do sympathise with the bulk of the article and agree fully that many people are carrying ideas to extremes, but this is not a problem simply in the West, these same movements exist in the Middle East and they hold the same opinions there.
Overall – if this was an article on respecting difference of opinion – it would have been clear, but mixing it up with “minority” fiqh is problematic.
wa Allahu Allam
With all the above said – the article is in fact an excellent piece on the explanation of the hadith vis-a-vis our state living in the West today, or even in countries like Egypt where the main clothing is not arab stlyle robes but rather western style shirts etc.
I did not mean to take away from that by my little rant above, though I do hold that the insertion of Sh. Buti’s point is misplaced and out of context
Many thanks for your advice and concern. While I hold your opinion dear as a Muslim brother, I fail to agree with your contentions and feel that, based on what you’ve said above, you have failed to understand Fiqh al-Aqalaliyyat, or perhaps mistaken the statements of others, such the Quilliam Foundation, with it?
The opinion on Jum’a is taken, as mentioned by al-Allamah bin Bayyah from a classical Islamic legal source: mukhtasar al-Khalil and not some post industrial age reformist manual. Thus, akhi, we need to be careful before we label opinions and put them in categories. Before we do so, we should have checked all of the adilah, understood them in the correct light, and then looked to see if there was an ‘Ijma and, then drawn a conclusion.
Once. Sh. Shanqiti read the following question which stated: “There is no dalil for that.” Sh. Shanqiti paused and said, “This is not the statement of a student of knowledge because it implies scholarship. Did you engage all of the adiliah before coming to this conclusion?”
Thus, my question to you dear brother is, before you labeled this fatwa as a fatwa based on Fiqh al-Aqaliyat, did you engage all the major books of law of the 90 plus madhabs, or even the agreed upon 4? If not, then akhi, hold your silence and leave this arena for the scholars. If you look at our posts on Fiqh al-Aqaliyat, we have tried our best to provide the arguments of scholars and not our own. However, your response above hints that, perhaps, you have had advance training and are able to state what is and isn’t part of the fiqh al-Aqailyyat or not?
Secondly, if we base all ijtihads, sole, on classical works; denying the role of contemporary ijtihad, for those qualified, then what is the difference between us and those who say: “I want my fatwa from Qu’ran and Sunna only”?
I find this interesting, and dangerous, since according to Sh. Shanqiti 90% of our law comes from the ijtihad of qualified scholars, Sh. Bin Bayyah said 95% and according to Sh. Muhammad Khadir al-Hussein, Sheikh al-Azhar in the 50’s, this is what keeps the faith relevant to society. Imam al-Haramain called this exercise [al-ijtihad] in al-Burhan, “The crown of the Faqih” since it empowers him to address the societies ills and difficulties. So my question to you is, do you have a problem with ijtihad, where ijtihad is vaild, if done by people like Sh. Bin Bayyah, Sh. al-Qaradawi and other qualfied scholars? Are you of the opinion that Ijtihad is closed since the majority of the classical scholars considered it open? Based on either answer, how do you understand the statement of al-Qarafi al-Malki in al-Furooq, that those who consult classical texts, drawing opinions form them, then exericising them upon the masses, without understanding the masses reality are, “Criminals.” In a treaties titled “Adab of the one seeking Fatwa.” Dar al-Ifta al-Masriyah [one of the highest seats of Islamic Law in the Muslim World], states that it is not sufficient for one to consult classical texts, extract rulings and apply them on the masses. This would be the same as one going to a pharmacy, without consulting a doctor, and prescribing medicine for one’s self. Times change as well as realities, thus, the Faqih most address those realities with rulings that fit the situations.”
Therefore, in areas where there is ijtihad, what is the problem with great scholars engaging the process? Because it is in these areas, as noted by Sh. Bin Bayyah, that Fiqh al-Aqaliyat deals with. It does not deal with the areas where ijtihad is closed. If you have a problem with the title Fiqh al-Aqaliyat, then we can agree that this is khilaf lafdhi and doesn’t warrant such accusations and responses based on la mushata fi istilah.
Until now, what I’ve seen from those who argue against fiqh al-Aqaliyat are simple rants. What I have not see is a detailed, well written, well researched article on the subject.
I hope my message has not come across to harsh or offensive. As I stated akhi, I hold your opinion in high regard, but choose to kindly disagree. I pray, truly, that my words have not harmed you and hope that our bonds of fraternity will mature and bring fruition.
Please read these articles
Yours in fraternity,
There is a big discussion on the whole minority fiqh question. And I have read both sides of the argument and see valid points on both its acceptance and its rejection. I fear the issue is becoming misunderstood due to language and the manner it is presented (usually to counter another argument).
Shaykh Nuh makes a valid point when he says that the Shari’ah already has dispensation built in for various situations and his example of the Hijab is a powerful one, i.e. due to some rukhsa if Hijab was not required to be worn in Britain, it does not and should not follow that the same opinion or fatwa is valid in Canada or the US. This is the major concern and I suspect this is what Abu Abdullah is touching upon?
Whilst those that propose minority fiqh have stated that it does not include the fundamentals of the deen, rather the matters of Ijtihad. Also that it is based on the principles Qur’an, Sunnah, Ijma and Qiyas. I can’t find the article where this is argued but I have read it I think it was on the Translators site?
I do agree with Abu Abdullah that the term “Western Islam” is a fallacy and one that is only used by secularists with a view to change the fundamentals of the deen rather than the have the ability to review the Ijtihad of various scholars – which are not a consensus.
I saw your reply before preparing to leave for jum’ah,
Though time does not permit me right now to provide a response worthy of what you have written, I simply wanted to state that how can anyone be upset over such a reply as one that you have given?
And indeed I agree with much of what you stated, and do not disagree with the contentions that ijtihaad must be permitted and actually encouraged today. Additionally I feel compelled to make clear that I have the utmost respect for those contemporary ulama that you have mentioned.
Perhaps this is a difference in terminologies as you have stated, but I think it does have wider implications which maybe we can explore
As for whether the particular example you have detailed falls under fiqh-ul-qailliyaat or not, I think this is not linked to the fact that the explanation given is extrapolated from mukhtasar al-Khalil but rather the reality that it is being applied upon – in this case a particular situation common to the non-Muslim countries. Though we are more concerned with the principle than the detailed example (and I mentioned 2 fatawa by way of example) we can see if this was incorrect.
I did actually draw the link between the concept of a “Western” Islam and minority fiqh, and it is those aspects that concern many of us – (where predominantly “necessity” is used to provide justifications for rulings). In these and similar situations it is not necessarily the principles which are wrong but an incomplete understanding of the reality or incorrect application that is problematic, wa Allahu Allam
InshahAllah I will respond more appropriately when time permits,
May Allah Strengthen us with each other,
Many thanks brothers for your comments and important points. I hope we can maintain such discussions and pray that Allah will bless us to trust and develop in our maturity and love for each other.
Regarding the opinion of our dear Sh. Nuh Keller. I hold this argument to fall under what I referred to earlier: “That there is no difference in terminology.” This important Usoli principle helps us to have wide chest and respect each others understandings, if founded on sound scholarship.
For that reason I heard Sh. Bin Bayyah say, “We can call it fiqh al-Aqaliyyat, Fiqh al-Darurah, or Fiqh al-Nawazli.” And I saw Sh. Habib Ali agree. Thus, if these things are already based in our tradition, then I find no problem, based on what I’ve heard from scholars like Dr. Munir Farid Wasil, in calling it Fiqh al-Aqaliyat.
The danger, as with any term such as Sufism, is that the meaning is not guided by clear principles and guidelines. For that reason we have, and are still working, to translate Sh. Bin Bayya’s article on the guidelines for Fiqh al-Aqaliyyat as well as Sh. Yusuf al-Qaradawi’s, Dr. Taha Jabir, Dr. Salim al-‘Awa and other important Usoli works on the subject.
It is not our fault if the Quilliam foundation, Irshad Manji or Hursi Ali use this term, just as it is not the Sufis problem if people who do not represent true Sufism use the term. Our job is to relay a message, be educated and educate others. Thus, I think it unfair for Sh. Buti and Sh. Nuh to associate fiqh al-Aqaliyaat in general with subversion and cereal and such statements as “Batil on Batil.” My hope is that they were not talking about the senior scholars, but others who have misrepresented their work and ideas.
Regarding the hijab fatwa. I’m not aware of what you are talking about so could you please fill me in.
Regarding the application tahrij of Khalil’s opinion upon a certain situation. That is based on the dhan of Sh. Bin Bayyah and since it is a dhani realm, we have no right to censor him since he is a qualified person for ijtihad. We can differ with his conclusions, but we cannot censure him. What you can do is talk to him and if you have some issues with him, please feel free to contact him or visit him. He loves visitors.
The Shaf’i school has an important principle, that is agreed upon by the others: “There is no inkar in issues of ijtihad and none has the right to censure another [scholar] for it. In addition, none has the right to impose his opinion upon others, nor censure others for following another [scholarly] opinion. Each should be done with proofs and sound arguments and their should be non censuring of the latter.”
Also, the important Usoli Axiom: “that only one scholar is correct. but both will be rewarded.”
I beg both of your pardons as I have exams and will not be able to dedicate much time to this discussion. I would encourage taking it to the scholars, weighing their opinions and following what is clearest to you. At the same time, we should not throw out harsh words that charge others with subversion and so on. This will only weaken are ranks and contribute to our many illnesses.
I do not hold that all I have said is absolutely correct, nor am I trying to force my understanding upon you. I’m more than happy that you are here and have benefited from, and hope to benefit, your words.
All the best
I liked the piece on tahshabu , which cleared up things for me, however , i do have to raise certain points;
1) the books of fiqh such as ibn quddama’s al mughni or ibn hazma muhalla didnt deal with muslims in non muslim lands in extensive detail, which is a fact as that was not a reality then not that they were incapable of dealing with such realities, however, given that there are 30 million plus muslims in the west, how do scholars who are qualified deal with these new challenges facing us?, is it through a traditional framework or a new modernist framework?
2) Today, alot of qaida al shariyya are being used and principles being used, but theres an issue of correct application- so for example the principle mentioned ‘everythnig is permitted unless prohibited’ , whats the application of this principle, is it for thing, objects and actions or just for things, objects and not action? and if there is an issue issue that arises, does one immediately jump to such a principle or examine all the adillah, before moving onto the axioms?
3) the problem with fiqh ul aqliyyat, is that no one is aware of its usool? other than usage of axioms, masaleh and maqasid ash shariah? and i do believe that the works of Shaykh bin bayyah have been hijacked to legitimise things which i dont believe he wld ever accept given his thorough traditional and classical background. I think modernists are really abusing scholars such as bin bayyah and even your self akhee and there needs to be a clear response to separat himself from the quilliam foundation and others.
4) i think its a fact that there are great challenges that need a response from shariah, but i am totally opposed to anyone if this response is devoid of our scholarly past and traditions, this would lead to muslims in the west being in a state of utter losss. Its similar to a doctor saying that he will through into bin past medical practices and knoweldge, he will be in a state of loss and no patient would seek his/hers assistance. so any challenge we face has to be rooted in our traditions laid down by our ulema in the past, inshallah.
i hope my little contribution makes some sense, inshallah, all good is from allah (swt) and badness is from me
(ps: i hope your children are in good health, we lived opposite each other and studied arabic in al diwan in egpyt in 2004- i lived with aseem and was completing my doctorate)
Kindly permit this ignorant one to offer his two cents… I have made my own humble efforts to “study” both sides of the Fiqh of Minorities discussion.
What confuses me is that though there are already dispensations in place in traditional fiqh rulings to take care of individual necessities and hardships, it would seem that Fiqh of minorities seems to push for making this rulings the norm in societies of minorities ( I say this only based on my readings and listening to talks on the subject). For example, Dr Hisham Abdallah’s talks on the topic included certain permissions (some coming from rather minor opinions that have not been traditionally acceptable) that I personally find unnecessary and possibly dangerous.
The irony is that for me, originally from Nigeria (55% Muslim), I have found it a lot easier to learn and practice the deen better in the US and I have scarcely been in need of blanket dispensations (I would rather rent than get a house on ribawi mortgage). This was a huge factor in my decision to make this my new home after completing my studies. As already mentioned, I understood Shaykh Buti’s statement of migration to be based on the exceptional situation when practicing the deen becomes impossible and that such excuses will not be acceptable before Allah. The slippery slope is encouraging everyone to take advantage of dispensations just because they live here. Individual circumstances greatly differ.
While I personally follow Shaykh Buti and Shaykh Nuh on this, I am nevertheless in awe of the scholars on both side and I believe the place for this kind of fiqh is with scholars to study it and it’s usool but for it’s rulings to be offered and applied to exceptional situations while maintaining that the bulk of the community stick to the established rulings.
Salam Shaykh Suhaib,
I cannot find the link to the audio where Shaykh Nuh quotes this example (please note I have paraphrased it) – it was on the ALT Translators page but that seems to be down at the moment. I will try to post you a link once I can figure out how to upload the talk from my PC.
As for the discussion I reiterate – much is being lost “in translation”. Whilst answering specific questions on the matter is noble – it should be proceeded by the definition and understanding of what is meant by Fiqh al-Aqaliyat. (And those that have not read all of the articles should do so as Shaykh Suhaib mentions above)
The crux may be (as mentioned by Abideen) that one is saying that the dispensation offered in the Shari’ for exceptional circumstances becomes the ‘norm’ for those living in the West. If that is what is being said then I can see why some people will get woried as it indeed is a “Western Islam” as the Usul and Fiqh are completely opposite from that practiced in the East.
From my readings this is where it all get’s confusing – some help here would be useful.
Good luck with your exams beloved Shaykh.
Got a break from reading and thought I would add some crumbs to these important dishes above.
I think we are all on the same page that one who is not qualified to channel this stream should not do so. Thus, the argument of the qualified scholars is that this is their realm and not that of the lay person. This is no different from any Islamic science as it is not acceptable for one without knowledge to engage a subject. Therefore, in criticizing Fiqh al-Aqaliyyat we have to differentiate between Ed. Hussain and Dr. Salim ‘Awa.
There is nothing wrong with extracting or inventing terms that suit, according to a qualified scholar, or in this case, a large group of scholars a given science. If that were the case then terms like tauhid, sufisim, and so forth would be subjected to the same argument. Thus, as was stated above “There are no differences over terminology.”
3) The school of the masses
Definitely, and I think this is where the proponents of Fiqh al-Aqaliyyat have not done a good enough job, we do not hold this science as one of for the laymen. It is restricted to those who qualify and are well trained.
As per the Hijab fatwa, I do not consider this an opinion linked to the principles expounded on this web site, nor those of the great scholars. It is an opinion of an individual who seems to be going through somewhat of a crisis period in his growth and development. I think it was unfair for our. Sheikh Nuh to place that example with the work of the senior scholars.
Thus, as Dr. Wahba Zuhayli told me, “The four schools are the safest for the masses.” I agree with this and would add to it the famous axiom, “The questioner is on the madhab of the mufti.” Thus, although one is following one of the four schools, at times, a well trained, qualified mufti might find an opinion outside of that person’s school, or even outside of the four schools, that will best help that person fullfill his purpose in being a slave to the Creator.
This was also mentioned by Dr. Zuhayli in his massive volume on Fiqh. My first day of training for the Mufti program in Egypt a scholar told me “There are 90 schools. We [the scholars] take from them all and our goal is balance.”
Based on my studies, I disagree with the term “The Tradition” and hold that we should say “The Tradition[S]” just as I disagree with the term “The Manhaj of the Salaf” and prefer “The Manahij of the Salaf.”
In our fear to counter the wave know as Trans Modernity we have all, to some degree, reacted in a very Modern fashion: Tribalism and Nationalism. We all seem to think that our way, our understanding, if put down correctly will save us all. This, if we are not careful this can lead to a religious fascism and intolerance that has plagued so many of our coreligionist who proceeded us. Thus, let us understand that, outside of the basic Usol and Ijm’a, we are dealing with a wide sea, have wide chest and move beyond arguments and get some real work done.
When Imam Abi Zaid was asked why he had a dog to protect his home he said, “If Malik were alive he would have a lion to protect his home.”
While respecting the loftiness of our tradition[S], we must have enough confidence in our scholars to realize that their role is to address our realities. Realities, that, at times, were not addressed by our classic legal giants. If what is being advocated is some type of Tradocentrism, then this is something that does not agree with the very tradtion[s] we claim to follow. Ibn Malik, the writer of the alfiya said in al-Tashil, “The latter scholars will always come and correct those who proceeded them.” Ibn Khaldun mentioned that one of the reasons people write books it “To add something new and correct those who came before them.” Thus, I hold, based on 15 years of training and nearly 4 here in Egypt, that the law is not stagnant, but fresh, alive and able to deal with the many problems we face. I do not, however, hold that our traditional classical works hold all the answer to the problems we face today. And for that reason we need the efforts of our great scholars, even if they fail, and should encourage them without charging people with cereal Islam, subversion or batil on batil.
Thus, we have to ask ourselves are we Traditional or Traditionalistic?
I’m thankful for all of your comments and pray that I have no offended any of you our your teachers. If so, please know that it was not intended.
I think what you have typed akhee, as a whole is not contentious, as there is need for new realities to be dealt with but the problem i believe, from my reading into ths area and subject, is the construct through which realties are dealt with, what is relied upon, what sources are referred to and so on.
In the past, muslims spread to different places and faced new realities and challenges, but they way they dealt with such realties was according to a methodology and approach which they had inherented from predecessors, however today, there seems to be a new methodology and approach which is developing along with the fiqh of minorities and it is this which is causing alarm bells. Islamic principles which were used in usool by some scholars such as masaleh, maqasid ash shariah and urf are being used and applied at times in erratic ways to deal with new realities facing muslms in the west. In the Uk, these are the new buzz words, which has resulted in lopsided approach to usool and fiqh.
I agree with you that the scholars in the past didnt address our realities here in the west, which is understandable as what we are facing today didnot face them, however what i do believe is that they have left, methods, tools, principles ie a detailed framework through which we can deal with our issues and problems in the west and the divorcing of us from that past , will cut the blood supply of the muslims and lead to confusion and disparity rather than consistency in worshiping our creator.
salamu `alaykum sidi
I pray you are well.
barakallah feek for this very well written and pertinent topic. I was wondering, sidi, if you could provide us all with some direction in regards to the issue you brought up concerning scholars lacking cultural literacy. In a day where the internet is the lead means of spreading information, we often find religious edicts coming from the Middle East, South Africa, Pakistan, and so forth, relating to issues in the west that are given without a holistic grasp of the situation here.
How do we deal with this crisis, especially as it relates to individual laymen who follow these righteous scholars i.e. in terms of enforcing their verdicts upon the communities here? Example, the “kufi” issue you brought up.
Alhamdulillah – the crumbs have given a rich flavour to the dish!
I totally agree that these actual discussions are for the scholars – but the questions and clarifications sought thereof should be open to us laymen, please!
Would it be possible for you to direct us to or for you to elaborate the points regarding the usul – i.e. what are the tools used to understand the new reality?
If we were simply talking about Ijtihad, which all Muslims understand and for which they have an appreciation of the framework which it works within – Qur’an, Sunnah, Ijma and Qiyas – then i doubt all of these questions would come forth.
It seems to me that some feel a new usul is being developed or something is being added to the “traditional” framework for Ijtihad and this needs clarity. To be honest – I am not clear always if this is the case, your help on this would be much appreciated.
As for the Shaykh Nuh comment, I agree that the example he used for the Hijab was not the best nor his application of it to our senior shuyukh – but for me this makes the point I raise above – i.e. the fear of some new usul/framework etc.
Thanks for your concern. Please have a look at our Fiqh of Minorities section. Outside of that I would consider reading the entire 5th volume of the European Fatwa Councils journal which is loaded with essays on the topic.
In addition read Sh. Bin Bayyah’s important book on “Sana’atu al-Fatwa wa Fiqh al-Aqaliyat.” or Sh. Yusuf al-Qaradawi’s “Fiqh al-Aqaliyat” both give a considerable amount of attention to the topic and answer 99% of the questions I’ve seen above. Also, consider visiting both of their web sites for a host of articles on the subject. If you are not able to read Arabic then the best resource I know of is “Sacred Law in Minority Lands” of Sh. Bin Bayyah translated by Sh. Hamza Yusuf.
I would be interested to know, upon what detailed scholarly discussion this feeling that Fiqh al-Aqaliyyat has some how skipped the Usol or misused the law is based?
Salman: I’m working on a series that will cover the issues of ‘al-Orf in Islamic Law and hopefully will be presenting it in London next month.
Jazakallah khayer Shaykh, here are two para’s which cover what you say from Sh Bin Bayyah:
“Since we know that Islam has legal injunctions and that Muslims have a code of law, a question that occurs immediately to us in looking at these conditions here is whether or not there are rules in our deen that apply to one land and do not apply to another land. As we know, the Messenger of Allah, sallallaahu ‘alayhi wa sallam, said that Allah subhaana wa ta’aala has made incumbent upon you to fulfill certain obligations, and Allah has also set boundaries for you, so do not transgress those boundaries. As we know, these rules in Islam relate to every Muslim. In terms of human beings, every one is equal in relation to these rules. You cannot say that one Muslim does not have to pray and another one does. All Muslims who are responsible adults have to pray. So, these rules of prayer and fasting, what are know as the arkan al-Islam-the pillars of Islam, the foundations of Islam-are things that are binding upon all Muslims, no matter where they are or what place they are in.
In addition, there is another type of set of rules in Islam that is known as al-ahkam as-sultania, and these are rules related to governmental authority, to the state. These rules involve certain things, such as the penal code of the Muslims. There is a code related to criminal law: if you do this, then this is the punishment. The implementation of those laws is related to the ahkam as-sultania or the rules related to the legitimate authority of the state. The ahkam as-sultania include the rules related to jihaad-in other words, martial activity in which men fight in war and battles. They also include the rules related to zakaah collecting: the gathering of wealth that Allah has obliged people to pay. In addition, they relate to the establishment of imams, not only the greatest imam, who would be the khalifa, but also the aaimma who will be in the masaajid and the qadaat who are the people who give the khutba on the jumu’a. All these types of things are traditionally related to the authority of the legitimate governing body of the Muslims. Muslims need judges; they need courts; they need police-all of these things relate to these ahkam. These types of rules which are known as the ahkam as-sultania are not the concern of those people who are living in a land in which there is not a legitimate state authority of Muslims.”
The entire article can be read here: http://www.witness-pioneer.org/vil/Articles/shariah/muslims_in_non_muslim_land.htm
Look forward to see you in London next month.
[…] http://www.virtualmosque.com Posted in Fiqh, Islamic Movement, Usul al-Fiqh | […]
Please forgive the delay in posting – I am very busy and in fact I am only writing now to suggest a couple of points for moving forward.
1. The issue of partisanship has been mentioned previously, and there seems some hint of concern regarding it. To be clear – I personally am not a follower of Sh. Buti, Sh. Nuh, nor any of the other ulama menioned here. In fact, I am more familiar with the works of Sh. Bin Bayyah and Dr. Qaradawi than I am with either of the aforementioned. I merely mentioned Sh. Buti in my first post to point out that I believe his opinion was mentioned without the necessary contextualisation in the article, and Br. Suhaib please forgive me if I stick by this opinion until shown otherwise.
2. In the same non-partisan spirit – though I see alhamdullilah that we all respect and love these shuyukh inshahAllah bila istithna, this does not mean that we cannot raise questions regarding particular opinions held or propogated. In raising these issues – please understand I am doing so for the sake of Allah, for the sake of my deen, and I mean no disrespect at all by it. And I hope all the brothers engaged here feel the same – indeed until now I have seen no evidence to suggest otherwise.
3. Regarding the issue of general dispensations, minority fiqh, or the fiqh of necessity – we are not concerned with the label given, but rather with the applications of principles meant for specific circumstances being applied loosely and widely. I have already mentioned the issue of the permitting of interest on mortgages, but there are other examples. We can investigate particular rulings in more detail in later inshahAllah if needed.
4. I agree that ijtihaad should be encouraged. My question on this point – is seeking out aqwaal of the ulama, finding the one most palatable for western muslims, and then applying it on the basis that the general need can act as a marajih in these issues – an ijtihaad? Are the opinions of ulama considered an usool in themselves? I ask this quesion because much of the fiqh that I am witnessing today is not so much original ijtihaad based upon classical usooli principles, but rather seeking out which opinion, even if it is marjooh, can be best suited for the western muslim.
I understand that there are ulama who have put such rules in place, particularly from the Maliki madhhab. Without discussing the validity of the rule – it should be noted that its proponents have laid down strict conditions. Are these conditions being followed in application? Was the rule intended to be applied wholesale?
These above short points, wa Allahu Allam, seem to me to be the among some of the most pertinent that perhaps need more attention.
Please forgive me again that I have not yet had the time to write anything more substantial, but I am heartened by the thought, and adab in discussion, that has been apparant until now.
Sorry this is the right one – please delete the last post.
Many thanks for your comments. Please refer to my answers above. I hope, inshallah, they will assist you with your concerns.
JezakAllah khair for these references
If time permits inshahAllah you may be able to shorten the path for me –
Sh. Bin Bayyah mentions talking about taking by the marjooh opinion –
أما النوع الثالث فهو اجتهاد ترجيحي وهو اختيار قول قد يكون مرجوحاً في وقت من الأوقات إما لضعف المستند – وليس لانعدامه- فيختاره العلماء لمصلحة اقتضت ذلك وهذا ما يسمى عند المالكية جريان العمل.
In another piece (the difference between need and necessity) there is mention of this principle with the various conditions – where a reference to al-Bannani is given.
Do you know of further references in classical scholarship where this principle is argued, and specifically more references to what Sh. Bin Bayyah has aluded to above re. the Maliki mathhab on this issue?
Asalamu alaykum wa rahmatuhu wa barakatuh:
This principle is addressed in the famous poem on Usol Muraqi al-S’ud which is considered a major reference for the Malikis it states:
وقَدم الضعيف إن جرى عمل فيه لأجل سبب قد اتصل
Commenting on that verse Bin Bayyah writes:
جريان العمل في الأوقاف:
إنه مما يؤكد مراعاة المصلحة: جريان العمل في الأوقاف الذي يترجح به المشهور، وليس ذلك في مذهب مالك فقط – كما سنرى – والذي من قواعده اعتماد القول الضعيف إذا جرى به عمل، فيقدم على المشهور كما قال في مراقي السعود:
وقَدم الضعيف إن جرى عمل فيه لأجل سبب قد اتصل
وقال الشيخ المسناوي: وإذا جرى العمل ممن يُقتدى به بمخالفة المشهور لمصلحة وسبب، فالواقع في كلامهم أنه يُعمل بما جرى به العمل ممن يُقتدى به، وإن كان مخالفا للمشهور، وهذا ظاهرٌ إذا تحقق استمرار تلك المصلحة وذلك السبب، وإلا فالواجب الرجوع إلى المشهور. هذا هو الظاهر.(10)
قال السجلماسي – نقلا عن ابن فرحون في تبصرته -: وكثيرا ما يوجد في كتب الموثقين في المسألة ذات الأقوال: الذي جرى به العمل كذا، ونصوص المتأخرين متواطئة على أن ذلك مما يرجح به القول المعمول به. (انتهى باختصار شديد).
والمراد بالعمل: القولُ حَكَم الأئمة به، واستمرار حكمهم.
قال الشيخ مصطفى – في آخر باب القضاء من حاشيته – نحو قول الأجهوري في آخر باب الفلس: إن المراد بما جرى به القضاء ما عَمل به القضاة وحكموا به، فهو في جملة ما به العمل.
ومن المهم أن نعرف لماذا عدل العلماء عن المشهور والراجح إلى القول الضعيف؟ والجواب – كما يقول السجلماسي في شرحه -: أن أصل العمل بالشاذ، وترك المشهور: الاستناد لاختيارات شيوخ المذهب المتأخرين لبعض الروايات والأقوال، لموجب ذلك كما بسطه ابن الناظم في شرح تحفة والده، ومن الموجبات تبدل العرف أو عروض جلب المصلحة أو درء المفسدة، فيرتبط العمل بالموجب وجودا وعدما، ولأجل ذلك يختلف باختلاف البلدان، ويتبدل في البلد الواحد بتبدل الأزمان . (11)
ولم يَضبط مفهوم جريان العمل الذي يرجح الضعيف غير المالكية؛ لأنه من أصول المتأخرين اعتبارا بأصل إمامهم في القول بعمل أهل المدينة.
فمما سلف ندرك أن العمل يجري لعرف أو ضرورة أو مصلحة أو ترجيح، وللعمل شروط لإجرائه.
لهذا أدخل المالكية إجراء العمل في مسائل الأوقاف في ست وعشرين مسألة، في بعضها خالفوا مشهور المذهب، وذلك ما يدل على إعمال المصلحة.
ومن هذه المسائل:
* مسألة كراء الحبس، فإذا تقدم شخص بزيادة في الأجرة انحل الإيجار عند أهل تونس، وقد نص عليه في المعتمد والتكميل للفلالي قائلا:
ومع قبول الزيد ريع الحبس يكرى على عمل أهل تونس
* وكذلك بيع الحبس المشاع، قال الفيلالي:
والجزء المحبس المشاع فيما سوى منقسم يباع
* وكذلك قسمة الانتفاع، كما نص عليه القاضي أبو علي: الحسن بن عطية الونشريسي في رسالة سماها “رفع النزاع في تحبيس المشاع”، وكذلك نقله الحطاب الصغير: يحي بن محمد الحطاب في تأليفه عن الأوقاف.
أما غير المالكية فقد نجد في كلامهم الترجيح بجريان العمل أو بالتعامل، وهما مفهومان قد يعني الأول منهما عمل العلماء في فتاواهم وأحكامهم، ويعني الثاني تعامل العامة في عوائدهم وأعرافهم. إلا أن هذه المذاهب لا تحدد بصفة واضحة معنى جريان العمل وشروط إجرائه، كما سبق عن المالكية، ومع ذلك نجد فيها إشارات وعبارات تلتفت إلى جريان العمل باعتباره مرجحا.
والذي يهمنا هنا هو مجال الأوقاف بحكم كون إجراء العمل دليلا على الالتفات إلى المصلحة، ونذكر باختصار فرعين: أحدهما للحنابلة حيث رجحوا بالعمل قول عُبادة. والثاني للأحناف في الترجيح بالتعامل.
يقول في الدر المختار: “و” كما يصح أيضا وقف كل “منقول” قصدا “فيه التعامل” الناس “كفاس وقدوم”، بل “ودراهم ودنانير” قلت: بل ورد الأمر للقضاء بالحكم به، كما في معروضات المفتي أبي السعود، ومكيل وموزون فيباع ويدفع ثمنه مضاربة، أو بضاعة فعلى هذا لو وقف كرا على شرط أن يقرضه لمن لا بذر له ليزرعه لنفسه، فإذا أدرك أخذ مقداره ثم أقرضه لغيره، وهكذا جاز.
خلاصة وفيها: وقف بقرة على أن ما خرج من لبنها أو سمنها للفقراء – إن اعتادوا ذلك – رجوت أن يجوز.
ويقول ابن عابدين: قوله: “لأن التعامل يترك به القياس” فإن القياس عدم صحة وقف المنقول؛ لأن من شرط الوقوف التأبيد، والمنقول لا يدوم. والتعامل – كما في البحر عن التحرير- هو الأكثر استعمالا، وفي شرح البيري عن المبسوط: أن الثابت بالعرف كالثابت بالنص.
وتمام تحقيق ذلك في رسالتنا المسماة “نشر العرف في بناء بعض الأحكام على العرف” وظاهرها ما مر في مسألة البقرة: اعتبار العرف الحادث، فلا يلزم كونه من عهد الصحابة، وكذا هو ظاهر ما قدمناه آنفا من زيادة بعض المشايخ أشياء جرى التعامل فيها، وعلى هذا: فالظاهر اعتبار العرف في الموضع أو الزمان الذي اشتهر فيه، دون غيره؛ فوقف الدراهم متعارف في بلاد الروم دون بلادنا، ووقف الفأس والقدوم كان متعارفا في زمن المتقدمين ولم نسمع فيه زماننا، فالظاهر أنه لا يصح الآن.
ولئن وجد نادرا لا يعتبر؛ لما علمت من أن التعامل هو الأكثر استعمالا فتأمل.(12)
وفي المذهب الحنبلي، يقول صاحب التوضيح في الجمع بين المقنع والتنقيح: ويصح بيع بعضه لإصلاح باقيه إن اتحد الوقف كالجهة، إن كان عينين أو عينا ولم تنقص القيمة، وإلا بِيْع كله، وأفتى عُبادة بجواز عمارة وقف من آخر على جهته، وعليه العمل، ويجوز اختصار آنية إلى أصغر منها وإنفاق الفضل على الإصلاح .(13)
قال سحنون رحمه الله: بقاء أحباس السلف خرابا: دليل على أن بيعها غير مستقيم، وقد وقع في المدونة نقلا عن ربيعة أن للإمام بيعَ الحبس إذا رأى ذلك لخرابه، وحصل ابن عرفة في المسألة ثلاثة أقوال صدر فيها بالمنع مطلقا، وفي أجوبة الإمام القاضي ابن رشد ما ظاهره: أن الحبس يجوز بيعه وإن كان فيه نفع إذا كان النفع يسيرا، وعلى الأول المعول، وفي أصل الإمام – أي مالك – المقلد في الشرائع: للاحتياط وسدا للذرائع والله أعلم انتهى.
وتعقبه شيخنا أبو العباس الأبار بما نصه: ما أجاب به المفتي – أعزه الله – من أن صلب المذهب وصميمه على المنع من بيع الأحباس، وأنه مذهب الجمهور: صحيح مشهور، وهو في غير ما ديوان من دواوين العلماء مكتتب مشهور، بيد أن جماعة من الشيوخ ذوي التثبت في العلم والرسوخ، أفتوا ببيعه ومعاوضته بغيره؛ إذا لم تكن فيه منفعة، أو قَلت؛ رعيا للمصلحة التي اعتنى بها الشارع، واتباعا لقصد المحبس؛ إذ عادة الشيوخ تقديمه على غيره لرسوخه في العلم، وتحقيقه للروايات، وتقديمه للقضاء والفتيا بإجماع من جُل معاصريه. فقد سئل أبو العباس ابن لب عن بيع طراز حبس تداعى للسقوط.
فأجاب: يسوغ الطراز على الصحيح من القولين في ذلك، ويعوض بثمنه للحبس ما يكون له أنفع، وإن وجد من يعامل به فهو أحسن إن أمكن انتهى.
وسئل أبو عبد الله الحفار عن فدانٍ حُبس لا منفعة فيه: هل يباع ويشترى بثمنه ما يكون فيه منفعة؟
فأجاب: إذا كان الفدان الذي حُبس لا منفعة فيه؛ فإنه يجوز أن يباع ويشترى بثمنه فدان آخر يحبس غلته في المصرف الذي حُبس عليه الأول، على ما أفتى به كثير من العلماء في هذا النحو، ثم استدل بفتوى ابن رشد… إلخ كلامه.
وسئل سيدي عيسى بن علال عن سدس جنان في شركة رجل، وغلة الجنان المذكور لا تفي بما يلزم في خدمته، فهل يجوز بيعه وتعويضه بما هو أغبط للحبس؟
فأجاب بأن ذلك جائز، وعليه العمل، والمسألة منصوصة في طرر ابن عات، وفي واضحة ابن حبيب. انتهى.(14)
His references as given above:
(10) البناني 5/124.
(11) شرح نظم العمل المطلق 1/7.
(14) تحفة أكياس الناس بشرح عمليات فاس للعلامة الشريف أبي عيسى سيدي المهدي الوزاني الفاسي 403-404.
The Whole article:
This principles is also noted by al-Dasuqi al-Maliki who states in Sharh al-Kabir:
( قَوْلُهُ فَلَا شُفْعَةَ لِشَرِيكِهِ ) أَيْ فِي الْوَجْهَيْنِ ، وَهَذَا هُوَ مَذْهَبُ الْمُدَوَّنَةِ ابْنُ نَاجِيٍّ ، وَهُوَ الْمَشْهُورُ ، وَمُقَابِلُهُ أَنَّ فِي الْكِرَاءِ الشُّفْعَةَ لَكِنَّهُ مُقَيَّدٌ بِمَا يَنْقَسِمُ وَبِأَنْ يَزِيدَ الشَّرِيكُ السُّكْنَى بِنَفْسِهِ ، وَإِلَّا فَلَا شُفْعَةَ لَهُ ، قَالَهُ اللَّخْمِيُّ ، وَالْأَوَّلُ هُوَ الْمُعْتَمَدُ كَمَا عَلِمْت ، لَكِنْ فِي بْن عَنْ الزَّقَّاقِ فِي لَامِيَّتِهِ وَغَيْرِهِ جَرَيَانُ الْعَمَلِ بِالشُّفْعَةِ فِي الْكِرَاءِ بِالْقَيْدِ الثَّانِي فَقَطْ ، وَهُوَ أَنْ يَسْكُنَ بِنَفْسِهِ
See Sharh al-Kabri vol. Al-Shuf’ah
Wa alaikum as salaam
JezakAllahKhair – indeed you have shortened the path for me.
I will read the articles carefully as is deserving of something by Sh. Bin Bayyah, and also will return back to the references you have provided.
Shaykh… I have a question for you about this very topic..
A few months ago, I had a discussion with one of my very close friends about the topic of ear rings (for men) as well as piercing
I told him it is a part of imitating the non believers as well as women.. his argument was that the western culture permitted such actions for men (i.e. its seen as normal for either genders) and a third friend of ours who was witnessing this conversation (he is a highschool teacher) he said that about 50% of the guys in his class wear earrings … and he used this to say that its becoming more “cultural” for guys …
then they said in Africa and some parts of India people normally wear earrings as a part of their culture.. so how can it be haram??
Whats your take on this shaykh?
does this mean we can celebrate halloween:)
I know that it has been a while since this article was posted, but just some brief comments. I actually printed this article out and gave it to brothers to read as it had become a serious issue in our halaqah.
Most of the brothers read it, some did not, but the brothers who did I saw, alhamdullilah, a realization that there is a broader prespective coming from the Quran and Sunnah in interpreting this hadith as well as from our tradition. Some were still adamant upon a narrow and at times conflationary attitude. A few brothers also quote the quran and hadith to support themselves about the fact that right and wrong are clear but what is between them is ambiguous so stay away from the ambiguous and so they relate it back to this.
Alhamdullilah, most of the brothers are becoming more amenable to differences. It’s strange because our group is one of varying ideologies, perspectives and methodologies. May Allah Guide us to what is right.
Again JAK for a very beneficial article.
I believe there is a specific text declaring wearing earrings forbidden, per the axiom mentioned in the article “There is no declaring something forbidden without a clear text.” Also as you mentioned the fact that it is from the ways of women. Interesting question though.
I don’t know about that but I’m sure the sheikh would direct you to his recent article on Thanksgiving. What makes holidays or celebrations forbidden? Sheikh mentioned that it be religous in nature. Halloween has its roots as a pagan festival and there are other things like wearing costumes, etc. Allahu ‘Alim though.
[…] http://www.virtualmosque.com Posted in Islamic Movement, Usul al-Fiqh « 15th May 2009 – A day to Remember the Martyrs of Islam One Boy Against A Nation » You can leave a response, or trackback from your own site. […]
[…] +1! Here's an excellent explanation on the oft-quoted hadeeth on Imitation by Imam Suhaib Webb: http://www.virtualmosque.com/islam-stud…n-suhaib-webb/ And another beneficial article on the subject of customs (such as birthdays): […]
Asslualaykum wa rehmatullahee wa barakatoo,
Jizakallahukhayrun for a very informative article!
I have a very important question about the Hadith and the traditional dress code today
The Hadith does mention that in general men shouldn’t imitate women and vise Versa bearing in mind the rulings in accordance with that. I am a youth and so I am finding it rather hard to get my head around the traditional clothing such as the thowb which is similar to a long dress which is very very similar to the abaya that a women wears. I so understand the reason as to why a women wears the abaya and so alternatives are acceptable but for men….I am pretty confused.