Originally posted in July 2010

Since we are in the month of Rajab, I thought it would be timely to discuss an event from life of the Prophet ﷺ (peace be upon him). The average, educated Muslim and even many scholars have little to no knowledge about this subject. It is an established part of the guidance Allah revealed and preserved for us and carries much divine wisdom. Since the 4^th of July just passed, I’d like to research this issue and see what we kind of fiqh (jurisprudence) we get from it.

In looking at this issue, we must acquaint ourselves with a common practice among the Arabs during the times of Jahiliyyah (the times of ignorance before the Qur’an was revealed). According to the major Arabic dictionaries and historical encyclopedias, al-Ateerah was an occasion in which Arabs would slaughter animals during the first 10 days of Rajab seeking to fulfill their vows (al-nathr) and to receive the favor of their gods.¹ Then, according to the well-established biography of the Prophet ﷺ, the Prophet ﷺ was guided to Islamicize this tradition.²

In Islamicizing these traditions, the Muslims were commanded to slaughter in the name of Allah alone and give the meat to the poor, family and friends, just as we do the udhiyyah (slaughter for Eid al-Adha). The proof for this is in the hadith (narration) that states, “The Prophet was asked about al-Ateerah and he said it was haqq (truth).”³ The Prophet ﷺ also said, “Indeed every year, each household is responsible for the slaughter of al-Udhiyyah and al-Ateerah.”⁴ In the following set of authentic ahadith, the practice was allowed or seen as sunnah (established tradition of the Prophet ﷺ). Abu Razeen al-Uqaylee asked the Prophet ﷺ, “We used to slaughter animals in Rajab. We would eat from its meat and give it to those who came to us.” The Prophet ﷺ responded, “Laa, ba’s” meaning “no problem” or “that’s fine.”⁵ At his farewell pilgrimage three months before he passed away, the Prophet ﷺ said, “…Whoever wishes let him slaughter…and whoever wishes not [to] then let him not…”⁶

On the other hand, there is another hadith, which is the most common and authentic of all, that says, “No far and no Ateerah.”⁷ To a layman, this seems to be a contradiction, but it is far from that. Imam Shafi’i and his students hold that this hadith combined with the aforementioned ahadith only abrogates the obligation of al-Ateerah. So their position is that al-Ateerah remains a sunnah and thus the meaning of the vague hadith is “No far or Ateerah is an obligation.” This was the position of Ibn Seereen and Imam Ahmad as well as many of the Scholars of Hadith.⁸

Some Malikis, as noted by Ibn Rushd in al-Bidayah, took this hadith as a full abrogation,  thus making it makrooh (disliked) to take part in al-Ateerah. Al-Allamah ash-Shawkani disagrees with the Malikiyyah based upon solid usool (method used to derive fiqh). He said, in agreement with the Shawafi’, “In combining the hadith it must be said that the meaning is ‘there is no obligation of Far or Ateerah’ thus making it a sunnah which the Prophet ﷺ allowed. This can be the only opinion because we don’t know the exact chronological order of these texts except that they are all within the last couple years of the Prophet’s life… There is no doubt that the hadith ‘No Far and No Ateerah’ by itself indicates prohibition. That can’t be the case after we combine this hadith with the other ahadith and the fact that full abrogation cannot be established except with knowledge of the order of the statements or by a clear claim that it is abrogated.”⁹

The majority of scholars from the Hanafi and Hanbali schools of thought said that this hadith came as an abrogation of the legislation of these practices as a sunnah, and thus it was replaced by al-Udhiyyah. They hold that this abrogation was not that of prohibition but rather that of negating it as an Islamic practice like the Udhiyyah, yet it still remains an acceptable and permissible cultural act.¹⁰ Ibn al-Qayyim said, “If it we gather these ahadith then we see that this hadith of abrogation is that of it being a sunnah (Islamic practice) without there being a prohibition or dislike in it. So if a person wanted to slaughter an animal in Rajab for whatever reason and he wanted to give the meat to the poor, then that would not be disliked ¹¹

I decided to do this research after seeing a forum where some modern Saudi scholars and Salafi brothers were demeaning the honorable Shaikh Abdullah ibn Bayyah for using this issue as a proof in allowing Muslims in the West to take part in non-religious holidays or occasions. The fact is that it is solid proof indeed. The Saudi scholars and their followers contended that the hadith “No Far and No Ateerah” is a case-closing hadith which is – as we have seen in this article – far from the majority position of ahle Sunnah (Sunni Muslims). When doing this research, I read many modern scholars  from the Muslim world claiming that this issue is a clear cut abrogation that led to the prohibition of this act and any others like it. They make a point to mention that celebrating any day other than the two holidays revealed to our beloved Prophet ﷺ would be an innovation rejected by the masses. The fact is that I believe they’re seeking to hide the legitimate majority opinion based in the established schools of fiqh in order to serve their expression of political frustration. I believe they are frustrated that not only are the Muslims nowhere near becoming a superpower, but we have also become very weak in the world today. Our scholars see our governments as cowardly and unable to stand up to Western injustices, and they feel like they must stand up as representatives of this deen (religion) and do something. The problem, however, is that the “don’t be Western in any way, shape, or form” attitude has only alienated us more and weakened our  ability to articulate our message to the masses.

These are indeed noble intentions, but the act is against very harsh injunctions of the Qur’an. Allah said, “Indeed those who conceal what We have sent down of clear proofs and guidance after We made it clear for the people in the Scripture – those are cursed by Allah and cursed by those who curse,”(Qur’an, 2:159). There are numerous more Islamic and practical ways to deal with the political frustration we all face.

Before concluding, I will have to clarify a couple issues to our readers who, like me, were brainwashed with this un-Islamic anti-Western rhetoric that keeps us segregated and reclusive and not “Western.” We should be seen as a unique, integrated (not assimilated), positively-contributing identity in Western society. The hadith that says “whoever acts like or imitates a people is one of them” is not usable in this context because the Prophet ﷺ “Islamicized” al-Ateerah by making the slaughter for Allah alone. The fact is that the explanation of this hadith, according to the consensus of commentators, is that we are prohibited from looking like or imitating the disbelievers in matters that represent shirk (associating partners with Allah) or sin or that specifically identify them as disbelievers.  This does not include what clothes you wear or how you eat, as the Prophet ﷺ did these things just like any other polytheist of his time. Another hadith relates, “Whoever innovates something in this affair of ours (Islam) something that is not from it then they will be rejected.” Again this hadith, according to all the commentaries, means a religious matter, not a secular one that is common to all peoples of faith and atheists alike.

In conclusion, I stand with our Shaykh, the distinguished Abdullah ibn Bayyah, by saying that according to these texts, there is nothing wrong with celebrating occasions and holidays which are customary and are not representing a certain religion. This is as long as Muslims conduct themselves in an Islamic manner and do not participate in acts that can lead to sinful behavior.

The world we live in today has brought many tests to the Muslims. Undoubtedly, it has also brought many blessings to us. One new reality—the fact that the knowledge of our religion has become readily available through mass media—can be either a test or a blessing depending upon the scholar you speak to. As a result, we find two extremes. Some who declare that everyone must follow one juristic school or preferred scholar to be the authority without exception. Others declare that they may follow whatever opinion they like and therefore spend much of their time searching for opinions which suit their desires. In this article we beseech the support and ultimate success only granted by Allah subhanahu wa ta`ala (exalted is He) to bring the proper attitude to the availability of knowledge and scholarship in the modern world. This must be done by balancing the two extremes. In order to be witnesses upon mankind, Allah has made us a balanced nation. (Qur’an, 2:143)

Some scholars and schools of thought teach that all laymen must follow a particular juristic school of thought without exception. They remind us of the verses in which Allah enjoined us all to ask someone of knowledge if we were confused or unaware. They also cite how the Prophet ﷺ would designate some of his more knowledgeable companions to be specific references for others. Their points are all true reports, but still do not justify the claim that we should attach ourselves to one juristic school and never seek knowledge outside of it. This is like making that school of thought a legislator with the same authority as the Prophet ﷺ — which is wrong.

The truth is that the science of Islamic law can be quite complicated and not everyone can deduce a sound understanding from just reading the Qur’an and hadith (report of the sayings and actions of the Prophet ﷺ). This requires you to seek a qualified jurist to clarify to you the ruling regarding matters you don’t know about or are unclear to you. That being said, there is nothing in Islam which says that we must follow only one juristic school of thought or only one scholar. Two of the previous scholars of al-Azhar, Shatloot and al-Sayis, wrote in their curriculum about comparative jurisprudence, “This opinion was developed by some juristic schools in the recent centuries when the spirit of difference had become dominant and juristic partiality reigned. So they made up rules that prevent laymen from taking an opinion outside of the school they grew up with. This caused the reality of juristic schools of thought to go from opinions which can be discussed and either accepted or denied by anyone to become obligatory religious truths that one who started with them must always adhere to and can never look into others. By these rules, those scholars prevented the masses from looking into the Qur’an and Sunnah for guidance! (Which all believers were commanded to do in the Qur’an.)” (Muqaranah al-Madhahib fil-Fiqh, 30)

Jad al-Haqq, one of the great scholars of al-Azhar in its prime, says in his book about the flexibility of Islamic Law: “The truth which is the opinion of the majority of scholars is that it is not an obligation to follow a certain juristic school with exception to others. Any follower (muqallid) may follow whichever school or juristic scholar he likes. This is because since the time of the companions people would follow different jurists from time to time and compare what one said with another on a given issue. This opinion was taken by al-Aamidee, Ibn al-Hajib, al-Kamel ibn al-Hamam, and al-Rafi’ee and many others from our great predecessors. This is because obliging someone to follow one juristic school over the other is like claiming for them a distinguished right to legislation whereas Islam is clear that the only obligation in obedience is to the Qur’an and authentic Sunnah. Ibn Ameer al-Hajj said in his commentary on al-Tahreer by al-Kamel al-Hamam, ‘In the foundations (usool) of Ibn Muflih and others from the Malikiyyah, Hanabilah and Shafi’iyyah, it is not an obligation upon anyone to follow a specific jurist or juristic school.’(Muroonah al-Fiqh al-Islami, 134-135) That opinion is confirmed by the many scholars based in different juristic schools who researched for the Encyclopedia of Fiqh of Kuwait (see vol. 13, p.163).

This brings us to the crux of this article. The Holy Qur’an is crystal clear in encouraging all of us to learn about our religion and to spend as much time as we can doing so. So if we find answers and clarification by reading through the Qur’an and Sunnah then that is a good thing. The problem is that there will be many texts that we don’t understand. There will also be many issues of which we aren’t aware. Finally, there will be many other issues which we simply can’t find an answer to at all. So this is why we must seek a sound understanding of Islamic law from a person who is qualified to give a legal ruling. We must go to someone who is a jurist (faqeeh/mujtahid) or has been trained in the Islamic sciences enough to give us the ruling from a qualified jurist.

The scholars have differed on the matter of taking rulings from different scholars. Some scholars allow Muslims to choose any scholarly opinion according to what is easier for them. They cite the major objective of Islamic Law in facilitation and Allah’s compassion for the believers. The well-known authentic hadith says, “When the Prophet ﷺ was faced with two options, he always chose the easier of the two as long as there is no sin in it.” (Bukhari) These scholars remind us that in the time of the companions and thereafter people would seek rulings from different scholars and there was never any blame on them for doing that. Shaikh al-Tayyib Salamah says, “There is no doubt about the fact those who have permitted the follower (muqallid) to choose opinions because he or she finds them easier upon them are not permitting it if it corrupts their religion. They are saying that as long as a qualified jurist has made a ruling then whosoever chooses to follow them is not blameworthy because facilitation is a well-known founding principle in Islamic Law.” (Al-Akhth bil-Rukhas wa Hukmuhuh, 533)

Some scholars who prohibited taking rulings from different schools of thought weren’t doing so because they believe that it isn’t permissible according to their understanding of the Qur’an and Sunnah.  They did so in order to block the means to sinful behavior. They hold that allowing Muslims to pick whichever opinion they want will lead them to picking opinions based upon their desires which they say is sinful. Thus Islamic Law would be serving their desires when the people were meant to serve Islamic law.

The majority of scholars have said that this application of blocking the means is invalid since it would be putting that juristic school on the level of Prophetic legislation when in reality it is just a human’s educated attempt to represent Islamic Law. The correct way to deal with it is teaching the people how to choose an opinion regardless of which juristic school or scholar it comes from. In this approach, the majority has said that it is permissible to follow any qualified jurist or juristic school, but according to a condition. The world-renowned scholar Yusuf Al-Qaradawi said, “Some scholars allowed following any opinion from a qualified jurist even if it is just to suit one’s desires and because they find it easiest without even looking into the proofs and thinking about which one makes sense and is rooted in the texts. I say that this is impermissible because the early generations of Muslims were narrated to have said, ’Whoever seeks the easy opinions amongst jurists has rebelled (fasaq).’ That is because that is simply following one’s desires and playing with our religion which is a mockery… In this case it is as if the believer wants the truth to follow him around whereas it is the believer that should be searching for the truth even if it goes against his desire.” (Fatawa al-Mu’asarah, vol .2, 128-129). Their strongest proof in prohibiting seeking opinions simply because they agree with their desires is in verse 59 of Surah an-Nisaa: “And if you disagree over anything, refer it to Allah and the Messenger.” (Qur’an, 4:59)

This verse supports the need to compare rulings according to that which seems closer to the Qur’an, Sunnah, and sound logic rather than the opinion that seems easier to you. The esteemed Wahbah Zuhaily said, “My opinion is that it is permissible to look for the facilitations in the juristic schools in the case of dire necessity or pressing need. This is as long as the intention behind it isn’t playing around with the religion to suit one’s desires.” (Al-Rukhas al-Fiqheyyah fi Dow’i al-Kitab wal-Sunnah, 80)

Now some might have the wrong idea of what the scholars mean in serving one’s desires. The following example was given by Shaikh Mustafa al-Taarizee: “Someone wants an illicit relationship. To escape fornication [adultery], he sleeps with her by secret marriage whereby there is no Guardian as in the school of Abu Hanifa and no witnesses as is narrated in the school of Malik…playing around with Islam in this manner makes a mockery of it and no spiritual person of reason would allow it.” (Al-Rukhas al-Fiqheyyah fi Dow’i al-Kitab wal-Sunnah, 81).

Now we must summarize the opinions of the scholars on this matter and set out the guidelines for taking easier opinions so that we don’t fall into sinful behavior.

1. From the established principles of Islamic Law is “إذا ضاق الأمر اتسع” which means roughly, if a situation becomes hard to withstand, then the law accommodates. So you may follow an established opinion which makes your general life easier. An example of this is for people who live in the west and find it difficult to take off their socks to make Wudhu. They may take the Hanbali opinion for the case being permissible and not related to the type of foot covering because there is a حاجة or pressing need.
2. When making such a move, one has to follow an established opinion within the major schools of thought which has been validated by the great scholars throughout history. It is preferred to be an opinion of one of the 4 juristic traditions, but if not it must be at least well documented and recognized by the authoritative juristic works or represented in the modern councils of jurisprudence and committees dealing with new issues.

God willing the next research will cover strange isolated opinions and the rules for dealing with them.

And Allah (swt) knows best.

Photo: Christa Lohman

Shaykh Akram is a classicist-traditionalist: he favours classical scholarship, and he fits, on the whole, within the normative intellectual paradigm of late Islamic history. At the same time, he is a great upholder of the highest standards of scholarship so he has a dynamic relationship with the Islamic scholarly tradition that he hails from. This vigour was on full display as a learned audience attended Shaykh Akram being hosted by Doha Mosque and the Safeenah Fellowship over a weekend in which an usul al-fiqh primer – namely, al-Waraqat of Imam Juwayni – was covered. In my own parting gratitude to Shaykh Akram after the course, I mentioned to him that whether we agreed, disagreed or were still undecided about many of his discussions, we were sure that he made us think and had diligently prepared himself for the weekend. As such, teachers like him are priceless and highly under-valued in our community. After the course, Shaykh Akram advised me to do a write-up of the weekend, and with great hesitation (due to knowing my own deficiencies) I agreed and proceeded with the suggestion out of respect and honour for my teacher. What follows is a presentation and discussion of some major themes – not fine details of technical differences of a less practical benefit – that are worth our consideration as a western community that needs to still successfully grapple with the challenge of facing the modern world with an authentic Islamic voice. Nevertheless, this discussion has not been read by Shaykh Akram, so it is not some official representation of him. Moreover, I hope that when my own voice is speaking it is clearly not Shaykh Akram’s.

The Purpose of Teaching

The Shaykh commenced the sessions with his usual disavowal of egotism. Thus Imam Abu Hanifa, he reminded us, taught people to understand, and not to merely follow him. Now such a statement coming from Shaykh Akram cannot possibly be taken as some denouncement of following the Hanafi school, for, as he pointed out, he is himself ninety-nine percent “Hanafi”; hence the one percent of issues where he is seen to be controversial can hardly be taken as casting him out of the Hanafi fold. Instead, such reminders were there to inspire a learned audience to critically engage with the presentations, and to even challenge his assertions. Indeed, this was a gathering of passing around jewels amongst jewellers – apart from me – and not a gathering of casting jewels amongst children to play with them like toys, oblivious of their purpose and true worth. Therefore, Shaykh Akram exhorted the audience to make knowledge their own possession, and not simply the quotation of their teachers (including him). For him, it is the Greek tradition that makes pure followers of their teachers, not Islam!

The Case of Usul al-fiqh

Usul al-fiqh was pointed out as having the same relation to Islamic law as grammar has to language: it is a science that protects you against error. Moreover, the science discusses four matters according to the fuqaha: 1) ahkam (rulings); 2) adillah (sources of the ahkam); 3) how to derive rulings from the sources (culminating in the science of ijtihad, or independent legal reasoning); and 4) qawa’id (legal precepts) and masalih (benefits). The early jurists like Abu Hanifa and Malik had a pure Islamic understanding of the sources; yet, after the second hijri century, Muslim usul came to be dominated by the Muslim engagement with the Greek-Hellenic tradition. This led to the division of the usuliyyin first put forward by Ibn Khaldun in al-Muqaddimah: namely, the division between the tariqa al-fuqaha and the tariqa al-mutakallimin. Of course, such a binary understanding, as is usually the case with such attempts at simplification, obscures the method of those who tried to join the two tariqas. Shaykh Akram lamented that usul al-fiqh lost importance after the third hijri century, as it was not actually used to produce fiqh, because in most cases usul became preoccupied with philosophical generalities (kulliyyat) divorced from practical legal cases and/or fiqh became a process of producing fatwas according to naza’ir (taking a known legal case and then applying it to similar matters, as opposed to looking at the foundational sources for direct answers to new occurrences). In terms of preserving a “pure” theory of usul al-fiqh, Shaykh Akram considered the Hanafis to be less affected by Greek-inspired ‘ilm al-kalam than the other madhhabs.

As with Shaykh Akram’s approach to theology – which favours a commitment to the early community (salaf), without fitting into the modern “salafi school” in its philosophising theology – he favoured a revival of usul al-fiqh along the lines demanded by a profound reading of the foundational sources of the Quran and Hadith, without being hemmed in by any school of thought from any of the religious sciences. In this revival of usul, Shaykh Akram said that the Prophetic method is the only guide and guaranteed way of attaining Divine favour. In this regard, one sees the Prophetic method being one of having a profound understanding and application of the Quran, first and foremost, not as a mere theoretical principle but as a living reality. This was illustrated by one of Shaykh Akram’s personal reflections on the kaffara (atonement) for sexual intercourse (jima’) during the day in Ramadan, which is not mentioned in the Quran, but reflected in the Sunnah in a hadith in Bukhari and Muslim (see Shaykh Salih Munajjid here). Now the Quran does mention three kaffaras for: 1) killing unintentionally (qatl al-khata’); 2) broken oaths; and 3) zihar (a husband making allusive comments about one’s wife and her marital status). Shaykh Akram showed how the Prophet (peace and blessings of Allah be upon him) made qiyas (analogy) with the Quranic kaffara for zihar for illegal sexual intercourse during the day in Ramadan because the former makes the halal into the haram, in a similar way to how illegal sexual intercourse makes the haram into the halal. Furthermore, the reason for the kaffara for illegal sexual relations during the day in Ramadan being different to the atonement to missed ritual prayers (salat) or zakat relates to the distinction between zarf (that which is obligatory in its time and what is similar to it) and mi’yar (that which can only be performed in one time). Whereas a missed ritual prayer or missed hajj can be made-up (qada) at another prayer time or pilgrimage time, respectively, a fast of Ramadan cannot be atoned for in another Ramadan, where only the current obligatory fast can be performed, without a spoiled or missed fast being made-up at the same time.

In the interests of brevity, I will not recount in full an example that Shaykh Akram gave to further highlight the Prophet’s strictly Quranic method. The case referred to al-muharramat, which are women that one cannot marry, and they comprise two categories in the Quran: 1) those forbidden by blood (mother and her ascendants, and daughters and her descendants) (al-asl wa’l-far); and 2) those forbidden through the breastfeeding of milk. Now the Quran outlines all the blood relations, but does not recount a full list for those forbidden through breastfeeding. Now a hadith in Sahih Muslim has the Prophet (peace and blessings of Allah be upon him) outlining that what is forbidden by lineage is forbidden, likewise, through breastfeeding. While some scholars see this hadith as adding (ziyada) to the Quranic list for breastfeeding of milk, Shaykh Akram pointed out that the hadith is actually merely an explanation (bayan) of the Quran, in this instance, whereby the Prophet (peace and blessings of Allah be upon him) has not considered the Quran to be omitting the relevant prohibited women through breastfeeding; rather, the Prophet (peace and blessings of Allah be upon him) saw that the Quran, in its beautiful conciseness, was not going to merely repeat all the categories again that had been stated in relation to those prohibited by blood, thus the Quran was simply mentioning the absolute minimal essential headings of those prohibited by breastfeeding, with the rest of the relevant categories implied.

His project is also conceived as disavowing the kalamist-inspired limitation of the Quran and Sunnah (as exemplified by great and still highly admirable imams like Juwayni), whereby the two sources were seen as very limited and hence the perceived need to produce “foreign” principles (often derived from Greek philosophy – touched upon later in relation to logical concepts like hadd, or definition, and qiyas concepts like qiyas kulli (complete and general analogy)) in order to adequately address peoples’ countless needs. Shaykh Akram said that such an understanding derived from misunderstanding the later division of knowledge into 1) shari’i (scriptural) and 2) aqli (purely rational, non-scriptural). For Shaykh Akram, the shari’i included the aqli, but proponents of the latter often failed to perceive the aqli-comprehensiveness of the shari’i; and he sought to counter this and raise its discussion in western Islamic scholarly discussions. Furthermore, he pointed out that kalamist usuliyyin take knowledge apart from reality (like philosophers), but the Prophet (peace and blessings of Allah be upon him) knew the condition of his people and would rule accordingly (hence the various narrations about what is the best action). In such cases in the Prophetic model, there is, for Shaykh Akram, no ta’arud (conflict) between religious texts, as the text of al-Waraqat states, but simply occasions of ikhtilaf (different contexts addressed accordingly).

While Shaykh Akram emphasised the importance of knowing usul al-fiqh for having a correct understanding of the Quran and Sunnah, so that the Lord’s message can be correctly comprehended, he also outlined its limitations and alternative ways of mastering the Sacred Law. For example, he argued that early jurists like Abu Hanifa and Malik, while being undoubtedly methodical in their own traditions (Malik in the Medinese and Abu Hanifa in the Iraqi tradition of Ibrahim Nakha’i), they were also natural jurists in a way that later great scholars like Juwayni were not. To illustrate the point, he highlighted how knowledge starts as a’yan (individual cases) and then moves into ‘umum (general theories). In this way, one can become a master jurist by reading profoundly and extensively the Quran and Sunnah and the judgements of the early community (through the musannaf literature of ‘Abd al-Razzaq and Ibn Abi Shayba, in particular), without a great deal of philosophical and abstract usul al-fiqh; in the same way that one can master a language by reading a large amount of literature, rather than just merely concentrating on grammar.

Moreover, this natural juristic expertise was encouraged for contemporary jurists to embrace a dynamic perspective on fatwa-giving, as illustrated, firstly, by the Bukhari narration referred above about the Companion (may Allah be pleased with him) who contravened the fast of Ramadan through daylight sexual intercourse. Now the narration gives a great deal of flexibility, whereby the Companion says he could not fast for two months consecutively because of his weakness for sex; and the Prophet (peace and blessings of Allah be upon him) allows him flexibility, apparently, on that basis. Shaykh Akram highlighted that no madhhab displays the flexibility of the hadith in such cases. Instead they often enjoin, in such cases, the fasting of two months consecutively for those who do not own a slave; and Shaykh Akram emphasised that the hadith showed the great nature of the Prophet (peace and blessings of Allah be upon him) in calling people back to God (da’i). In addition, Shaykh Akram narrated an example of juristic dynamism displayed by Yahya ibn Yahya al-Laythi al-Maliki (which can also be read here), who was asked for a fatwa from a ruler who had engaged in illegal daylight sexual intercourse during Ramadan; and al-Laythi’s fatwa was that the ruler would have to fast two months consecutively, despite the normative fatwa being that he should (and in this case he could) free a slave, because al-Laythi reasoned that such a ruler could free a slave a day for committing such sexual transgressions throughout Ramadan. Shaykh Akram highlighted thus that contemporary jurists should exhibit such dynamism as exhibited in the hadith and the instance of al-Laythi; however, many jurists do not display such expansiveness and can only work according to an order laid-down in a classical manual, without any deeper understanding. His call is not to dispense with madhhabs, as he is Hanafi, but rather a demand that those who want to deliver public fatwas should be true legal experts, and should not be semi-expert nor unnecessarily rigid!

Complexity of Ahkam

As al-Waraqat states, ahkam can be articulated as seven: wajib, mandub, mubah, mahzur, makruh, sahih and fasid. Shaykh Akram’s concern with the first 5 rulings is that they are not properly defined by later scholars and the implications are not set-out properly. So the wajib, or fard, has many categories that are not the same in all instances. For example, a Shafi’i considering it fard for a follower in a group prayer to recite the fatiha is not the same as the obligation to not drink alcohol. Even actions of sunna mu’akkada (confirmed Prophetic non-obligatory actions) are not the same; for example, the Prophet (may the peace and blessings of Allah be upon him) once made du’a against someone who did not eat with their right-hand (a confirmed sunna). Ijtihad, he reminded, is only for unclear matters; and for such cases the Prophetic method was not to explicitly set-out the difference between obligations and recommendations; for example, the case (and hence the difference of opinion, or ikhtilaf) on something like the witr prayer. The Shaykh did not completely dismiss following such later distinctions – for he said that non-experts must make taqlid of a legal expert – but he wanted to highlight the theoretical problem; and how the later attempts at specific judgements not explicitly explained in the Prophetic statements did not resolve any perceived confusion.

The Nature of Language

Shaykh Akram conducted a fascinating discussion of language – as one would expect from a Nadwi. This included a respectful presentation of Ibn Taymiyya’s discussion of majaz and haqiqi (metaphorical and literal meanings of words) as contained in his Kitab al-iman (which is included in his al-Majmu’ al-fatawa). In summary, Ibn Taymiyya’s denial of majaz, even if we are not convinced of his theory, is not an ignorant and simplistic one, but one rooted in seeking precision and denying conclusions that are, at best, conjectural. So Ibn Taymiyya’s contention was that nobody in the salaf from the fuqaha employed majaz (as he understood the conjectural nature of assigning majaz to any given word), and who can really assign the meaning of a word? Also, even if a word was first used in the Quran and Sunnah and now has a common meaning, can anyone be certain that the original Arabs had no other understanding of the word that would render a majaz attribution redundant? Finally, Ibn Taymiyya would ask such majaz enthusiasts whether Arabs ever used words unconditionally? Now this sophisticated argument from Ibn Taymiyya is only one that expert linguists can faithfully engage with, it is not one for simple imitative scholarship.

In addition, Shaykh Akram pointed out that the meanings assigned by usuliyyin to matters such as ‘amm, khass, zahir and nass suffer from the same openness to criticism as terms like the fard and sunna. Furthermore, the aqsam al-kalam (types of speech) section in al-Waraqat was subjected to a grammarian’s criticism, where Juwayni’s points of kalam being acceptable if consisting of only a fi’l and a harf (where opponents would say that an ism is required) or that it could consist of simply an ism and a harf (only supported by Jurjani) are matters of contention.

Naskh

During the class, this was the only discussion which Shaykh Akram mentioned should be kept in the classroom. When I later privately discussed it with him, and I mentioned how some might understand it, he advised me to clarify it in this present overview. In light of his definition of naskh, it is appropriate that I do not actually translate it in the normal manner, namely, abrogation. This is because Shaykh Akram defined naskh as taking into consideration the situation and condition of people, so one can bring into effect what has been “abrogated.” In other words, if the circumstances of those “abrogated” verses of the Quran emerge then the significance or wisdom (hikma) of them again becomes effective. To illustrate, by way of clarification (and this is the example I privately used with Shaykh Akram and he agreed with my understanding), wine remains haram, or prohibited, in its ruling, or hukm; but if one encounters a Muslim struggling with the problem of drinking wine, then, although the hukm does not change, the scholar should take guidance from the abrogated, accept the fact that most people only gradually leave sins they have become addicted to, and try to advise a gradually realistic programme for the person to effectively leave the sin. Nevertheless, and this is where Shaykh Akram emphatically cautioned against any abuse of such theory, such efforts to utilise the mansukh could only be performed by completely expert scholars (mujtahids).

This type of hikma, as opposed to fatwa, reminds me of Ibn Rajab’s commentary of hadith 8 in his Jami’ al-‘ulum wa’l-hikam, where he writes: “The Prophet (may the peace and blessings of Allah be upon him) did not stipulate that those who came to him wishing Islam had to cling to the prayer and the zakah. On the contrary, it has been narrated from him that he accepted Islam from a people who stipulated that they should not have to pay zakah…[After narrating traditions in Musnad Ahmad to this effect regarding converts seeking to leave zakat, jihad and prayer without bowing, or ruku’,] Imam Ahmad took the stand based on these hadith and said, ‘[The acceptance of] Islam can be sound with an unacceptable precondition, but the person is then required to fulfil all of the judgements and rulings of Islam’” (trans. Abdassamad Clarke, in Ibn Rajab, The Compendium of Knowledge and Wisdom, pp. 130-1).

This discussion reminded me of my mother’s case just before she converted to Islam (may Allah have mercy on her and everyone who says amin to this prayer). She did not have the strength of character to immediately adopt the hijab and she worried about converting and not donning the head scarf. I therefore sought the advice of an English-based scholar Shaykh Abdullah al-Juday’, and he advised me to tell my mother to convert, even if she did not adopt the hijab, as long as she did not consider it lawful to not wear the hijab. I mentioned to Shaykh Akram that this story reminded me of what I understood to be his intended meaning behind saying the mansukh would again be applicable. And he agreed with me, Alhamdulillah.

Scholarly Consensus (ijma’) on Juristic Matters

Shaykh Akram praised the ijma’ section in Imam Shafi’i’s Risala. Furthermore, he pointed that often the ijma’ declared in fiqh works in later madhhab history are often instances where no ijma’ exists. He and I discussed in private how madhhab claims of ijma’ on three declarations of divorce being three divorces, even if intended as only one divorce – which is the position of the four Sunni schools of law, in opposition to Ibn Taymiyya and a number of contemporary scholars – is not a clear and binding consensus (al-ijma’ al-sarih), but is rather a non-binding and non-absolute consensus (al-ijma’ al-sukuti). Moreover, he highlighted that the conditions of absolute ijma’ for later generations are simply theoretical and have never occurred as theorised, whereby generations after the Companions (may Allah be well pleased with them) reached such a consensus and bound future generations to it. In addition, he argued that the jama’a (group) that the hadith tell the Muslim umma to follow means the Companions (may Allah be well pleased with them all).

Transmitted Reports (akhbar) and the Sunnah

Our dear teacher (may Allah increase him and his family with all good) gave the logical advice that the science of reports is taken from the experts of hadith rather than texts of usul al-fiqh (including the one being taught). Although he was quite positive about the section in al-Waraqat, he was critical of the hadith section in the Hanafi Usul al-Shashi (which Shaykh Akram had edited and published, with a foreword by Shaykh Yusuf Qaradawi). He also spoke of the brilliance of Imam Bukhari in actually looking at individual hadith on a case-by-case basis, without using general principles in a half-baked way. An example of a half-baked approach to the science of hadith is seen in people performing tad’if (weakening of narrations) or tashih (authenticating of narrations) by merely looking at abbreviated comments on the status of various narrators in something like Ibn Hajar’s Tahdhib al-tahdhib, or applying general principles from an usul al-hadith text like Ibn Hajar’s Nuzhat al-nazar.

With regards to the Sunnah, he adopted the division articulated by Shah Waliullah in his Hujjat Allah al-baligha: 1) sunna al-huda (guidance): which are sanctioned to be religiously followed; and 2) sunna al-‘ada (not part of the mission, such as eating Arab food or dressing like an Arab). He stated that the following of sunna al-‘ada does not attract Divine reward for its performance by itself, but is only rewarded by the Divine if performed out of love for the Prophet (peace and blessings of Allah be upon him), so one is really rewarded for love of the Prophet (peace and blessings of Allah be upon him) rather than the action itself.

Qiyas (Analogy)

Some of the most profound discussions related to this topic. He contrasted Prophetic usul which is the qiyas of a juz’i to juz’i, as opposed to the Greek qiyas of kulli to kulli; and how a methodology of qiyas based on early practice accepts one of tamthili rather than the Greek-inspired mutakallim approach that seeks to be shumuli. What all of these contrasting terms come down to is the idea that the early-Muslim approach makes qiyas of one small case to another small case, and the possibility of being mistaken here is limited; while the Greek-inspired mutakallim approach seeks to establish a general rule and then apply it to others (despite struggling to find specific examples of such generalities that they can apply, as highlighted by Ibn Taymiyya in his al-Radd ‘ala’l-mantiqiyyin). It was this Greek-inspired approach to usul that led, according to Shaykh Akram, Imam Juwayni in al-Burhan to accuse Imam Abu Hanifa of not knowing qiyas, because the qiyas which Abu Hanifa was famous for extensively and expertly utilising was not in accordance with the Greek method that Juwayni favoured. The early community derived rulings on the basis of ta’rif (specific-case based characterisation), and not the method of hadd (all-encompassing definition), tasawwur (full conception) and tasdiq (full judgement) that was taken from the Greeks.

Shaykh Akram highlighted the various aspects of traditional qiyas. Included was the fact that the essence of qiyas is tahqiq al-manat, or deriving from general rulings, and everyone agrees on it in principle (even the Zahiris), even if people might differ on application. What is more controversial (and here the Zahiris do disagree) is takhrij al-manat: taking a specific case and applying it specifically to another similar case because the ‘illa or why is present in the new case (far’) as exists in the original case (asl). Moreover, he highlighted important aspects of qiyas:

• Qiyas al-‘illa: the why of the ruling (very important, and stronger than the khabar al-wahid or solitary hadith);
• Qiyas al–shubha: when the same ‘illa is found in another case then the same original ruling is applied – in cases of tard, not ‘aks (when ‘illa is not found and the ruling cannot be applied);
• Qiyas al–dalala: to make effort to understand the hukm beyond the mere outer words.

He highlighted that qiyas al-‘illa is difficult to ascertain in worship (‘ibada), so it was more utilised in social laws (mu’amalat) by Abu Hanifa and Malik. Due to the danger of qiyas being corruptly applied, Shaykh Akram said that it is dangerous and that it should be applied cautiously by the fully qualified. Therefore, he quoted Jassas’ limitations of qiyas: that it should not remove the hukm of a sacred text of Quran or hadith (nass), nor oppose the ijma’ of the Companions. Moreover, he added that qiyas was not to be applied in hudud (Divinely-set penal codes) and kaffara.

Ijtihad and Taqlid

Despite his repeated calls for scholars to become expert scholars, and for expert scholars to throw off all-encompassing taqlid of Islamic schools of thought of all sorts, Shaykh Akram remains traditional Hanafi. Therefore, he naturally asserts that complete laypeople should make taqlid of a qualified scholar; but, in turn, those qualified scholars should strive to be experts and not rest on merely parroting what they have been taught or read in books, because it is upon such a blinded method that mistakes in fatwa occur, as the repetitive scholar does not understand what he possesses and what and how he is to wield that possession. As pointed out, fiqh and ijtihad were one thing in the early community; hence a mufti (one who gives a fatwa) was a mujtahid (capable of independent legal reasoning). Shaykh Akram was dismayed at how now, for example, one can be considered a mufti by just repeating a fatwa that one finds in an Urdu collection of fatwas.

In Shaykh Akram’s opinion, there are three types of people in relation to Islamic law: 1) the mujtahid; 2) general scholars who understand a scholarly argument and only follow with knowledge, and can depart from their mujtahid for another when satisfied by scholarly preference to do so; and 3) common people who only make taqlid of a qualified scholar. Nevertheless, he advised that scholars should provide their evidences to laypeople when passing fatwa, even if the latter do not understand, but they should at least make an effort to understand. Yet, he mentioned the classical principle that an ‘ammi (layperson) has no madhhab, and that they simply ask a qualified scholar whenever and wherever he or she is without being restricted to the issuer of the fatwa being from a particular school, or the school that the ‘ammi associates himself with; so, for him, there is no absolute duty to make one’s purification or ritual prayer according to one school, unless one is confined by circumstance to following one scholar who adheres fully to one school. In this regard, Shaykh Akram quoted Ibn ‘Abidin in his Hashiya where the latter quotes Ibn al-Humam saying that an ‘ammi can follow whichever fatwa from two differing muftis that his heart inclines to, but Ibn ‘Abidin said he can even follow the one that his heart does not incline to because the ‘ammi’s heart is not given consideration in such matters because his heart has no way of being more content with one fatwa or another. Then he quoted Hamid al-Din Farahi reiterating what others have said, namely, that every age must have mujtahids. Nevertheless, he pointed out that our ummatic problem is not that we lack mujtahids, but that we collectively lack God-consciousness (taqwa); and we should therefore make more effort in developing God-conscious people than in trying to cultivate mujtahids.

Shaykh Akram praised the Hanafi Jassas’ work on usul al-fiqh. Thus it was appropriate that he ended by presenting Jassas’ conditions of a mujtahid: 1) fully able to conduct independent research of the earliest and primary sources; 2) morally upright and trustworthy (‘adil); and 3) concerned in improving the situation of believers in society (a da’i).

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In conclusion, I hope that the many young scholars who attended, and those young scholars who will listen to the recorded material, will take these discussions further and enrich Islamic scholarship in the west. In this regard, the Safeenah Fellowship would welcome the opportunity to support and fund such research. The real beauty and blessing of Shaykh Akram is his tireless effort to raise the English-speaking scholarship so that it is empowered to rise to the many challenges of the age. God knows the secrets of people’s hearts, but I have sensed over the years the least amount of ego and desire for scholarly dictatorship in Shaykh Akram, masha Allah. Hence I have seen students and non-students challenge him and for him to respond in the best and most open of manners, without any sense of “Do you know who I am? How can you challenge me?” That is the secret to him being so loved, because even those who are welcomed to challenge him are not met by arrogance, masha Allah. Ultimately, while our leaders talk of the importance of indigenous scholarship being best suited to tackling our problems, it is hard to envisage such a profound scholarship emerging if it does not benefit and engage with scholars like Shaykh Akram in our midst. It is this willingness to challenge traditions on the basis of actual expertise, and not whim and half knowledge, which best sums up why Shaykh Akram is so crucial to this western enterprise, even if the conclusions and look of it end up being quite radically different to Shaykh Akram. In other words, if I can have the liberty of using giants who over-shadow Shaykh Akram, if a refutation of Imam Malik occurs by someone like Imam Shaybani or Imam Shafi’i, or even an Imam Nawawi or Imam Yahya ibn Yahya al-Laythi al-Maliki, then we are all enriched, because they are truly on the level to critique; but a refutation of Imam Malik by less proficient scholars of Islamic law is hardly going to be worth much except a modern Ph.D thesis, with passing and barely noticeable benefit to the world at large.

By the Grace of Allah, we have a beautiful tradition of law filled with rich wisdom that balances between a deep understanding of our scripture and the reality of those to whom it is applied. Consequentially, our scholars have dealt with the modern world by developing two new applications of fiqh. One is referred to as Fiqh al-Nawazil which means the ‘Islamic Jurisprudence of New Realities’ (not present when the schools of jurisprudence were formed) and a subdivision of this is Fiqh al-Aqalliyyaat which is ‘Islamic Jurisprudence for Muslim Minorities’ living in non-Muslim lands. The famous axiom which led to the formation of these modern applications of the principles and objectives of our sacred texts is “The legal ruling on a given matter may change according to different eras, places, or circumstances.” This axiom is held by the vast majority of scholars from the four schools of Islamic Jurisprudence. To my knowledge there is no exception, but I was taught to be cautious about claiming it a consensus.

One of the new realities we face is that the vast majority of Muslims don’t speak Arabic. Similarly many Muslims live in communities where Arabic is not a spoken language and it would be unrealistic to expect the vast majority of them to learn it.

Regarding the language of the Friday Sermon (khutbah) given to majority non-Arab audiences, there has arisen two schools of thought amongst our scholars today.  The majority opinion is that the khutbah may be a mixture of both Arabic and the local language. Even some notable scholars of today hold the opinion that there is no clear requirement for any of the Khutbah to be in Arabic except verses of the Qur’an when it is delivered to a majority non-Arab audience.  The other opinion is that the khutbah is not acceptable unless it is all in Arabic.

More often than not, the literalist school of thought, which tends to issue opinions from centuries old fiqh books, doesn’t benefit these new realities. In dealing with the fiqh of new realities, our scholars and the collective councils often look at what is in the best interest (maslahah) of Islam and Muslims in the new realities they face. When there are texts which relate to an issue, they try and derive the reasoning (‘illah) behind the text in order to form an opinion which is more practical and facilitating. If there is no text prohibiting something then once again they look at the general objectives of Islam and if it fits with those objectives of our Divine law, then they will encourage it.

When dealing with this subject, I thought it to be highly relevant to mention the positions of world fiqh councils and comprehensive works rather than just stating the proofs behind it. This is because the followers of the minority opinion purport that theirs is the undoubtedly correct and majority opinion (it has even been said that there is a consensus for their opinion). With all due respect to them, in my opinion, this is due to the reclusiveness of their group which stems from an extreme form of blind following (taqleed) of their scholars.

Let’s start in the Islamic Encyclopedia formed in Kuwait. This research is the largest comparative fiqh work known to the recorded history of Islam. The idea came collectively from representative scholars of many Muslim countries in world fiqh conferences in the 1950’s. It was started in Egypt and then shifted to the ministry of endowments and religious affairs of Kuwait in the late 60’s. In Kuwait, many scholars from different countries like Syria, Jordan, Egypt and Kuwait based in all four legal schools (madhabs) began researching for the project. It was recently finished at 45 volumes and is being spread across the Muslim world as a primary encyclopedic reference for Islamic Law. The current expert supervisor of the encyclopedia is a Hanafi scholar from Aleppo (Halab), Syria named Dr. Ahmad al-Hajji al-Kurdi who is also on Kuwait’s national committee for issuing religious edicts (iftaa). Aleppo is a stronghold of the Hanafi madhab in Syria with a population of over 5 million and thousands of Hanafi scholars. Shaikh Ahmad and his family are well-known among them. ¹

In the 19th volume on page 177 it describes the pillars of the Khutbah according to the different madhabs, “According to Abu Hanifa it is simply to say alhamdulillah, subhan’Allah or la ilaaha illa Allah. Abu Yusuf and Muhammad added that there should be a longer portion which customarily can be called a khutbah. The Malikis said that however small it may be that anything can be called a khutbah according to Arabs. The Shafi’i school says that it is 5 things: alhamdulillah, salat upon the Prophet, admonishment to taqwa, praying for the Muslims, and at least a clear part of a verse of the Qur’an. That being said, on page 180 it says under the 6^th condition for the soundness of the khutbah, “To be in Arabic. What is meant by this is that its pillars are said in Arabic. This is because they are the obligatory pillars so it is a condition that they must be in Arabic even if the audience doesn’t speak Arabic. This is the majority opinion (Maliki, some Shafi’i and most Hanabilah).” So what’s being said according to these schools of thought here is that the pillars of the khutbah must be in Arabic since that is what is obligatory for the khutbah to be sound and anything added to that whether in Arabic or otherwise will not harm it’s soundness. The only exception is that most Malikis did hold the opinion that the khutbah can only be delivered in Arabic. This is since they held that the khutbah is part of the salah taking the place of the first two rakah’s of Dhuhr prayer and in their school the whole prayer must be in Arabic.

Continuing on page 180 of the 19^th volume, “And Abu Hanifa said – and this is the established opinion of the Hanafi school of thought – the khutbah is sound even if the whole thing is in a language other than Arabic regardless if the khateeb knows Arabic or not. Although Abu Yusuf and Muhammad agreed with the majority opinion except if the khateeb isn’t able to deliver it in Arabic.”

To further clarify this point, we find in the 27^th volume on page 201 under the heading conditions for a sound Khutbah, “It must precede the Salah, it must be a reminder that people customarily consider a sermon. So whenever the Imam fulfilled these two conditions after the time of Dhuhr has begun, then he has surely performed a sound Khutbah regardless if he was standing or sitting, he did one Khutbah or two,  he read Qur’an or not, it was in Arabic or another language…This is the Hanafi opinion.” For this they cited three of the most comprehensive and representative Hanafi fiqh books which all Hanafis refer to in proving what their school says on a given issue. They are Bada’I al-Sana’I 1/262, Hashiyyat ibn ‘Abideen 1/567 and Majma’ al-Anhaar 1/163. ²

Confirming this is a prominent Syrian scholar, Wahbah Zuhayli who is the head of the comparative Fiqh Department in the faculty of Shari`ah in the University of Damascus and also a senior member and advisor of juristic councils in Jeddah, Makkah, India, America and Sudan. In his eleven volume comparative fiqh masterpiece called Islamic law and its proofs, he notes in the second volume on the bottom of page 1304 about the conditions for a valid Friday Sermon according to the Hanafis: “They permitted the sermon to be in other than Arabic even if the khateeb is able to do it in Arabic and regardless if the people were majority non-Arabs.”³ It’s interesting to note that those who are strictest about the obligation of the khutbah being in Arabic consider themselves to be following the Hanafi madhab.

Now some detractors of these proofs might unwisely pass judgment in their bias and say that the scholars who wrote this either do not know what they’re talking about or that they are modernized liberal scholars who are approving an innovation.

Let’s look at the opinions of some of the strictest of scholars in following the Prophet ﷺ – or what some call Salafi or Wahhabi. According to the previous Grand Mufti of Saudi Arabia, Shaykh Abdul Azeez ibn Baz, “If most of the audience of the Khutbah doesn’t understand Arabic then there is nothing wrong with delivering it in their language …” Later in the same Fatwa he notes that he issued this edict with full knowledge that “it is known that the early generations would deliver khutbahs in Arabic to crowds with new non-Arab Muslims and it was not reported that they would translate the khutbah or deliver it in the local language. This was because in those days the honor and glory was with the Muslims who were, in that case, the ruling authority and their language was Arabic.” He then states that what leads him to make this fatwa is that Allah said, ‘We have not sent any messenger except that he preached in the language of his people in order to clarify to them.’ (Qur’an, 14:4)”⁴ I think it’s commendable to note Bin Baz’s understanding of the fiqh of Muslim minorities in what is underlined in his fatwa.

According to another Saudi scholar, the renowned Shaykh Ibn al-Uthaymeen, who is known for his strictness in matters of `aqeedah and a literalist following of the Prophet ﷺ and his companions (may Allah have mercy on them), “The correct opinion in this matter is that it is permissible for the khateeb to deliver the khutbah in the language that the audience is accustomed to…This is because the khutbah was intended to be a means of clarifying the religion and guiding the people.  The only exception is that the verses of the Qur’an must be recited in Arabic and then translated. Verse 4 of surah Ibrahim indicates the permissibility of delivering the sermon in the local language, ‘We have not sent any messenger except that he preached in the language of his people in order to clarify to them.’”⁵

According to the official decision of the Fiqh Council of the Muslim World League, of which Mufti Taqi Usmani and many other of the greatest scholars representing the Muslim World are esteemed members, “The better opinion is that delivering Khutbatul-Jumu’ah in Arabic is not a condition for its validity. The best thing is to deliver the introduction and the Qur’anic verses in Arabic (the pillars). This is so that non-Arabs will get used to hearing Arabic and so it will make it is easy to learn (since it is the language of our holy scripture). Then the khateeb follows that with an admonishment in the language of the audience. Then Iqamatus-Salah.”⁶

According to the standing committee for issuing edicts in Saudi Arabia, the members of which are some of the most revered Saudi scholars, “There is no hadith which indicates that delivering the khutbah in Arabic is a condition for its validity. Indeed the Prophet ﷺ used to speak Arabic in the khutbah and at all other times simply because that was his language and the language of his people…”⁷

I will limit the list of scholarly bodies and their members who hold this view to what has been mentioned for the sake of brevity.

The following are some responses to the opinion that the Khutbah must be in Arabic. First they say that since the Prophet ﷺ and his companions never did it, therefore it must be wrong. I encourage them to read this research. This research proves that the lack of action on the part of the Prophet ﷺ and the early generations is not a proof in itself. We should also review the abovementioned point made by the standing committee for issuing fatwas in Saudi Arabia.

The next argument they make is that the khutbah is like reading Qur’an and prayer which must be said in Arabic. Therefore it is not acceptable to be in any other language. They add to this, if we allow the khutbah to be in other than Arabic then that will open the door to the adhan and prayer being reduced to translations. The response is that, first of all, the scholars are not in agreement that the khutbah takes the place of the first two raka`ahs of Dhuhr prayer. Clearly the Hanafis are not of this opinion because they only hold that delivering one khutbah without sitting is sufficient, thus the absence of the two khutbahs representing the first two raka’ahs of Dhuhr. The Malikis are reported to have this opinion as mentioned before. The response to them is that `Eid prayer comes before the Khutbah and it doesn’t replace Dhuhr, yet it was still the practice of the Prophet to make two sermons and Allah knows best as to why since he never said why. Also in response to the idea that the two sermons are exactly like the first two raka’ahs of prayer is the fact that the Prophet ﷺ would not recite a surah after al-Fatihah in the last two rak’ahs of Dhuhr, yet in Jumu’ah salah which is supposed to replace the final two rak’ahs of Dhuhr he always recited another surah after al-Fatihah. Finally this is an assumption based upon ijtihad not similar to the famous Hadith about Tawaf (circling the Ka’bah) which says that it is like prayer except that talking aloud is permissible.

Finally, it cannot be said that the khutbah is similar to the Qur’an since the Qur’an is the word of Allah and the khutbah is the words of a person. It also cannot be said that the khutbah is like the adhan and prayer since the statements of the adhan and prayer are according to authentically transmitted statements of the Prophet ﷺ who said “Pray as you have seen me praying.” On the other hand, the khutbah is simply the words made up by the khateeb. So whether he made the sermon in Arabic or another language they have no holy textual value like the Qur’an, adhan, or salah as they are the khateeb’s own invention. So no scholarly analogy can be used between the permissibility of giving the khutbah in a local language and translating the adhan.

With all due respect to our beloved scholar Mufti Taqi Usmani, his colleagues and followers, I believe this to be an issue that Muslims need to be on the same page on. It has created fitnah between Imams, community leaders, and their communities. As we have seen, according to the vast majority of today’s esteemed scholars around the world, including Mufti Usmani’s colleagues in the Muslim World league, it is the more balanced and practical opinion to allow the khateeb to deliver the general admonishment of the khutbah in the local language.

Without a doubt it is a priority that local scholars should represent the Muslims in their locality by forming a consultative (shurah) council. There is nothing wrong with individually following a scholar or madhab in matters pertaining to your own worship. In order to avoid fitnah and for Muslims to build upon unity, they should follow scholarly councils in major issues which effect Muslims collectively. This way the scholars can discuss amongst themselves the issues facing Muslims and come to an opinion which is in their best interests. That is what was done in the Fiqh Council of the Muslim World League as mentioned earlier. This is the opinion of the Assembly of Muslim Jurists of America, which is a host of notable PhD level scholars who reside or convene in America yearly to discuss issues relating to Muslims in America.

In its Sixth conference held on the 31^st of October 2009 the sixth collective decision in matters of worship was “The original ruling is that the khutbah is in Arabic. If the khateeb wasn’t able to or the audience doesn’t understand Arabic then the khutbah can be delivered in the language the audience understands. That being said, the pillars of the khutbah, the verses of the Qur’an, and the Hadiths should all be in Arabic.”

I hope everyone understands here that I am not attempting to refute Mufti Usmani’s opinion. I am simply passing on the opinion of his peers in this matter in clarifying the majority opinion as well as an attempt to unite the Muslims upon it. The purpose of this research was to make a case for four main issues which are of more benefit (maslahah) to Muslims in the West than the old opinion. They are: to clarify that this is the position of the majority today’s scholars and councils, to make it obligatory upon the non-Arab Muslims to attend a khutbah that they may benefit from, to promote non-Arab spiritual development by not Arabizing matters which aren’t tawqeefi such as general supplication (du`a’) and the khutbah and to make it clear to non-Muslims and new Muslims that our religion is not an emphatically Arabic religion, but a universal religion.

And Allah knows best!

Further References:

http://islamqa.com/ar/ref/112041
http://ibn-jebreen.com/ftawa.php?view=vmasal&subid=1691&parent=786
http://almoslim.net/node/52334
http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503546368

Shaykh ‘Ali was from the great scholars of al-Azhar. He wrote that 11 sciences (‘Uloom) should be mastered by anyone who truly wanted to start on a path towards becoming from the people of knowledge and da’wah (the call to Islam). This curriculum is still taught in al-Azhar (though modified with some short comings and some improvements), forming the basis of my own approach towards learning and teaching.

The 11 Subjects that a Serious Student should Focus on

1. Logic
2. Theology
3. Usul al-Fiqh
4. Fiqh
5. ‘Ilm al-Ma’ani (rhetoric)
6. ‘Ilm al-Bayan (rhetoric)
7. ‘Ilm al-Bad’i (rhetoric)
8. Grammar
9. Morphology
10. Sciences of Qur’an
11. Sciences of Hadith

A Method

Dr. ‘Abdu al-Rahman Hijazi told me, “Many years ago, if a person wanted to enter al-Azhar, he would have to memorize the Qur’an. Then, while in secondary school, he would study one of the basic books in each subject (it was commendable for a young child to memorize one from each subject) in preparation for entering the high school system.

More to Come 

I would encourage serious students to use this as a map to evaluate their studies and progress. Make sure that you master at least one text from each subject, following a path of progression set out for you by a trusted teacher. I plan to write, and record, about this more in the future, mentioning texts, some info about their authors, the authors reason for writing them and some tools that will help master the texts, insha’Allah (if Allah wills).

We ask Allah for tawfiq (good fortune),

Suhaib

Let’s take a practical example in order to demonstrate the truth of this claim. If someone were to open up Sunan Al-Tirmidhi, which is one of the very famous early collections of narrations [Ahӑdith], they might come across the following:

Hannӑd and Mahmud ibn Ghaylӑn informed us that Waki’ informed us on the authority of Sufyӑn on the authority of Abi Qays on the authority of Huzayl ibn Sharhabil on the authority of Al-Mughira ibn Shu’ba who said: “The Prophet ﷺ made ablution [wudu] and wiped over his socks and sandals.” Abu Isa [At-Tirmidhi] said: “This narration is authentic [hasan sahih].”

Whether this was read in Arabic or in English you might conclude from it that you can wipe over your feet when making wudu without having to take off your socks or sandals. You might naturally go even further and consider it ridiculous that anyone could have a doubt about this since it is so clear. The Prophet ﷺ did it and the narration is authentic so we can do it too.

However, a major problem arises when we look into Islamic history. We realize that virtually none of the scholars of Islamic Law came to the same conclusion based upon this narration. This means two things:

1. No scholar worthy of the name opened up a book like Sunan Al-Tirmidhi, read this hadith, and then made a conclusion based upon what he read.
2. No scholar came to the conclusion that anyone can unconditionally wipe over their socks and sandals because the Prophet ﷺ did it and the narration is authentic.

The first point has to do with methodology. The Prophet ﷺ said, “When someone in authority makes ijtihad [decrees a ruling regarding Islamic Law] and is correct then he receives two rewards. However, if he is wrong he only receives one reward.” In Islam, anyone who makes ijtihad and is qualified to do so will be rewarded even if he is wrong.  The important thing is that he used the correct methodology. On the other hand, anyone who undertakes ijtihad without being qualified and knowing the correct methodology will get no reward. In fact, it is feared that he may even be held accountable for doing so. This is demonstrated by an incident where a group of people were asked a question and gave the wrong answer which resulted in the death of the questioner. Later, the Prophet ﷺ was informed about what had happened and he exclaimed in contempt, “They killed him! If they don’t know, why don’t they ask?! Asking is the cure for ignorance.”

The second point has to do with putting history into perspective. If most scholars didn’t come to the same conclusion as the one who read this hadith then it might be concluded that they have never come across this hadith before. Maybe they didn’t have a copy of Sunan Al-Tirmidhi. Maybe they didn’t read the part about it being authentic. This conclusion would result in a very negative view of Islamic history. Now that we use the printing press, books like Imam Tirmidhi’s can be printed and distributed for everyone to read in order to supposedly correct the mistakes of all of those scholars of the past.

Let us look at the issue in detail in order to clear up these misconceptions. First, we will look at the authenticity of the narration and then we will take up what it implies.

Authenticating a Narration

After the death of the Prophet ﷺ, Muslim scholars came up with the most rigorous and ingenious method of authenticating history ever known. This was in order to properly preserve the statements of the Prophet of Islam ﷺ.

The casual reader might notice that Abu Isa Al-Tirmidhi graded the narration in question as authentic. However, we must also see what other scholars had to say about the same narration since Al-Tirmidhi is not the only authority in the field of hadith criticism.

Imam Abu Daud said, “Abdur Rahman ibn Mahdi used to refrain from narrating this hadith because it is well known that Mughira reported that the Prophet ﷺ wiped over his leather socks [khuffayn].” One of the most knowledgeable early hadith scholars of his time, Imam ibn Mahdi, was very well aware of this hadith, and had it memorized as well, but refused to narrate it to others because he considered it to be unauthentic. The vast majority of scholars agreed with him, among them: Sufyan Al-Thawri, Yahya ibn Ma’in, Ali ibn Al-Madini, Bukhari, Muslim, Abu Daud, Ahmad ibn Hambal, Al-Nasai, Al-Bayhaqi, Al-Nawawi, Ibn Hajar, and Ibn Al-Qaiyyim.

The question might arise then, on what basis did scholars like Al-Tirmidhi and Ibn Hibban as well as contemporary scholars like Al-Albani authenticate this hadith? In order to understand this phenomenon we must first understand that there are five tests that a hadith must go through before being declared authentic:

1. Ittisal – The chain of narration must be uninterrupted. For example, assume Imam Al-Bukhari is relating a statement of the Prophet ﷺ and there are three people between him and the Prophet ﷺ (i.e. I heard from X who heard from Y who heard from Z who heard the Prophet ﷺ say…). If Imam Bukhari happened to mention in his book person Y by his nickname which was unknown to other people then this hadith would automatically be deemed unauthentic because person Y would be considered as missing from the chain of narrators since we are unable to find out anything about him.
2. Adl – All of the narrators must be upright. This means that they must be good Muslims, honest, have good behavior [akhlaq], etc.
3. Dabt – All of the narrators must be precise. This means that they only narrate after knowing the general context and implication of the narration and are familiar with the various wording that was used.
4. Shudhudh – The narration should not contradict another narration about the same incident which is established. The narration in Sunan Al-Tirmidhi about wiping over socks suffers from this defect as will be shown.
5. Illa – The narration should be free from any other major defect that is usually found after researching all the narrations on the same topic.

Once we understand these principles we begin to understand why ibn Mahdi refused to narrate this hadith. He realized that Al-Mughira ibn Shu’ba saw the Prophet ﷺ wiping over his leather socks [khuffayn] and that this is established by several authentic narrations. However, the narrators Abu Qays and Huzayl made a mistake by narrating that Al-Mughira said “socks” [jawrabayn] instead of “leather socks” [khuffayn]. Since the difference between the two words makes a very significant difference, the narration of Abu Qays and Huzayl have been declared unacceptable.

The Implication of a Statement

Let us assume that the hadith in question is indeed authentic. Is the assumption that “anyone can wipe over their socks and sandals because the Prophet ﷺ did it” correct?

If we look at what the scholars had to say on the subject, we will not find even one that unconditionally allowed wiping over the unqualified term “socks.” Rather, they stipulated certain conditions which must be met and defined what types of socks are allowed to be wiped over.

Every scholar began by looking at the Qur’an, since that is the undisputed word of God. What does it have to say about this subject? “O you who believe, when you stand for prayer wash your faces, your arms up to the elbows, wipe a part of your heads, and wash your feet up to the ankles.” (5:6) This verse clearly states that you mush wash your feet up to the ankles when performing ablution. However, the Qur’an also says, “Take whatever the Messenger gives you and refrain from whatever he forbids you. (59:7)” Therefore, if it can be established that the Messenger ﷺ taught his followers any exception to the rule then it may be taken as a concession.

The scholar then looked at all of the narrations on the same topic. Imam Abu Hanifa’s statement clarifies this important principle, “I did not pass a judgment about wiping over socks until the overwhelming narrations proving its validity became manifest to me like daylight.” What he meant was that he did not consider wiping to be an established exception to the rule until he collected several authentic reports. His reasoning was this:

• the Qur’an is the word of God and its authenticity is undisputed;
• any single narration, even after passing the five tests of authentication, still has a possibility of being wrong due to the human element of the narration;
• no report should be allowed to be used as an exception to the rule until its authenticity is such that it leaves no room for any reasonable doubt.

After it became clear to him that several of the Companions of the Prophet ﷺ had narrated regarding wiping over socks he went further and said, “I fear that whoever denies wiping over socks has almost left Islam because the narrations regarding it have almost reached the level of tawatur.” Ibn Hajar verifies this by saying, “The experts of hadith have confirmed that the narrations which establish the permissibility of wiping over socks have reached the status of tawatur.”

After checking all of the narrations on the topic the scholar noticed the following:

• The Prophet ﷺ was not only seen wiping over his socks but he also instructed some of his companions to do so as well;
• He set a time limit as to how long anyone may wipe over their socks before having to take them off;
• He set a prerequisite that they must be worn in a state of purity before they may be wiped over;
• He wiped over the top of the sock rather than the bottom.

None of the preceding points apply to the narration of Abu Qays and Huzayl mentioned by Al-Tirmidhi and all of the narrations are unanimous that the socks mentioned were khuffayn and not jawrabayn.

The purpose of this discussion was not to deny that wiping is only restricted to leather socks (it is definitely not) but rather to correct the false assumption that reading a single verse or a single narration can qualify as evidence for a ruling on any issue. From this example, we should learn the following lessons:

• Some texts of the Qur’an and the Prophetic narrations require more than just a casual reading in order to understand their context and true import.
• No one should assume that they have fully understood any Qur’anic verse or Prophetic statement and then make judgment upon others unless they are familiar with all of the evidence on the topic.
• To properly understand Islam one should study on an issue by issue basis rather than a text by text basis.
• Sincerity, without knowledge, does not justify ignorance.

Does this mean that we should not read the Qur’an or hadith? Absolutely not. In fact, this should be an encouragement to read even more. The more knowledge you acquire the more things will begin to fit into place. One of the beautiful things about Islam is that there are no Divinely appointed clergy or priests. Anyone can study, increase in knowledge, and understand the Qur’an and Sunnah for themselves. If you only read this article with the hope of knowing whether or not you can wipe over the socks that you are wearing then go ask your local scholar rather than reading a collection of hadith. If that idea bothers you, then set out on the path of knowledge, the Muslim community is in need of more knowledgeable people.

A Declaration by al-Majma` al-Fiqhi, Mecca
Annual Convention

Background

All praises are due to Allah alone.  Peace and blessings be on the one after whom there will be no prophet – our master and prophet, Muhammad, may God bless him, his family, and his companions and grant them peace.

To proceed, the Majlis al-Majma` al-Fiqhi al-Islami [Assembly of Islamic Jurisprudence] analyzed the following issues during its 10^th annual convention, held in the honorable city of Mecca, from Saturday, 24^th of Safar, 1408 A.H., 17^th of October, 1987 C.E. until Wednesday, 28^th of Safar, 1408 A.H., 21^st of October, 1987 C.E.:

–          differences in opinion amongst the orthodox schools of jurisprudence; and
–          extreme and hateful fanaticism shown by some of the followers of these schools, which often leads to the vilification of other schools and their scholars.

Furthermore, the Assembly examined the problem found in the minds of many people today, whose perceptions regarding these differences are based on ignorance of their foundations and meaning.  As a result, the misguiding forces cast doubt in their hearts by whispering to them, “Why should we have these differences among the schools when there is one body of Islamic Law and one set of principles extracted from the Glorious Qur’an and the established Sunnah (tradition) of the Prophet ﷺ?  Why not unite them into one so that Muslims have a single school of thought and a uniform understanding with regards to all legal rulings?”

The Assembly also examined the issue of fanaticism based in the juristic schools and the problems that arise with it, especially among the followers of new, contemporary trends, whose proponents call towards a new brand of ijtihad (scholarly interpretation) and vilify the established schools that have been widely accepted by the Muslim community from the earliest Islamic era.  They wrongfully vilify all, or some, of their imams (leaders) and create discord between people.

After discussing this issue, along with its surrounding facts, circumstances, and consequences (such as misguidance and communal discord), the Assembly has decided to release the following statement to warn and instruct both the misguiding forces and the fanatics.

Declaration

First, with regards to difference among scholars –

Scholarly differences that are found in the Muslim world are of two types:

1. theological differences; and
2. juristic differences.

The first type is, in fact, a calamity that has led to numerous disasters in the Muslim world.  It has split the ranks of Muslims and created discord between them, which is terribly unfortunate.  These theological differences must not exist.  Instead, the Muslim community must unite upon the theology of Ahl as-sunnah wa al-jama`ah (people of the tradition of Muhmmad ﷺ and the community), which represents the pure and sound Islamic thought that existed at the time of the God’s Messenger ﷺ and the Rightly Guided Caliphate, which was declared by the Prophet ﷺ to be an extension of his own Sunnah, for he said, “I command you to adhere to my sunnah, and the sunnah of the rightly guided caliphs after me.  Hold fast to it and grab it with your molar teeth.”

The second type, which consists of those differences that exist among the juristic schools over some issues, is caused by academic reasons, and there is great divine wisdom behind their existence. These differences are a form of God’s mercy for His servants, and they serve to expand the methods by which rulings may be derived from the sacred texts.  Furthermore, these differences are a blessing and a juristic treasure, providing room for the Muslim community in its religious and legal affairs such that it is not restricted to a single opinion when faced with a particular legal issue without any alternatives.  Instead, if at any time or for any issue, the opinion of a particular imam becomes difficult for the Muslim community to follow, it is able to find relief, leniency, and ease in another opinion, according to (its own) legal evidences.  There is no difference in this regard between matters of worship, commerce, family, justice, or crime.

This second type of difference in opinion, i.e. juristic differences, does not represent a deficiency in our religion, nor does it diminish anything from it.  These differences are inevitable!  In fact, there is not a single community that has a complete legal system based on fiqh (jurisprudence) and ijtihad that is free from juristic and scholarly disagreements.

In reality, this type of difference in opinion is inevitable because the sacred texts are often open to more than one interpretation.  Additionally, it is impossible for the sacred texts to be inclusive of all possible situations.  The reason for this, as indicated by some scholars (may God have mercy on them), is that the sacred texts are finite in their quantity, while there is no limit to the types of situations (that may occur).  Therefore, it becomes inevitable (for the jurist) to resort to qiyas (analogical reasoning) and to analyze the operative causes behind various rulings, the intent of the Lawgiver, and the general objectives of Islamic Law, and then to apply them to new cases and situations.  This is where differences arise, due to the understanding of scholars, and what they see preponderant among various possibilities.  As a result, they reach different conclusions regarding the same issue.  All of them seek and aim for the truth, but the one who reaches the right conclusion gets two rewards (from God), while the one who is mistaken gets a single reward.  This is what creates room and removes hardship!

What is deficient about the existence of such scholarly differences, whose virtue and mercy we have clarified?  In fact, they are a blessing and a mercy from God for his faithful servants.  At the same time, they constitute a tremendous juristic treasure, so unique that it behooves the Muslim community to be proud of it.  Yet, the misguiding forces in foreign countries take advantage of the ignorance of some young Muslims, especially those who are studying there.  They distort the image of this juristic disagreement as if it was theological disagreement, thereby claiming that there is inconsistency within Islamic Law.  They fail to realize the difference between the two types of disagreements.  Indeed, there is a huge difference between the two!

Secondly, regarding those who call for a moratorium of the juristic schools of thought, wishing to convert everyone to their new brand of ijtihad, and vilifying all, or some, of the existing juristic schools and their imams – the foregoing discussion regarding the virtues of these juristic schools and their imams should be sufficient for them to restrain themselves from this hateful methodology that they pursue as a means to misguide people, disunite them, and split their ranks.  In these times, when we are faced with incredible challenges from the enemies of Islam, we are in dire need for unity among our ranks, not this divisive call.

May God bless our master Muhammad, his family, and his companions, and grant them abundant peace.  All praises are due to God, the Lord of the worlds.

Signatories:

President:
Abdul Aziz b. Abdullah b. Baz

Vice President:
Dr. Abdullah Umar Nasif

Members:
Abdullah b. Abdul Rahman al-Bassam
Dr. Bakr Abdullah Abu Zayd
Muhammad b. Jubayr
Mustafa Ahmad al-Zarqa
Muhammad b. Abdullah b. Sabbil
Salih b. Fawzan al-Fawzan
Muhammad Rashid Raghib Qabbani
Abu al-Hasan al-Nadwi
Muhammad Mahmud al-Sawwaf
Dr. Ahmad Fahm Abu Sunnah
Abu Bakr Jawmi
Muhammad al-Shadhili al-Nayfar
Muhammad Salim b. Abdul Wadud
Muhammad al-Habib b. al-Khawja

Correspondant:
Dr. Talal Umar Bafaqih

When Can A Mufti Refuse to Answer a Question?

1. The Situation Being Asked About Does Not Exist.

Often times, the questioner (mustafti), will approach the scholar and ask him a question involving a scenario which has not yet happened. Sometimes the question may make assumptions which can result in changes to the situation that would affect the legal outcome in ways that are as of yet unforeseen. Other times, it can simply be a ridiculous question not worthy of the time and effort of the legal scholar due to its non-reality, or low likelihood of becoming a reality.

Examples of such questions are:

“If we find out that there are aliens on other planets, do we need to give them da’wah to Islam?”

“If there was water on Mars, but the color of the water was slightly tainted, but I didn’t know what it was, and if we had drinking water but had to conserve it, should I make tayyammum or use the Mars water after a water filter?”

And so on.

Though we find that the Hanafi ‘ulama who, in contrast to the Maliki scholars, did not shy away from answering theoretical questions in order to ensure that future situations could be dealt with in case they arose, this is still a valid reason why a Mufti could simply refuse to answer a question.

Theoretical questions can often arise from the inquisitive mind which seeks to understand the deen and provide solutions for people, but can also arise when a person has become so involved in academia and issues of knowledge, that the focus on action, practicality, and implementation of knowledge has taken a backseat.

As questioners, we should be wary not to burden a scholar with a question which has no bearing on practical reality, and might be a waste of time and energy. Furthermore, it is always a good check for ourselves to identify what kinds of questions we intend to ask our teachers. Are they questions that are simply “intellectual gymnastics”? Are they questions to which we already know the answers? Knowing the nature of our own questions will help us stay away from frivolous intellectual pursuits, and from asking unproductive questions to the scholars.

2. The Questioner Seeks to Follow His Desires or Cause Confusion (Amongst the People)

In situations in which the scholar feels that the questioner is “Fatwa Shopping,” or that he/she is asking questions in order to bring about debate or argumentation of sensitive issues within the community, the scholar can also refuse to answer or respond to a question.

What is “fatwa shopping”? Well, Islamic Law is primarily studied around the four established schools (Hanafi, Maliki, Shafi’i, and Hanbali). Students of knowledge who have studied under teachers who are experts in the process of extracting Law from the Texts can in certain circumstances, venture between the schools for particular acts based on their understanding of the fundamentals and methods of Islamic Law and the source texts.

The advice often given to the layman and novice students is to stick to a trustworthy source of knowledge when seeking advice or legal opinions. Often times however, due to the availability of various opinions, instead of aiming to seek the most reliable opinion, a person may try to ask every scholar available, waiting until he/she finds the most lenient scholar who might give the easiest possible answer.

The aim of the person is not to find the opinion that is the most reliable or the most in line with what the Prophet (ﷺ) might have responded. The aim becomes to play battleship with the issue, until he/she hears a yes. Although Islamic Law aims to bring about ease for people in general, as stated by Ibn al-Qayyim, the intention here is to seek permissibility, not to seek the truth. If the scholar recognizes such a situation or has reason to believe that such intention exists, he may decide to refuse to answer a question.

A second related reason is when a person may ask a question in a gathering aiming to bring about a controversial answer that in a particular gathering, which may lead to debate or argumentation. For example, knowing that there is a diverse crowd from different theological schools within Ahl as-Sunnah or from different orientations in a group, a person may ask specific pointed questions aiming to bring about debate, about `aqeedah, minutiae of fiqh which may confuse the audience, or other subjects.  Especially when the topic of the lecture, gathering, or class may be about something entirely unrelated, such a question may be put aside for personal discussion in order to prevent harm or inappropriate debate in a public forum.

3. It Will Lead to Greater Harm

If anwsering a question may lead to greater harm, the Mufti may refuse to answer the question or give a fatwa. Situations may exist that are related to politics (war, defense, political participation), family issues (divorce, abortion, rape), or financial matters, in which, if the Mufti were to answer with a public fatwa that is meant for the consumption of a large group of people or community, it may lead to conflict, family separation, or extreme financial hardship for the one affected.

This scenario is different from Reasons 1 and 2 in that Islamic Law inherently possesses a mechanism to try and bring about ease and a practical resolution of difficult political, family, and financial matters. However, it may be that a Mufti’s personal legal opinion may lean towards a stricter opinion that would bring about extreme hardship or even a person’s leaving Islam. In this case, he may refuse to answer the question and pass it on to another scholar who may be able to provide a solution to such a situation.

Part III (next time): What are the Requirements for the One Asking the Question?

*This last sentence is not the issue of this article, but I felt the need to mention it as it pertains to this article. Insha’Allah we will go into detail on this in the near future.

On the other hand, there are many Muslims who have become big sources of turmoil to the Muslim world as a result of their fanatical obedience to their school of thought. They judge or discredit others and even deny many established, well-founded opinions that are clearly based in our scripture and the rich tradition of law that stems from it.

There is a difference between a common Muslim (مسلم) and a true believer (mu’min مؤمن). A true believer is not just trying to get by with the basic rules of law. He or she is trying to grow in knowledge, sincerity, and devotion. From the perfection of sincerity to Allah, is that a Muslim dedicates his or herself to knowing the truth, especially when it is related to our religion. In order to do this, one must free himself or herself from blindly following their school of thought without question or research. Many believers mistakenly follow people to the point where they believe that whatever they know from their teacher or madhab is the ultimate truth which must be followed despite any other opinion. They often do this unaware of the basis of the opinion they follow or the other opinions/texts that exist on the subject.

The first thing that a sincere believer should do while seeking knowledge is to be free from blindly following opinions to the extent that they disregard other opinions. We have to be willing to entertain the idea that maybe there is a better or more correct opinion on the subject.  We have to be neutral, seeking only to follow Allah and His messenger ﷺ as represented by our scripture to the best of our ability. There are some who are attached by birth or other association to a scholar or school of thought and see that the whole of Islam is what they say and anyone who disagrees is wrong. In many cases, people reject opinions that don’t agree with what they follow, while in other cases they reject an opinion they haven’t heard before. This fanaticism and partisanship is a sign of ignorance and/or conceit contrary to the tradition of sincerity and dedication to seeking the truth.

May the pleasure of Allah be upon Imam al-Shafi’i who said, “By Allah, it doesn’t matter to me if the truth is found on my tongue or my opposition in a fiqh (Islamic jurisprudence) debate.” In another statement he said, “My opinion is generally correct yet it is possible that I am mistaken; while my opposition’s opinion is generally mistaken, yet it is possible that he could be right.” What was important to Imam al-Shafi’i is that the truth be heard one way or another. He recognizes that no one is infallible except the prophets (peace be upon them). His teacher Imam Malik, with whom he often differed, said when people leaned toward this fanaticism in the Prophet’s ﷺ mosque, “You can follow or reject the statement of anyone except the man in this grave (as he pointed to the Prophet’s ﷺ grave).” This is the spirit of the sincere believer with regards to knowledge of his religion.

Imam Hasan al-Banna said, with deep Qur’anic insight blessed by Allah, “It is an obligation upon every Muslim who doesn’t have the training in textual analysis to follow a scholar from those Imams who have been trained in Islamic jurisprudence. That being said, it is most desirable for the Muslim layman to strive to the best of his or her ability to know and understand the textual proofs by which he worships. All Muslims should accept all guidance which is based in the Qur’an and Sunnah as long as they trust the knowledge of the one who is advising them. Muslims should all be seeking to increase their level of knowledge.”¹

Imam al-Banna was attempting to bring back the spirituality that Muslims have lost. The majority of Muslims are being taught to follow people rather than nurturing a relationship with our religious texts which were meant for all of us. It got so bad that for centuries even trained scholars were taught that exerting their abilities (ijtihad اجتهاد) in challenging their teachers is somehow blameworthy or not traditional. The fact of the matter is that we have four schools of thought and many internal differences within them because of the richness of our texts and the scholarly tradition that was applied to them by the early generations.

Some are taught, or should I say oppressed, in many parts of the Muslim world, to believe that the contents of this article are misleading and that we must all follow our school of thought or local scholar without exception and it is not our responsibility nor is it our duty to follow Islam according to the Qur’an and Sunnah. So let’s see what Allah has to say about this dispute.

“O you who have believed, obey Allah, obey His Messenger ﷺ and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger ﷺ, if you should believe in Allah and the Last Day. That is the best [way] and best in results.” (Qur’an, 4:59)

Let’s take the first part of this verse: “O you who have believed, obey Allah and obey the Messenger.” First of all, we should notice that in this verse and in many other places Allah calls out to all believers to obey Him and His messenger. This can only be done by all Muslims, scholars and laymen, learning the ayahs (verses) and hadiths (reports of the sayings and actions of the Prophet Muhammad ﷺ) from the Qur’an and Sunnah. Nowhere in the Qur’an does Allah call out to “the knowledgeable” or “the scholars” and tell them to obey Allah and the messenger. The next part of the ayah is quite clear in support of this article’s contention. It says “and those in authority among you.” It doesn’t say “and obey those in authority among you.” Our scholars of tafsir (the science of interpretation and contextualization of the Qu’ran) comment on the reason Allah said, “obey Allah and obey the Messenger,” yet did not precede “those in authority among you” with the command to obey. The majority of them say that “those in authority among us” refers to the scholars of Islamic Law and that we must only obey them if they are in accordance with the obedience of Allah and His messenger ﷺ, i.e. the Qur’an and Sunnah.

I pray Allah guide His nation of believers to the knowledge and understanding of His message through the revelation He revealed and preserved for us.

Thus, a brief look at what is being said in the two primary sources, namely the Qur’ān and Hadīth (record of the sayings and actions of the Prophet ﷺ) does not seem to correlate with what one actually experiences. However, the believer knows that the primary sources are divine, and hence cannot be providing false or inaccurate information. How then do we reconcile this apparent contradiction? The answer lies in an analysis of our actions and the demands placed upon us by Allāh (swt).

Actions are generally divided into two main categories:

1) The Impossible

There is a general consensus amongst ahl al-sunna wa al-jamā’a that a person is not obliged by Allāh (swt) to do something that is impossible. Though there are apparent differences between some of the scholars of usūl, this seems to be mostly theoretical, if not very much a difference in semantics.

2) The Possible

As stated, it is confirmed that Allāh (swt) does not oblige humans with something not within their capability. This then leaves the domain of all those actions which are possible. Yet all the possible actions are not of the same level―they are differentiated¹ based upon how difficult they are.

(i) The Abnormally difficult (المشقة غير المعتاد)

There are actions a person isn’t able to do except without undergoing undue difficulty. These actions are annexed with the impossible, and Allāh (swt) does not oblige human beings with such actions, solely out of His Mercy. There are many textual and rational proofs for this.² It is this type of difficulty which is referred to in all verses and ahādith that mention the negation of “all difficulty” within the religion. Thus this highlights how a lay reading of legal texts or legal aspects of texts can result in confusing conclusions. So actions such as waking up in the morning to pray fajr (the prayer before sunrise), or avoiding clear-cut agreed-upon prohibitions, are not considered to be from this category, and hence are not negated by all such verses and ahādith, since the fact that they are demanded

(1) in a clear-cut manner, whether requiring the omission or commission of an action,
(2) without it being restricted upon time and place,

assumes that it is  within the capability of the average person. Instead they are considered to be from the next category.

(ii) The Regular Actions with some Added Difficulty (المشقة الزائدة عن المعتاد)

It is true that Allāh (swt) demands from us that which results in some difficulty; however, such difficulty is not given any legal weight. For example, finding a good means of living is difficult. The ability to perform such actions is not deterred by the difficulty that accompanies them, and upright people normally consider a person who refuses to perform such actions as lazy. Thus there is fear of continuously highlighting the fact that Allāh (swt) “has not placed upon you in the religion any difficulty,” as it can lead to misunderstanding such statements and encouraging Muslims to be people of weak resolve. Indeed the very nature of responsibility is that it is difficult, hence as people mature, their responsibilities increase and life seems to become more difficult, yet all this is still within the norm.

Differentiating between the Regular and the Abnormal

What then distinguishes the regular action from an action demanding an unusual amount of difficulty? According to Imām al-Shātibi (r), if the continuous performance of an action leads to an unusual amount of difficulty or harm, such that the person is severely de-motivated from performing it, or it harms the health of the one who performs it or his wealth, then this is an indication that such an action is from “The Abnormal Actions.”   If it does not lead to such a result, then even though one may endure some difficulty in performing such actions, nonetheless it is within one’s capability.

Our Attitude Towards Difficulty and Ease

So now that we have established that not all difficulty is removed in the shari`a, how do we understand this difficulty? It is important to understand that the entire shari`a is for the benefit of the creation. Some have said that it is also to avert harm, but in reality, the aversion of harm is securing a benefit. Thus, if our Lord (swt) has legislated for us something we find difficult, it is not for the sake of difficulty, but for the benefits, worldly or other-worldly, that will accrue from that action. However as the world has been created upon some basic ‘laws of nature’, acquiring such benefits results in some difficulty as a by-product. Nevertheless, the gain surpasses by far the difficulty.  This means that the intention of the Most Merciful (swt) is not to cause us hardship, but to secure benefit for us. Therefore our attitude should reflect this, and we should not go seeking difficulty deliberately.

Intending Difficult Actions, not Difficulty Itself

One should not go searching for difficulty in order to increase one’s reward, even though difficulty endured in the process of fulfilling a good deed increases the reward. For example, jihād (struggle in the way of Allah) is better than nafl (optional) prayers, as jihād involves more difficulty; however, it would be incorrect to explicitly intend to undertake jihād just to endure difficulty, since the Creator legislated jihād for accruing  benefits, not for the sake of placing hardship upon us, and any intention that contradicts the intention of the Almighty is null and void. For example, the Hadīth of the Prophet (saw): “A Muslim is not afflicted by hardship, sickness, sadness, worry, harm, or depression—even if pricked by a thorn—but Allah expiates his sins because of that.”³

Even though this is so, it does not imply that we actively seek to be pricked by a thorn. As Imām al-Shātibi eloquently said:

“It is not for the legally mature person (mukallaf) that he should seek difficulty per se in order to increase the reward of the action, but he should intend the action that is more rewarding on account of it being difficult.”⁴ It is on this basis that the Prophet (saw) ordered a person who vowed to fast standing under the sun⁵ to find shade and sit, but also complete his fast. Imām Mālik commented on this, saying the Prophet (saw) prohibited him from what was disobedience (ma’siya) and ordered him to complete what was obedience (ta’a). What this also means is that though difficulty is not to be sought, it is one of the criterion for making an action weightier.

A Good Indication of When to Seek a Legal License (Rukhsa)

The above should be a means of knowing when one should consult a mufti (a scholar qualified to issue legal rulings) regarding an action which one is finding difficult. If something is generally obligatory, yet one is experiencing nearly unbearable difficulty, so much so as to be discouraged from fulfilling the obligation, then perhaps the situation has entered the realm of “the Abnormal” and hence a good competent mufti should be consulted.

Conclusion

This world is a place of labour and of work, and striving and difficulty seem to be a vital part of it. To deny this completely is to display ignorance of the subtleties of the magnificent shari`a, and to over-emphasize this aspect and insist on it is to miss the whole point. We are, after all, “a balanced nation”⁶ and our behaviour and attitude should reflect this.